## Facts

- Arverne Bay Construction Company owned a vacant parcel on Linden Boulevard in Brooklyn, New York.
- The parcel was originally in an “unrestricted” zoning district under New York City’s Building Zone Resolution.
- A 1928 zoning amendment reclassified the area as a residence district, excluding a gasoline service station use.
- The owner asserted the parcel could not be used properly or profitably for any use permitted in a residence district and that the restriction imposed unnecessary hardship.
- The owner applied to the New York City Board of Standards and Appeals for a variance to operate a gasoline service station; the Board denied the application, and the denial was sustained in certiorari proceedings.
- The owner then brought an independent action against city building officials seeking a declaration that the residence-district restriction, as applied to its parcel, violated due process under the Fourteenth Amendment and the New York Constitution.

## Issues

1. Whether a property owner who applied for, and was denied, a zoning variance is barred from later bringing a separate action challenging the zoning restriction as unconstitutional.
2. Whether enforcement of residence-district zoning restrictions against the owner’s parcel was confiscatory and unconstitutional as applied because it precluded any reasonable use of the property.

## Decision

- The Court of Appeals reversed the Appellate Division and affirmed the trial court’s judgment for the owner.
- The court held the prior variance application and denial did not estop the owner from suing to invalidate the restriction as applied.
- The court held the zoning restriction was unconstitutional as applied because, on the proof credited by the trial court, enforcement would preclude the parcel’s use for any purpose to which it was reasonably adapted, producing a confiscatory result.

## Legal Principles

- Seeking a discretionary variance (a request for a special privilege) does not waive or forfeit a later judicial claim that a zoning restriction is unconstitutional as applied (a demand as of right).
- An as-applied zoning challenge may succeed where enforcement of the restriction precludes use of the property for any purpose to which it is reasonably adapted, rendering the regulation confiscatory.
- Zoning is generally valid under the police power, but due process is violated when application of a zoning classification deprives a parcel of any reasonable economic use.
- An owner may establish confiscation by showing either that variance procedures cannot yield a reasonable use for the parcel, or that a variance necessary to allow reasonable use was arbitrarily denied.

## Conclusion

The court invalidated the residence-district restriction as applied to the owner’s vacant parcel because the restriction, in operation, left the land without any reasonable use, and the owner’s earlier unsuccessful variance effort did not bar the constitutional action.


Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587 (N.Y. 1938)