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New York's Top Court Upholds Deviations from Special Use Permit Standards



October 15, 2004

A decision earlier this year by the Court of Appeals, New York’s highest court, definitively interpreted the 1994 amendments to the statutes pertaining to special use permits, whereby uses are permitted only if they meet certain requirements. For the first time, the Court of Appeals confirmed that the amendments authorize (a) the grant of variances from special use permit requirements by zoning boards of appeals, and (b) the establishment of one-stop special permitting by planning boards. This decision will greatly facilitate the ability of applicants to efficiently secure special use permits, and to obtain relief from special use permit requirements where appropriate.

Facts of the Real Holding Corp. Decision

The case of Real Holding Corp. v. Lehigh[1] involved a 1995 application for development of a new gasoline station. The zoning code required a special use permit from the planning board, subject to a requirement that the proposed gasoline station be a minimum of 1,000 feet from certain residentially zoned land and a minimum of 2,500 feet from another gasoline station. The applicant could not comply and sought a variance from the zoning board of appeals, which denied the application on the basis that it lacked jurisdiction to grant a variance from the requirements of a special use permit.

Some years later, Real Holding Corp. revived its application and again sought a special permit from the planning board and variance relief from the zoning board of appeals. The board of appeals reached the conclusion that it lacked authority to grant relief absent an express grant of authority from the elected governing body. Real Holding Corp. appealed, and the trial court, appellate court and Court of Appeals all ruled that the 1994 statutory amendments specifically authorize a zoning board of appeals to grant variances from special use permit requirements.

Historical Lack of Authority to Grant Variances

Prior to 1994, an established body of case law held that the reviewing authority has no legal authority to waive those special permit standards.[2] Thus, many reported decisions uphold denials of special use permits where the applicant failed to meet one of the special use permit criteria. Such a use could only be approved by the grant of a use variance or a zone change.

The rules of the game changed in 1994 upon the effective date of amendments to the enabling statute. The amendments contain two separate authorizations, which the Court of Appeals has read in a complementary manner:

Area Variances

In a section titled “Application for area variance”,[3] the statutes now provide that “where a proposed special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance … without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.” The Court of Appeals, based on a plain reading of the statute and a review of its legislative history, confirmed that this provision authorizes a zoning board of appeals to grant dimensional variances from special use permit requirements. In addition, an applicant may apply directly to the board of appeals without having first to apply for and be denied a permit, as was the case under the prior statute.


In a section titled “Waiver of requirements”,[4] the statutes now provide that the elected governing body may “empower the authorized board to, when reasonable, waive any requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval.” It further provides that a waiver may be granted “in the event any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit.” As the Court of Appeals pointed out, the waiver provision allows a municipality to vest in its planning board the authority to review and approve special use permits, as well as to issue waivers from special use permit requirements. This so-called “one stop shopping” for special permits means that an applicant would not have to file separate applications: one with the planning board for special use permit approval, the other with the zoning board of appeals for variance relief.


The Real Holding Corp. decision should facilitate the ability to secure relief from special use permit requirements, whether by variance or waiver, because it represents a definitive statement of how the new statute should be applied. It will also allow municipalities to more thoughtfully consider how special use permits should be reviewed and approved, and to establish a single reviewing authority to review and approve all aspects of a special use permit, rather than forcing an applicant to engage in costly and time-consuming separate, consecutive proceedings before different reviewing agencies.

[1] 778 N.Y.S.2d 438 (2004).
[2] Tandem Holdings v. Board of Zoning Appeals of Town of Hempstead, 402 N.Y.S.2d 388 (N.Y. 1977).
[3] Town Law § 274-b.3 and Village Law § 7-725-a.3.
[4] Town Law § 274-b.5 and Village Law § 7-725-a.5.