Posted On: April 17, 2010

Failure to Meet A Zoning Code's Special Permit Conditions Is Grounds For Denial

An appellate court reiterated the requirement that every precondition to granting a special permit must be met before a zoning board is required to grant such a permit. In Navaretta v Town of Oyster Bay, the Appellate Division Second Department upheld the denial of a special permit by an attorney seeking to operate an office from a residence.

Holding there was a rational basis for the zoning board's decision the Court held:

"...the record supports the ZBA's findings that the petitioner's home business failed to comply with several conditions in the special use ordinance, in that his proposed use exceeded the maximum square footage allowed, retained the services of more than one nonresident employee, failed to provide sufficient off-street parking, displayed a sign which exceeded the maximum size allowed, failed to maintain the character of the dwelling as a residence, and created hazardous or detrimental conditions, including glare from lighting...."

-Steven Silverberg

Posted On: April 10, 2010

Court Upholds ZBA Decision Including Land Under Water in Lot Area

The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: "the ZBA's determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion."

Unfortunately, the Appellate Division did not discuss the facts of this case. It is necessary to read the lower court decision to fully understand the facts of this unusual and complex case, in which the zoning board concluded that local regulations did not preclude the property owner from using certain underwater lands in calculating the area of the lot and ultimately deciding the size of the permitted structure based upon FAR.

The appellate brief and oral argument on behalf of the zoning board was by our partner Katherine Zalantis.

-Steven Silverberg

Posted On: April 1, 2010

Minimal Change In Structure With Approved Area Variance Does Not Justify Denial Of Amended Variances

The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied. The Court found the amendment involved an additional 3.6 inch setback variance to accommodate a structure that was 6 inches larger on one side and 18 inches larger on the other side and therefore the denial of the amended variance was arbitrary..

In reversing the decision of the Zoning Board the court stated the general rule applicable to such cases:

"Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion'" ... Nonetheless, a determination of a zoning board of appeals that 'neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'"

The Court went on to hold:

"Under the facts of this case, the requested amendments to the variance are de minimis (see Matter of Stapen v Siegel, 105 AD2d 841). Since the ZBA did not explain its reasons for reaching a different result on essentially the same facts as it had faced when making its prior decision, under the specific circumstances of this matter, its determination to deny the application for an amended variance was arbitrary and capricious, and must be annulled."

-Steven Silverberg