Articles Posted in Zoning and Land Use Law

Finding that a zoning board had “improperly succumbed to community pressure,” the Appellate Division, Second Department affirmed the lower court’s reversal of the denial of an area variance. In the case of Schumacher v. Town of East Hampton Zoning Board of Appeals, the Court noted the limited nature of judicial review of zoning board decisions but found that the zoning board’s actions were arbitrary.

In reversing the zoning board, the Court found that the proposed reconstruction of the applicant’s home would actually be an increase of the existing setback from the wetlands at issue and that all of the lots surrounding the property were “nonconforming in terms of the applicable requirements for setbacks from wetlands.” The court concluded that the zoning board’s determination that the house should be decreased in size was “irrational.”

The Appellate Division Fourth Department reversed the granting of a site plan approval where it found that three planning board members had “impermissibly prejudged” an application. In Schweichler v. Village of Caledonia the court dismissed claims of improper spot zoning and violations of SEQRA but remitted the site plan application for further review by the planning board stating “the appearance of bias and actual bias in this case require annulment of the Planning Board’s site plan approval.”

The court noted that three members of the planning board had signed a petition in favor of rezoning the property. Further, the chair had “manifested actual bias” when she wrote to the Mayor supporting the rezoning. Her letter went so far as to state that she would like to see the new housing made available to her so she could sell her home. To further seal the fate of the application, the court found that there were no measurements provided to demonstrate compliance with the Village Code.

How to hold further hearings on an application where the court found three of the members were biased? The court noted that Village Law section 7-718 (16)(b) permits designation by the chair of alternate members and directed that an acting chair perform the duties of the chair pursuant to Village Law section 7-718 (10).

The New York Court of Appeals held today in Haberman v. Zoning Board of Appeals of the City of Long Beach that the attorney representing the zoning board may extend the time to commence construction under the terms of a variance without action by the zoning board. The Court held, absent proof that the attorney had acted in violation of instructions from the zoning board there is no statutory prohibition against the attorney extending the time to begin building.

While action by a zoning board is required to grant a variance, the Court found there was no statutory requirement for a new hearing to extend the time to commence construction permitted by the variance. Therefore, where the variance required that construction commence within a specified time period, the attorney representing the board could grant an extension of time.

The Appellate Division found that a site plan approval obtained in the early 1970’s did not create a vested right in the zoning that was subsequently amended, even though 204 of the 330 approved units were constructed and funds were expended on infrastructure that would have served the second phase of development. In the case of RC Enterprises v. Town of Patterson, the Appellate Division, Second Department found the petitioner, who had purchased the property in 1979 from the original developer of the first phase, had abandoned the plan to develop the second phase “as demonstrated by its failure to act over a period of decades.”

In concluding there were no vested rights, the Court restated the rule that in seeking to claim vested rights in a permit after zoning has changed there must be substantial expenditures and substantial construction under the original zoning. Therefore a landowner must demonstrate its actions were: “so substantial that the municipal action withdrawing the permit results in serious loss.” The Court found that although there was a contention that certain improvements for phase 1 of the development were built with extra capacity to serve phase 2, the improvements had been used for nearly 30 years to benefit phase 1 and in the case of a sewerage treatment plant there were additional improvements mandated after construction in order to just serve phase 1.

The rule in New York has long been that if enough work can be completed that may only be used under the proposed permit the rights in the existing zoning have vested. There is now a clear message that the project also has to be completed as vesting does not last forever.

The Second Circuit Court of Appeals overturned a decision by the district court that found a property owner was not bound by a restriction contained in an old subdivision and that the Town had violated the property owners’ rights by refusing to issue a certificate of occupancy for a house on the property (O’Mara v Town of Wappinger). At the heart of the case is whether, under New York law, a notation on a subdivision map that was never recorded in the chain of title to the property binds subsequent purchasers of that property.

The O’Mara’s, as a result of a tax foreclosure, purchased vacant land for which they received a building permit for a house and temporary certificate of occupancy before the Town declared that the land was supposed to be retained as vacant open space and issued a stop work order. The lot in question was part of a 1963 subdivision which contained a notation that the lot was “open space”. Yet there was no other record in the county clerk’s office that would alert a purchaser of any restriction and the map was not recorded in land records in the manner of a deed so that it would appear in a search of the title.

The Circuit Court held that it could find no case law on the issue of whether such an open space restriction, noted solely on a subdivision map, is binding on subsequent purchasers. It therefore certified the question to the New York Court of Appeals. Having concluded there was no clear answer to that question, the Court also reversed the finding of the district court that the refusal by the Town to issue a certificate of occupancy was a violation of 42 U.S.C. section 1983. Instead the Court held that, as the meaning of the law was uncertain, the O’Mara’s had no “clear entitlement”. The Court held that even were the New York Court of Appeals to subsequently determine the 1963 open space restriction is not binding “the uncertainty that leads us to certify this issue means the O’Maras did not have a ‘clear entitlement’ to a certificate of occupancy and therefore no cognizable property interest that would support a violation of their right to substantive due process”.