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The Appellate Division determined that a homeless shelter operated by a church complies with zoning that limited permitted uses to single family homes and houses of worship. In Matter of Sullivan v. The Board of Zoning Appeals of the City of Albany, the Appellate Division, Third Department, reversed the Supreme Court and held that operating a shelter for the homeless in a church parsonage meets the definition of house of worship, as a use permitted in the local zoning code.

The subject church and the Petitioner, who resides on an adjacent parcel, are in a zoning district permitting single family detached homes and houses of worship. A house of worship is defined in the zoning code as “[a] structure or part of a structure used for worship or religious ceremonies.” The term worship is not defined in the zoning code.  The church inquired of the City if providing housing for up to 14 homeless individuals in the parsonage, which shares a parcel with the church, would be permitted. An opinion was issued stating that the use is not permitted. The church appealed to the zoning board seeking an interpretation of the zoning code.

After holding hearings, the zoning board concluded that the proposed use is “consistent” with a house of worship. Petitioner then brought this article 78 proceeding challenging the determination. The Supreme Court concluded “the proposed use of the parsonage could not reasonably be interpreted as a ‘house of worship’ as such term is defined in the Code…”.

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The Second Circuit Court of Appeals issued a summary order denying an appeal from a decision dismissing the claim of regulatory taking, by a property owner whose property was not placed in any zoning district. In the case of BT Holdings, LLC v Village of Chester, the Circuit Court found that the District Court properly dismissed the claim, pursuant to 42 USC §1983, as there had not been a final determination with respect to whether the property owner could utilize its property.

Plaintiff’s property had been annexed from the Town of Chester to the Village of Chester. After the annexation, the Village of Chester failed to place the property in a zoning district. Due to the lack of zoning designation, the Plaintiff could not apply for site plan or other approvals necessary to develop Plaintiff’s property. As a result, Plaintiff commenced this action claiming a regulatory taking.

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The Appellate Division held that a zoning board exceeded its authority when it placed a five year term limit on a permit. In Matter of Citrin v. Board of Zoning and Appeals of the Town of North Hempstead, the Court overturned the lower court, finding that the Board of Zoning and Appeals (“Zoning Board”)  lacked specific authority in the Town Zoning Code to place time limits on permits issued by the Zoning Board.

Section 70-225 of the local Zoning Code provides:

” E. Permit a use authorized on a portion of a lot in a lower restricted district to extend to the entire lot, but not more than 50 feet beyond the boundary line of the higher restricted district in a case where a use district boundary line divides a lot in a single ownership at the effective date of this chapter.”

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The Appellate Division determined that the names and email addresses of those who subscribe to an email alert system of updates to a  Town Website are subject to the Freedom of Information Law (FOIL). In Matter of Livson v. Town of Greenburgh, the Court affirmed the lower court determination that the Petitioner, who is the president of a local civic association, is entitled to the names and email addresses of those subscribing to the alert system maintained by the Town (gblist). The Court found the list was not, as the Town claimed, protected by any of the exemptions from disclosure contained in the FOIL statute.

Prior to the commencement of the Article 78 proceeding, The Town had claimed ” [t]here is neither a print or extract function on the software that can reasonably create a list of email addresses.” Yet, it was determined that the Town’s vendor could provide such a list.  As a result, the lower court determined that the request for an electronic version of the list could be made available provided the recipient did “not reproduce, redistribute or circulate the gblist or use the information contained therein for solicitation, fund-raising or any commercial purpose.”  The Town filed an appeal claiming that the list was exempt from disclosure.

In affirming the lower court, the Appellate Division noted:

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     The  Second Circuit Court of Appeals partially reversed the dismissal of a Fair Housing Act (FHA) claim which arose when a Town granted permission to modify a property in order to accommodate a disabled child, with the requirement that the property be restored when the child no longer resided there.  In Austin v. Town of Farmington, the Court held that the district court had improperly dismissed the claim of of violation of the FHA, as on its face the complaint raised issues that could only be determined by a further review of the evidence.
     The Plaintiffs had purchased a home in a location which did not permit fences or pools. They sought an accommodation from the Town. for their disabled child, to allow a fence for reasons of safety and an above ground pool and deck, which would provide certain health benefits.  The Town granted what is referred to in the decision as a variance, but was issued by the Town Board rather than a zoning board of appeals. The “variance” required that at such time as the child no longer resided in the house, the fence, deck and pool would have to be removed.  This provision referred to by the Court as the “Restoration Provision” would ultimately cost an amount estimated as exceeding $6,000.

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The New York Court of Appeals restated the rule that construction pursuant to a permit issued in error does not bestow any rights to maintain the structure or use. In Matter of Perlbinder Holdings, LLC v. Srinivasan, the Court held, because the permit on which the property owner relied was invalid, no common law vested rights could be obtained.

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The Appellate Division affirmed the reversal of the grant of a use variance for failure to provide evidence of entitlement to the variance. In the Matter of DeFeo v. Zoning Board of Appeals of the Town of Bedford, the Court found that the applicant had failed to provide any financial information to support the claim for a use variance. Once the use variance was overturned,the other approvals for the area variances, site plan and special permit were likewise vacated.

In addressing the deficiencies in the record with respect to the use variance, the Court noted to obtain “‘…a use variance premised upon unnecessary hardship 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…'”

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The U.S. Fourth Circuit Court of Appeals upheld the dismissal of an action claiming the denial of a variance for a church use was a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Andon, LLC v. The City of Newport News, the Court held that the denial of a setback variance to permit a church use did not impose a substantial burden on the religious exercise of the church.

A congregation found a building for lease located in a commercial zoning district which permits religious uses, provided it meets the following requirements: Continue reading →

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The Appellate Division upheld a Zoning Board of Appeals (ZBA) determination that the owner of property,  containing several retail stores, had failed to demonstrate the location at issue was used for retail purposes prior to a zoning amendment. In Matter of East End Holdings LLC v. Village of Southhampton Zoning Board of Appeals, the Court found  the ZBA had rationally concluded the evidence submitted did not support the property owner’s claims of a legal nonconforming use.

The buildings on the property were constructed in 1976. In 1982 the Village amended the zoning code to provide that no retail use could be less than 800 square feet. In 2008 the Building Inspector issued a violation for operating a retail unit of only 100 square feet. The owner appealed to the ZBA claiming that in 1999, when the property was purchased, an appraisal report and certificate of occupancy (C of O) showed there were seven existing retail locations on the property and one was 100 square feet. The owner claimed that the C of O and appraisal demonstrated  the 100 square foot retail space was previously in use and was therefore legal.

However, the Building Department file contained 1981 and 1999 surveys, with floor plans that showed seven stores, including a 100 square foot space that was not the space at issue. Therefore, the ZBA concluded the space at issue was not legal.

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The New York Court of Appeals reversed a lower court determination that a petitioner did not have standing to challenge an action because others were also impacted by train noises that formed a basis for his objections. In Matter of Sierra Club v. Village of Painted Post, the Court noted that while, in order to have standing to challenge a SEQRA determination a party must demonstrate they suffer a harm different from the public at large the “number of people who are affected by the challenged action is not dispositive of standing”.

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