New York Zoning and Municipal Law BlogThe 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.
Articles Posted in Zoning and Land Use Law
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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.
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Takings Claim Dismissed for Failure to be Ripe for Judicial Review
The Second Circuit Court of Appeals issued a summary order denying an appeal from a decision dismissing the claim of regulatory taking, by a property owner whose property was not placed in any zoning district. In the case of BT Holdings, LLC v Village of Chester, the Circuit Court found that the District Court properly dismissed the claim, pursuant to 42 USC §1983, as there had not been a final determination with respect to whether the property owner could utilize its property.
Plaintiff’s property had been annexed from the Town of Chester to the Village of Chester. After the annexation, the Village of Chester failed to place the property in a zoning district. Due to the lack of zoning designation, the Plaintiff could not apply for site plan or other approvals necessary to develop Plaintiff’s property. As a result, Plaintiff commenced this action claiming a regulatory taking.
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Zoning Board Lacks Authority to Place Time Limit on Approval
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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Whether Restoration Requirement in a Grant of a Building Modification to Accommodate a Disability Violated the FHA
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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Erroneously Issued Permit Does Not Give Property Owner Vested Rights
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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Applicant Fails to Provide Dollars and Cents Proof for Use Variance
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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Court Holds Denial of Variance Did Not Violate RLUIPA
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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No Evidence of Legal Nonconforming Use
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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Zoning Board Need Not Support Every Finding With Evidence If Determination Has A Rational Basis
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: