## Facts

- In 1977, the Town of Colonie Zoning Board of Appeals granted a use variance for property in a residential zoning district to operate a real-estate office, based on a showing of unnecessary hardship.
- The 1977 variance included a restrictive condition stating the building was “to be used solely by the applicants and may be used only in connection with their existing real estate business.”
- In 1985, Marcel St. Onge and others contracted to purchase the property and intended to continue using it as a real-estate office.
- The Town Planning Board denied site-plan approval, reasoning that the 1977 variance was only temporary and would terminate upon transfer under the restrictive condition.
- Petitioners appealed to the Town of Colonie Zoning Board of Appeals, arguing the variance ran with the land and remained valid after transfer.
- The Zoning Board concluded the 1977 variance was temporary and decided to review the matter anew, scheduling a hearing for petitioners to present evidence to justify an “extension.”
- Petitioners did not appear at the scheduled hearing; the Zoning Board denied the “application to extend” the variance, without prejudice to a future application.
- Petitioners commenced a CPLR article 78 proceeding challenging the Zoning Board’s action; Supreme Court granted relief to petitioners, but the Appellate Division reversed and upheld the Zoning Board.
- In a companion article 78 proceeding from the Town of Fenton, Daniel Driesbaugh challenged conditions attached to zoning relief that were framed in terms of the applicant’s personal circumstances and/or imposed limits not authorized by the zoning enactment.
- The Court of Appeals decided both matters in one opinion because each involved conditions that regulated the applicant rather than the land use of the parcel at issue.

## Issues

1. Whether a zoning board may condition a use variance so that it is limited to named applicants or a particular existing business, effectively ending the variance upon transfer, when the variance was granted based on hardship tied to the parcel.
2. Whether a zoning board may treat a variance as temporary, require a de novo “extension” hearing, or impose durational/personal conditions when the zoning enactment does not authorize such limits.
3. Whether conditions attached to zoning relief are valid when they do not relate to the land use of the parcel that is the subject of the variance.

## Decision

- The Court of Appeals reversed the Appellate Division order in *Matter of St. Onge v. Donovan* and held the 1977 restrictive condition limiting the variance to “the applicants” and their “existing real estate business” was invalid.
- The court held that conditions on a variance must relate to the use of the property that is the subject of the variance, without regard to the identity of the owner or occupant; the Colonie board’s personal limitation violated that rule.
- Because the variance was granted on proof of unnecessary hardship concerning the parcel, it could not be treated as a personal privilege that expired on transfer; the Zoning Board’s effort to require an “extension” hearing based on that condition was improper.
- The Court of Appeals modified the Appellate Division order in *Driesbaugh v. Gagnon* to remove unlawful conditions while leaving in place any zoning relief and conditions that properly regulated land use and were within the board’s authority.

## Legal Principles

- Conditions on zoning variances must regulate the land use of the parcel that is the subject of the variance, not the identity, ownership, or business affairs of a particular applicant.
- A use variance granted on a hardship showing tied to the parcel generally runs with the land; it is not extinguished merely because the property is sold.
- A zoning board may not impose personal, temporary, or durational limits on a variance unless such limits are authorized by the governing zoning enactment.
- A zoning board may not reopen or relitigate a previously granted variance simply because of a change in ownership, absent lawful grounds and procedures to revisit the prior approval.

## Conclusion

*Matter of St. Onge v. Donovan* holds that zoning boards may condition variances only in ways that regulate the land use of the affected parcel; a board cannot limit a variance to named owners or a particular existing business, nor can it impose unauthorized temporary or durational limits that effectively require a new hardship showing upon transfer. The Court of Appeals therefore reversed in *St. Onge* and modified in the companion *Driesbaugh* matter to strike unlawful conditions while preserving any valid, use-related relief.


Matter of St. Onge v. Donovan, 71 N.Y.2d 507, 522 N.E.2d 1019 (N.Y. 1988)