Posted On: October 31, 2006

Portions of Albany Zoning Ordinance Excluding Schools from Commercial Zone Held Unconstitutional

A court recently reversed a zoning board determination and held that sections of a city zoning ordinance which excluded schools from commercial districts was unconstitutional, because educational institutions enjoy special treatment regardless of what zoning district they seek to build in.

In Albany Preparatory Charter School v. City of Albany, the Appellate Division Third Department rejected the City of Albany’s attempt to distinguish cases relied upon by the School in the lower court decision. The Appellate Division held that general principals announced in earlier decisions apply “with equal force to areas zoned commercial as well as those zoned residential.” In so holding, the court noted that since educational institutions are “inherently beneficial,” they receive special treatment and are permitted to enter neighborhoods where nonconforming uses would otherwise not be allowed. The court further held that since an ordinance excluding educational uses from a zone deprives an applicant of any opportunity to demonstrate that its proposed educational use is consistent with the public good, provisions of the City of Albany Zoning Ordinance that cause an exclusion of educational uses from the commercial districts at issue are unconstitutional.

In his concurring opinion, Justice Spain wrote about his concern that the existing law does not support a holding that excluding private schools from non-residentially zoned districts can never be upheld, since the precedent only specifies that schools and churches should enjoy preferred treatment in residential districts.

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Posted On: October 18, 2006

New York Legislature Provides for Training of Planning Board and Zoning Board Members

Effective January 1, 2007 (Chapter 662 of the laws of 2006) the New York State Legislature has amended the General Municipal Law, Town Law, General City Law and Village Law to require four hours per year of training for each member of a local Planning Board and Zoning Board of Appeals, including the county planning board. Time spent in training in excess of four hours per year may be carried over to subsequent years.

The training may be traditional classroom or other formats, including video. Reappointment to the local board is conditioned upon completion of the required training. The law also provides that each local legislature must approve the training provided to local board members but also permits the local legislative body to modify the training requirements in the “best interests” of the community.

Posted On: October 3, 2006

Court Finds Vested Rights in 1993 Building Permit

The Appellate Division of the State Supreme Court restored a previously revoked building permit issued to construct a garage, which had been completed prior to revocation of the permit. In Matter of Veece v. Town of Babylon the Court held the combined Article 78 proceeding and declaratory judgment action was not time barred. The Court found the action was not based upon an appeal of the 1994 revocation of the building permit but rather the appeal of the 2003 Zoning Board of Appeals (ZBA) denial of a request for renewal of the permit and area variances. The action was brought within 30 days of the ZBA decision.

The property owner was held to have a protected interest in the permit as it was legally issued, substantial improvements had been performed based upon the permit and the permit was illegally revoked. The Court further found that the zoning as it existed in 1993 should be applied and therefore the only variance needed was for two tenths of a foot which the Court said should have been granted as it is a de minimus variance.

The decision applies long standing rules of vested rights but unfortunately the decision does not disclose the rationale for revoking the permit or why the Court held the permit was improperly revoked if, even under the 1993 zoning, an area variance was required, albeit a de minimus variance.