Posted by: Patricia Salkin | August 17, 2010

NY Appeals Court Finds City’s Definition of Family Not Unconstitutionally Vague

The applicable zoning ordinance for the City of Albany restricts the occupancy of residential property in the district to a single family, defined as “[o]ne, two or three persons occupying a dwelling unit…or…[f]our or more persons occupying a dwelling unit and living together as a traditional family or the functional equivalent of a traditional family.” After being cited for allowing six unrelated colleges students to reside in a dwelling, the petitioner sought both a use variance to permit six unrelated individuals to reside in the dwelling, and he sought a declaration that the term “family” as defined in the ordinance, was unconstitutional.  The trial court dismissed the action and the appeals court affirmed.

First examining the issue of the definition of family, the Court noted that the terms “family” and “functional equivalent of a traditional family” are “not so vague as to confound a person of ordinary intelligence” and therefore the ordinance is “not susceptible to arbitrary enforcement.” Further, the Court said that the meaning of these terms are readily ascertainable from the body of case law that has developed in the realm of zoning cases dealing with the definition of family.

With respect to the denial of the use variance, the Court noted the statutory factors required to be met for the issuance of the variance and determined that the petitioner did not satisfy any of the criteria. Specifically, the Court noted that the petitioner failed to provide any financial data to show that he could neither increase the rent nor sell the property at a profit (for either a single family or a two-family residence), and that he failed to make a showing that the property was unique from other residences in the neighborhood.  Further, since the restriction was in effect when the petitioner purchased the property, he failed to show that the hardship was not self-created. Therefore, the Court concluded that the Board’s denial of the variance was rational and supported by substantial evidence.

Morrissey v Apostol, 2010 WL 2853746 (N.Y.A.D. 3 Dept. 7/22/2010).

The opinion can be accessed at:

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