Posted On: May 31, 2011

Eight Car Garage Not Customary Accessory Use

The Appellate Division overturned the decision of a zoning board which upheld the granting of a building permit to construct an eight car garage on the same property as a single family home. The court in Matter of Witkowich v. Zoning Board of Appeals of the Town of Yorktown found that the proposed eight to nine car garage, which was approximately twice the size of the house on the same lot, was not, as the zoning ordinance provided, a "subordinate building . . . the use of which is customarily incidental to that of a main building on the same lot."

In rejecting the argument that there were other similar structures in the area the Court held:
“there is no indication that the members of the ZBA relied on evidence of any specific accessory structures in the neighborhood, or as to the dimensions or uses of any such structures. In addition, although Sabo submitted letters from friends and neighbors asserting that there are several accessory buildings in the vicinity that are similar to the proposed garage, those letters did not detail the locations or dimensions of those structures. Under these circumstances, the ZBA lacked a rational evidentiary basis to support its finding that the proposed garage constitutes a permissible accessory building, within the meaning of the subject zoning ordinance.”

The Court likewise took issue with the manner in which the zoning board calculated the height of the structure and concluded that the finding by the zoning board that no height variance was required is also incorrect.

Steven Silverberg

Posted On: May 9, 2011

Court Overturns Recreation Fee For Senior Housing

The Appellate Division overturned the requirement that a recreation fee be paid as a condition of site plan approval for a senior housing community. In Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd. the court held that the planning board failed to make the requisite findings to justify imposing a recreation fee and remitted the matter to the planning board for further consideration.

The Court found:

"The Planning Board for the Town of Carmel (hereinafter the Planning Board) has the authority to impose a recreation fee as a condition to site plan approval as long as certain findings are made prior to the imposition of such a fee (see Town Law § 274-a[6]... Here, however, the Planning Board made no "individualized consideration" prior to imposing the recreation fee and made no specific findings as to the recreational needs created by the petitioner's improvements"

As the statute requires a determination that the proposed use will impact recreational needs before a fee can be imposed, the Court remitted the matter to the planning board for additional findings.

-Steven Silverberg

Posted On: May 1, 2011

Court Upholds Zoning Board Interpretation of Permitted Accessory Use

The Appellate Division upheld a zoning board's determination that recreation facilities open to the public is a permitted accessory use for a school. In the Matter of East Hampton Indoor Tennis Club, LLC v. Zoning Board of Appeals of Town of East Hampton, the Court found that the zoning board correctly affirmed the determination of the building inspector.

The petitioner, which operates a commercial tennis facility, had requested an interpretation by the building inspector when it learned a local school intended to build a recreational facility, which includes a tennis facility that would be open to the public for a fee after school hours and in the summer. The Court noted that the building inspector made inquiry of public schools in the area and determined they had made similar use of their recreational facilities and, absent a specific provision in the zoning ordinance, finding this to be a permitted accessory use was a reasonable application of the ordinance.

First, addressing the issue of standing of the petitioner to bring the challenge, the Court held:

"petitioner established that it held a legal interest in properties located in close proximity to the subject property, including properties required to receive notice of the administrative hearing, and demonstrated that certain alleged injuries, aside from the threat of increased business competition, were within the "zone of interest[s]" protected by the zoning laws..."

Then noting that generally the interpretation of a zoning ordinance, while given great deference, is subject to an exception when there is a purely legal question, "this exception does not apply in the instant case, as the analysis of whether the proposed accessory use is incidental to and customarily found in connection with the principal use of the property is, to a great extent, fact-based...".

In upholding the zoning board, the Court found:

"the petitioner does not dispute that recreational facilities, such as playing fields and tennis courts, are, in general, customary and incidental to the educational purpose of a school (see Town of Islip v Dowling Coll., 275 AD2d 366). Instead, the petitioner contends that the subject facilities should be treated differently because the school intends to use the facilities to conduct year-round, fee-based programs for the general public. The ZBA considered this proposed use, inquired into the customary practices at other local schools, and reasonably determined that the subject facilities would still constitute uses accessory to the primary educational purpose of the school so long as any public use was restricted to hours when school was not in session. Affording the ZBA's determination appropriate deference, we cannot say that its classification of the subject facilities as an accessory use was illegal, arbitrary and capricious, or an abuse of discretion...".

-Steven Silverberg