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The Appellate Division upheld an area variance for zero lot frontage that permitted the merger of two lots for the purpose of constructing a single family house, where the merged lots are also non-conforming in other respects. In Matter of Nowak v. Town of Southampton. the applicant (Insource) sought to merge two preexisting nonconforming lots that together failed to meet the lot area requirements and lacked any road frontage, as required under the local zoning code. The access to the road would be solely over an existing easement.

After the Zoning Board of Appeals issued the frontage variance, the neighbor brought an Article 78 proceeding challenging the Zoning Board of Appeals’ determination. The lower court upheld the determination and the petitioner appealed to the Second Department.

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The U.S. District Court for the Middle District of Tennessee held that a local church may proceed with most of its claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  In Layman Lessons Church v. Metropolitan Government of Nashville, the Court sustained several of the Plaintiff’s claims, denying most of the Defendant’s motion to dismiss.

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In upholding the grant of an area variance, the Appellate Division rejected a challenge to the adequacy of the hearing notice. In the Matter of deBordenave v. Village of Tuxedo Bd. of Zoning Appeals, the Court found that the Zoning Board had properly conducted the balancing test required to grant an area variance. The Court also addressed the more unusual issue of proper notice for one of the variances granted.

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The Appellate Division found that a local law providing that ten percent of building permits could be withheld pending completion of infrastructure required for a subdivision was ultra vires and void. In Joy Builders v. Town of Clarkstown, the Second Department reversed the lower court and granted summary judgment to the Plaintiff holding that ” Town of Clarkstown Code § 254-18B is null and void as ultra vires”.

The case arises out of two subdivision approvals obtained by the Plaintiff. In each instance, the Town utilized the provisions of §254-18B to require that, before building permits were issued for a portion of the lots, the Plaintiff was required to complete all construction of required infrastructure.  Here the builder was required to install roads, sidewalks, street lights and other infrastructure, which were to be completed and dedicated to the Town. While the Plaintiff was made to post bonds and letters of credit to ensure completion of the infrastructure work, the Town also used the provisions of §254-18B, which provided that up to ten percent of the building permits in each subdivision could be withheld pending completion and dedication of the infrastructure.  Plaintiff challenged that provision of the local law.

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The Sixth Circuit Court of Appeals held that  a zoning ordinance that limited permitted uses, based upon potential tax revenue generated by the uses, did not violate the Religious Land Use and Insttutionalized Persons Act (RLUIPA).  In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, the Court held that the School had failed to establish a prima facie RLUIPA claim.

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The Appellate Division reversed a  lower Court determination and overturned the issuance of a negative declaration issued pursuant the State Environmental Quality Review Act (SEQRA) for a proposed condominium complex. In Matter of  Peterson v. Planning Board of the City of Poughkeepsie, the Court found that the Planning Board, as lead agency, had failed to take the hard look required for a SEQRA review prior to issuing a negative declaration finding there would be no significant environmental impacts from the proposed project.

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The Appellate  Division affirmed the granting of area variances and further affirmed that under the circumstances, a use variance was not required to extend a use into an adjoining zone on lots located in two zoning districts. In Matter of Lu v. City of Saratoga Springs, the Court found that the lots in question were located in two zoning districts, one of which did not permit the proposed use. However, the Court found the Zoning Board of Appeals (ZBA) properly determined that a use variance was not required, because the local zoning code permitted extension of the use for up to 100 feet into an adjoining lot held in single ownership.

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The Appellate Division upheld the rezoning of a parcel from commercial to high density residential, despite the provisions of the local comprehensive plan and the failure to prepare an environmental impact statement. In Matter of the Hgts. of Lansing LLC v. the Village of Lansing, the Court found that the Village Board, in adopting the zoning amendment, reviewed the relevant environmental issues and that the the change of zone was consistent with the goals of the Village’s comprehensive plan.

On the issue of SEQRA, the Village Board, as lead agency under SEQRA, analyzed a number of issues before issuing a SEQRA negative declaration. The Court noted that the Village Board held joint meetings with the planning board at which public comment was heard and then made findings, including that:

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After a seven year saga, the Appellate Division overturned the rezoning of a parcel which would have permitted a multi family development in the Town of Ramapo. In Matter of Youngewirth v. Town of Ramapo Town Board, the Appellate Division reversed the lower court, finding the review under the State Environmental Quality Review Act (SEQRA) was inadequate, thus requiring it to overturn the comprehensive plan amendment and the zoning that would have implemented that comprehensive plan change.

In discussing the SEQRA review the Court held:

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An attempt to cure the failure to name a property owner in an Article 78 proceeding challenging a site plan and special permit approval was found barred by the statute of limitations. In Matter of  Sullivan v. Planning Board of the Town of Mamakating, the Appellate Division dismissed an Article 78 proceeding challenging an approval for AT&T to construct a wireless telecommunication tower on property it was to lease from the property owner, Hart. Continue reading →