New York Planning Federation

TABLE OF CONTENTS

ORANGETOWN'S IMPROPER PERMIT REVOCATION TO COST TOWN $5.1 MILLION IN DAMAGES *

INTRODUCTION *

Statutory Authority to Adopt Zoning and Land Use Regulations: *

PURPOSE *

FORMAT OF THE ZONING LAW *

GENERAL OUTLINE OF A TYPICAL ZONING CHAPTER *

POWER TO ENACT A ZONING LAW *

LEGAL CHALLENGES *

LOCAL BOARDS AND PROCEDURES *

AMENDING THE ZONING LAW *

REGULATIONS AND APPROVALS *

PROCEDURE *

REFERENCES *

QUIZ *

ORANGETOWN'S IMPROPER PERMIT REVOCATION TO COST TOWN $5.1 MILLION IN DAMAGES

    Revocation of building permit and amendment to Zoning Code. The town brought an action to compel a developer to remove a temporary building, after developer’s building permit to construct industrial building was revoked by town’s building inspector.

INTRODUCTION

The local zoning law regulates the use of property according to land use districts and establishes building restrictions limiting the height, lot area coverage, and other dimensions of structures that are permitted to be built within each district. Each "zone" or district will have a set of restrictions designed to accomplish any number of goals including, the separation of conflicting uses, facilitating fire fighting, or creating livable arrangements of space. The use and dimensional restrictions will ensure that development conforms to standards that accomplish the legislature's goals.

Statutory Authority to Adopt Zoning and Land Use Regulations:

Village Law § 7-700, Town Law § 261, and General City Law § 20(24) grant basic land use authority to local governments and allow them to regulate the details of land development and building construction and alteration. This may be done for "the purpose of promoting the health, safety, morals or the general welfare of the community."

Village Law § 7-702, Town Law § 262, and General City Law § 20(25) authorize local governments to divide the community into zoning districts and to regulate the use, construction, and alteration of buildings and land within those districts. Village Law § 7-704, Town Law § 263, and General City Law § 20(24) & (25) provide that zoning and land use regulations must be in conformance with the locality's comprehensive plan. The purposes that such zoning regulations are to achieve are to lessen congestion, secure safety from fire and flood, prevent overcrowding, facilitate the provision of infrastructure, and to encourage "the most appropriate use of land throughout such municipality." Section 10(1)(ii)(a)(11) of the Municipal Home Rule Law states that a municipality may adopt local laws for the "protection and enhancement of its physical and visual environment." Section 10(1)(ii)(a)(14) of the Municipal Home Rule Law states that a municipality may adopt local laws as provided in the Statute of Local Governments. Section 10(6) of the Statute of Local Governments authorizes cities, towns, and villages to adopt zoning regulations.

Notes:

The term zoning law is used in these tutorials to refer to the zoning provisions of the municipal code, whether they are adopted formally by local law or local ordinance. Villages are not authorized by state law to adopt ordinances so, technically, there is no such thing as a village zoning ordinance, cities and towns may adopt their zoning provisions either by law or ordinance. The zoning law or chapter of the municipal code will provide for the administration of zoning matters. Spelling out, for example, the duties of the zoning board of appeals and planning board. It will also contain provisions for the approval of development projects that require special use permits. The zoning chapter may or may not contain the locality's subdivision and site plan regulations, which some communities choose to place in separate laws or chapters of their municipal code. This tutorial discusses zoning, special permits, and subdivision and site plan regulation as the basic components of local land use regulation. Where subdivision and site plan regulations are contained in separate code chapters they are not technically "zoning" provisions.

The local legislature is empowered to regulate the erection, alteration, and use of buildings and improvements for each district it creates. Within districts "all such regulations shall be uniform for each class or kind of buildings throughout. The regulations in one district may differ from those in other districts." Although single-family homes in different districts can have different use and dimensional requirements, two single-family homes located in the same district must be governed by the same restrictions. Regulations can restrict the height and size of buildings, the percentage of building lots that may be occupied, the provision of open space, the density of population, and the location and use of buildings for trade, industry, residence, or other purposes.

At the time that the local legislature adopts a zoning law, it approves a zoning map. On this map the zoning district lines are overlaid on a street map of the community. This map divides the community into districts. Each district will carry a designation that refers to the zoning law's regulations for that district. By referring to this map, it is possible to identify the use district within which any parcel of land is located. Then, by referring to the text of the zoning law, it is possible to discover the uses that are permitted within that district and the dimensional restrictions that apply to building on that land.

The zoning map, implemented through the text of the law, constitutes a blueprint for the development of the community over time. It is a tool for fulfilling the vision or plan for the community's future.  

 The image below is taken from the zoning map from the Town of Goshen. If a landowner with property wanted to know if he could build a single-family home [on the corner of the Owens Road and Cheechunk Road], he should first look at the zoning map. You can see below that his property is in the "AR-1" district, the map tells us is an "Agricultural-Residential" zone. The next step is to refer to the section in the text of the Goshen zoning code for that district. There, he will find several numbered sections listing permitted uses, conditional uses, and accessory uses for the "AR-1" zone.

The landowner may build the house because it is listed among the uses permitted by the code. There he will find dimensional requirements. The regulations state that the single-family house is "not to exceed one dwelling on each lot." The Goshen zoning regulations, which form a chapter of their municipal code, are organized so that both use and dimensional requirements for each district are found in the same article or section of the zoning chapter. Depending on how the code is organized, the above procedure may vary. One common method of organization is to put use and dimensional requirements in their own, separate sections. In that case, the use restrictions will be found in an article or section addressing permitted and prohibited uses. Another article, commonly titled "bulk and area requirements" contains all the dimensional restrictions that apply in each district. Both sections must be consulted to find out how the property is regulated.

Finally, there may be restrictions that apply to all districts, or special regulations to which the landowner must conform. These are found in their respective sections. In determining the zoning restrictions of a property, the entire set of local laws and regulations should be scanned for all possible regulations. This is the same process that a zoning enforcement officer or a code enforcement officer will use to identify standards for approving or denying a landowner's application.

PURPOSE

When originally conceived, zoning was designed to protect private investment in land, development in cities from unpredictable nearby land uses, and the public from the perils of fire, unsanitary conditions, unsafe buildings, and uncontrolled traffic. With migrating urban populations, suburbanization, and exurban development came additional challenges for zoning to confront such as revitalizing cities, managing suburban growth, protecting threatened natural resources, and preventing visual blight, and the loss of farmland in the countryside.

Zoning responded to these challenges as courts approved the use of innovative provisions to protect visual qualities, conserve environmentally constrained lands, and maintain cultural and historic assets. The statutes make it clear that one of the principal purposes of zoning is to encourage "the most appropriate use of land." The courts have supported municipal invention and creativity in adopting zoning provisions designed to accomplish that objective in diverse municipal settings during rapidly changing times. The hallmark of zoning in New York is its adaptability to local circumstance and its ability to accomplish legitimate public objectives defined by local citizens and their elected leaders.

In the first half of this century, zoning was challenged as an unwarranted infringement of property rights. The courts, however, singled out two purposes as particularly appropriate reasons to uphold zoning. First, zoning prevents landowners from using their properties in ways that are injurious to the community. Second, zoning is an appropriate method of creating a balanced and efficient pattern of land development and avoiding the multiple perils of haphazard growth. Comprehensive zoning was first upheld by the Supreme Court in 1926 in the case of Ambler Realty Co. v. Euclid and is sometimes referred to as "Euclidean zoning."

In Berman v. Parker (1954), the United States Supreme Court stated that the police power, on which local land use regulation rests, is for the protection of the public welfare, which is broad and inclusive. "The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."

The state statutes make it clear that zoning regulations are to be adopted in accordance with a comprehensive plan. The purposes of these regulations are to accomplish a number of specific objectives including: conserving the value of buildings; encouraging the appropriate use of land; maintaining the character of zoning districts; facilitating the provision of transportation, water systems, sewage treatment, schools and parks; lessening traffic congestion; preventing overcrowding; providing adequate light and air; and containing damage from fires, floods, and other dangers.

Village Law § 7-704, Town Law § 263, and General City Law §§20(24) & (25) articulate the purposes that land use regulations are to accomplish.

FORMAT OF THE ZONING LAW

There is no required format for a zoning law in New York State. As a result, local codes are organized in a variety of ways and range from relatively simple to extremely complex. Most zoning laws contain several articles covering many basic topics.  

GENERAL OUTLINE OF A TYPICAL ZONING CHAPTER

Article	Explanation
I. Title and Purpose	This section identifies the title of the chapter within the municipal code and sets out the intent, purpose, scope, and general policies of the legislature in enacting the laws found within this chapter. This section may also identify the state authority under which the legislature enacts the chapter.
II. Definitions	This section lists and defines the specific words and phrases of substantial importance that are used throughout the zoning chapter. This article may also explain that words and terms used in the present tense include the future, that the singular includes the plural and vice versa, that "shall" is mandatory, and address other issues of word usage.
III. General Regulations	This section contains regulations that are applicable to all districts including such topics as the application of regulations to irregularly shaped lots, general height regulations, standards for minimum lot area per principal dwelling unit, prohibited uses of yards, frontage and driveway requirements, roof structures, and easements.
IV. Use Regulations	This section of the zoning law lists the types of uses permitted in particular districts. In many cases, the zoning law is accompanied by a schedule or table of uses that summarizes the uses permitted in a residential district as single family homes, multi-family dwellings, and accessory uses. Typical permitted uses in a business district include retail stores, banks, barbershops, governmental offices, and theaters. These restrictions are sometimes summarized in a use schedule or chart at the end of the chapter.
V. Dimensional Requirements	Dimensional restrictions control the size and placement of structures on the land. These restrictions ensure that buildings are appropriate in size, remain sufficiently set back from streets and lot lines, and leave adequate open space.
VI. Special Use Permits	Special regulations can be adopted by the local legislature to supplement the district regulations. For example, the local zoning law can provide for religious institutions, educational facilities, or day care centers to be permitted in designated zoning districts upon the issuance of a special permit.
VII. Site Plan Regulations	Site plan regulations set forth the standards applicable to the development of certain types of individual parcels. These regulations may be contained in the zoning chapter or their own chapter of the code.
VIII. Subdivision Regulations	Regulation of the division of land into parcels may be found in the zoning chapter. Local legislatures sometimes enact subdivision regulations as their own chapter in the municipal code.
IX. Nonconforming Uses	When a zoning law is enacted, existing structures and uses sometimes do not conform to the new regulations. By referring to this section, landowners can find out how their nonconforming properties and structures are to be treated.
X. Administration	This section contains the procedures for administering the zoning law, the role of the zoning enforcement officer or building inspector, and the delegation of review power to local boards including the mandatory authority of the zoning board of appeals to grant variances.

A host of additional topics may also be included in the zoning chapter. Zoning laws can contain articles that protect landmarks, historic districts, wetlands, floodplains, or environmentally constrained land, or that regulate the placement of mobile homes or use of commercial and political signs, among other topics.

Zoning regulations are sometimes contained in a municipal code, which contains all the laws passed by the local legislature. The code may deal with a host of subjects, from alcohol regulation to vehicle and traffic control. Each topic or area is a chapter in the code, so zoning is treated in its own chapter. Each chapter has a number of articles, making up the sections of each chapter that contain the actual regulations. For instance, almost every chapter will contain an article for "definitions," which defines words of significance or terms of art used throughout the chapter.

POWER TO ENACT A ZONING LAW

Land use regulations are enacted under the "police power" delegated by the state to the local legislature. The United States Supreme Court has called police power regulation "one of the most essential powers of government."

In delegating to local governments the authority to enact zoning regulations, the state legislature is exercising its police power, the authority to adopt legislation "to promote the public health, safety, morals and general welfare." It is with these words that the grant of authority to regulate land use begins and for these purposes that such authority is conveyed to local governments. Local legislatures determine the substance of zoning statutes in order to accomplish these purposes.

  In Euclid v. Ambler Realty (1926), the United States Supreme Court first held that the enactment of zoning use districts is a permissible use of a local government's police power. Ambler Realty challenged the validity of an ordinance that divided the Village of Euclid into various use districts. The court found that the plaintiff did not carry its burden of proving "that such provisions are clearly arbitrary and capricious and unreasonable, having no substantial relationship to the public health, safety, morals or general welfare."

Broad authority to regulate land use is delegated to local governments through enabling acts that empower them to adopt comprehensive plans, enact zoning regulations, and create zoning districts. This broad grant of authority carries with it the implied authority to choose the means necessary to accomplish the purposes of conserving the value of buildings and property and encouraging the most appropriate use of the land throughout the community.

Specific authority has also been granted to local government to regulate a variety of aspects of land use including historic districts, aesthetic impacts, architectural design, wetlands, and environmental impacts of land development. This separate authority is found within the other state enabling acts.

Prior to zoning, there were two principal methods for controlling land use and avoiding conflict between incompatible land uses such as industrial and residential buildings. Private individuals could put restrictive covenants in the deed as part of the sale of their property, thereby regulating its future use. This device is often used in subdivisions. A private citizen could also bring a common law suit for nuisance against obnoxious uses of adjacent land. Zoning provides a more cohesive approach to controlling the appropriate use of the land.

Specific provisions of the Municipal Home Rule Law, Town, Village, and General City Law grant authority to local governments in New York State to divide the community into use districts and regulate building construction within those districts for purposes set forth in the enabling acts. Understanding these specific statutes is important in making land use decisions. The attorney assigned to advise local officials can answer specific questions based on these laws.

  Village Law § 7-700, Town Law § 261, and General City Law § 20(24) grant basic land use authority to local governments and allow them to regulate the details of land development and building construction and alteration "for the purpose of promoting the health, safety, morals, or general welfare of the community."

Legislative acts are presumed to be constitutional and valid. Not only do the aggrieved landowners have the burden of proving the invalidity of the law but it is rare that such a burden can be sustained on papers alone without a trial. There are, however, circumstances where zoning laws are held to be invalid. When zoning is enacted for arbitrary reasons that cannot be justified as protecting the public, the laws are more likely to be challenged by aggrieved parties. Laws enacted to address public needs or concerns, and that logically accomplish those objectives are less likely to be challenged, and if they are challenged, they are more likely to be upheld by the courts. Laws supported by legislative inquiries or based on studies are even more resistant to challenge. This, in combination with a general presumption of validity afforded legislative actions, means that zoning laws, as a general rule, will be upheld.

Comprehensive Plan

Zoning provisions and their amendments must be adopted in conformance with the comprehensive plan of the locality or exhibit comprehensiveness of planning. If not, they may be found to be beyond the municipality's power to adopt the provisions. This legal requirement is found in the enabling acts granting local governments the power to regulate land.  

The court in Udell v. Haas (1968), determined that zoning amendments must be in accordance with a comprehensive plan and must consider the needs of the entire community.

  If zoning provisions or amendments are inconsistent with the comprehensive plan the vulnerability of the zoning law to legal challenges is increased significantly. The result of a judicial finding that the zoning provision is inconsistent with the comprehensive plan is a declaration that the provision is invalid.

The requirement in New York State that zoning provisions must conform to the comprehensive plan has led to much confusion at the local level and in the courts. This results from the fact that local governments are encouraged, but not required to adopt a comprehensive plan. Local governments in New York are not required to adopt a comprehensive plan but zoning is required to be consistent with "comprehensive planning." How is this accomplished in a community with no adopted comprehensive plan? If the community has not adopted a comprehensive plan, the court will look at the policies of the zoning law and all other evidence of land use planning available and determine whether the zoning is consistent with the land use goals and policies of the community. For further discussion refer to the tutorial on "Comprehensive Planning."

LEGAL CHALLENGES

Several types of legal challenges can be brought against local governments if they do not follow the proper legal standards and honor constitutional protections. Four of these are of particular concern to local governments. Each is discussed below, but treated in detail in a later tutorial entitled "Legal Challenges."

First, the regulation of land, under certain circumstances, can so affect property rights as to constitute a "taking" of property. Second, the division and classification of land by discriminating among types of properties can violate equal protection guarantees. Third, regulations must substantially advance a legitimate public purpose, and fourth, procedural due process guarantees must be met.

Takings

Clearly local governments have the authority to regulate property, even if the value of the property is affected. Occasionally, courts will find that the impact of a regulation on private property rights is so burdensome that it violates the constitutional guarantee that property shall not be taken for a public use without just compensation. Although regulations that affect property values are legitimate, under certain circumstances, when the value of the property is diminished to virtually nothing, the municipality must pay the owner "just compensation" for the loss in value. When zoning provisions are challenged as regulatory takings, challengers must carry a heavy burden of proof that the regulations violate the constitutional guarantee. To carry their burden of proof, property owners must produce dollars and cents evidence that all but a bare residue of the property's value has been destroyed by the regulation.

Equal Protection

Equal protection claims assert that a land use classification or decision treats one parcel, or a few parcels of land, differently than similarly situated parcels with no apparent justification for being treated differently.

Substantive Due Process

Substantive due process challenges allege that the local regulation does not advance a legitimate public purpose. Sometimes this challenge asserts that the regulation is arbitrary and capricious, such as a regulation that is adopted simply in reaction to citizen opposition.

Procedural Due Process

Procedural due process challenges are brought when a community fails to follow a statutorily prescribed process or rushes to judgment on a land use decision, thereby violating the rights of involved parties to receive notice, be given an opportunity to be heard, or enjoy the benefits of a deliberate and thoughtful process on the part of the decision-maker.

When presented with a challenge to a land use regulation, courts generally exercise judicial restraint and defer to the legislature's discretion, rather than substitute its judgment for that of the legislature - an equal branch of government. The regulation is presumed valid and the challenger bears a heavy burden of proof.

Where the courts set local regulations aside, their invalidation can be traced to several common errors. These errors and how to avoid them are discussed thoroughly in the tutorial on "Legal Challenges."

LOCAL BOARDS AND PROCEDURES

Local Legislature

Local legislatures are authorized by the New York State legislature to create a local land use regulatory structure and to give local boards and officials specific duties and powers. State statutes give local legislatures great discretion in establishing this system. For instance, the local legislature may directly review applications for special permits or delegate this responsibility to the planning board or other administrative body such as the zoning board of appeals.

Zoning Board of Appeals

Every local government that adopts a zoning chapter of its local code must create a zoning board of appeals.

One indispensable role of the zoning board of appeals is to hear appeals from and to review determinations made by the zoning enforcement officer or building inspector. Zoning boards of appeals also have the power to grant variances from the strict application of zoning provisions. Variances may be granted only where a property owner faces particular difficulties or hardships because of the application of particular zoning provisions to her property. In addition to these specific responsibilities, the local legislature may, in its discretion, delegate other functions to the board, such as the review and approval of special use permits.

Planning Board

Local legislatures are authorized to create planning boards to advise on zoning issues and comprehensive planning and to review applications for subdivision approvals, site plan approvals, and special use permit approvals.

Zoning Enforcement Officer

Most localities employ a building inspector to enforce the Uniform Fire Prevention and Building Code. Many delegate to the building inspector or code enforcement officer the responsibility for interpreting and enforcing the zoning law as well. Others employ a separate zoning enforcement officer for this purpose. The role of the official charged with zoning enforcement is to render interpretations of the zoning law and determine its applicability to individual parcels. The interpretations and determinations of this official may be appealed to the zoning board of appeals.

AMENDING THE ZONING LAW

Zoning provisions, once adopted, may be amended by the local legislature. The courts have held that in amending the zoning law, local legislatures have a great deal of flexibility in creating mechanisms to accomplish the statutory purposes of zoning. For example, under their implied authority to adopt appropriate mechanisms, localities have created floating zones, planned unit development districts, and overlay zones. Property owners may apply to the local legislature to have their property rezoned.  

Amendments to zoning laws may be adopted after public notice and hearing. Normally, zoning amendments may be adopted by a majority vote of the local legislature.

Village Law §§ 7-706, 7-710, Town Law §§ 264, 266, and Municipal Home Rule Law § 20 contain the procedural requirements for adopting and amending zoning provisions. Village Law § 7-708, Town Law § 265, and General City Law § 83 contain additional requirements for amending zoning provisions.

The legislature can amend the zoning law on its own initiative, in its discretion. When a property owner requests a change in the zoning provisions applicable to his property, the legislative body usually may refuse to consider it. Only in cities, and only upon the petition of a requisite number of property owners, is the legislature required to formally consider an application for rezoning.

The Court of Appeals held that the power of a local government "to amend its basic zoning ordinance in such a way as reasonably to promote the general welfare cannot be questioned." Rodgers v. Village of Tarrytown (1951). The plaintiff challenged a village zoning amendment that allowed construction of multiple dwellings in a single-family zone. The court upheld the amendment noting that "how various properties shall be classified or reclassified rests with the local legislative body; its judgment and determination will be conclusive, beyond interference from the courts, unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon him who asserts it." The court determined that "changed or changing conditions call for changed plans, and persons who own property in a particular zone or use district enjoy no eternally vested right to the classification if the public interest demands otherwise."

Amendments of use provisions of the law that apply to particular parcels must be accompanied by amendments of the zoning map as well. Local laws and ordinances may require additional procedures to be followed when zoning amendments are considered. Typical provisions may require referral to the local planning board for an advisory report, the publishing of legal notice or service of notice to nearby owners, or the posting of signs on the land subject to the proposed rezoning. Zoning amendments, like the initial zoning law and all other land use regulations, must be made in accordance with a comprehensive plan.

REGULATIONS AND APPROVALS

Regulating and approving subdivision plats and site plans are important elements of the local system of land use control. Subdivision controls ensure that adequate services and facilities exist to support potential development by creating standards for design and layout of subdivided properties. For the same purpose, communities may adopt site plan regulations for the design and location of development on individual parcels (ones that are not divided and thus not covered by subdivision regulations). Subdivision and site plan regulations may or may not be adopted as part of the zoning chapter. No matter where they are placed in the code or compilation of local laws, these regulations are intimately related to a community's zoning proposal.

Subdivision

"Subdivision" is defined in the local regulations, but essentially refers to the legal division of parcels into smaller parcels that can be sold. A subdivision plat is a drawing or sketch showing how a property is to be divided along with the placement of roads, buildings, and infrastructure on the property proposed to be divided. Subdivision regulations may be enacted as a chapter in the municipal code, or adopted as an article within the zoning chapter of the code, or as a free standing law. Where a subdivision application meets the standards contained in the regulations, it must be approved. Where it does not, the planning board may impose conditions on the subdivision to insure that it meets the specifications. Where the subdivision application cannot meet the standards, it may be rejected.  

Subdivision review and approval authority is often granted to the planning board. If the planning board is given this authority, it must base its decisions on the standards contained in the subdivision regulations adopted by the local legislature and follow all procedures that the regulations specify.

Conditions may be placed on subdivision approval, including the setting aside of open space, installation or location of infrastructure, and other design modifications.

The statutory provisions authorizing municipalities to adopt subdivision regulations and to provide for the review and approval of subdivisions is found in Village Law §§ 7-728 - 7-730, Town Law §§ 276 - 277, and General City Law §§ 32 - 33. Village Law § 7-718(13), Town Law § 271(13), and General City Law § 17(13) authorize the planning board to prepare subdivision regulations, subject to revision and approval by the legislature.

Procedures that must be followed to obtain subdivision approval are governed by the enabling acts, unless they are superseded, then they are governed by the local regulations. If the local laws are codified, check the appropriate article in the zoning chapter, or if the subdivision regulations are enacted in their own chapter, check the subdivision chapter of the municipal code.

Site Plan

The regulation of development on individual parcels is controlled through site plan review. Site plan regulations serve purposes similar to subdivision regulations and often have their own article in the zoning law. A "site plan" is defined by state law as a drawing, prepared in accordance with local specifications, that shows the "arrangement, layout and design of the proposed use of a single parcel of land." The planning board, or other administrative body, may be authorized to review site plan applications and to enforce the standards contained in the site plan regulations.  

Local site plan regulations require the developer of an individual parcel of land to file a drawing of that parcel's planned development for review and approval by a local board. Site plan regulations might apply only to all non-residential projects, or only to larger-scale commercial developments such as shopping malls, industrial and office parks, or certain residential developments such as condominium or town house projects. Some communities, however, subject smaller projects to site plan review.

Village Law § 7-725-a, Town Law § 274-a, General City Law § 27-a authorize local governments to adopt and administer site plan regulations. Village Law § 7-725-a (2)(a), Town Law § 274-a (2)(a), and General City Law § 27-a (2)(a) contain the specific elements that the local legislature may require to be included in site plan submissions including "any additional elements specified by the legislature."

Variances

A variance allows property to be used in a manner that does not comply with the literal requirements of the zoning chapter. Variances provide flexibility in the application of the zoning law and afford the landowner an opportunity to apply for administrative relief from certain provisions of the regulations. A property owner may seek an area or use variance from the zoning board of appeals when an application for a building permit is denied on the ground that the proposal would violate the use or dimensional requirements of the zoning law. There are two basic types of variances: use variances and area variances.

Use Variance

A use variance permits "a use of the land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning regulations." For example, if a piece of land is zoned for single-family residential use and the owner wishes to operate a retail business on the parcel, the owner may apply to the zoning board of appeals for a use variance.

Area Variance

An area variance allows for a "use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulation." An area variance is needed, for example, when a proposed structure does not comply with the set back, height, or area requirements of the zoning law. A landowner could apply to the zoning board of appeals for an area variance if an owner wants to build a deck on her house that encroaches slightly onto a side yard setback area.  

Town Law § 267-b, Village Law § 7-712-b, and General City Law § 81-b set forth the definitions of a use and area variance, establish the authority of the zoning board of appeals to issue use and area variances, and provide the statutory criteria and procedure that must be followed before a variance may be approved.

Special Use Permits

New York statutes define a special use permit as the "authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met." An example of a special use is a home office or home occupation in a single-family residential neighborhood. The legislature may conclude that home occupation should be permitted in residential districts, subject to conditions that ensure that the size and layout, as well as parking and lighting, are carefully designed so that the neighborhood is not adversely affected. The procedures for approving special use permits may be found in a separate article of the zoning chapter and the special uses allowed may be contained in the use district provisions of the chapter.

A variety of uses may be permitted in various zones as special uses. These include adult businesses, professional offices, group homes, swimming pools, nursing homes, or day care centers in residential zones; and drive-in establishments, video arcades, marinas, shopping centers, gas stations, and convenience stores in commercial districts.

The local legislature is empowered to authorize the planning board or other local administrative body to grant special use permits as set forth in the local zoning law. When delegating this authority to an administrative body, the legislature must adopt standards to guide the body in reviewing, conditioning, and approving special uses. These standards will include, for example, requirements that gasoline stations and drive-in establishments provide adequate traffic safety improvements, that professional home offices provide adequate parking and landscape buffering, or that a shopping center provide adequate storm drainage and lighting controls to protect surrounding areas.

Special use permits are referred to by a variety of terms in local practice and court decisions. These terms include special exception use, special permit, conditional use permits, and special exceptions. The statutory term is special use permit.

Local legislatures are empowered to authorize a local administrative body to grant special permits under Village Law § 7-725-b, Town Law § 274-b, and General City Law § 27-b.

PROCEDURE

Landowners who wish to develop their parcels in conformance with applicable zoning provisions must apply to the local building inspector for a building permit. Either the building inspector or the zoning enforcement officer will review whether the proposed project and its construction conform to the use and dimensional requirements of the zoning law. Where they do not, the building permit must be denied. This review process is ministerial and the administrator has no authority to deviate from the letter of the law. Determinations of this sort by the appropriate local official are reviewable by the local zoning board of appeals, which must be created when the locality first adopts a zoning law. When a proposed development is in conformance with the use and area restrictions of the zoning chapter but requires subdivision or site plan approval or a special permit, the zoning enforcement officer or building inspector must refer the landowner to the local board authorized to perform the required review or issue the required permit.

Zoning provisions cause particular problems when they are vague. The local building inspector or zoning enforcement officer needs specificity and clarity to interpret and apply zoning provisions to particular parcels. The work of the zoning board of appeals is compounded when a law contains provisions that suffer from vagueness. The use of specific dimensions, standards, and terminology in zoning provisions greatly facilitates their implementation and usefulness.

Although zoning enactments are presumed by the courts to be constitutionally valid, their provisions are restrictively interpreted because they are deemed to be in derogation of the landowner's common law property rights. When this standard of restrictive interpretation is applied to unclear or vague zoning language, it often results in court determinations that are in the landowner's favor.

REFERENCES

1.  Local Planning and Zoning Survey: New York State Cities, Towns and Villages, Second Edition (April 1995). New York State Legislative Commission on Rural Resources, Legislative Office Building, Albany, N.Y. 12247; (518) 426-6960.

2.  Charles A. Lerable, Preparing a Conventional Zoning Ordinance Planning Advisory Service Report Number 460 (1995). American Planning Association, 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603.

3.  Charles M. Haar and Jerold S. Kayden, Zoning and the American Dream: Promises Still to Keep (1989). American Planning Association, 1313 East 60th Street, Chicago, IL 60637.

4.  John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter 2 and 3.

5.  Herbert H. Smith, The Citizen's Guide to Zoning, Planners Press, American Planning Association, Chicago, Ill., 60603 (1983).

6.  Harry Willis, David Church and Janis Hoiming, The Short Course: A Basic Guide for members of Planning Boards and Zoning Boards of Appeals in New York State (1997).

7.  New York Planning Federation, 44 Center Avenue, Albany, N.Y. 12206. James A. Coon and Sheldon W. Damsnk, All You Ever Wanted To Know About Zoning . . . (1993). New York Planning Federation, 44 Center Avenue, Albany, N.Y. 12206.