Articles Posted in Zoning and Land Use Law

The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: “the ZBA’s determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion.”

Unfortunately, the Appellate Division did not discuss the facts of this case. It is necessary to read the lower court decision to fully understand the facts of this unusual and complex case, in which the zoning board concluded that local regulations did not preclude the property owner from using certain underwater lands in calculating the area of the lot and ultimately deciding the size of the permitted structure based upon FAR.

The appellate brief and oral argument on behalf of the zoning board was by our partner Katherine Zalantis.

The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied. The Court found the amendment involved an additional 3.6 inch setback variance to accommodate a structure that was 6 inches larger on one side and 18 inches larger on the other side and therefore the denial of the amended variance was arbitrary..

In reversing the decision of the Zoning Board the court stated the general rule applicable to such cases:

“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion'” … Nonetheless, a determination of a zoning board of appeals that ‘neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'”

An appellate court upheld a decision finding that a proposed in-ground swimming pool does not violate a restrictive covenant. In Kemp v. Village of Scarsdale the Appellate Division held “the plaintiff established her prima facie entitlement to judgment as a matter of law, as the plain language of the restrictive covenant at issue did not reveal an intent to preclude her proposed use of the property.”

The Court noted:

“Since the law favors the free and unobstructed use of real property, a restrictive covenant must be strictly construed against those seeking to enforce it, and may not be given an interpretation extending beyond the clear meaning of its terms (see Witter v Taggart, 78 NY2d 234, 237-238; Wechsler v Gasparrini, 40 AD3d 976; Liebowitz v Forman, 22 AD3d 530, 531; Kaufman v Fass, 302 AD2d 497, 498, cert denied 540 US 1162 ).”

A court denied a use variance to conduct a motorcycle sales operation at a location which previously obtained a use variance to operate an antique furniture store. In Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead, the Appellate Division affirmed the denial of a use variance, finding that the property owner had a self created hardship due to the fact that he purchased the property for a commercial use when he knew it was zoned for residential use. Further, the court held “the fact that a use variance was granted to the prior owner for the use of an antique furniture store could not have lead to a reasonable expectation by the petitioner that it could operate a motorcycle sales, storage, and display store under the prior use variance.”

The court, in quoting the case of Matter of Miller Family Ltd. Partnership v Trotta (23 AD3d 389, 389-390) reiterated the criteria for obtaining a use variance in New York stating:

“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.”

In a decision issued today, the New York Court of Appeals reversed the Appellate Division and found that a non-conforming mining operation had attained vested rights in that use. In Glacial Aggregates LLC v. Town of Yorkshire, the Court concluded that the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area.

At the time that the property owner began the process of obtaining a DEC permit for mining the Town had no zoning ordinance. It was only after the DEC permit was issued that the Town enacted zoning which prohibited the use. The property owner then claimed it had obtained vested rights to the non-conforming use. The trial court found in favor of the property owner and the Town appealed.

We previously reported on the decision of the Appellate Division in this case noting in an April 27, 2009 post that the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.

The Appellate Division ruled that a zoning board of appeals need not justify the denial of an area variance under all five factors in the balancing test established by Town Law. In Matter of King v/ Town of Islip Zoning Board of Appeals the court upheld the denial of an area variance for a swimming pool finding that there was a rational basis for the decision of the board. The case involved a request to place a pool on a lot which did not meet the Town’s zoning requirement that a lot have at least 12,000 square feet before a pool can be constructed.

In reversing the Supreme Court decision the Appellate Division found the Supreme Court had erred. Quoting its own recent deciion in Matter of Genser v Board of Zoning and Appeals of Town of N. Hempstead, 65 AD3d 1144 (2d Dept. 2009) the court noted “‘the Zoning Board is not required to justify its determination with supporting evidence with respect to each of the five [statutory] factors, so long as its ultimate determination balancing the relevant considerations was rational….'”

Most significantly the court rejected the argument that the variance should be granted because even though the lot did not meet the minimum 12,000 square foot lot area the pool could still be placed in a manner which meets the set back requirements of the ordinance. The court found “petitioners’ primary argument was that, because the proposed pool would meet the relevant property setback requirements, it would have no greater impact than would a pool on a standard lot. However, the ZBA properly rejected this argument, as granting the application on this basis alone would render meaningless the Town Board’s legislative decision to limit above-ground swimming pools as of right to lots not less than 12,000 square feet….”

The New York Court of Appeals in In the Matter of Edward J. Vomero v City of New York, et al has unanimously held that the City of New York Board of Standards and Appeals abused its discretion in granting a use variance to use residentially-zoned property for commercial use. The Court reversed the decision of the Appellate Division, Second Department in which two justices had dissented, and reinstated the original judgment of the Supreme Court, Richmond County.

Under the New York City zoning code, a use variance may be granted only if: 1) use of the property for permitted uses would impose practical difficulties or unnecessary hardship because of the unique physical conditions of the property, 2) the owner cannot realize a reasonable financial return from use of the property for permitted uses because of such unique physical conditions, 3) use of the property for non-permitted uses would not alter the essential character of the neighborhood, and 4) the owner did not create the practical difficulties or unnecessary hardship.

The property at issue is a corner lot located in a residentially-zoned district on Staten Island abutting a six-lane wide street. The owner purchased the property for $275,500 and then demolished the existing house located on the land, all for the purpose of constructing a photography studio accessory to its catering hall located directly across the street in a commercially-zoned district. An appraisal was obtained seven months following purchase which showed that the vacant land could be sold for $375,000 for residential use. The land is similar in size to other residential properties located in the neighborhood.

In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies. In Matter of Vinrus v. the Village of Pelham Manor Building Inspector, the building inspector had issued a notice that the property owner was required to obtain a certificate of occupancy for a new tenant. The property owner brought an article 78 proceeding challenging the direction of the building inspector on various grounds.

The Village, which was defended by Silverberg Zalantis LLC, argued that the building inspector had acted properly but that, irrespective of that fact, a precondition to a suit challenging the actions of a building inspector’s interpretation of the zoning ordinance is that an appeal must be submitted to the zoning board of appeals to review the determination of the building inspector. Further, such an appeal must be made to the zoning board of appeals within 60 days of the challenged decision pursuant to Village Law section 7-712-a (5)(b). The lower court dismissed the action and the appellate division affirmed simply stating “the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756).”

The brief on appeal was written by Katherine Zalantis and the appeal was argued by Steven Silverberg.

The Appellate Division held that under certain circumstances a zoning board may consider deceitful conduct by an applicant in reaching a determination to deny an area variance. In Matter of Caspian Realty, Inc. v Zoning Board of Appeals of the Town of Greenburgh, the court reiterated that a zoning board of appeals may only apply the five criteria set forth in Town Law section 267-b (3) for granting or denying an area variance but “an applicant’s deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law § 267-b(3).”

The Petitioner had originally applied to the Town for site plan approval for a retail furniture store. The plans submitted designated a cellar area as storage. This was significant as otherwise the proposed structure would have exceeded the permitted floor area ratio (FAR) by almost 100% and would have had significantly less parking than would be required if the cellar was not used for storage. During construction the building inspector questioned the location of partitions, molding and carpeting in the cellar and he was again assured it would only be used for storage. To that point “Caspian provided, further revised plans dated September 25, 2003, that expressly designated the cellar for “storage.”

Thereafter, Caspian operated its business using the cellar for retail and an offsite location for storage. Caspian was issued a violation and appealed to the Town Zoning Board of Appeals for area variances. During the hearings Caspian produced reports stating that the variances would not impact the neighborhood. Neighbors testified about noise, overnight parking and trucks backing into the property causing a problem on a busy road. The Zoning Board denied the variances finding inter alia: