Articles Posted in Zoning and Land Use Law

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….”

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.

The denial of a special permit was found to be arbitrary when unsupported by empirical evidence. In Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola, the Appellate Division reversed the Village Board and the lower court and remanded the matter for the Board of Trustees to issue a special permit.

The Court noted that during the hearing process neighbors and some board members expressed concerns over traffic and the clientele of the 7-Eleven. However, as part of its application process 7-Eleven submitted expert reports that there would be no adverse impacts upon traffic and offered to set conditions regarding the timing of deliveries and size of trucks used for deliveries.

Noting that there was no contrary expert evidence produced by either the Village or the opponents of the proposal, the Court outlined the criteria that should be applied in considering a special permit application.

The Appellate Division overturned the lower court reversal of a zoning board of appeals (ZBA) decision for failure to certify the record filed in response to an Article 78 proceeding. In Matter of Robert E. Haveli Revocable Trust v.Zoning Board of Appeals of the Village of Monroe, the Appellate Division found that the lower court was in error by reversing the ZBA merely because the record of proceedings filed with the court was not certified.

“Since there was no allegation or indication that a substantial right of the petitioner was prejudiced by the lack of a certification, the Supreme Court should have disregarded the defect, and decided the matter on the merits (see CPLR 2001…”

The Court then went on to decide the merits of the case which involved a question of whether the use proposed by the petitioner was a permitted use or, as determined by the ZBA, a conditional use. The Petitioner proposed to operate a business offering tire sales and service. The schedule of uses listed retail sales and automotive repairs as a permitted use but sale and service of tires as a conditional (special permit) use. The Court noted the ordinance provides that in case of a conflict the more restrictive provisions govern and held:

The difficulty of meeting the burden of proof for a use variance was demonstrated again this week. In Matter of Nemeth v. Village of Hancock Zoning Board of Appeals, the Appellate Division reversed the lower court and the Zoning Board of Appeals (ZBA), holding that a use variance to expand a nonconforming manufacturing use in a residential district should not have been granted. In previous litigation it was determined that the facility had been illegally expanded in 2001, through an addition that expanded the manufacturing facility. Thereafter, the owner applied for and obtained a use variance. A neighboring property owner brought this Article 78 proceeding but lost in State Supreme Court.

The Appellate Divison found that both the ZBA and lower court erred. The property at issue had been used as a manufacturing facility prior to a zoning amendment in 1983, that rezoned the property to residential use. While the existing facility could continue as a legal nonconforming use, the Court found that the owner had failed to demonstrate by the required “dollars and cents proof” that the property could not provide a “reasonable return” either as a manufacturing facility, without the addition or be converted to a permitted residential use.

The Court found:

The Appellate Division upheld the denial of area variances to permit the legalization of an addition to an accessory structure. In the Matter of Sacher v. Village of Old Brookville, the Court and the Zoning Board appear to have been influenced by the fact that the applicant had constructed the addition without benefit of a permit.

After stating the general rule that judicial review of the decisions of a zoning board are limited to “whether the action taken by the board was illegal, arbitrary, or an abuse of discretion,” the Court then reviewed the balancing test the zoning board must consider.

” A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]).”

The Appellate Division had to once again remind a Zoning Board of Appeals that practical difficulty is no longer the test for an area variance. In Matter of Mimassi v. Town of Whitestown Zoning Board of Appeals, the Appellate Division reversed, in part, the lower court’s dismissal of the petition to review the Zoning Board’s denial of an area variance.

There were two parts to the Petitioner’s claims. The first was that the Zoning Board failed to follow precedent. The Court denied that portion of the claim. “Petitioner failed to establish that respondent’s determination on another application was based on essentially the same facts as petitioner’s present application (see Matter of 194 Main, Inc. v Board of Zoning Appeals for Town of N. Hempstead, 71 AD3d 1028, 1030; see generally Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93; Knight v Amelkin, 68 NY2d 975, 977).”

However, the Court reversed the lower court on the second prong of the Petition and remitted the matter for further findings, noting that the Zoning Board had failed to apply the appropriate balancing test to the area variance application.

This week the New York Court of Appeals clarified that a parking variance is an area variance, except when it is not. In Matter of Colin Realty Co. v. Town of North Hempstead, the Court concluded that, in most instances, a parking variance is an area variance. However, at the very end of the decision, the Court inserted a line that appears to open the door for further interpretation and possible confusion.

The case involves a commercial use in an older building that does not have adequate off-street parking under the more modern requirements of the amended zoning ordinance. The local zoning board granted an area variance. A neighboring property owner challenged the decision arguing, in part, that it should be a use variance. The Petitioner relied on language in Matter of Offshore Rest. Corp. v. Linden, 30 NY2d 160 (1972).

In Offshore the Court stated:

The Appellate Division, in a somewhat rare instance, upheld the denial of a special permit to expand an existing day care center. In Matter of Smyles v. Board of Trustees of Incorporated Village of Mineola, the Court found there was sufficient expert evidence that the expansion of the facility would have an adverse impact on traffic, parking and available emergency services.

“A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection (see Matter of Green 2009, Inc. v Weiss, 114 AD3d 788; Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731). However, where evidence supporting the denial exists, deference must be given to the discretion of the authorized board, and a court may not substitute its own judgment for that of the authorized board, even if a contrary determination is supported by the record…

Here, evidence in the record, including testimony by experts in traffic and real estate and by neighboring property owners, supports the findings of the Board of Trustees of the Incorporated Village of Mineola (hereinafter the Board) that the proposed expansion of the subject day care facility into vacant retail space would result in a dangerous traffic situation, an over-intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services. Contrary to the petitioners’ contention, the Board was entitled to base its decision upon, among other things, its members’ personal knowledge and familiarity with the community (see Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 67 AD3d 1019; Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d 1068). Accordingly, the Board’s determination to deny a special use permit on the ground that it would not be in the best interests of the health, safety, and welfare of the community was supported by the record, and was not arbitrary and capricious.”

The Appellate Division restated the limited nature of judicial review of the decisions of a Zoning Board of Appeals (ZBA). In Matter of Slonim v. Town of E. Hampton Zoning Bd. of Appeals, the Court noted that the ZBA properly upheld the determination of the building inspector finding that a particular retail use was pre-exisiting.

“In a CPLR article 78 proceeding to review a determination of a Zoning Board of Appeals (hereinafter the Zoning Board), which was made after a quasi-administrative proceeding, judicial review is limited to considering only whether the Zoning Board’s discretionary determination was arbitrary, capricious, an abuse of discretion, or irrational… Thus, the Zoning Board determination at issue in this proceeding may be set aside only if the Zoning Board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community opposition, and must be sustained if the determination has a rational basis… To the extent the phrase “substantial evidence” arises in cases involving challenges to Zoning Board determinations made after a quasi-administrative proceeding, in this context that standard is limited to examining ‘whether the record contains sufficient evidence to support the rationality of the determination’ ….”

-Steven Silverberg