Posted On: September 28, 2009

Summer 2009 Zoning and Municipal Law Round Up

The following is a summary of New York zoning and municipal law cases decided since June that we have not yet covered. The summary has been prepared by Bernis Shapiro of our office.

In the Matter of Lackawanna Community Development Corporation v. Frank E. Karkowski et al, 12 NY3d 578, 883 NYS2d 168 (June 11, 2009).

Issue: Is property leased out by a Local Development Corporation for for-profit manufacturing activities taxable or exempt from taxation?

Holding: Local Development Corporations are special not-for-profit corporations organized under Section 1411 of the Not-For-Profit Corporation Law for “…charitable or public purposes of relieving and reducing unemployment…bettering and maintaining job opportunities, instructing or training individuals to improve or develop their capabilities for such jobs…and encouraging the development of, or retention of, an industry in the community or area….”

Section 420-a of the Real Property Law exempts real property owned by a corporation and used exclusively for charitable purposes from real estate taxation. However, the Court of Appeals in affirming the decision of the Appellate Division, Fourth Department, (50 AD3d 1469, 856 NYS2d 405) which reversed the Supreme Court, Erie County, held that since the manufacturing use of the property was not exclusively devoted to the charitable purposes outlined in Section 1411 of the Not-For-Profit Law, but rather also generated profit for the tenant, that the property was not exempt from taxation.

The Court of Appeals differentiated property owned by a Local Development Corporation, devoted to for-profit manufacturing use, from property owned by an Industrial Development Agency devoted to the same use, since Section 874 of the General Municipal Law specifically exempts land and improvements owned by an Industrial Development Agency from real property taxation regardless of the use of the property.


Buffalo Crushed Stone Inc. v. Town of Cheektowaga, 13 NY3d 88, ____NYS2d___, 2009 WL 1850964 (June 30, 2009).

Issue: Does the prior nonconforming use status of portions of a quarry property extend to other portions of such property on which quarrying activities were not conducted prior to change of zoning?

Holding: This issue was visited previously in 1980 in Matter of Syracuse Aggregate Corp. v. Weiss, 51 NY2d 278, 434 NYS2d 150 which held that “…where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.” at 286.

The Court of Appeals in Buffalo Crushed Stone , in affirming and expanding the decision of the Appellate Division, Fourth Department (55 AD3d 1228, 864 NYS2d 598), placed the burden of proof on the quarry to “…establish specific actions constituting an overt manifestation of its intent to utilize the property for the ascribed purpose at the time the zoning ordinance became effective; a mere contemplation of purpose, lacking supportive evidence of undertakings to effectuate such intentions, will not suffice” at 98. The Court held that the unique nature of quarrying in which portions of property are intentionally not mined and are held in reserve until initial portions have been depleted of their resources, would normally meet this burden unless the initial quarrying activities were insubstantial.

Chief Judge Lippman dissented in part from Judge Ciparick’s decision, opining that the “intent to mine” and the “lawful ability to mine” under prior zoning should be differentiated . In other words, in his opinion, all portions of a property for which prior nonconforming use status are sought should have permitted such use prior to change of zoning.


In the Matter of John Gebbie v. David Mammina et al, ___ NY3d ___, ___ NYS2d ___, 2009 WL 2762152 and 2009 WL 2633702 (August 27, 2009).

Issue: May the Appellate Division make a de novo determination of whether area variances should have been granted by a zoning board?

Holding: The Court of Appeals summarily reversed the Appellate Division, Second Department (57 AD3d 544, 868 NYS2d 740), thereby dismissing the Appellate Division’s review of whether the area variances in question should have been granted. The Appellate Division had relied upon the dual facts that there had been no community opposition to the variances and that the variances sought had been insubstantial, but the Court of Appeals concluded that the denial of the variances “…had a rational basis and was not arbitrary and capricious…and the Appellate Division erroneously substituted its judgment for that of the agency (zoning board).”

The Court of Appeals cited its prior ruling in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004) which held that “(t)his Court has often noted that local zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one. Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure (citations omitted). A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence (citations omitted).” at 613.

Town of Riverhead v. Gezari, 63 AD3d 1042, 881 NYS2d 172 (2nd Dept. June 23, 2009).

Issue: Was it proper for the Supreme Court to issue a preliminary injunction enjoining the regular use of property for the takeoff and landing of a private helicopter without a special permit as required for airports under the zoning code?

Holding: The Appellate Division affirmed Supreme Court, Suffolk County, in holding that the municipality showed a likelihood of success on the merits and the equities were balanced in its favor, because the use of the property met the definition of “airport”, the property was used for no other purpose that the takeoff and landing of a private helicopter, and the property owner could demonstrate no hardship in losing use of the property for such use.

Matter of Zaniewski v. Zoning Board of Appeals of Town of Riverhead, 64 AD3d 720, 883 NYS2d 279 (2nd Dept. July 21, 2009).

Issue: Was is proper for the zoning board to deny area variances for the construction of a house on a substandard lot?

Holding: The Appellate Division reversed Supreme Court, Suffolk County, by affirming the decision of the zoning board which denied the area variances, refusing to disturb the broad discretion of the zoning board as upheld by the Court of Appeals in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004). This was the second time that variances had been denied, the first being 7 years before when the applicant and her husband had sought area variances to subdivide an improved property to create a new vacant lot. Following that initial denial, they had conveyed the house and the major portion of the lot to the husband and a smaller portion of the lot to the wife who then attempted a second time to obtain the area variances.