Articles Posted in Zoning and Land Use Law

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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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The U.S. Fourth Circuit Court of Appeals upheld the dismissal of an action claiming the denial of a variance for a church use was a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Andon, LLC v. The City of Newport News, the Court held that the denial of a setback variance to permit a church use did not impose a substantial burden on the religious exercise of the church.

A congregation found a building for lease located in a commercial zoning district which permits religious uses, provided it meets the following requirements: Continue reading →

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The Appellate Division upheld a Zoning Board of Appeals (ZBA) determination that the owner of property,  containing several retail stores, had failed to demonstrate the location at issue was used for retail purposes prior to a zoning amendment. In Matter of East End Holdings LLC v. Village of Southhampton Zoning Board of Appeals, the Court found  the ZBA had rationally concluded the evidence submitted did not support the property owner’s claims of a legal nonconforming use.

The buildings on the property were constructed in 1976. In 1982 the Village amended the zoning code to provide that no retail use could be less than 800 square feet. In 2008 the Building Inspector issued a violation for operating a retail unit of only 100 square feet. The owner appealed to the ZBA claiming that in 1999, when the property was purchased, an appraisal report and certificate of occupancy (C of O) showed there were seven existing retail locations on the property and one was 100 square feet. The owner claimed that the C of O and appraisal demonstrated  the 100 square foot retail space was previously in use and was therefore legal.

However, the Building Department file contained 1981 and 1999 surveys, with floor plans that showed seven stores, including a 100 square foot space that was not the space at issue. Therefore, the ZBA concluded the space at issue was not legal.

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The Appellate Division reversed the Supreme Court and reinstated the determination by a Zoning Board of Appeals (ZBA) to deny area variances for an accessory structure in a front yard. In Matter of Kramer v. Zoning Board of Appeals of the Town of Southampton, the Court upheld the denial of area variances sought by the Petitioners, after they had completed construction.

Petitioners had constructed a barbecue, sink, cabinets, counter top and refrigerator in their front yard. When they subsequently applied for a building permit they were told they needed variances to permit what was essentially an accessory kitchen in the front yard. The ZBA denied the application finding: “…granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b[3][b]).”

In reversing the lower court and upholding the decision of the ZBA the Court noted:

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At the end of June, lost among the headlines about other rulings, the U.S. Supreme Court held that a local sign law was unconstitutional. In Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) the Court broke new ground in interpreting permissible sign regulations.

In our article, published in the August 2015 edition of the New York Real Estate Law Reporter, we discuss the decision;and some of its implications.

-Steven Silverberg

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In a case primarily dealing with the authority of a Zoning Board of Appeals (ZBA) to interpret a zoning provision, the Court also addressed the issue of late filing of the ZBA decision. In the Matter of Stone Industries, Inc. v. Zoning Board of appeals of the Town of Ramapo, the Appellate Division held that the ZBA properly interpreted the ordinance as prohibiting the production of asphalt from recycled material where the language of the ordinance prohibited “the primary production of asphalt from raw materials.”

The Court noted:

“As a general rule, zoning ordinances are in derogation of the common law and must be strictly construed against the municipality….This rule is subject to the limitation that where, as here, it would be difficult or impractical for a legislative body to promulgate an ordinance which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the ordinance may be delegated to an administrative body or official….The interpretation of the zoning board of appeals or the official governs unless such interpretation is unreasonable or irrational….”

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The Appellate Division upheld a zoning board determination that the existence of a legal nonconforming use did not give the property owner the right to maintain a different nonconforming use. In Bradhurst Site Construction Corp. v Zoning Board of Appeals of the Town of Mount Pleasant, the Court found the Zoning Board of Appeals properly upheld the determination of the Code Enforcement Officer who had found that the use of the property for a maintenance garage and truck storage was not a permitted use.

“The Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, i.e., a sand and gravel operation, which use was discontinued in or around 1950, and that the petitioner’s subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. The ZBA’s determination was not irrational and is supported by evidence in the record…. Furthermore, the petitioner’s contention that the respondents/defendants (hereinafter the respondents) are equitably estopped from prohibiting it from operating a maintenance garage and truck storage facility on the subject lot is without merit, as the evidence submitted by the petitioner did not establish that there were “exceptional circumstances” here involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision….”

In addition, the Petitioner had argued that the Town violated the Freedom of Information Law (FOIL) in failing to respond to a FOIL request for additional information concerning the property. The Court ruled the Petitioner failed to produce proof that it had followed the administrative appeal procedure and had made a timely written appeal of the denial of its FOIL request. Therefore, Petitioner had failed to exhaust its administrative remedies and was precluded from appealing to the courts.

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