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Not Necessary to Show "Practical Difficulty" or "Unnecessary Hardship"
NY State Court of Appeals Favors Applicants for Variances
State Law Preempts Local Laws Establishing Stricter Standards

The state's highest court ruled on July 2 that the burden of proof rests with local towns and villages in their disputes with applicants for area or dimensional variances. The Court of Appeals decision represents a major shift in burden of proof, considering that many localities have zoning rules requiring that boards of appeals may grant an area or dimensional variance only upon a showing of practical difficulty or unnecessary hardships.

The Court of Appeals ruled on two cases involving similar legal questions, Matter of Russo v. Black and Matter of Cohen v. The Board of Appeals of the Village of Saddle Rock, considering the conflict between local and state law in both cases. The reason for the conflict is that in 1992 the Legislature enacted Village Law § 7-712-b, which requires a zoning board of appeals to consider the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant, among other factors, such as whether the variance would be a detriment to nearby properties. The 1992 law does not mention practical difficulty or unnecessary hardship.

In one of the cases before the appeals court, Frank and Jamie Russo applied for a variance for their 11-foot high wrought iron gate in front of the house they were building in the Village of North Hills on Long Island. The height would have exceeded the local limitation by 4 feet. The Village Board of Appeals denied their application for a height variance and special use permit based on a local code provision that stated, "The Board of Appeals shall have the grant area variances only where the applicant shall demonstrate that there are practical difficulties in the way of carrying out the provisions of this chapter..."

The Supreme Court ruled that the board improperly applied a "practical difficulty" standard that the Legislature had abolished, which was affirmed by the Appellate Division, Second Department, based on the Cohen decision, which had already come down from that court.

Meanwhile, nearby on Long Island, Jack Cohen had received a denial of an area variance from the Village of Saddle Rock Board of Appeals for an area variance for the permit for a single-family house that he sought. That Village had a local code provision requiring that the Board of Appeals could only grant an area or dimensional variance "upon a showing of practical difficulty or unnecessary hardships."

When Cohen got to the Appellate Division, he was reassured that the "practical difficulty" standard in the Saddle Rock law was preempted by the state law, requiring the consideration of the benefit to the applicant if granted versus the detriment to the health, safety and welfare of the neighborhood or community if denied, and so on. The Appellate Division said, "[B]y enacting Village Law § 7-712-b, the Legislature expressed a desire to preempt the entire field of area variances, thereby precluding a village from enacting its own standard."

In their arguments before the Court of Appeals, the two villages were supported by an amicus (friend of the court) brief from the New York State Conference of Mayors and the Association of Towns, who argued that Municipal Home Rule Law § 10(1)(ii) gives authority to villages and towns to supercede state laws relating to their "property, affairs or government," including zoning provisions that require variance applicants "to meet different, and more exacting, standards" than those in state law. Attorney Bruce W. Migatz of the Garden City firm of Albanese & Albanese successfully argued the Russo case before the top court. The Court of Appeals ruled five in favor of the variance applicants, with one justice dissenting.

Justice Carmen Ciparick wrote the majority opinion, noting that "local authority to contravene laws of general application must yield to the superior interest of the Legislature," when the law's purpose is to pre-empt local regulations, even if not directly stated.

"A uniform standard for area variance review...has clear advantages. Property owners and zoning practitioners around the State will benefit from a better understanding of the standards for a variance," he wrote.

In a July 4 article by Victor Manuel Ramos, Newsday reported that Thomas Levin, a partner at the Mineola firm of Meyer, Suozzi, English & Klein , which represented North Hills and Saddle Rock, remarked, "The practical effect is that zoning laws will mean less. I think it will be a little bit more difficult for zoning boards to turn people down."

- Carol W. LaGrasse


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