"In respect to the allowance of variations from their prescribed terms zoning laws are unique." Warshawsky v. American Automotive Products Co., 12 Ill. App.2d 178, 184, 138 N.E.2d 816, 819 (1956). See also Gorieb v. Fox, 274 U.S. 603, 607, 47 S.Ct. 675, 676, 71 L.Ed. 1228 (1927) (discussing "wisdom" of variance procedure, since inflexible application of zoning laws would result in "great and needless hardship").

Indeed, as another court has recognized in rejecting impossibility of performance in the lease context, “the primary promise of a lessee is to pay rent, and there is nothing legally impossible about that.” Warshawsky v. Am. Auto. Prods. Co., 138 N.E.2d 816, 821 (Ill.App.Ct. 1956) (internal citations omitted). The “‘impossibility' doctrine never justifies failure to make a payment because financial distress differs from impossibility.”

There seem to be four general rules applicable in situations such as this. (1) The lease is unenforceable where the contemplated use of the leased premises is prohibited by a zoning regulation. See, Shontz Co. v. Laffay, 225 A.D. 263, 232 N.Y.S. 614 (1929) (although occupation was unlawful, lease was not unlawful at inception because of possibility that necessary permit could be obtained, therefore lessee could recover security deposit); Ober v. Metropolitan Life Insurance Co., 157 Misc. 869, 284 N.Y.S. 966 award denied on reargument 157 Misc. 872, 284 N.Y.S. 966 (lease void and unenforceable, therefore lessor not entitled to rent and lessee not entitled to use and occupancy). (2) The lease is valid where a serviceable use of the premises remains which is consistent with the limitations of the lease, see Warshawsky v. American Automotive Prod. Co., 12 Ill. App.2d 178, 138 N.E.2d 816 (1956); the lease is not valid if a serviceable use does not remain, see 30th St. Corp. v. Straub Delivery Co., 41 Misc.2d 948, 246 N.Y.S.2d 455 (1963), aff'd 44 Misc.2d 78, 253 N.Y.S.2d 18 (1964). (3) The lease is not necessarily void and unenforceable where the zoning authorities have the power to grant a variance or the continuance of a conforming use.

In the circumstances, the defendant's zoning violation claim is not one which would relieve the defendant from its obligations under the sublease. See Stockburger v. Dolan, 14 Cal.2d 313, 316-317 (1939); Warshawsky v. American Automotive Prods. Co., 12 Ill. App.2d 178, 183 (1956); McNally v. Moser, 210 Md. 127, 137-138 (1956). There is nothing in Howland v. Board of Appeals of Plymouth, 13 Mass. App. Ct. 520 (1982), to the contrary.

In such cases it is generally held that it will be presumed that the parties anticipated that a license would be obtained and if in fact a license is refused, the lessee is held to have executed the lease with an awareness of the existing law and to have assumed the risk of refusal. Warshawsky v. American Automotive Products Co., 138 N.E.2d 816, 820 (Ill.App. 1956). The termination of the lease rested upon Nebaco's inability to obtain the required permission of the Regional Administrator, not upon its failure to obtain financing.

The present question must not be confused with that arising under zoning laws, the peculiar nature of which has warranted determinations of their validity as applied to a particular piece of property. The difference has been recognized by the Appellate Court in American Smelting and Refining Co. v. City of Chicago, 347 Ill. App. 32, 38, and in Warshawsky v. American Automotive Products Co. 12 Ill. App.2d 178, 185, where the following language appears: "The zoning law has an aspect differentiating it from other laws or ordinances passed in the exercise of police power. Such laws as a rule contain within themselves adequate specifications to make them applicable to all.

32 Am.Jur., Landlord Tenant, page 66, Sec. 48; American Law of Property, page 262, Sec. 3.43; Thompson on Real Property, page 250, Sec. 1187. Thompson on Real Property, page 251, Sec. 1187; Stockburger v. Dolan, 14 Cal.2d 313, 94 P.2d 33, 128 A.L.R. 87; Warshawsky v. American Automotive Products Co., 12 Ill. App.2d 178, 138 N.E.2d 816. In view of the fact that this action will have to be remanded for trial we deem it advisable to answer respondents' contention that parol evidence of a collateral agreement by the lessor to seek a variance in the zoning ordinance is inadmissible because it would vary the provisions of the written lease.

"); Sarasota-Manatee Airport Auth. v. Racing Wheels, Inc., 5 B.R. 309, 313 (Bankr.M.D.Fla. 1980)("The [lessee]'s third defense of economic frustration is equally without merit for not only was the risk of failing to procure the necessary zoning changes foreseeable, it was clearly contemplated by the parties and the failure to make provision in the lease agreement for a denial of the zoning change indicates an assumption of such risk on the part of the [lessee]."); Rosique v. Windley Cove, Ltd., 542 So.2d 1014 (Fla. 3d DC A 1989) (recision reversed when parties agreed to "take their chances" that existing building restrictions would be lifted); Caidin v. Poley, 313 So.2d 88 (Fla. 4th DCA 1975); see also Warshawsky v. American Auto. Prods. Co., 12 Ill.App.2d 178, 138 N.E.2d 816 (1956); Sachs Steel Supply Co. v. St. Louis Auto Parts Salvage Co., 322 S.W.2d 183 (Mo.App. 1959); Schlesinger v. Levine, 28 Misc.2d 654, 212 N.Y.S.2d 904 (N.Y.Sup.Ct. 1961). Compare Marks, 160 Fla. at 789, 36 So.2d at 612 (contrary dictum in case in which neither party knew of zoning restrictions).

RESTATEMENT (SECOND) OF PROP.-LANDLORD TENANT § 9.2 reporter's n. 3 (1977) (emphasis added). Courts in other jurisdictions have noted that the zoning scenario is unique since the governing authority "frequently" grants variances from zoning regulations. See Warshawsky v. Am. Auto. Prods. Co., 12 Ill.App.2d 178, 138 N.E.2d 816, 819 (1956); see also Pa. State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372, 375 (1961) ("There is authority that the obligor in a contract is excused from its performance when to perform would violate zoning regulations, but the rule is not applicable where, as in the present case, the zoning laws permit a variance in the regulations and some discretion may be exercised by the proper authorities in granting a permit for a proposed use."). In the only Texas case to address this issue, the Dallas Court of Appeals observed that a zoning ordinance would not automatically establish the illegality of the contract "so long as there existed a method, procedure, or course of action making it possible for a permit to issue within the time as contemplated by the contracting parties."

"); Sarasota-Manatee Airport Auth. v. Racing Wheels, Inc., 5 B.R. 309, 313 (Bankr.M.D.Fla. 1980) ("The [lessee]'s third defense of economic frustration is equally without merit for not only was the risk of failing to procure the necessary zoning changes foreseeable, it was clearly contemplated by the parties and the failure to make provision in the lease agreement for a denial of the zoning change indicates an assumption of such risk on the part of the [lessee]."); Rosique v. Windley Cove, Ltd., 542 So.2d 1014 (Fla 3d DCA 1989) (recision reversed when parties agreed to "take their chances" that existing building restrictions would be lifted); Caidin v. Poley, 313 So.2d 88 (Fla. 4th DCA 1975); see also Warshawsky v. American Auto. Prods. Co., 12 Ill. App.2d 178, 138 N.E.2d 816 (1956); Sachs Steel Supply Co. v. St. Louis Auto Parts Salvage Co., 322 S.W.2d 183 (Mo.App. 1959); Schlesinger v. Levine, 28 Misc.2d 654, 212 N.Y.S.2d 904 (N.Y.Sup.Ct. 1961). Compare Marks, 160 Fla. at 789, 36 So.2d at 612 (contrary dictum in case in which neither party knew of zoning restrictions).