New York Zoning And Municipal Law Blog

Articles Posted in Zoning and Land Use Law

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The Appellate Division reversed the Supreme Court and reinstated the determination by a Zoning Board of Appeals (ZBA) to deny area variances for an accessory structure in a front yard. In Matter of Kramer v. Zoning Board of Appeals of the Town of Southampton, the Court upheld the denial of area variances sought by the Petitioners, after they had completed construction.

Petitioners had constructed a barbecue, sink, cabinets, counter top and refrigerator in their front yard. When they subsequently applied for a building permit they were told they needed variances to permit what was essentially an accessory kitchen in the front yard. The ZBA denied the application finding: “…granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b[3][b]).”

In reversing the lower court and upholding the decision of the ZBA the Court noted:

“In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Town Law § 267-b[3][b]; …. The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational….”

Petitioners also argued that three prior variances issued to other applicants create a binding precedent that mandated the issuance of the variance to Petitioners. The Court disagreed finding: “…petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application….”

-Steven Silverberg

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At the end of June, lost among the headlines about other rulings, the U.S. Supreme Court held that a local sign law was unconstitutional. In Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) the Court broke new ground in interpreting permissible sign regulations.

In our article, published in the August 2015 edition of the New York Real Estate Law Reporter, we discuss the decision;and some of its implications.

-Steven Silverberg

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In a case primarily dealing with the authority of a Zoning Board of Appeals (ZBA) to interpret a zoning provision, the Court also addressed the issue of late filing of the ZBA decision. In the Matter of Stone Industries, Inc. v. Zoning Board of appeals of the Town of Ramapo, the Appellate Division held that the ZBA properly interpreted the ordinance as prohibiting the production of asphalt from recycled material where the language of the ordinance prohibited “the primary production of asphalt from raw materials.”

The Court noted:

“As a general rule, zoning ordinances are in derogation of the common law and must be strictly construed against the municipality….This rule is subject to the limitation that where, as here, it would be difficult or impractical for a legislative body to promulgate an ordinance which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the ordinance may be delegated to an administrative body or official….The interpretation of the zoning board of appeals or the official governs unless such interpretation is unreasonable or irrational….”

While it appears that the argument here was that recycled material is not raw material, apparently the Court believed that the intent was to prohibit all asphalt production. “Based on the record evidence, it was neither unreasonable nor irrational for the Board to conclude that the processing of recycled asphalt was not a permitted use under the subject sections of the zoning law.”

Another aspect of the decision dealt with the provision in New York Town Law § 267-a[9] that requires the filing of a ZBA decision in the office of the Town Clerk, within five business days of being rendered. The Court found that the ZBA’s failure to comply with this rule was not fatal to the ZBA’s determination.

“Town Law § 267-a(9) does not specify a sanction for the failure to comply with the five-day filing requirement (see generally Nyack Hosp. v Village of Nyack Planning Bd., 231 AD2d 617, 618). While the Board offered no explanation for its delay, the petitioner was unable to demonstrate that it was prejudiced by the late filing.”

-Steven Silverberg

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The Appellate Division upheld a zoning board determination that the existence of a legal nonconforming use did not give the property owner the right to maintain a different nonconforming use. In Bradhurst Site Construction Corp. v Zoning Board of Appeals of the Town of Mount Pleasant, the Court found the Zoning Board of Appeals properly upheld the determination of the Code Enforcement Officer who had found that the use of the property for a maintenance garage and truck storage was not a permitted use.

“The Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, i.e., a sand and gravel operation, which use was discontinued in or around 1950, and that the petitioner’s subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. The ZBA’s determination was not irrational and is supported by evidence in the record…. Furthermore, the petitioner’s contention that the respondents/defendants (hereinafter the respondents) are equitably estopped from prohibiting it from operating a maintenance garage and truck storage facility on the subject lot is without merit, as the evidence submitted by the petitioner did not establish that there were “exceptional circumstances” here involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision….”

In addition, the Petitioner had argued that the Town violated the Freedom of Information Law (FOIL) in failing to respond to a FOIL request for additional information concerning the property. The Court ruled the Petitioner failed to produce proof that it had followed the administrative appeal procedure and had made a timely written appeal of the denial of its FOIL request. Therefore, Petitioner had failed to exhaust its administrative remedies and was precluded from appealing to the courts.

-Steven Silverberg

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The denial of a special permit was found to be arbitrary when unsupported by empirical evidence. In Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola, the Appellate Division reversed the Village Board and the lower court and remanded the matter for the Board of Trustees to issue a special permit.

The Court noted that during the hearing process neighbors and some board members expressed concerns over traffic and the clientele of the 7-Eleven. However, as part of its application process 7-Eleven submitted expert reports that there would be no adverse impacts upon traffic and offered to set conditions regarding the timing of deliveries and size of trucks used for deliveries.

Noting that there was no contrary expert evidence produced by either the Village or the opponents of the proposal, the Court outlined the criteria that should be applied in considering a special permit application.

” “A special exception, commonly known as a special use permit, ‘gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right’… By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. ‘The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood’…Here, the Board’s conclusion that the proposed convenience store would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioners’ application, was arbitrary and capricious. The claims of Board members and nearby property owners that the granting of the special use permit application would, among other things, exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners…”

-Steven Silverberg

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The Appellate Division overturned the lower court reversal of a zoning board of appeals (ZBA) decision for failure to certify the record filed in response to an Article 78 proceeding. In Matter of Robert E. Haveli Revocable Trust v.Zoning Board of Appeals of the Village of Monroe, the Appellate Division found that the lower court was in error by reversing the ZBA merely because the record of proceedings filed with the court was not certified.

“Since there was no allegation or indication that a substantial right of the petitioner was prejudiced by the lack of a certification, the Supreme Court should have disregarded the defect, and decided the matter on the merits (see CPLR 2001…”

The Court then went on to decide the merits of the case which involved a question of whether the use proposed by the petitioner was a permitted use or, as determined by the ZBA, a conditional use. The Petitioner proposed to operate a business offering tire sales and service. The schedule of uses listed retail sales and automotive repairs as a permitted use but sale and service of tires as a conditional (special permit) use. The Court noted the ordinance provides that in case of a conflict the more restrictive provisions govern and held:

“‘A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance’…. Construing the Zoning Code with its schedules as a whole, it provides that tire sales and related services are conditional uses.”

Steven Silverberg

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The difficulty of meeting the burden of proof for a use variance was demonstrated again this week. In Matter of Nemeth v. Village of Hancock Zoning Board of Appeals, the Appellate Division reversed the lower court and the Zoning Board of Appeals (ZBA), holding that a use variance to expand a nonconforming manufacturing use in a residential district should not have been granted. In previous litigation it was determined that the facility had been illegally expanded in 2001, through an addition that expanded the manufacturing facility. Thereafter, the owner applied for and obtained a use variance. A neighboring property owner brought this Article 78 proceeding but lost in State Supreme Court.

The Appellate Divison found that both the ZBA and lower court erred. The property at issue had been used as a manufacturing facility prior to a zoning amendment in 1983, that rezoned the property to residential use. While the existing facility could continue as a legal nonconforming use, the Court found that the owner had failed to demonstrate by the required “dollars and cents proof” that the property could not provide a “reasonable return” either as a manufacturing facility, without the addition or be converted to a permitted residential use.

The Court found:
“the evidence presented at the hearing established that the addition is used to house older equipment that has been replaced by more advanced, efficient equipment. While the record is unclear as to whether the older machinery stored in the addition is still being put to productive use and contributing to the manufacturing process, no financial evidence was presented as to the profitability, if any, generated from those machines in relation to the business as a whole. Perry Kuehn’s bare conclusory statements that an additional ’10 to 20 percent’ of revenue would be needed to find a similarly sized location to house the older manufacturing equipment, and that ‘we [would] go out of business’ without the addition, are simply insufficient to constitute the requisite “dollars and cents” proof necessary to demonstrate an inability to realize a reasonable return…”

The Court went on the address the fact that the record was inadequate to determine if the property could be converted to a permitted residential use. The Court further noted that the question of conversion to a residential use related to the entire property, not just the addition.

” no evidence was presented as to the financial implications of converting the entire property to residential use, which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use…The fact that respondents’ application for a use variance was limited to the addition is of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime…”

-Steven Silverberg

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The Appellate Division upheld the denial of area variances to permit the legalization of an addition to an accessory structure. In the Matter of Sacher v. Village of Old Brookville, the Court and the Zoning Board appear to have been influenced by the fact that the applicant had constructed the addition without benefit of a permit.

After stating the general rule that judicial review of the decisions of a zoning board are limited to “whether the action taken by the board was illegal, arbitrary, or an abuse of discretion,” the Court then reviewed the balancing test the zoning board must consider.

” A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]).”

Noting that the members of the zoning board may also rely upon there own observations, the Court analyzed the conclusions of the Zoning Board, finding:

“The evidence before the Board and the Board’s visual inspection of the property supported its conclusion that granting the proposed variances would be a detriment to nearby properties and produce an undesirable change in the character of the neighborhood. Additionally, the Board rationally concluded that the requested variances were substantial in nature and that the petitioners had a feasible alternative to increasing the size of the accessory building, since there were other structures on the petitioners’ property which could provide additional storage space. Likewise, the petitioners’ hardship was self-created in that they completed the additions to the accessory building without obtaining a building permit (see Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 77; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 930-931; Matter of Becvar v Scheyer, 250 AD2d 842, 843). Contrary to the petitioners’ contention, the Board “was entitled to consider the effect its decision would have as a precedent” (Matter of Gallo v Rosell, 52 AD3d 514, 516).”

-Steven Silverberg

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The Appellate Division had to once again remind a Zoning Board of Appeals that practical difficulty is no longer the test for an area variance. In Matter of Mimassi v. Town of Whitestown Zoning Board of Appeals, the Appellate Division reversed, in part, the lower court’s dismissal of the petition to review the Zoning Board’s denial of an area variance.

There were two parts to the Petitioner’s claims. The first was that the Zoning Board failed to follow precedent. The Court denied that portion of the claim. “Petitioner failed to establish that respondent’s determination on another application was based on essentially the same facts as petitioner’s present application (see Matter of 194 Main, Inc. v Board of Zoning Appeals for Town of N. Hempstead, 71 AD3d 1028, 1030; see generally Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93; Knight v Amelkin, 68 NY2d 975, 977).”

However, the Court reversed the lower court on the second prong of the Petition and remitted the matter for further findings, noting that the Zoning Board had failed to apply the appropriate balancing test to the area variance application.

“Here, respondent based its determination upon factors and other criteria relevant to the former “practical difficulty” test, which is no longer followed, rather than on the factors set forth in Town Law § 267-b (3) (b) (see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 402; Matter of Sasso v Osgood, 86 NY2d 374, 384). Inasmuch as respondent failed to engage in the necessary balancing test, we vacate the determination, and we remit the matter to respondent for a de novo determination (see Matter of Nye v Zoning Bd. of Appeals of Town of Grand Is., 81 AD3d 1455, 1456; Matter of Fusco v Russell, 283 AD2d 936, 936). We have considered petitioner’s remaining contentions and conclude that they are without merit.”

-Steven Silverberg

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This week the New York Court of Appeals clarified that a parking variance is an area variance, except when it is not. In Matter of Colin Realty Co. v. Town of North Hempstead, the Court concluded that, in most instances, a parking variance is an area variance. However, at the very end of the decision, the Court inserted a line that appears to open the door for further interpretation and possible confusion.

The case involves a commercial use in an older building that does not have adequate off-street parking under the more modern requirements of the amended zoning ordinance. The local zoning board granted an area variance. A neighboring property owner challenged the decision arguing, in part, that it should be a use variance. The Petitioner relied on language in Matter of Offshore Rest. Corp. v. Linden, 30 NY2d 160 (1972).

In Offshore the Court stated:

“To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem….”

Noting that the statute governing variances was amended in 1994 to more clearly define both use and area variances and the criteria applicable to each, the Court seem poised to make an unequivocal statement that parking variances are area variances when it held:

“Finally, and whether dictum or not, Off Shore’s declarations about use variances for off-street parking requirements have effectively been superseded by statute. Off Shore requested a building permit to make alterations in connection with a proposed change from one use permitted in the zoning district (delicatessen and restaurant) to another (cocktail lounge and restaurant). But as of July 1, 1994, General City Law § 81-b (1) has defined a ‘use variance’ as an authorization for the use of land for a purpose ‘otherwise not allowed or . . . prohibited’ in the zoning district; and an ‘area variance’ as an authorization to use land ‘in a manner which is not allowed by the dimensional or physical requirements’ of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property’s area may be developed, akin to minimum lot size or set-back restrictions.”

Then the Court added language this writer views as creating the potential for confusion by noting:

“Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).”

Thus, it appears that if you merely require a parking variance for two additional parking spaces, where off-street parking is a permitted accessory use, the balancing test for an area variance applies. However, does the Court mean to say that if you also require a use variance, the zoning board should apply the dollars and cents proof standard to that portion of the use that also seeks two fewer parking spaces than are permitted? This could result in some interesting decisions.

-Steven Silverberg