| Matter of Jones v Zoning Bd. of Appeals of the Town ofOneonta |
| 2011 NY Slip Op 09064 [90 AD3d 1280] |
| December 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rodney Jones et al., Appellants, v Zoning Board ofAppeals of the Town of Oneonta et al., Respondents. |
—[*1] Harlem & Jervis, Oneonta (Richard A. Harlem of counsel), for Zoning Board of Appeals ofthe Town of Oneonta, respondent. Young Sommer, L.L.C., Albany (Robert A. Panasci of counsel), for Clark Stone Products,respondent.
Peters, J.P. Appeal from a judgment of the Supreme Court (Dowd, J.), entered February 14,2011 in Otsego County, which dismissed petitioners' application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Zoning Board of Appeals of the Townof Oneonta granting a request by respondent Clark Stone Products for a use variance.
Larry Place and his wife owned a 19-acre parcel of property in the Town of Oneonta, OtsegoCounty. The property, located in a RA-40 zone wherein the permitted uses are primaryresidential and agricultural, contains a sand and gravel mine that has remained inactive forapproximately 50 years. In 2007, Place applied for a use variance to permit mining on theproperty. After a hearing, respondent Zoning Board of Appeals of the Town of Oneonta(hereinafter ZBA) granted the variance. Petitioners, whose property adjoins the parcel inquestion, commenced a CPLR article 78 proceeding to challenge the ZBA's determination.Supreme Court dismissed the petition. On appeal, this Court annulled the determination afterconcluding that proper notice of the hearing was not provided to petitioners or the general public(Matter of Jones v Zoning Bd. ofAppeals of Town of Oneonta, 61 AD3d 1299 [2009]).[*2]
During the pendency of that appeal, respondent ClarkStone Products purchased the property for $125,000, which included the value of the mineralscontained therein. Pursuant to the contract, Clark was required to reconvey the approximatelyone-acre parcel where the Place residence was situated back to the Places upon approval by theTown for a subdivision. After this Court annulled the ZBA's determination granting Place'sapplication for a variance, Clark reapplied for a use variance. Following a hearing, the ZBAapproved Clark's application and granted the variance.[FN*]Petitioners then commenced this proceeding to annul the ZBA's determination, asserting thatClark failed to establish an unnecessary hardship warranting a use variance. Supreme Courtdismissed the petition and petitioners now appeal.
Zoning boards are afforded considerable discretion in considering applications for variancesand their determinations will not be disturbed if they have a rational basis and are supported bysubstantial evidence in the record (see Matter of Ifrah v Utschig, 98 NY2d 304, 308[2002]; Matter of Androme LeatherCorp. v City of Gloversville, 1 AD3d 654, 656 [2003], lv denied 1 NY3d 507[2004]). An applicant for a use variance bears the burden of demonstrating that restrictions on theproperty have caused an unnecessary hardship, which requires a showing that (1) the propertycannot yield a reasonable return if used for permitted purposes as it is currently zoned, (2) thehardship results from the unique characteristics of the property, (3) the proposed use will notalter the essential character of the neighborhood, and (4) the hardship has not been self-imposed(see Town Law § 267-b [2] [b]; Matter of Sullivan v City of Albany Bd. of Zoning Appeals, 20 AD3d665, 666 [2005], lv denied 6 NY3d 701 [2005]; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of ZoningAppeals, 19 AD3d 968, 970 [2005]; Matter of Save the Pine Bush v Zoning Bd. ofAppeals of Town of Guilderland, 220 AD2d 90, 95 [1996], lv denied 88 NY2d 815[1996]).
As to the first element, Clark was required to present "dollars and cents" proof establishingthat the land cannot yield a reasonable return if used solely for a purpose permitted in the zone(see Matter of Village Bd. of Vil. of Fayetteville v Jarrold, 53 NY2d 254, 257 [1981];Matter of Supkis v Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 780[1996]; Matter of Drake v Zoning Bd. of Appeals of Vil. of Colonie, 183 AD2d 1031,1032 [1992]). In that regard, Clark proffered a reasonable rate of return evaluation prepared byBray Engineering and updated by a real estate appraiser's analysis of the current marketconditions. According to these submissions, the market value of the parcel, if subdivided andsold for residential purposes, was $16,000 (or $1,000 per acre), which is significantly less thanClark's total investment in the property of $125,000. This assessment was based upon, amongother things, an examination of the market in the general area, the topography of the property, itsprior mining history, existing wetlands and archaeologically sensitive areas, and set back andminimum lot size requirements contained within the Town's land use regulations. Moreover,Bray indicated that the property's existing soil conditions are not suited for conventional septictank absorption, and that poor filtering and contamination of the water supply are possible duringperiods of flooding. With respect to agricultural use, evidence was presented that prior use of theproperty for this purpose yielded less than $700 per year and that the quality of the soil is notconducive to higher value crops. Bray's report further concluded that the remainder of theproperty, which consists of steep slopes, brush or is covered by existing stone piles, has noallowable usage for any other purpose [*3]authorized in thezoning district. Clark also submitted the report of Gary Stewart, a licensed real estate broker,who detailed the work that would be necessary to prepare the property for residential oragricultural use, including reclamation of at least half of the acreage.
In light of this evidence, we cannot say that the ZBA's conclusion that Clark satisfied itsburden of showing the absence of a reasonable return lacks a rational basis. While petitionersargue that the evidence proffered by Clark is not credible and is completely "one-sided," issues ofcredibility are within the sole province of the ZBA to resolve (see Matter of Supkis v Townof Sand Lake Zoning Bd. of Appeals, 227 AD2d at 781). Furthermore, it was notunreasonable for the ZBA to accept Clark's economic analysis over the contrary informationprovided by petitioners which, for the most part, consisted of bare conclusory assertions as to theviability of yielding a reasonable return from the property (see Matter of Center Sq. Assn. vCity of Albany Bd. of Zoning Appeals, 19 AD3d at 971; see generally Matter of VillageBd. of Vil. of Fayetteville v Jarrold, 53 NY2d at 259).
Substantial evidence also supports the Board's finding that the hardship results from "uniqueconditions peculiar to and inherent in the property as compared to other properties in the zoningdistrict" (Matter of First Natl. Bank of Downsville v City of Albany Bd. of ZoningAppeals, 216 AD2d 680, 682 [1995]; see Matter of Supkis v Town of Sand Lake ZoningBd. of Appeals, 227 AD2d at 781). Notwithstanding petitioners' assertion that their property"has the exact same steep slopes, uneven terrain, wetlands, creek and gravel/soil composition,"the ZBA rationally concluded that the nearly three-acre gravel and sand mine, a portion of whichis already exposed due to prior mining activity, constitutes a unique characteristic of the propertythat significantly contributed to the hardship (see Matter of Douglaston Civic Assn. vKlein, 51 NY2d 963, 965 [1980]; Guadagnolo v Town of Mamaroneck Bd. ofAppeals, 52 AD2d 902, 902 [1976], appeal dismissed 40 NY2d 845 [1976]).
We also find sufficient evidence in the record to support the ZBA's conclusion that the usevariance would not alter the essential character of the neighborhood. The property is not situatedin a conventional neighborhood, and the closest residence is located approximately 700 feet fromthe property line. The evidence submitted by Clark, including the negative declaration issued bythe Department of Environmental Conservation (hereinafter DEC) in connection with the miningpermit, established that the mining operations will generally be below the line of sight from StateRoute 205, will not be visible from any nearby residence, will not have a significant impact ontraffic in the area, and will be restricted to mitigate against extensive noise. Indeed, DEC'snegative declaration concluded that "[d]ue to the small scale of this project and mitigativemeasures proposed by [Clark], the project as proposed is not expected to have a[ ] significantimpact to these residences [and n]o single large impact to the local community has beenidentified." Notably, the ZBA imposed 17 conditions upon the use variance, in addition toconditions set forth in the mining permit issued by DEC, to ensure that the essential character ofthe neighborhood would not be altered.
As to the final element, "[a] hardship is considered self-imposed if the variance applicantpurchased the property subject to the restrictions and was aware of the zoning restrictions at thetime that it purchased the property" (Matter of Ctr. Square Assn. v Bd. of ZoningAppeals, 19 AD3d at 971). At the time Clark purchased the property, Place had a valid usevariance to operate the sand and gravel mine which, absent a specific time limitation, runs withthe land until revoked (see Matter of St. Onge v Donovan, 71 NY2d 507, 520 [1988];Matter of Conte v Town of Norfolk Zoning Bd. of Appeals, 261 AD2d 734, 736 [1999]).[*4]Although the transaction occurred while an appeal of theZBA's issuance of that variance was pending, the ZBA could rationally conclude that this factalone did not render the hardship self-imposed (see Matter of Clute v Town of Wilton ZoningBd. of Appeals, 197 AD2d 265, 268-269 [1994]). Petitioners' remaining contentions, to theextent not specifically addressed herein, have been considered and found to be without merit.
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: While the ZBA took notice ofPlace's prior application, it required Clark to establish de novo that it met the criteria for a usevariance.