Articles Posted in Zoning and Land Use Law

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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 →

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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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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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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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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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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  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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