Posted On: March 29, 2010

Village May Not Use Broad Reading Of Restrictive Covenant To Prevent Use

An appellate court upheld a decision finding that a proposed in-ground swimming pool does not violate a restrictive covenant. In Kemp v. Village of Scarsdale the Appellate Division held "the plaintiff established her prima facie entitlement to judgment as a matter of law, as the plain language of the restrictive covenant at issue did not reveal an intent to preclude her proposed use of the property."

The Court noted:
"Since the law favors the free and unobstructed use of real property, a restrictive covenant must be strictly construed against those seeking to enforce it, and may not be given an interpretation extending beyond the clear meaning of its terms (see Witter v Taggart, 78 NY2d 234, 237-238; Wechsler v Gasparrini, 40 AD3d 976; Liebowitz v Forman, 22 AD3d 530, 531; Kaufman v Fass, 302 AD2d 497, 498, cert denied 540 US 1162 )."

-Steven Silverberg

Posted On: March 27, 2010

Variance For One Nonconfirming Use Does Not Require Grant Of A Variance For Another Nonconfirming Use

A court denied a use variance to conduct a motorcycle sales operation at a location which previously obtained a use variance to operate an antique furniture store. In Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead, the Appellate Division affirmed the denial of a use variance, finding that the property owner had a self created hardship due to the fact that he purchased the property for a commercial use when he knew it was zoned for residential use. Further, the court held "the fact that a use variance was granted to the prior owner for the use of an antique furniture store could not have lead to a reasonable expectation by the petitioner that it could operate a motorcycle sales, storage, and display store under the prior use variance."

The court, in quoting the case of Matter of Miller Family Ltd. Partnership v Trotta (23 AD3d 389, 389-390) reiterated the criteria for obtaining a use variance in New York stating:

"there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created."

Finally, the Court found that the grant of a use variance for the antique store did not create a precedent requiring the Zoning Board to grant the current variance application as "the evidence at the hearing established that the circumstances of the prior variance granted by the Zoning Board were distinguishable from the petitioner's application, and, therefore, the Zoning Board was not bound by its earlier determination."

-Steven Silverberg

Posted On: March 18, 2010

Court Review of Administrative Penalty Is Limited

The First Department upheld a $250,000 penalty imposed by the DEC. In Matter of Longwood Assoc., LLC v New York State Dept. of Envtl. Conservation, the court held that the penalty imposed for placing an unregistered 2000 gallon petroleum bulk storage tank in violation of the Environmental Conservation Law and Navigation Law was a penalty that did "not shock the conscience."

-Steven Silverberg