Articles Posted in Zoning and Land Use Law

The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use.

The petitioner argued “the “entranceway” or “access road” was not a principal use, an accessory use, or a “driveway;” rather, it was an “infrastructure improvement” pursuant to Town of Kent Zoning Code former § 77-6(F).” On the basis of that interpretation, the petitioner claimed that the zoning board should be reversed.

While the matter was pending the Town amended its zoning ordinance to specifically address this issue and argued that the court should apply the rule which requires that in making its decision a court must apply the law as it exists on the date of the court’s decision. The petitioner argued that the so called “special facts exception” should apply and the law in effect at the time of the application should be applied. The court noted that the special facts exception “may be applied if the municipality unduly delayed proceedings and acted in bad faith.” However, the court declined to reach that issue.

In another in a long line of cases, last week the Appellate Division again deferred to the decision of a zoning board which had denied an area variance. In DiPaolo v Zoning Board of Appeals of the Town//Village of Harrison, the court found the zoning board had engaged in the required balancing test and therefore had acted appropriately in denying a request for a rear yard setback variance.

The court held the findings of the zoning board that the “requested variance was substantial and would produce an undesirable change in the character of the neighborhood, and that the hardship to the petitioner was self-created, were supported by testimony of several local residents and objective and factual documentary evidence. Moreover, evidence was adduced that construction on the subject property might adversely affect protected wetlands and cause drainage problems. Contrary to the petitioner’s contentions, the Board’s determination was not illegal, had a rational basis, and was not arbitrary or capricious.”

A court reversed the denial of a wetlands permit based upon the conclusion that the Town Board “succumbed to community pressure.” In Matter of Moy v. Board of Trustees of Town of Southhold, the Appellate Division, Second Department, found the Town Board relied upon various reports and recommendations which were by parties either unqualified to render such reports or who failed to address the criteria required by the Town’s code in determining whether to grant a permit.

The court found that the Town Board “properly noted that when conflicting expert reports are submitted ‘deference must be given to the discretion and commonsense judgments of the board.'” Yet, the court noted that the Town’s outside consultant did not render an opinion about the impacts of the proposed activities but instead stated “it did not know what the impact would be.” The court held that this and other reports and recommendations either not addressing the impacts of the proposal or expressing “concerns” about the proposal were “devoid of scientific data or analysis” and were therefore “insufficient to counter petitioners’ expert’s report and testimony…”

The court did uphold the right of the town to retain an outside consultant and charge the consultant’s fees to the applicant, where the need for the consultant met the criteria of the town’s code for “independent technical professional assistance.”

The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a “hospice” for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v. Town of Smithtown, the court reversed the Supreme Court’s granting of the petition finding that the lower court had improperly “substituted its judgment for that of the Zoning Board.”

The local zoning code specifically states that animal hospitals are not permitted in residential districts and that any use not specifically listed as a permitted use is not permitted. The court held that nonconforming uses “may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance” and therefore “the Zoning Board was not estopped from enforcing the zoning code…by the Town’s apparent acquiescence over a period of approximately 13 years.” In addition, the court noted that comments made at a Town Board meeting by the supervisor and town attorney concerning the operation (apparently supporting the petitioner’s contentions) were outside the record of the zoning board and therefore those comments could neither be considered nor used to prevent the Zoning Board from enforcing the code.

In Matter of O’Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses.

The court held that the owner had proven hardship in “dollars and cents form” by demonstrating that the “property had been substantially vacant for 30 years” that “only 10% to 15% of the space was occupied at the time of the applications and the prospects for expanding occupancy and generating sufficient revenue to cover necessary maintenance, repairs and improvements were marginal.” The court also found that the variance would not “alter the essential character of the neighborhood”, as similar uses “exist in proximity to the property” and the zoning board properly found the hardship was not self created.

Thanks to Alan J. Bozer, Esq. of the Buffalo Office of Phillips Lytle LLP who brought this case to our attention.

In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v. Town of Yorkshire, reversed the judgment after a jury trial finding the Supreme Court should have granted a directed verdict at the close of the plaintiff’s case.

The court noted that prior to adoption of its zoning ordinance the Town prohibited mining, absent a special permit. The plaintiff had obtained a mining permit from the DEC, hauled out 40 truck loads of material for testing, cleared the property of trees and performed a number of other activities.

However, 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.

In the emerging area of wind power the Appellate Division upheld the decision of a local zoning board that wind powered generators are a utility. In Matter of Wind Power Ethics Group v. Zoning Board of Appeals of the Town of Cape Vincent, the Court found that the interpretation that wind powered generators fit the definition of utility in the local zoning ordinance was a “rational construction… entitled to deference.” The local zoning ordinance defines a utility as “telephone dial equipment centers, electrical or gas substations, water treatment or storage facilities, pumping stations and similar facilities.” The court concluded the determination that a wind powered generator is a utility “is neither irrational nor unreasonable, and that the determination is supported by substantial evidence.”