Comment 03



  • In the Matter of Real Holding Corp. v. Alan Lehigh, et al., 2 N.Y.3d 297 (May 6, 2004)
  • The Facts
  • Court of Appeals’ Decision

In the Matter of Real Holding Corp. v. Alan Lehigh, et al., 2 N.Y.3d 297 (May 6, 2004)

This In Matter of Real Holding Corp. v. Lehigh, 2 N.Y.3d 297, the Court of Appeals considered whether a zoning board of appeals ("ZBA") has power to vary a special use permit provision which requires a separation between uses on an application for an area variance. The Court, relying on Town Law §274-b(3), held that a zoning board of appeals has the power to grant an area variance from the distance requirements in a zoning regulation, including those contain within a special use permit provision.1 The Court’s discussion of related issues in the case may have opened a pandora’s box of problems regarding special use permits, variances and waivers.


Real Holding Corp. ("RHC") acquired a one-half acre parcel in the Town of Wappingers. RHC sought to redevelop the site as a gasoline filling station but the town required a special use permit to do so. The applicable special use permit law mandated a distance of 1,000 feet between a gasoline filling station and the boundary of certain residentially zoned lands and a distance of 2,500 feet between gasoline filling stations. RHC’s proposed gasoline filling station did not meet either distance standard.

In 1995, RHC appealed to the Town of Wappingers ZBA for relief from the distance standards. At that time, the ZBA determined that it did not have the power to vary the requirements of the special use permit (as distinguished from the area and use requirements of the zoning law). In 2000, RHC applied to the planning board for a special use permit. The planning board denied the application because the new proposed gasoline station would not meet certain zoning requirements, including the two distance standards. When RHC sought area variances for a second time, the ZBA entertained the application but then held that it was powerless to grant relief absent an express grant of authority to do so from the Town Board. RHC appealed the second ZBA determination to the Supreme Court. The Supreme Court annulled the ZBA determination, holding that Town Law §274-b (3) authorizes a ZBA to grant area variances from special use permit requirements. Upon the ZBA’s appeal, the Appellate Division affirmed. The Court of Appeals, on the Town’s motion, granted leave to appeal.


The Court of Appeals affirmed the two lower court judgments, agreeing that Town Law §274-b(3) explicitly authorizes the ZBA to grant area variances from legislated area requirements of a special use permit. Town Law §274-b(3) states:

...Notwithstanding any provision of law to the contrary, 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 pursuant to section two hundred sixty-seven-b of this article, without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.

In the Court's view, the plain language of the statute was enough upon which to base its holding. It also consulted legislative history and found support in Senator Cook's memorandum in support of the legislation enacted in 1992.The Court quoted the memorandum which stated in part " . . . in the event local site plan or special use permit requirements present dimensional difficulties to a particular applicant, an area variance may be applied for to the zoning board of appeals" (Sponsor's Mem., Bill Jacket, L. 1992, Ch.694, at 6). The Town relied on Matter of Jewish Reconstructionist Synagogue of N. Shore v. Levitan, 34 N.Y.2d 827 (1974), for the proposition that a ZBA may not waive or modify special use permit requirements, but that decision was made eighteen years before the amendments to Town Law §274-b which expressly granted ZBAs authority to grant area variances from special use permit requirements, and in any event that case did not involve a variance, but rather a waiver or modification.

This case has made clear that any dimensional requirement in a zoning regulation may be the subject of an area variance application. The case is limited to area variances, defined at Town law §267 (1) (b) as " . . . the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." Area variances are understood to involve specific quantitative zoning requirements such as setbacks, building heights, road frontage requirements, lot dimensions, and now, the type of quantitative separation distances involved in this case. Special use permit standards which are qualitative, such as adequate landscaping, sufficient accommodation for pedestrian traffic, retention of significant natural features or similar types of local standards, should not be subject to variance proceedings.

Second, the Court in dicta interpreted Town Law §274-b(5) to permit a town board that has delegated the authority to an authorized board to issue special use permits to also include a delegation of authority to waive the area requirements of a special use permit. The Court reasoned that Town Law §274-b(5) may be used to fulfill the same function as Town Law §274-b (3) with respect to area requirements. Town Law §274-b(5) states:

Waiver of requirements. The town board may further 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. Any such waiver, which shall be subject to appropriate conditions set forth in the ordinance or local law adopted pursuant to this section, may be exercised 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.

One well reasoned Supreme Court case had previously taken the opposite view, namely that the Town Law §274(b)(3) and §274(b)(5) serve distinct functions. In Dennis v. Zoning Board of Appeals of the Village of Briarcliff Manor, 167 Misc.2d 555 (Sup. Ct. Westchester Co. 1995), the Court stated:

Subdivisions (3) and (5) deal with very distinct authorizations. Subdivision (3) addresses a zoning board's power to grant area variances from area requirements associated with special use permits. Subdivision (5), on the other hand, deals with an ‘authorized board's authorization to waive special use permit requirements. In contrast to a zoning board's unconditional grant of authority under subdivision (3) to entertain area variance applications associated with special uses, an ‘authorized board's power under subdivision (5) to waive special use requirements must derive from further empowerment by the village board of trustees [or legislative body].3

Third, in a footnote to its decision, the Court held that the 1000 and 2,500-foot distance requirements applicable to the gasoline filling stations were "area" rather than "use" requirements. The Court stated: "Contrary to the position taken by the ZBA, the distance standards at issue here, which specify how many feet must separate a gasoline filling station from certain residentially zoned areas and from other gasoline filling stations, are clearly ‘dimensional or physical requirements’ subject to area variance relief."4

Prior to Real Holdingsupra, the cases treated distance requirements of the kind in Real Holding as use restrictions rather than area requirements. See Lynch v. Gardner, 15 A.D.2d 562 (2d Dept. 1961); and AA&L Associates v. Casella, 207 A.D.2d 1012 (4th Dept. 1994). Historically, distance requirements in zoning regulations were used to keep certain uses, which may present problems if poorly situated - such as gasoline stations, fast food establishments and adult uses - separated from each other or from protected places, such as residential districts, parks, places of worship and schools. When a zoning regulation requires that a use be separated from other uses, the regulation was considered a use restriction and deviations required a use variance. See Stringfellow's of New York, Ltd. v. City of New York, 91 N.Y.2d 382 (1998); 3 Rathkopf, The Law of Zoning and Planning § 61:31 (4th Ed.).


The Court of Appeals firmly determined based on its reading of Town Law §274(b)(3) that an applicant for a special use permit may seek relief from the Zoning Board of Appeals from the area requirements of the zoning law or ordinance, including those contained within the special use permit provisions. Further, cities, towns and villages that have used distance requirements in lieu of general zoning restrictions should take careful note of the Court’s treatment of separation requirements as area requirements. Finally, the Court of Appeals may want to take the opportunity in a future case to reexamine its statement that Town Law §§274-b(3) and 274-b(5) have the same function.


Although the case involved Town Law Statute §274-b, the case would also apply to city and village forms of government, which have identical Special Use Permit authority under General City Law §27-b and Village Law §7-725-b, respectively.

2 The history of Town Law §274-b(3) bears mentioning. The provision, which is commonly referred to as the "direct appeal" provision, did not come into effect until 1993 as part of the Legislative Commission on Rural Resources re-write and re-codification of the State's zoning enabling statutes. The purpose of this provision was to allow for a direct appeal from the board reviewing the special use permit application to the ZBA for an area variance as more fully explained in McKinney's Practice Commentaries to the Town Law. Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law at 21-25. As noted in the Court's decision, case law prior to the enactment of Town Law §274-b (3) indicated that an authorized board had no power to vary the legislative distance requirements of a special use permit. See Matter of Jewish Reconstructionist Synagogue of the North Shore v. Levitan, 34 N.Y.2d 827 (1974) and Matter of Knadle v. Zoning Bd. of Appeals of the Town of Huntington, 121 A.D.2d 447 (2d Dept. 1986).

3 The Court of Appeals interpretation of Town Law §§274(b)(3) and 274-b(5) as having the same function is problematic since there are different tests associated with these sections of law. First, while a zoning board uses the statutory balancing test contained in Town Law §267-b (3) (b) for area variances, the Town Law §274-b (5) waiver test simply states that the authorized board may grant such waivers in the event the "...requirements are found not to be requisite in the interest of public health, safety or general welfare or inappropriate to a special use permit." Thus, an authorized board granting variances through the waiver provision could conceivably be using the waiver test while a zoning board considering an identical variance request would be using the statutory balancing test.

4 On appeal, the Town of Wappinger’s ZBA argued that these distance requirements were use restrictions and RHC needed to apply for a use variance.


The Secretary of State is authorized to provide assistance to local governments and general information to the public pursuant to New York State Executive Law, Article 6-B.  The information in this Memorandum is provided pursuant to that authorization, but is informal only and should not be construed as providing legal advice. Local governments and other persons or entities should consult with their own legal counsel for legal advice.