Can a New York town's zoning law treat an accessory apartment differently if it's rented to a relative versus a stranger?

Plain-English summary

The Town of Hyde Park had a zoning regulation that drew a distinction between accessory apartments rented to relatives of the homeowner and accessory apartments rented to non-relatives. The town's attorney asked the New York AG whether that was a permissible zoning regulation. The AG said no, because under settled New York zoning law (in particular the Court of Appeals' Dexter and St. Onge decisions), zoning regulates the use of land, not the identity of the occupant.

The AG worked from the bedrock principle in Dexter v Town Board of Town of Gates, 36 NY2d 102 (1975), where the Court of Appeals struck down a rezoning condition that limited the zoning change to a specific applicant. The Court explained that conditions and safeguards in zoning have to relate to the real estate, not the person occupying it. In St. Onge v Donovan, 71 NY2d 507 (1988), the Court of Appeals revisited that principle, clarifying that zoning boards still have discretion to impose conditions that relate to the use itself (parking, fences, screening, hours of operation, and the like), but those conditions must be tethered to the impact of the use on the surrounding area, not to who is doing the using.

Applied to Hyde Park: if there is no physical difference in parking demand, noise, density, or utility load between an accessory unit occupied by a relative and one occupied by a stranger, then the zoning code cannot lawfully distinguish between the two. The town attorney had told the AG that those physical impacts were in fact the same regardless of occupancy.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Dexter principle in one sentence?
Zoning regulates land use, not the identity of the person who owns or occupies the land. Conditions on a rezoning, variance, or special permit have to relate to the property, not to the applicant.

Does St. Onge contradict Dexter?
No. St. Onge clarified that zoning boards still have discretion to impose conditions on variances and special permits, but those conditions must relate to the property's use and its effect on neighbors. Things like parking, landscaping, screening, fencing, lighting, hours of operation, or noise limits are permissible. Conditions like "only this person can use this property" or "only relatives of the owner can live here" are not.

Why is a relative-versus-non-relative line a problem?
Because it targets the occupant rather than the use. Two accessory apartments built and rented identically can have identical effects on the neighborhood (parking, noise, traffic, water use). If the only zoning-relevant fact is who the tenant is related to, the regulation is regulating people, not land.

Could a town achieve a similar result some other way?
The AG opinion does not address that, but a town can regulate occupancy density or the physical characteristics of accessory units (size, parking, separate entrances, owner-occupancy of the principal dwelling) so long as the regulation focuses on use-related impacts. Towns can also restrict accessory apartments to single-family lots generally, prohibit them, or permit them only by special permit with neutral conditions. What the AG said is off-limits is making the relative-or-not status of the occupant the dividing line.

What about state laws that protect family-style occupancy from being defined as something other than a family?
The AG opinion does not get into the related body of law about how "family" is defined for zoning purposes, but New York case law has long protected functional-family arrangements from being excluded by overly narrow "family" definitions. The Hyde Park question was the inverse: a town trying to favor relative-occupancy over non-relative-occupancy. The AG's response would apply in either direction. Whether the line is "only relatives" or "no relatives," the zoning has to be about the use, not the person.

Background and statutory framework

The legal foundation here is judge-made New York zoning doctrine, not a specific statute, which is why the statutes_cited field is empty. The doctrine is that zoning derives from the police power and regulates the use of land, not personal characteristics of owners or occupants.

The Court of Appeals' Dexter decision (1975) involved a rezoning conditioned on use by a specific supermarket applicant. The Court struck down the condition with the following passage the AG quoted:

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 neutral planning and zoning principles.

The Court of Appeals' St. Onge decision (1988) clarified that this principle did not strip zoning boards of all conditioning power:

Such conditions are proper because they relate directly to the use of the land in question, and are corrective measures designed to protect neighboring properties against the possible adverse effects of that use. Conditions imposed to protect the surrounding area from a particular land use are consistent with the purposes of zoning, which seeks to harmonize the various land uses within a community.

The line is between conditions about the use (permissible) and conditions about the user (not permissible).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-11_pw.pdf

Original opinion text

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 improper. Zoning deals basically with land use rather than the person who owns or occupies the land.

March 25, 1996

Brian Morgan, Esq.
Town Attorney
Town of Hyde Park
627 Albany Post Road
Hyde Park, NY 12538

Informal Opinion No. 96-11

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 neutral planning and zoning principles.

Dexter, 36 NY2d at p 105.

The Court of Appeals noted that while it is proper for a zoning board to impose appropriate conditions in conjunction with a change of zoning or a grant of a variance or a special permit, the conditions and safeguards must be reasonable and may relate only to the real estate involved without regard to the person who owns or occupies it. Zoning regulations which relate to the person rather than to the use of land are improper.

In Donovan, 71 NY2d at pp 515-516, the Court of Appeals emphasized that its holding in Dexter was not intended to divest zoning boards of their discretionary power to impose reasonable conditions in connection with a zoning decision. A zoning board may, where appropriate, impose reasonable conditions and restrictions 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, for example, a variance or special permit. Id. Conditions might relate to such things as fences, safety devices, landscaping, screening, access roads, the period of use, noises, emission of odors and other factors incidental to "comfort, peace, enjoyment, health or safety of the surrounding area". 71 NY2d at p 516.

Such conditions are proper because they relate directly to the use of the land in question, and are corrective measures designed to protect neighboring properties against the possible adverse effects of that use. Conditions imposed to protect the surrounding area from a particular land use are consistent with the purposes of zoning, which seeks to harmonize the various land uses within a community.

71 NY2d at p 516.

In your letter, you have indicated that there is no physical difference in parking, noise, population density and water and sewer use arising from the occupancy of an accessory apartment by relatives as compared to non-relatives of the owner of the house. It appears, therefore, based on the decisions discussed above, that the application of different zoning standards to these two classifications would be improper as a departure from the fundamental principle of zoning as a regulation of land use rather than the individual who owns or occupies the land.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions