Self-Created Shipping-Container Variance Requests: Deference to ZBA Balancing and Limits on Article 78 Transfer

1. Introduction

Matter of Kotary v Town of Floyd Zoning Bd. of Appeals (2026 NY Slip Op 02521 [4th Dept Apr. 24, 2026]) arises from a property owner’s attempt to develop a vehicle maintenance and storage facility on a .95-acre parcel in the Town of Floyd. After obtaining earlier approvals (including a special use permit in 2019 and zoning approval for one shipping container), the petitioner installed a second shipping container without first obtaining zoning approval.

During the relevant period, the Town enacted a “shipping container law” limiting shipping containers to accessory use and restricting density to one container per acre, with no containers permitted on property under one acre. The zoning enforcement officer deemed only the first container lawful and issued a notice of violation as to the second.

In response, the petitioner pursued a plan to build a wooden “barn” structure that would incorporate both shipping containers, and sought multiple variances from the Town of Floyd Zoning Board of Appeals (“ZBA”). After a public hearing, the ZBA granted only a height variance and denied the remaining requests, including relief aimed at legitimizing the second container. The petitioner commenced an Article 78 proceeding to annul the denials.

The Fourth Department affirmed the ZBA, while also clarifying a procedural point: an Article 78 challenge to a ZBA variance determination is not properly transferred to the Appellate Division under CPLR 7804(g) absent an “evidentiary hearing directed by law—though the Court may still reach the merits in the interest of judicial economy.

2. Summary of the Opinion

The Appellate Division, Fourth Department confirmed the ZBA’s determination and dismissed the petition. The Court held:

  • The proceeding was improperly transferred because the petitioner did not challenge a determination made after an evidentiary hearing directed by law (CPLR 7803(4); CPLR 7804(g)), but the Court reviewed the merits anyway for judicial economy.
  • The ZBA acted within its broad discretion under the Town Law § 267-b(3)(b) balancing test, and its denials had a rational basis supported by the record.
  • The record supported the ZBA’s focus on safety considerations, feasible alternatives, and, critically, the self-created nature of the hardship—particularly because the second container was installed after the Town’s restrictive law and construction began before necessary approvals were obtained.

3. Analysis

A. Precedents Cited

The Court’s analysis is built on three recurring Article 78 / zoning-variance pillars reflected in the cited authorities: (1) transfer/jurisdiction mechanics, (2) deference and rational-basis review of zoning boards, and (3) application of the Town Law variance balancing framework.

1) Transfer under CPLR 7804(g): when transfer is improper but merits may still be reached

  • Matter of Erie County Sheriff's Police Benevolent Assn., Inc. v County of Erie, 159 AD3d 1561, 1561 [4th Dept 2018] and Matter of Little v Town of Fabius Zoning Bd. of Appeals, 87 AD3d 1363, 1364 [4th Dept 2011]: Cited for the proposition that transfer to the Appellate Division is improper where the challenged determination was not made after an “evidentiary hearing directed by law.” The Court uses these cases to identify the procedural defect in the transfer order.
  • Matter of W.K.J. Young Group v Zoning Bd. of Appeals of Vil. of Lancaster, 16 AD3d 1021, 1021 [4th Dept 2005] (and again Little): Supports the Court’s decision to nonetheless address the merits “in the interest of judicial economy,” avoiding a remittal solely to correct the procedural posture.

2) Standard of review and deference to ZBA determinations

  • Matter of Conway v Town of Irondequoit Zoning Bd. of Appeals, 38 AD3d 1279, 1280 [4th Dept 2007]: Establishes the familiar framing—ZBAs have broad discretion, and judicial review asks whether the determination was illegal, arbitrary, or an abuse of discretion.
  • Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 147 AD3d 1427, 1428-1429 [4th Dept 2017]: These authorities collectively ground the “substantial evidence/rationality” lens used for affirmance: if the record contains substantial evidence supporting the rationality of the ZBA’s conclusion, the court should affirm.
  • Matter of Socha v Town of Starkey, 239 AD3d 1298, 1302 [4th Dept 2025]: Reiterates the constraint on judicial review—courts may not substitute their judgment for that of the ZBA even if the record could also support a different outcome.

3) Town Law § 267-b(3)(b): the balancing test, factors, and the role of findings

  • Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612 [2004]; Matter of Freck v Town of Porter, 158 AD3d 1163, 1165 [4th Dept 2018], lv denied 32 NY3d 903 [2018]; Matter of Mimassi v Town of Whitestown Zoning Bd. of Appeals, 124 AD3d 1329, 1330 [4th Dept 2015]: Used to restate the core statutory obligation: the ZBA must weigh the applicant’s benefit against detriment to the neighborhood/community.
  • Matter of Qing Dong v Mammina, 84 AD3d 820, 821 [2d Dept 2011]: Cited for the articulation of the five statutory factors (undesirable change; feasible alternatives; substantiality; adverse environmental/physical impacts; self-created difficulty).
  • Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 929 [2d Dept 2007] and Matter of Feinberg-Smith Assoc., Inc. v Town of Vestal Zoning Bd. of Appeals, 167 AD3d 1350, 1352 [3d Dept 2018]: Support the proposition that a ZBA need not marshal supporting evidence on each factor so long as the overall balancing determination is rational.
  • Matter of DeGroote v Town of Greece Bd. of Zoning Appeals, 35 AD3d 1177, 1178 [4th Dept 2006] (and Sasso, 86 NY2d at 382): Cited for affirmance where the ZBA considered appropriate factors and properly weighed benefit versus detriment.
  • Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93 [2001]; Matter of Gasparino v Town of Brighton Zoning Bd. of Appeals, 199 AD3d 1351, 1353 [4th Dept 2021]; Matter of Kaye v Zoning Bd. of Appeals of the Vil. of N. Haven, 185 AD3d 820, 821 [2d Dept 2020]: These cases support the Court’s point that even where the ZBA does not articulate detailed findings, the determination may still be upheld if the record reflects a rational basis and consideration of the statutory framework.
  • Matter of Christian Airmen, Inc. v Town of Newstead Zoning Bd. of Appeals, 115 AD3d 1319, 1321 [4th Dept 2014] and Matter of Carrier v Town of Palmyra Zoning Bd. of Appeals, 30 AD3d 1036, 1036-1038 [4th Dept 2006], lv denied 8 NY3d 807 [2007]: Invoked in the Court’s discussion of the petitioner’s conduct—installing the second container after the restrictive law and initiating construction without approvals— reinforcing the “self-created” hardship rationale and the legitimacy of ZBA skepticism where an applicant appears to be curing or circumventing a violation through variance relief.

B. Legal Reasoning

The Court’s reasoning proceeds in two steps: (1) procedural posture, then (2) merits under deferential review.

1) Procedural posture: improper transfer

The Fourth Department first held that Supreme Court should not have transferred the Article 78 proceeding because the petitioner was not challenging a determination made after an evidentiary hearing “directed by law” (CPLR 7803(4); CPLR 7804(g)). This matters because transfer affects which court initially decides the petition on the merits. Nonetheless, relying on Matter of Little v Town of Fabius Zoning Bd. of Appeals and Matter of W.K.J. Young Group v Zoning Bd. of Appeals of Vil. of Lancaster, the Court reached the merits to conserve judicial resources.

2) Merits: rational-basis affirmance of three variance denials

Applying Town Law’s variance framework, the Court emphasized that a ZBA must apply the statutory balancing test and consider the five factors in Town Law § 267-b(3)(b), but it need not generate a factor-by-factor written treatise. The decisive question on review is whether the ZBA’s overall balancing and outcome are rational and supported by the record.

The record, as the Court describes it, supported the ZBA’s focus on:

  • Safety considerations (an explicit emphasis in the hearing and review materials);
  • Feasible alternatives—the petitioner could have constructed a barn without incorporating shipping containers, which would have reduced or eliminated the need for at least some variance relief; and
  • Self-created hardship—the need for container-related variances stemmed from installing a second container after the Town’s restrictive law and beginning barn construction without approvals.

The Court treated the “self-created” aspect not as an automatic bar (consistent with the statute’s instruction that it is relevant but not necessarily preclusive), but as a powerful rational basis for denial when combined with feasible alternatives and the appearance that the applicant was attempting to circumvent enforcement of the shipping-container restrictions by embedding the containers inside another structure.

C. Impact

1) Practical guidance for variance applicants: enforcement posture matters

This decision underscores that variance applications that function as an after-the-fact strategy to legitimize a violation—particularly one that is recent and tied to conduct undertaken without approvals—invite denial under the statutory balancing test, especially where the record supports a conclusion that the applicant has feasible alternatives.

2) Reinforcement of deferential judicial review even without robust written findings

By affirming despite the ZBA’s limited articulation of findings, the Court reinforces a recurring principle in New York zoning litigation: courts may uphold ZBA determinations where the record demonstrates statutory-factor consideration and a rational basis, even if the board’s decision is not exhaustively explained in writing (as reflected in Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington and its progeny).

3) Procedural signal on Article 78 transfer practice

The Court’s transfer discussion serves as a caution to litigants and trial courts: not every ZBA “hearing” qualifies as an evidentiary hearing directed by law for transfer purposes. Although the Fourth Department reached the merits here, future cases may not always be “saved” by judicial economy—meaning parties should be attentive to proper Article 78 routing and preservation of procedural objections.

4. Complex Concepts Simplified

  • Article 78 proceeding (CPLR Article 78): A special court procedure used in New York to challenge actions of government bodies (like a ZBA) as unlawful, arbitrary/capricious, or an abuse of discretion.
  • Area variance: Permission to deviate from dimensional requirements (e.g., height, setbacks). Here, the petitioner sought relief including a reduced highway setback and variances tied to the second shipping container’s presence and classification.
  • Accessory use/structure: A secondary use customarily incidental to the principal use on the property. The Town’s shipping container law treated containers as permissible only in accessory fashion and only at specified density thresholds.
  • Town Law § 267-b(3)(b) balancing test: The ZBA weighs benefit to the applicant against detriment to the neighborhood/community, considering five factors (neighborhood character, alternatives, substantiality, environmental/physical impacts, and whether the hardship is self-created).
  • Self-created hardship: A difficulty resulting from the applicant’s own actions (e.g., building or installing items without required approvals). It does not automatically defeat a variance request, but it can strongly support denial when the board rationally finds circumvention or avoidable conflict with the code.
  • General Municipal Law § 239-m referral: A required referral of certain local land-use actions to a county planning agency for review. Here, the Oneida County Planning Department disapproved, noting substantial variances, apparent self-created hardships, and alternative solutions.

5. Conclusion

Matter of Kotary v Town of Floyd Zoning Bd. of Appeals reaffirms two consequential points in New York land-use litigation. First, it reinforces substantial deference to ZBA decision-making under Town Law § 267-b(3)(b): where the record supports a rational balancing—particularly when the applicant’s predicament is largely self-created and feasible alternatives exist—courts will not substitute their judgment for the board’s. Second, it clarifies that Article 78 proceedings challenging ZBA variance determinations are not automatically transferable under CPLR 7804(g) absent an evidentiary hearing directed by law, even if appellate courts may sometimes reach the merits to avoid needless procedural delay.