Articles Posted in Zoning and Land Use Law

While upholding the denial of some area variances and a special permit, finding the evidence in the record supported that determination, the Appellate Division also reversed the denial of a special permit for a refuse enclosure, as well as a variance for placement of a sign. In Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, the Court noted:

“‘Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right’…. Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The owner is required only to show compliance with legislatively imposed conditions pertaining to the intended use…. ‘Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception’.”(citations omitted)

Here the Court found that the denial of the special permit was not supported by the record and the matter was remanded for the zoning board to grant the special permit with appropriate conditions.

Last week President Obama signed the ”Middle Class Tax Relief and Job Creation Act of 2012” which included provisions limiting municipal authority over modification of existing telecommunications facilities.

The new provisions read as follows:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.

The Appellate Division Fourth Department reversed the denial of a special permit when it found the denial to be based upon “generalized community objections.” In Matter of Young Development, Inc. v. Town of West Senaca, the Court held:

“Contrary to respondents’ contention, petitioners established that the sewer system of respondent Town of West Seneca would have sufficient capacity to support the project and, in any event, petitioners agreed to engage in remediation efforts recommended by the [*2]New York State Department of Environmental Conservation. There is no expert evidence in the record that the remediation proposed by petitioners is unsatisfactory. With respect to the comprehensive plan issue, it is well settled that the inclusion of a permitted use in a zoning code “is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243). Given the absence of support in the record for the Board’s determination, we conclude that the Board impermissibly based its determination on “generalized community objections” (Matter of Ifrah v Utschig, 98 NY2d 304, 308). ”

There is, however, one aspect of the decision which this writer finds puzzling. The Town raised the issue that the Article 78 proceeding was untimely because it was commenced more than thirty days after the decision denying the special permit. The Court found:

A Local village’s law requiring occupancy applications and inspection of rental units, before permiting occupancy, was held to be unconstitutional by the Appellate Division this week. In

The Appellate Division held that despite the fact that a parcel had been zoned for industrial use for fifty years, and that the Town’s comprehensive plan designated the parcel for industrial use, a rezoning and change of the comprehensive plan to residential use of the parcel was a proper exercise of discretion. In Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, the Court found the property in question had been used as a multifamily residential property for the period in question and the rezoning was consistent with the transitional nature of the site between an industrial use and a residential neighborhood.

The Petitioner owns an industrial site which was part of an army depot that also included the parcel in question that had been used to house military families. When the Respondent SYNC acquired the site in 2008 it first sought a variance, which was denied and then petitioned for a rezoning, which was granted. The Town issued a SEQRA negative declaration finding that the rezoning was consistent with the current use of the property and would have fewer impacts than the potential use as an industrial site under the existing zoning.

The Court upheld the SEQRA determination and found that the rezoning did not, as Petitioner claimed, constitute spot zoning. Rather, the court found the fact that prior revisions to the comprehensive plan did not suggest a residential use of the property was not proof of spot zoning, because “although the property abuts a portion of petitioner’s industrial park, it also projects into an area of predominantly residential use. The Town, including its senior planner, concluded that rezoning the property so as to permit its continued use for residential purposes would benefit the community by retaining a transitional area between residential/commercial and industrial zones, whereas industrial use of the property would create an incongruity with the character of the existing neighborhood. Petitioner’s reliance on the Town’s failure to rezone the property as part of the 2001 and 2009 revisions of the comprehensive plan is misplaced, as the studies that supported that revision did not include an evaluation of SYNC’s property. According to the Town’s senior planner who oversaw the revisions, the industrial zoning classification for this property was simply continued without discussion or analysis.”

The Appellate Division held that the filing of a zoning board’s minutes, rather than the subsequent filing of the zoning board’s formal decision, commenced the running of thirty day statue of limitations for challenging that decision. In Matter of 92 MM Motel, Inc. v. Zoning Board of Appeals of the Town of Newburgh, the court found that, as the minutes of the meeting reflected the vote of each member of the zoning board, the filing of the minutes commenced the running of the statute of limitations. The court therefore concluded that the commencement of an Article 78 proceeding within 30 days of the filing of the formal decision was time barred when the minutes were filed with the Town Clerk more than thirty days prior to the commencement of the action.

-Steven Silverberg

The Appellate Division, Third Department, reversed the denial of a special permit for 48 affordable apartment units as being based solely on generalized community objections and unsupported by empirical evidence. In Matter of Kinderhook Development, LLC v. City of Gloversville Planning Board the Court found that, after the planning board issued a SEQRA negative declaration in which it concluded that the stormwater management plan for the site was adequate, the planning board then denied the special permit based upon objections from the neighbors, who expressed concern over stormwater runoff, but provided no expert opinion to support their concerns.

Noting that one of the planning board members stated: “people living in a particular neighborhood know more about the physical conditions of where they live than any experts brought in by an applicant,” the Court concluded:

“There is no dispute that petitioner met its initial burden of demonstrating that the proposed project ‘compli[ed] with any legislatively imposed conditions on an otherwise permitted use’ … While respondent thereafter remained free to evaluate the application and reject it ‘[i]f there [were] specific, reasonable grounds . . . to conclude that the proposed special use [was] not desirable at the particular location,’ its determination in that regard must be supported by substantial evidence in the record…the engineering evidence submitted established that the project would reduce the preexisting runoff problems and, indeed, respondent relied upon that evidence in issuing its negative declaration for purposes of SEQRA. Even assuming, as respondent argues, that its own negative declaration was not binding upon it in rendering its ultimate determination, the fact remains that the only evidence respondent thereafter received on the runoff issue consisted of the conclusory opinions of neighbors opposed to the project.”

The Second Circuit Court of Appeals held a local zoning provision, relating to the measurement of the height of a building, to be unconstitutionally vague and remanded the matter for consideration of the Plaintiff’s substantive due process claim. In Cunney v. Bd. of Trustees of the Village of Grand View, the court reversed the granting of summary judgment on behalf of the Village and upheld the void for vagueness claim of Plaintiff. The court noted that the Village officials had several varying interpretations of the ordinance themselves, originally granting a building permit, then interpreting the construction as compliant with the ordinance and finally reversing themselves and finding the construction violated the ordinance.

The matter involves construction of a house along the Hudson River in New York, at a point where the land drops down below the height of the adjacent roadway. The ordinance, adopted to preserve views of the river, provides that no building may rise more than 4 1/2 feet above the easterly side of River Road. Initially, the Plaintiff sought variances and an interpretation of the provision from the local zoning board. The issue is that the property borders the road for 149 feet and the height of the road varies by 6 feet. The Plaintiff requested that the zoning board interpret the point or points from which the height of the road should be measured.

The zoning board declined to issue a finding on that issue, although three of the members gave two different interpretations of the provision. Thereafter, the Plaintiff, through his surveyor, provided various measurements of the road height and applied for and obtained a building permit. However, after the house was constructed the Village engineer was asked to confirm the heights based upon complaints by the neighbors. He at first found the structure to be compliant but later applied a different calculation to the manner of determining height and concluded the structure was not compliant. Based upon that determination the Plaintiff was denied a certificate of occupancy.

This morning the New York DEC released

An appellate court held that a reduction in the size of a structure by over 30% was a proper condition to site plan approval. In Matter of Greencove Associates LLC v. Town Board of the Town of North Hempstead, the appellate division found that the reduction in the size of the proposed building was appropriate to preserve a landscape buffer between the shopping center and a residential neighborhood.

Petitioner had an existing shopping center which was required to maintain a landscape buffer at an average width of 22 feet. When it applied for a 10,000 square foot addition, Petitioner proposed reducing the buffer to between 4 and 5 feet behind the new building. The Nassau County Planning Commission, as part of its General Municipal Law review, recommended reducing the building to 6,800 square feet in order to maintain the buffer.

When the Town Board implemented the reduction of the building as a condition of approval, the Petitioner brought an Article 78 proceeding. In upholding the condition the Court stated: