A New York appellate court was asked to consider the novel question of whether ongoing and deceitful representation by an applicant before the planning and zoning boards could constitute the basis for denial of requested area variances where the state statute sets forth the factors that must be balanced in weighing the decision of whether to grant the request.

The petitioner had applied for site plan approval in 2000 for a proposed furniture store, which described the premises as having a main floor and a cellar.  The proposed showroom was to be 6,208 square feet, equal to the square footage of the main floor. The petitioner represented to the planning board that the cellar would only be used for storage and mechanicals.  This was significant since any use of the cellar for retail purposes would cause the use to exceed the maximum floor area ratio in the zoning code and would create a problem with the number of required parking spaces which is tied to square footage used for retail.  Upon inspection of the property by the building inspector who noticed the installation of partitions, walls, moldings, finishes and carpeting in the cellar, the petitioner again expressly designated on revised plans that the area of the cellar was for storage. Thereafter, temporary and permanent certificates of occupancy were issued based on the designation of the cellar area for storage. Months later, the Town charged the petitioner with violating the zoning code for operating a display area in the cellar of the premises contrary to the certificate of occupancy, and further charges were made for failure to abate the violation.  In response to the zoning charges, the petitioner filed an application with the zoning board of appeals for two area variances to permit an increase in the allowable floor area ratio so that the cellar could be used as showroom space, and to permit a reduction in the required off-street parking from 62 spaces (required if the cellar space is used) to 33 spaces. In support of the variance requests, the petitioner said it was “unaware that it could not utilize the basement for retail sales.” During a series of hearings, neighbors also said that the petitioner failed to comply with conditions of an earlier site plan approval such a landscaping, noise and overnight parking. Thereafter, the variance applications were denied, and the written decision of the zoning board of appeals determined that the petitioner has continuously deceived the Town as to the intended use of the cellar, such that the granting of the variances was outweighed by the detriment that would be caused to the Town, the board also found that the use of the cellar burdened neighboring property owners, that the variance requests were substantial, and that the need for the variances was self-created by the petitioner’s deceptive conduct.  The petitioner appealed and the trial court found that since the deception is not an enumerated factor under Town Law 267-b(3) for the granting of area variances, the board inappropriately focused on that preventing it from properly assessing the five statutory factors.  Therefore, the trial court remitted the matter to the zoning board for reconsideration.

The appellate court disagreed with the trial court.  The appeals court agreed that the petitioner acted with intent to deceive the Town with respect to the intended use of the cellar. The Court, in determining whether common law that pre-dates the enactment of Town Law 267-b(3) is valid, noted that their interpretation of the Court of Appeals decision in Sasso v. Osgood, 86 N.Y. 2d 374 is that the new statutes is “merely referring to the preexisting case law that pertains to the various factors which the Legislature saw fit to expressly include within the scope of Town Law 267-b(3).” To the extent that the zoning board relied on the applicant’s misrepresentations as the sole basis for denial of the variances,  that is no longer good law/precedent since only the statutory factors enumerated in the Town Law may now be considered.  However, the court found that the zoning board did consider and balance the required factors in denying the request for area variances, and that the deception was one factor related to the self-created hardship factor.   

Caspian Realty, Inc. v. Zoning Board  of Appeals of the Town of Greenburgh, 2009 WL 3135820 (N.Y.A.D. 2 Dept. 9/29/2009).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24297.pdf