Articles Posted in Zoning and Land Use Law

The Appellate Division Second Department reversed the denial of an area variance where the Zoning Board previously granted a similar variance and gave no reason for a contrary result. In Matter of Aliperti v Trotta, the Zoning Board of Appeals of the Town of Brookhaven denied an area variance for the size of a home after it had previously granted the same variance for the adjoining parcel several years earlier.

The Court found that the Board “articulated no rational basis for reaching a different result on essentially the same facts”. It therefore reversed the determination of the Zoning Board denying the area variance.

A Court held that a challenge to the imposition of fees for the services of engineers and attorneys retained by a town to review and assess the petitioner’s application for approval of a subdivision must be brought within four months of the date the Town unambiguously notified the petitioner that payment was required and the application would not proceed until the petitioner paid the fees.

In an action to recover some of the fees paid, the Appellate Division Third Department, in Properties of New York, Inc. v. Planning Board of the Town of Stuyvesant, noted the Court of Appeals has established a two-part test for when an administrative action is final and binding: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated either by further administrative action or by steps available to the complaining party.”

The petitioner had argued that the charging of the fees was part of the subdivision approval process and would not be complete until the final plat was endorsed. The Court held the endorsement of the plat did not alter the petitioner’s obligation to pay and, therefore, the court found the petitioner suffered the concrete injury when the fees were imposed, rather than when the final approval of the plat was granted. There was no alternative or opportunity for amelioration because there was a definite obligation to pay the fees. Finally, the court held that the petitioner’s demand for an audit and return of fees paid was effectively a request for reconsideration and did not extend the statute of limitations.

The Appellate Division of the State Supreme Court restored a previously revoked building permit issued to construct a garage, which had been completed prior to revocation of the permit. In Matter of Veece v. Town of Babylon the Court held the combined Article 78 proceeding and declaratory judgment action was not time barred. The Court found the action was not based upon an appeal of the 1994 revocation of the building permit but rather the appeal of the 2003 Zoning Board of Appeals (ZBA) denial of a request for renewal of the permit and area variances. The action was brought within 30 days of the ZBA decision.

The property owner was held to have a protected interest in the permit as it was legally issued, substantial improvements had been performed based upon the permit and the permit was illegally revoked. The Court further found that the zoning as it existed in 1993 should be applied and therefore the only variance needed was for two tenths of a foot which the Court said should have been granted as it is a de minimus variance.

The decision applies long standing rules of vested rights but unfortunately the decision does not disclose the rationale for revoking the permit or why the Court held the permit was improperly revoked if, even under the 1993 zoning, an area variance was required, albeit a de minimus variance.

In an Article 78 proceeding, the Appellate Division Second Department denied an applicant’s petition to compel the Department of Planning of the Town of Brookhaven to place an application for preliminary approval of a subdivision plat on the Planning Board calendar.

In denying the petition, the Court in Matter of Pheasant Meadow Farms, Inc. v. Town of Brookhaven noted that “the time within which a planning board must act upon a preliminary subdivision plat does not commence until the application is deemed complete.” The Court went on to find that the preliminary plat would not be considered complete until either a negative declaration is filed pursuant to the State Environmental Quality Review Act (SEQRA) or until a notice of completion of a draft environmental impact statement (DEIS) is filed pursuant to SEQRA.

Since neither filing had occurred and since there were still unanswered questions regarding storm water drainage, the relevant SEQRA review was continuing. The Court therefore held that the board was not required to place the application on the calendar.

A court may not require a town board to reach a determination on, or even consider an application for a zoning change. In Matter of Richard M. Wolff v. Town/Village of Harrison, the Appellate Division Second Department dismissed petitioner’s request for judgment compelling the town board to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.

The petitioner had applied for a zone change and the town board had refused to make a decision on the request. The petitioner commenced an Article 78 proceeding seeking to compel the town board to make a decision on the requested zone change. The court reasoned that the petitioner’s Article 78 proceeding could only be brought to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (writ of mandamus). Since the amendment of a zoning ordinance is a purely legislative function, a court may not compel a board to consider or decide upon a zoning change by ordering a writ of mandamus. In addition, the court recognized that the statute establishing the procedure for zone changes vests broad legislative power in a town board and does not require the board to vote upon every application for a zoning change.

In a CPLR Article 78 proceeding, an appellate court held that where a zoning board provides a rational explanation for denying a variance, the determination will not be viewed as either arbitrary or capricious even if a variance has been granted to another property on similar facts. In Matter of Ronald Berk v .Richard McMahon, the Appellate Division Second Department upheld the Zoning Board of the Village of Southampton’s refusal to grant a wetlands special permit and area variances.

The appellate court considered the zoning board’s reasoning in upholding its action. In determining whether to grant an area variance, the board engaged the required balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community in the event the variance is granted. The board also satisfied a statutory requirement by examining whether (1) an undesirable change in the character of the neighborhood will result, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method, other than an area variance, (3) the required area variance is substantial, (4) the proposed variance will have an adverse impact on environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created.

Supplying a rational explanation for refusing to grant a variance is therefore sufficient to validate the action; the board is not required to grant the variance solely because one has been granted in the jurisdiction in similar circumstances. Judicial review of a board decision is limited in scope to a determination of whether the board’s action violated lawful procedure, was affected by an error of law or was arbitrary and capricious, or an abuse of discretion. In this instance the court upheld the Southampton Board decision based on a finding that it has some objective factual basis in the record and did not entirely rest on subjective considerations.

A zoning board may consider public safety when interpreting a zoning ordinance but must also look at the meaning of the ordinance, noted the Appellate Division, Second Department in Matter of Northern Dutchess Rod and Gun Club v. Town of Rhinebeck. The Rod and Gun Club sought to place trap shooting within 300 feet of a road. The local ordinance provides that if such uses are closer than 500 feet to the “property boundary” a variance is required. The Zoning Enforcement Officer determined that since the property was bisected by a road, the road was not the property boundary. Therefore the proposed use was not within 500 feet of a property boundary and did not require a variance.

On appeal by other property owners to the zoning board of appeals, the board determined that a variance was required and stated: “the issue of public safety takes precedence over the issue of what constitutes a property boundary”. The Appellate Division noted that when an ordinance is ambiguous a zoning board may take into consideration public safety in reaching an interpretation. Yet the Court found that in this instance there was a failure to interpret the term property boundary. The Court remitted the matter to the Zoning Board for further consideration