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.
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.
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.
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.
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…”.
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.
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…'”
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”.
The Appellate Division reversed the lower court and upheld the denial of an application for area variances to construct an apartment building in a neighborhood largely consisting of single family homes. In the Matter of People, Inc. V. City of Tonawanda Zoning Board of Appeals, the Court held that the lower court was in error in granting the petition
The Court restated the standard applicable to reviewing determinations of a zoning board of appeals noting the limitation placed upon a court to determine if there was a rational basis for the challenged decision.
“, when reviewing the denial of an application for an area variance, ‘review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’…”
The Appellate Division found that issuance of a demolition permit for an historic structure, where there was no specific proposal for a redevelopment plan was not improper segmentation under SEQRA. In the Matter of Saratoga Springs Preservation Foundation v. Boff, the Court upheld the issuance of a demolition permit that was challenged on a number grounds. The Court found that the local board was not arbitrary in its reliance on the conclusions by a building official that the structure was unsafe, despite contrary expert evidence submitted by the Petitioner, who opposed the demolition.
The Court further found that in light of the uncertain real estate market, it was reasonable to accept the statement by the applicant that he had no immediate redevelopment plans and. currently was seeking only to level the site, plant grass and erect a fence. In concluding these actions did not constitute improper segmentation of the SEQRA review the Court held:
“Such division is impermissible when the environmental review of an action is divided into smaller stages in order to avoid the detailed review called for under SEQRA (see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22). Conversely, segmentation is “allowed when the agency conducting environmental review clearly sets forth the reasons supporting segmentation and ‘demonstrate[s] that such review is clearly no less protective of the environment'” (Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 634 , quoting 6 NYCRR 617.3 [g] ; see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22).