New York Zoning and Municipal Law BlogIn upholding the grant of an area variance, the Appellate Division rejected a challenge to the adequacy of the hearing notice. In the Matter of deBordenave v. Village of Tuxedo Bd. of Zoning Appeals, the Court found that the Zoning Board had properly conducted the balancing test required to grant an area variance. The Court also addressed the more unusual issue of proper notice for one of the variances granted.
Articles Posted in Zoning and Land Use Law
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Town May Not Withhold Building Permits to Ensure Completion of Infrastructure
The Appellate Division found that a local law providing that ten percent of building permits could be withheld pending completion of infrastructure required for a subdivision was ultra vires and void. In Joy Builders v. Town of Clarkstown, the Second Department reversed the lower court and granted summary judgment to the Plaintiff holding that ” Town of Clarkstown Code § 254-18B is null and void as ultra vires”.
The case arises out of two subdivision approvals obtained by the Plaintiff. In each instance, the Town utilized the provisions of §254-18B to require that, before building permits were issued for a portion of the lots, the Plaintiff was required to complete all construction of required infrastructure. Here the builder was required to install roads, sidewalks, street lights and other infrastructure, which were to be completed and dedicated to the Town. While the Plaintiff was made to post bonds and letters of credit to ensure completion of the infrastructure work, the Town also used the provisions of §254-18B, which provided that up to ten percent of the building permits in each subdivision could be withheld pending completion and dedication of the infrastructure. Plaintiff challenged that provision of the local law.
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Court Holds Zoning Focused On Tax Revenue Does Not Violate RLUIPA
The Sixth Circuit Court of Appeals held that a zoning ordinance that limited permitted uses, based upon potential tax revenue generated by the uses, did not violate the Religious Land Use and Insttutionalized Persons Act (RLUIPA). In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, the Court held that the School had failed to establish a prima facie RLUIPA claim.
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Rezoning Single Parcel Was Not Spot Zoning
The Appellate Division upheld the rezoning of a parcel from commercial to high density residential, despite the provisions of the local comprehensive plan and the failure to prepare an environmental impact statement. In Matter of the Hgts. of Lansing LLC v. the Village of Lansing, the Court found that the Village Board, in adopting the zoning amendment, reviewed the relevant environmental issues and that the the change of zone was consistent with the goals of the Village’s comprehensive plan.
On the issue of SEQRA, the Village Board, as lead agency under SEQRA, analyzed a number of issues before issuing a SEQRA negative declaration. The Court noted that the Village Board held joint meetings with the planning board at which public comment was heard and then made findings, including that:
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Court Overturns SEQRA Findings And Requires Supplemental EIS
After a seven year saga, the Appellate Division overturned the rezoning of a parcel which would have permitted a multi family development in the Town of Ramapo. In Matter of Youngewirth v. Town of Ramapo Town Board, the Appellate Division reversed the lower court, finding the review under the State Environmental Quality Review Act (SEQRA) was inadequate, thus requiring it to overturn the comprehensive plan amendment and the zoning that would have implemented that comprehensive plan change.
In discussing the SEQRA review the Court held:
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Amended Article 78 Petition Attempting to Add Property Owner Barred by Statute of Limitations
An attempt to cure the failure to name a property owner in an Article 78 proceeding challenging a site plan and special permit approval was found barred by the statute of limitations. In Matter of Sullivan v. Planning Board of the Town of Mamakating, the Appellate Division dismissed an Article 78 proceeding challenging an approval for AT&T to construct a wireless telecommunication tower on property it was to lease from the property owner, Hart. Continue reading →
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Portion of Former Shea Stadium Site May Not Be Converted To Retail And Other Non-Park Uses
The New York Court of Appeals held, the legislation permitting the development of Shea Stadium and related facilities on park land does not extend to development of retail businesses and other uses not related to a stadium. In Matter of Avella v. City of New York, the Court strictly construed the legislation permitting the stadium and found that the proposal, to construct a retail mall on the parking field that formerly held the stadium, would violate the public trust doctrine against alienation of parkland.
“Summarizing the longstanding history of the public trust doctrine in Friends of Van Cortlandt Park v City of New York, we explained that ‘our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes’ (95 NY2d 623, 630 [2001]).”
The area of New York City known as Willets Point was found to be in need of redevelopment. As part of a redevelopment plan, the developer proposed construction of a large-scale retail complex on a part of the parkland, which it labeld Willets West. The theory was that “the creation of a retail and entertainment center at Willets West w[ould] spur a critical perception change of Willets Point, establishing a sense of place and making it a destination where people want to live, work, and visit.”
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Replacement Water Tank By Water District Is Not Subject to Village Zoning
Construction of a replacement water tank by the local water district was found to be a SEQRA Type II Action and not subject to the zoning of the Village in which the property is locted. In Incorporated Village of Munsey Park v. Manhasset-Lakeville Water District, the Court held the Water District (Defendant) properly determined its replacement water tank was not subject to local zoning and the project was a Type II Action that did not require any environmental review.
Since 1929, the Defendant had maintained a water tank on property it owned in the Village. In 2014 it was determined the tank needed to be replaced. The proposed replacement tank would have a 250,000 gallon greater capacity and would be shorter and squatter than the existing tank. The Defendant determined it did not require zoning review by the Village and the tank would be a SEQRA Type II Action as it constituted a replacement in kind. The Village commenced this action claiming that local zoning applied and that an environmental review is required.
The Court agreed with the Defendant holding:
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Tie Vote By Zoning Board Members Was Not An Automatic Denial
The Appellate Division held that a 2-2 vote by members of a Zoning Board of Appeals (ZBA) regarding a special permit application, unlike a tie vote for other applications, was not an automatic denial of the special permit application. In Matter of Alper Restaurant, Inc. v. Town of Copake Zoning Board of Appeals, the Court found, due to the fact that approval of a special permit is original as opposed to appellate jurisdiction of a ZBA, the rule that a tie vote constitutes an automatic denial is not applicable in this case.
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Zoning Violations Preclude Property Tax Exemption for Religious Corporation
The Appellate Division upheld a Supreme Court determination granting summary judgment against a not for profit religious corporation seeking a real property tax exemption on property it owns and uses for religious purposes. In Congregation Ateres Yisroel v. Town of Ramapo, the Court held that the failure of the religious corporation to obtain permits for the occupancy of structures on the property precluded the granting of a tax exemption.
The property at issue was originally granted a certificate of occupancy as a single family residence in 1954. Sometime thereafter, the property was acquired by the not for profit religious corporation. From 2008 through 2011 the property was granted a real estate tax exemption by the Town. The decision does not explain why the exemption was issued or exactly what changed. However, in 2012 when an application for renewal of the exemption was submitted, the Town denied the renewal of the tax exemption. The Corporation commenced this action challenging the denial and the Supreme Court granted the Town’s motion for summary judgment dismissing the claim.
In upholding the decision of the lower court, the Appellate Division determined, despite the fact that the Corporation met the criteria for a not for profit religious corporation and owned the property at issue, the lack of zoning compliance precludes a tax exemption.