NYCL AGO 96-11.

• Case Date: March 25, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-11. March 25, 1996Informal Opinion No. 96-11Brian Morgan, Esq. Town Attorney Town of Hyde Park 627 Albany Post Road Hyde Park, NY 12538A local government's zoning regulations, dealing with accessory apartments in single family residences, which distinguish between apartments that are occupied by relatives of the homeowner and those that are not, are improper. Zoning deals basically with land use rather than the person who owns or occupies the land.Dear Mr. Morgan: You have asked generally whether a local government's zoning regulations dealing with accessory apartments in single family residences, which distinguish between apartments that are occupied by relatives of the homeowner and those that are not, are lawful. The fundamental rule is that zoning deals with land use and not with the person who owns or occupies the land. Dexter v Town Board of Town of Gates, 36 NY2d 102, 105 (1975); St. Onge v Donovan, 71 NY2d 507, 515 (1988). In Dexter, a specific supermarket applied for a rezoning in order to permit the siting of its store and related commercial structures. One condition of the rezoning application was that it would apply only to that particular applicant. The Court of Appeals, in deciding that the above condition is improper, cited the fundamental principle that a zoning board is charged with the regulation of land use and not with the person who owns or occupies the land. Dexter, 36 NY2d at p 105. The Court recognized that customarily when a change of zoning, a variance or a special permit is sought, it is for a specific project sponsored by a particular developer:

As a practical matter, the application is usually predicated on a particular type structure, often accompanied by architectural renderings, for a particular use by a specific intended user. In the usual case, the application and accompanying graphic material come to constitute a series of representations frequently bolstered at the hearing by additional promises or assurances made to meet objections there raised. Throughout, attention focuses on the reputation of the applicant and his relationship to the community and the particular intended use. And all too often the administrative or legislative determination seems to turn on the identity of the applicant or intended user, rather than upon

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