New York Zoning and Municipal Law BlogThe 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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Rezoning Single Parcel Was Not Spot Zoning
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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Court Overturns SEQRA Findings And Requires Supplemental EIS
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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Amended Article 78 Petition Attempting to Add Property Owner Barred by Statute of Limitations
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 →
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Portion of Former Shea Stadium Site May Not Be Converted To Retail And Other Non-Park Uses
The New York Court of Appeals held, the legislation permitting the development of Shea Stadium and related facilities on park land does not extend to development of retail businesses and other uses not related to a stadium. In Matter of Avella v. City of New York, the Court strictly construed the legislation permitting the stadium and found that the proposal, to construct a retail mall on the parking field that formerly held the stadium, would violate the public trust doctrine against alienation of parkland.
“Summarizing the longstanding history of the public trust doctrine in Friends of Van Cortlandt Park v City of New York, we explained that ‘our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes’ (95 NY2d 623, 630 [2001]).”
The area of New York City known as Willets Point was found to be in need of redevelopment. As part of a redevelopment plan, the developer proposed construction of a large-scale retail complex on a part of the parkland, which it labeld Willets West. The theory was that “the creation of a retail and entertainment center at Willets West w[ould] spur a critical perception change of Willets Point, establishing a sense of place and making it a destination where people want to live, work, and visit.”
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Replacement Water Tank By Water District Is Not Subject to Village Zoning
Construction of a replacement water tank by the local water district was found to be a SEQRA Type II Action and not subject to the zoning of the Village in which the property is locted. In Incorporated Village of Munsey Park v. Manhasset-Lakeville Water District, the Court held the Water District (Defendant) properly determined its replacement water tank was not subject to local zoning and the project was a Type II Action that did not require any environmental review.
Since 1929, the Defendant had maintained a water tank on property it owned in the Village. In 2014 it was determined the tank needed to be replaced. The proposed replacement tank would have a 250,000 gallon greater capacity and would be shorter and squatter than the existing tank. The Defendant determined it did not require zoning review by the Village and the tank would be a SEQRA Type II Action as it constituted a replacement in kind. The Village commenced this action claiming that local zoning applied and that an environmental review is required.
The Court agreed with the Defendant holding:
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Tie Vote By Zoning Board Members Was Not An Automatic Denial
The Appellate Division held that a 2-2 vote by members of a Zoning Board of Appeals (ZBA) regarding a special permit application, unlike a tie vote for other applications, was not an automatic denial of the special permit application. In Matter of Alper Restaurant, Inc. v. Town of Copake Zoning Board of Appeals, the Court found, due to the fact that approval of a special permit is original as opposed to appellate jurisdiction of a ZBA, the rule that a tie vote constitutes an automatic denial is not applicable in this case.
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DEC Proposes New SEQRA Regulations
The New York State Department of Environmental Conservation (DEC) has proposed the first major changes in the implementing regulations for the State Environmental Quality Review Act (SEQRA) in two decades. The proposed amended regulations, if adopted, will bring about a number of procedural changes intended to streamline the SEQRA process.
Most significant is the increase in “Type II Actions” that are exempt from environmental review. The additions to the Type II list include, among other activities:
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Zoning Violations Preclude Property Tax Exemption for Religious Corporation
The Appellate Division upheld a Supreme Court determination granting summary judgment against a not for profit religious corporation seeking a real property tax exemption on property it owns and uses for religious purposes. In Congregation Ateres Yisroel v. Town of Ramapo, the Court held that the failure of the religious corporation to obtain permits for the occupancy of structures on the property precluded the granting of a tax exemption.
The property at issue was originally granted a certificate of occupancy as a single family residence in 1954. Sometime thereafter, the property was acquired by the not for profit religious corporation. From 2008 through 2011 the property was granted a real estate tax exemption by the Town. The decision does not explain why the exemption was issued or exactly what changed. However, in 2012 when an application for renewal of the exemption was submitted, the Town denied the renewal of the tax exemption. The Corporation commenced this action challenging the denial and the Supreme Court granted the Town’s motion for summary judgment dismissing the claim.
In upholding the decision of the lower court, the Appellate Division determined, despite the fact that the Corporation met the criteria for a not for profit religious corporation and owned the property at issue, the lack of zoning compliance precludes a tax exemption.
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Challenge to Approval of Telecommunications Tower Held Moot
The Appellate Division found the challenge to the approval of a 150 foot tall wireless telecommunications tower had been rendered moot due to completion of construction. In the Matter of Buren v. Town Board of the Town of Kent, the Court found the Petitioner had failed to seek a temporary restraining order prior to the applicant’s completion of construction and therefore the appeal was moot.
Homeland Towers LLC. applied for permission to construct a 150 foot tall tower for wireless telecommunications. The Town Board granted approval and the Petitioner brought an Article 78 proceeding to appeal the approval. Thereafter, the lower court denied the Article 78 petition. Petitioner appealed the dismissal of the Article 78 proceeding to the Appellate Division. While the appeal was pending, Homeland Towers LLC. moved to dismiss the appeal as academic, in light of the fact that the tower had been completed while the litigation was pending. The Appellate Division deferred action on the motion until the appeal was heard.
In its decision the Court reviewed the status of the law on the question of mootness.