522 N.E.2d 1019 (N.Y. 1988)
In 1977, the Town of Colonie Zoning Board granted a variance permitting the use of a two-story house located in a residential district as a real estate office, subject to a condition that the building was to be used solely by the applicants and only in connection with their existing real estate business.1 In 1985, the petitioners in St. Onge contracted to purchase the property for the purpose of operating a real estate business and applied to the Town Planning Board for site plan approval to continue that use.2 The Planning Board denied approval, determining that the 1977 variance was temporary and personal to the original applicants.3 The Zoning Board of Appeals then required petitioners to submit a new application for a variance and, after they failed to appear at a scheduled hearing, denied the application without prejudice to a future filing.4
In a separate proceeding, the petitioner in Driesbaugh v. Gagnon owned and operated two automobile body repair shops in the Town of Fenton, both situated in agricultural-residential districts.5 One shop on Route 369 was a lawful prior nonconforming use, while the shop on Route 7, acquired in 1984, was not protected under the zoning ordinance.6 Following service of a notice of violation in February 1985 regarding the Route 7 location, the petitioner applied for a use variance.7 The Zoning Board granted the variance but imposed several conditions, among them a restriction limiting the number of nonemployee vehicles kept outside the building to two during working hours and a requirement that the petitioner phase out operations at the Port Crane shop by July 10, 1986.8
Special Term in the St. Onge case annulled the Zoning Board's determination that a de novo application was required.9 The Appellate Division reversed that ruling.10 In the Driesbaugh case, Supreme Court annulled the fourth and sixth conditions imposed on the variance.11 The Appellate Division affirmed the Supreme Court judgment in Driesbaugh.12 Both matters came before the Court of Appeals on appeal after leave was granted.13
Whether a zoning board may impose a condition on a variance that terminates automatically upon transfer of the property or otherwise relates to the identity of the owner rather than the use of the land?14
Conditions imposed on the grant of a variance must relate only to the use of the property that is the subject of the variance without regard to the person who owns or occupies that property.15
No. The established facts show that in St. Onge the 1977 variance included an explicit condition limiting use solely to the original applicants and their existing real estate business.16 When petitioners contracted to purchase the property in 1985 for the same purpose, the Planning Board and Zoning Board of Appeals treated the variance as personal and temporary, requiring a fresh application.17 This approach directly contravenes the rule because the condition turns on the identity of the owner rather than on any characteristic of the land use or its impact on neighboring properties.18 The Board therefore lacked authority to enforce or perpetuate the personal restriction.19
A zoning board may not impose a condition on a variance that terminates automatically upon transfer of the property or otherwise relates to the identity of the owner rather than the use of the land.20
Whether a zoning board may condition the grant of a variance for one parcel on the elimination or phasing out of operations at a separate parcel that is not the subject of the variance application?21
Conditions imposed on the grant of a variance must relate only to the use of the property that is the subject of the variance without regard to the person who owns or occupies that property.
No. The established facts establish that in Driesbaugh the Zoning Board granted a variance for the Route 7 shop.22 The Board required petitioner to phase out his separate lawful nonconforming operation at the Port Crane location by July 10, 1986.23 The Route 7 variance application concerned only that parcel.24 The Port Crane shop was a distinct prior nonconforming use never placed at issue.25
Conditioning relief for one property on the surrender of protected rights in another property is unrelated to the land use under review or its effects on the surrounding area and therefore exceeds the board's authority.26
A zoning board may not condition the grant of a variance for one parcel on the elimination or phasing out of operations at a separate parcel that is not the subject of the variance application.27
Whether a court reviewing a zoning board decision may strike invalid conditions from a granted variance and uphold the variance without remanding the matter to the board for reconsideration?28
Town Law § 267 (10) authorizes the court to reverse or affirm, wholly or partly, or modify the decision brought up for review when a zoning board determination is illegal, arbitrary, or an abuse of discretion.29
Yes. In both the St. Onge and Driesbaugh matters, the respective zoning boards exercised their discretion by granting the requested variances after determining that the statutory requirements had been satisfied, with no argument presented that those requirements were not met in either case.30 The sole illegality arose from the attachment of personal or unrelated conditions to those grants.31 Pursuant to Town Law § 267(10), the reviewing court is empowered to reverse or affirm the decision in whole or in part or to modify it, thereby permitting the court to strike the unlawful conditions while upholding the variances as modified, given that the boards' underlying determinations remain intact and no additional factual development by the board is necessary.32
A court reviewing a zoning board decision may strike invalid conditions from a granted variance and uphold the variance without remanding the matter to the board for reconsideration.33