Articles Posted in Zoning and Land Use Law

The Appellate Division upheld the lower court’s reversal of the denial of a special permit and a parking variance for a church use. In the Matter of Gospel Faith Mission International, Inc., v. Weiss, the Court found the ZBA was arbitrary in denying the application due to the fact that “greater flexibility” is to be applied to applications by religious organizations. This rule is based upon New York law not the often cited Religious Land Use and Institutionalized Persons Act (RLUIPA) which does not appear to have been raised in this case.

In reversing the ZBA the Court stated:

“Here, the record reflects that the Board voted to deny the petitioner’s applications without making any attempt to accommodate the proposed religious use (see Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572, 573). The petitioner suggested conditions for the limitation of its use in order to mitigate the impact on the surrounding community. However, despite the conditions proposed by the petitioner, the Board denied the petitioner’s applications in their entirety, even though the proposed religious use could have been substantially accommodated…”

The Appellate Division held a town planning board has no jurisdiction to review a site plan for construction of a dock in a state owned navigable waterway, unless such authority is specifically delegated by the State pursuant to Navigation Law section 46-a. In Matter of Hart Family, LLC. V. Town of Lake George, the Court first addressed the issue of whether the question of the planning board’s jurisdiction had been preserved. The Court noted that while the issue was not discussed at the hearings, counsel for the Petitioner had questioned the authority of the planning board in a letter to the planning board’s attorney. Moreover, the Court held:

” even assuming that the issue had not been thus preserved, ‘a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent…'”

Then turning to the issue of jurisdiction, the Court noted that the proposed dock was to be constructed in the waters of Lake George and the state “holds title to the lands under Lake George in its sovereign capacity (see People v System Props., 2 NY2d 330, 344 [1957]) and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government…the Town is not included among the local governments enumerated in Navigation Law § 46-a (2), and we find no such delegation in any other source. Contrary to respondents’ claim, Town Law § 130 (17) (1) (b) pertains to “the anchoring or mooring of vessels” and does not address the construction of docks, boathouses or other structures covered by Navigation Law § 46-a. “

The Appellate Division upheld a determination to deny the subdivision of an approximately three acre parcel containing two vacant buildings into two lots, each containing one of the two existing buildings. In a Matter of Center of Deposit, Inc. v. Village of Deposit, the Court held:

“the Board identified a variety of reasons for its denial, including, among others, that the subject property lacked a legal means of ingress and egress and that the proposed subdivision would endanger ‘the health, safety, welfare and comfort’ of the Village at large ….Inasmuch as the Board’s conclusions – that there were significant safety issues surrounding the property and that petitioner had not established compliance with the relevant zoning laws – provided a rational basis to support its denial of petitioner’s application, such denial must be upheld (see Matter of MLB, LLC v Schmidt, 50 AD3d at 1434-1435).”

In addition, the Court rejected the claim that the planning board failed to act within the time required by Town Law. Initially, after holding a public hearing, the planning board had issued a SEQRA positive declaration, that was successfully challenged by the Petitioner. On remand the Board issued a negative declaration and held a further public hearing before denying the application. The Petitioner claimed that the hearing held prior to issuance of the positive declaration started the 62 day period for the board to issue a decision, in order to avoid a default subdivision approval. This claim was rejected by the Court.

The Appellate Division upheld a SEQRA conditional negative declaration, as well as variances and site plan approval to construct a hotel. In Matter of Schaller v. Town of New Platz Zoning Board of Appeals et. al., the Court found the determinations of both the planning board and zoning board of appeals were fully supported by the record and findings of the boards.

“Here, a review of the record establishes that the Planning Board conducted a two-year coordinated SEQRA review of the application which included, among other things, consultation with traffic engineers; review of the expanded long form environmental assessment form, visual assessment form, traffic studies and related submissions; compliance with the comprehensive master plan, an architectural study, a water system and sewage report, and drainage and storm water impact studies; consideration of input from various interested agencies, as well as public comments and concerns received from public hearings and Planning Board meetings, and submissions by interested parties. The Planning Board conditioned the negative declaration on the applicant’s compliance with various mitigating measures designed to minimize potential environmental impacts, including constructing turn lanes, upgrading traffic signals, adding traffic signage, retention of certain trees for aesthetic purposes and construction of a previously approved water line loop/extension for water supply and sewer purposes. The Planning Board specifically noted the various environmental impacts it considered in reaching its determination and it took a hard look before concluding that the project would not have a significant impact on the environment. The Planning Board also provided detailed reasoning and elaboration for its determination in the negative declaration with regard to the lack of significant impacts on traffic and transportation, aesthetics resources, water and sewage resources, endangered species, historic resources, community character and services, and energy resources. ”

Likewise, the Court found the zoning board had properly weighed and balanced the issues before it determined to grant the requested height variance.

The Appellate Division ruled that the New York Environmental Conservation Law (ECL) does not prevent a Town from enacting zoning that prohibits hydrofracking. In Matter of Norse Energy Corp. USA v. Town of Dryden, the Court held that provisions of the ECL that regulate mining did not conflict with the ability of municipalities to enact zoning codes that prohibit certain mining activities.

Noting that “[A]mong the powers delegated to local governments is the authority to regulate the use of land through the enactment of zoning laws (see Municipal Home Rule Law § 10 [1] [ii] [a] [11]; Statute of Local Government § 10 [6], [7]; Town Law § 261” the Court found the ECL language and legislative history did not evidence an intent by the state legislature, either explicitly or by implication, to preempt local zoning authority to prohibit mining operations.

Therefore, the Court concluded: “respondents’ decision to amend the Town’s zoning ordinance to prohibit the activity of hydrofracking does not conflict with the Legislature’s intent to ensure that, where oil or gas drilling occurs, the operations are as efficient and effective as possible.”

The Appellate Division ruled that a zoning board correctly interpreted the zoning code when it held that keeping 40 racing pigeons was not what was intended in a zoning code that permits “customary household pets” as accessory to a residence. In Matter of LaRusso v. Neuringer the court found:

“the petitioner’s proposed use of a coop in his backyard to keep and raise 40 or more racing pigeons, or ‘racing homers,’ did not qualify as keeping ‘a reasonable number of customary household pets’ within the meaning of section 342-21(B)(7) of the Code. In reaching this determination, the ZBA considered record evidence that these pigeons would be specially bred, trained, and handled to compete in races, at least some of which may result in cash prizes. ”

In analyzing the criteria applicable to interpreting the zoning code the Court noted that generally

The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land “not the identity of the user.” In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town’s zoning code that prohibited check cashing establishments were invalid.

The Court noted that the basis for the prohibition was a memorandum produced by one of the Town’s attorneys who, among other things, concluded the prohibition would be beneficial because it :

“…encourages young and lower income people to open up bank accounts, save their money, and develop a credit rating” and “also removes a seedy type of operation, akin to pawnshops and strip clubs, from the commercial areas of the Town.”

The Appellate Division Second Department vacated conditions fixed by a zoning board as part of the grant of a permit to operate a farm stand. In The Matter of Edson v. Southold Town Zoning Board of Appeals, the Court reversed the lower court’s dismissal of the petition.

The Petitioner has a Christmas tree farm and wanted to also open a farm stand in its building. However, the building is 7,826 square feet, where the Town Code limits farm stands to 3,000 square feet. The Petitioner proposed to partition the building and limit the area used for the farm stand to 3,000 square feet. After the building inspector denied the permit the Petitioner applied to the zoning board. The zoning board found that the application met the requirements of the code but fixed conditions not agreed to by the Petitioner. The conditions limited the operations to only certain months and prohibited the storage of incidental items, not raised on the farm, within the balance of the building outside the stand.

In reversing the lower court and vacating the conditions the Court held: