Posted by: Patricia Salkin | December 28, 2011

NY Appellate Court Upholds Use Variance to Allow for Mining

Larry Place and his wife owned a parcel of land that was zoned for primary residential and agricultural uses. This property, however, contained a sand and gravel mine, and in 2007 Place applied for a use variance to permit mining on the property. The Zoning Board of Appeals of the Town of Oneonta (hereinafter ZBA) held a hearing and granted the variance. Jones, an adjacent property owner, commenced a proceeding pursuant to CPLR article 78 challenging the variance. Although the trial court dismissed the petition, the appellate court annulled the ZBA’s determination due to lack of proper notice of the hearing to petitioners or the general public. While that appeal was pending, the Place’s sold the land to respondent Clark Stone Products (hereinafter Clark) for $125,000. After this Court annulled the previous use variance, Clark reapplied. The ZBA held a hearing and again granted the variance. Jones then brought the present proceeding, asserting that Clark had not established any unnecessary hardship that would warrant a use variance. The Supreme Court again dismissed Jones’ petition and Jones appealed.                    

The Court first noted that zoning boards are generally afforded considerable discretion when considering applications for use variances and that those decisions will not be disturbed so long as the zoning board has a rational basis for its decision that is supported by substantial evidence in the record. The Court  noted that an applicant for a use variance bears the burden of demonstrating the restrictions on the property have caused an unnecessary hardship, “which requires a showing that, (1) the property cannot yield a reasonable return if used for permitted purposes as it is currently zoned, (2) the hardship results from the unique characteristics of the property, (3) the proposed use will not alter the essential character of the neighborhood, and (4) the hardship has not been self-imposed.” 

First, based on reports presented by Clark regarding the value of the property both for residential and agricultural use, the Court found substantial evidence in the record to support the ZBA’s conclusion that the property cannot yield a reasonable return without the use variance. Second, the Court upheld the ZBA’s conclusion that the sand and gravel mine is a sufficiently unique characteristic of the property. Third, the Court pointed to a negative declaration issued by the Department of Environmental Conservation and seventeen conditions imposed by the ZBA in upholding the ZBA’s conclusion that “the proposed use will not alter the character of the neighborhood.” Finally, the Court noted that Place already had a use variance to operate the mine when he sold the land to Clark. Absent any specific time limitation, the use variance runs with the land until revoked. Though there was an appeal pending at the time, the use variance was in place when Clark purchased the land. 

Jones v. Zoning Bd. of Appeals of Town of Oneonta, 2011 WL 6222336 (N.Y. App. Div. 3 Dept 12/15/ 2011) 

This opinion can be accessed at:

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