Why You Can’t Build a Zoo in Your Backyard

An interview with David Levine, chair of New Castle’s
Zoning Board of Appeals
By Christine Yeres

Gabby Rosenfeld and David Levine

What is zoning? And why does it exist?

Zoning is used to implement the planning objectives of a municipality.  It’s a device for shaping and directing growth, addressing community problems and maintaining healthy, attractive communities. Zoning codes date from 1916, first implemented when New York City was experiencing a building boom. They were an attempt to deal with the unprecedented problems of density, bulk and the right to light and air. In 1926, the U.S. Supreme Court validated zoning as a constitutional exercise of a municipality’s police power.

Then is zoning a sort of mass agreement among residents?  Do I agree to the zoning when I buy a house?

Consider it part of what political scientists refer to as the social contract among citizens.

Is the “Zoning Board” the same as the “Zoning Board of Appeals”?  If so, what are people appealing?

Yes, the terms are interchangeable, although the enabling statute refers to a Zoning Board of Appeals.  New Castle’s ZBA was first established on June 2, 1928.  The Town Board appoints its five members, each of whom serves a five-year term with one term expiring each year. New York law requires zoning and planning board members to take training sessions of at least four hours annually.
The ZBA acts like a court with power to grant special use permits, and to which anyone can appeal the determination of the building inspector or the Architectural Review Board.

What’s a “variance”?  Why would I need one? 

A variance is a right to do something on your land that is prohibited by the zoning law. In fact, most applications that come before us seek the Board’s relief from Chapter 60 of the zoning code’s set-back requirements, which prohibit an owner from building too close to her property line. In these cases, the governing statutes and case law require that we balance the benefit to the applicant from granting the variance against the resulting detriment to the public health, safety and welfare of the community.

What’s the difference between a “variance” and a “special use permit”? 

A variance is the right of a property owner to do something on his land that is prohibited by the zoning code.  By contrast, a special use permit enables an owner to use land in a manner the code already permits and that should be allowed, so long as the board is assured that the use is in harmony with the rest of the neighborhood and that it complies with certain code conditions.

Have the kinds of cases and the number of cases that come before the ZBA changed over the years? 

I asked my friend and colleague Gabby Rosenfeld, Chairman Emeritus and current member of the ZBA, whose experience is a great gift to us all, to answer this question.  He said, “As New Castle’s appeal has grown and real estate prices have risen, more homeowners, especially those on smaller lots, prefer to stay and seek variances to enlarge their homes rather than leave.”

What’s the biggest change in zoning law you’ve seen over the 25 years you’ve lived in New Castle?

The decline in the quality of chairmen.

Have you observed any interesting trends from your vantage point at the ZBA?

Again, from the Chairman Emeritus: “Through the years, the town board has passed lots of new legislation about building requirements, like sprinklers for new construction and the application of the floor area ratio.  These regulations are appealable to the ZBA and have expanded our jurisdiction.”

What happens when a friend or neighbor appears before you?

The law encourages us to recuse ourselves only if we feel that we’re unable to render a fair judgment because of a relationship with the applicant or someone close to her.
When a resident of New Castle wants to request a variance is he obliged to inform his nearest neighbors?  How is that information delivered?

Our board has adopted the practice of having the applicant notify his contiguous neighbors by registered mail of his plans and the date of the ZBA meeting, and to post a metal sign in front of the property to alert the public that the property will be the subject of an application.

How much weight does the ZBA give to neighbors’ objection to a variance?  Does a near-neighbor’s objection count for more than a more distant one’s?

We welcome and consider carefully the views of all neighbors, but they are not dispositive of the issue.

Does a great deal depend on precedent?  If I can show that you granted my friend on the other side of town a similar variance to the one I’m asking for, must you allow it?

We respect the precedential values of prior judgments, but we also seek to decide the merits of each application on a case-by-case basis.

What if my friend’s variance was granted despite neighbors’ objections, whereas my neighbors don’t mind?  Is it an automatic pass for me? 

No, but we will take note of that fact.
When neighbors disagree, what does the ZBA do?  I’ve seen you tell the parties to “step into the outer hall and talk to each other.”

We encourage neighbors to resolve their disputes, but their inability to agree on a project won’t deter us from reaching a decision.

When there are fewer than five – but at least three – members of the board present and the board is prepared to make a dispositive vote, I’ve heard you warn people that they may want to wait “without prejudice,” until a time when more of you are present. 

The law requires that an applicant win at least three affirmative votes from our five-member board to prevail.  If a member is absent and the tone of the discussion suggests that there may not be three affirmative votes present, I think it’s simply neighborly to remind the applicant of where things stand. Without prejudice means the ZBA will not hold it against the applicant that she asked for a delay in the final decision.

You seem, in these meetings, to have quite a judicial temperament.  What do you do in life?  Something similar?

I own my own business.  I am a retired member of the New York State Bar Association.

How long have you lived in New Castle?

We’ve lived here for more than 25 years.

How many cases do you hear in a year? 

In each of 2004 and 2005, we heard more than 100 applications; in 2006 we heard only 93 applications, and as of the end of Sept. 2007, we have heard 76.

There are three high-profile cases before you this year: a special-use permit for the proposed mosque on Pinesbridge Road; a special-use permit for the Legionaries of Christ on Armonk Road; and the application by the developer of the Reader’s Digest property for a variance.  In what stages are these three applications? 

The application of the Upper Westchester Muslim Society for its project on Pinesbridge Road is in the initial phases of complying with the NYS Environmental Quality Review Act (SEQRA). 
The application for Legionaries of Christ proposal to enlarge its seminary is still in the SEQRA review. 
The application of Summit-Greenfield, the owner of the Reader’s Digest property, for an area variance was the subject of an informal hearing at our September meeting.  Because it is a part of larger development issues currently before the town board, we have adjourned it until those other issues are resolved.

The ZBA is “lead agency” in the first two and an “involved agency” in the third.  What’s the difference?

When more than one agency will be involved in the permitting and approval of a project, a coordinated review of the project will be led by a single, lead agency which is responsible for managing the environmental review process and making certain determinations regarding the significance of the environmental impacts of the project.  An involved agency is one which has a permitting or approval function over the project.  And there’s a third category: an interested agency is one which desires to participate in the review process because of its specific expertise or concern about the project.

What made you volunteer to serve on the ZBA?
The example of my predecessor friend . . . and the benefits package. 

Where are you in your term right now?
Hoping for the enactment of a term limits law.
Editor’s Note: Regular ZBA meetings are held on the last Wednesday of every month (except August).  Special meetings to address pressing issues are scheduled as required.  These meetings are broadcast live on NCCTV’s Channel 78 and replayed frequently.  Click “NCCTV” for a full schedule.  Click “Agendas & Minutes” for ZBA agendas.