New York Zoning and Municipal Law Blog
A town zoning ordinance, which established the specific number of residences and the form of ownership of the residences, as well as the size and ownership of recreational facilities for a specific property, was voided by the appellate division in Matter of BLF Associates LLC v Town of Hempstead. In a decision which restates some of the fundamentals of zoning law in New York, the court held the attempt by the Town of Hempstead to control virtually every aspect of the ownership and use of a property exceeded its authority.
The property at issue is a 17 acre parcel previously owned by the United States and used as an army reserve facility. Originally the property was zoned Residence “B” allowing single family or senior housing on 6,000 square foot lots, as well as school, religious, municipal recreational and agricultural uses. The army base was closed in 1996 and Town was given first opportunity to acquire the property. In order to explore the purchase and reuse of the property the Town formed a Local Redevelopment Agency (LRA). The LRA prepared a reuse plan which combined residential uses and recreational uses. Initially the Town contemplated purchasing the property and incorporating the reuse plan in a deed restriction.
Ultimately, the Town did not purchase the property and instead the property was sold through competitive bidding to BLF Associates LLC (BLF) with no reference to the reuse plan in the agreement to purchase the property.
In 2004, while the sale was pending, the Town began looking into legislation that would implement the reuse plan. In April, 2005 the Town adopted a resolution creating the “North Bellmore Planned Residence District” for the property. The new zone established the number and type of permitted housing units. The zone also required specific recreational facilities and provided details on the size of the required facilities down to the minimum number of tennis and shuffleboard courts. It also required that ownership of the facilities be transferred to a homeowner’s association.
The ownership of the property was transferred to BLF in November, 2005 and this action was commenced by BLF seeking a declaration that the enactment was ultra vires, void and unconstitutional. The Supreme Court granted summary judgment to BLF.
In affirming the lower court, the appellate division noted that Town’s may only enact zoning ordinances based upon the authority granted by the State legislature. Pursuant to section 263 of Town Law such enactments must be in accordance with a comprehensive plan. In holding the enactment was ultra vires, the court found that in implementing the reuse plan through the zoning ordinance the Town had intended to control the use of the property in the same manner it would have if it acquired the property but such an action was “not a consideration or purpose embodied in the enabling act.” Further, the court found that while the town can “regulate and restrict lot sizes and permitted uses, there is nothing in these sections which empower the Town to create a zoning ordinance that specifies the exact number and type of dwelling allowed.”
The court also found that the zoning was “unnecessarily and excessively restrictive” in mandating the specific size and types of recreational facilities. Requiring the transfer of ownership of the recreational facilities to the homeowners and requiring that the senior facilities be owned as cooperatives was also declared ultra vires because a “fundamental rule of zoning deals basically with land use and not with the person who owns or occupies it.”
In holding that the zoning was inconsistent with the surrounding area, the court ruled that BLF was not, as the Town claimed, barred from bringing the action because it knew of the zoning before it purchased the property. The court stated that knowledge of zoning prior to purchase “does not bar purchaser from testing the validity of the zoning ordinance.”