B. Authority To Impose Conditions

• Jurisdiction: New York

B. Authority to Impose Conditions

The single most important power of both ZBAs and planning boards is the authority to attach conditions to zoning approvals. These conditions assure that site-specific concerns are addressed in a way that best protects the legitimate interests of local governments. Moreover, in the SEQRA context, imposing conditions is how such boards can ensure that potential adverse environmental impacts are mitigated to the greatest extent practicable.

The vast majority of conditions imposed by boards address obvious concerns and are noncontroversial. Examples include requirements that certain landscaping be planted and maintained, that appropriate infrastructure be constructed to ensure the health and safety of surrounding property owners, that buffer space or drainage control measures be implemented, that noise be limited and so on. Applicants typically accept such conditions so long as they are not unduly burdensome.

In some instances, however, boards may seek to impose conditions that are outside their authority, as, for example, when a board feels constrained to approve a project under applicable review standards but otherwise opposes the project as a whole. When facing such burdensome conditions, the practitioner should be mindful of the limitations discussed below.

1. Constitutional Requirements

As noted above, governmental units may not take property without providing just compensation to the owner. A related concept is the "unconstitutional conditions" doctrine. Under this doctrine, governments may not "require a person to give up a constitutional right"—such as "the right to receive just compensation when property is taken for public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property."⁶⁷⁹ This doctrine stems from the due process clauses contained in the Fifth and Fourteenth Amendments to the United States Constitution.

The United States Supreme Court, in Nollan v. California Coastal Commission,⁶⁸⁰ crafted a two-pronged test to determine whether a particular condition is unconstitutional. First, there must be an "essential nexus" between the "legitimate state interest" sought to be promoted and the condition at issue.⁶⁸¹ Second, there must be a "rough proportionality" between the condition imposed and the identifiable impacts of the development in question.⁶⁸² Thus, if the "essential nexus" and "rough proportionality" are lacking, the condition will be deemed unconstitutional. Conversely, where a condition genuinely advances the planning concerns sought to be promoted, it will be upheld.

In Nollan, a property owner sought to demolish a dilapidated beachfront bungalow and replace it with a three-bedroom house. However, a regulatory body refused to grant the property owner's building permit application unless the property owner granted the public an easement to walk along the property owner's beach. The condition was invalidated because there was no connection between the regulatory body's development ban and the easement that the regulatory body compelled the property owner to grant.⁶⁸³

The Nollan Court held that, if the regulatory body had instead "attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house—for example, a height limitation, a width restriction, or a ban on fences," the condition would have had the requisite "essential nexus" with the development limitation purpose and would be upheld.⁶⁸⁴

In Dolan v. City of Tigard,⁶⁸⁵ the property owner proposed to redevelop an existing retail store to nearly double its size. The city granted the property owner's application for a building permit but conditioned the grant on the owner's dedicating a suitable amount of land for construction of a pedestrian/bicycle pathway. The Court held that this condition failed the "rough proportionality" prong and was therefore an unconstitutional condition.⁶⁸⁶

The Dolan Court went on to elucidate the showing required to meet the "rough proportionality" prong. For example, the city could have required this condition on a showing "that the additional number of vehicle and bicycle trips generated by petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement."⁶⁸⁷ Instead, the "city simply found that the creation of the pathway 'could offset some of the traffic demand . . . and lessen the increase in traffic congestion.' "⁶⁸⁸ Thus, if the city had found, based upon hard empirical evidence, that the development would have increased traffic congestion, the condition would be permissible. However, because the city merely speculated that the development could increase congestion, without any specific data to support this conclusion, the Court concluded that the city imposed an unconstitutional condition since the required "rough proportionality" between the city's condition and the proposed development of the property was lacking.⁶⁸⁹

PRACTICE GUIDE

The unconstitutional condition test is similar to the requirement of New York law that a zoning determination be based upon "substantial evidence."

2. Variance Conditions

In approving variance applications, the ZBA is authorized to impose "such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property."⁶⁹⁰ Variance conditions are subject to the additional requirements that they be "consistent with the spirit and intent of the zoning ordinance or local law" and "imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community."⁶⁹¹

The origin of this legislation can be traced to the landmark decision of the New York Court of Appeals in St. Onge v. Donovan.⁶⁹² St. Onge stands for the proposition that a ZBA "may, where appropriate, impose 'reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property,' and aimed at minimizing the adverse impact to an area that might result from the grant of a variance or special permit."⁶⁹³ Specifically, the Court stated:

Such conditions might properly relate "to fences, safety devices, landscaping, screening and access roads relating to period of use, screening, outdoor lighting and noises, and enclosure of buildings and relating to emission of odors, dust, smoke, refuse matter, vibration noise and other factors incidental to comfort, peace, enjoyment, health or safety of the surrounding area."⁶⁹⁴

The Court reasoned that conditions of this nature are appropriate because they seek to protect neighboring properties from potential adverse effects of the land use in question. It concluded that these types of conditions are "consistent with the purposes of zoning, which seeks to harmonize the various land uses within a community."⁶⁹⁵

On the other hand, the Court of Appeals made it clear that a ZBA has no power to impose conditions that are unrelated to the legitimate purposes of zoning.⁶⁹⁶ The line here may not always be clear. In St. Onge, the Court upheld a limitation on the number of cars that could be stored outside an auto body shop because an accumulation of vehicles could adversely affect the character of the surrounding neighborhood.⁶⁹⁷ In that same case, however, the Court struck down a condition requiring the applicant to phase out auto repair operations at a second site, located in another area of the town. In striking the latter condition, the Court noted that a ZBA may not impose a condition that seeks to regulate the details of a business's operation, rather than the use of the land on which the enterprise is located.⁶⁹⁸

Likewise, the Court noted that a ZBA lacks the authority to condition a variance for one piece of property upon the landowner's agreement to dedicate land that is not the subject of the variance application to some desirable use.⁶⁹⁹ The Court of Appeals analogized the "phase out" condition imposed on the landowner in St. Onge to these types of impermissible conditions and concluded that "[s]uch conditions are invalid because they do not seek to ameliorate the effects of the land use at issue, and are thus unrelated to the legitimate purposes of zoning."⁷⁰⁰

The St. Onge Court also recognized that zoning deals with the use of land and not the person using it. Therefore, a condition may not be imposed restricting the variance to a particular applicant.⁷⁰¹ Based upon this principle, the Court invalidated a condition requiring termination of a variance for a real estate...