Articles Posted in Zoning and Land Use Law

The Appellate Division upheld a zoning board determination that a property owner had not acquired vested rights in the portion of a subdivision, which would have allowed a now non-conforming townhouse development. In the Matter of Mar-Vera Corporation v Zoning Board of Appeals of the Village of Irvington, the petitioner challenged the denial of a building permit to complete the townhouse portion of a subdivision that had been approved for 27 single family homes and 14 attached townhouses in 1979.

After receiving the subdivision approval, the 27 single family homes were developed and a 12 acre parcel was dedicated to the Village as parkland, in accordance with the subdivision approval. However, it was not until 2000 that there was a request for a building permit for the townhouses. In the interim, the zoning had changed making the townhouses non-conforming and the building inspector denied the application for a building permit for townhouses. The zoning board upheld the decision of the building inspector and the Appellate Division upheld the lower court’s decision affirming the zoning board ruling.

The petitioner argued that it had the right to continue the townhouse development as a legal non-conforming use and/or that it had acquired vested rights to the townhouse development. It appears these arguments were based upon both the partial development of the subdivision, albeit for only the single family homes, and the dedication of the parkland to the Village.

The Appellate Division overturned the decision of a zoning board which upheld the granting of a building permit to construct an eight car garage on the same property as a single family home. The court in Matter of Witkowich v. Zoning Board of Appeals of the Town of Yorktown found that the proposed eight to nine car garage, which was approximately twice the size of the house on the same lot, was not, as the zoning ordinance provided, a “subordinate building . . . the use of which is customarily incidental to that of a main building on the same lot.”

In rejecting the argument that there were other similar structures in the area the Court held:

“there is no indication that the members of the ZBA relied on evidence of any specific accessory structures in the neighborhood, or as to the dimensions or uses of any such structures. In addition, although Sabo submitted letters from friends and neighbors asserting that there are several accessory buildings in the vicinity that are similar to the proposed garage, those letters did not detail the locations or dimensions of those structures. Under these circumstances, the ZBA lacked a rational evidentiary basis to support its finding that the proposed garage constitutes a permissible accessory building, within the meaning of the subject zoning ordinance.”

The Appellate Division overturned the requirement that a recreation fee be paid as a condition of site plan approval for a senior housing community. In Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd. the court held that the planning board failed to make the requisite findings to justify imposing a recreation fee and remitted the matter to the planning board for further consideration.

The Court found:

“The Planning Board for the Town of Carmel (hereinafter the Planning Board) has the authority to impose a recreation fee as a condition to site plan approval as long as certain findings are made prior to the imposition of such a fee (see Town Law § 274-a[6]… Here, however, the Planning Board made no “individualized consideration” prior to imposing the recreation fee and made no specific findings as to the recreational needs created by the petitioner’s improvements”

The Appellate Division upheld a zoning board’s determination that recreation facilities open to the public is a permitted accessory use for a school. In the

The Appellate Division upheld dismissal of an action by a Town seeking to mandate construction of a pool as part of a private community recreation facility. In Matter of Town of Huntington v. Beechwoord Carmen Bidg. Corp,the Court reviewed the history of the development, which included a zoning amendment to permit construction of a senior residential community and a number of single family homes.The final approval of the subdivision included a lot reserved for community recreation facilities, which was developed.

However, the Town brought an action claiming that the recreation facility was mandated to include a pool. After reviewing a number of procedural issues, the Court dismissed the case, holding:

“While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99).”

The Appellate Division concluded that a notation on a subdivision map “not approved for building lots” was inadequate to place a purchaser on notice that there was an intention to maintain the two lots in question as undeveloped space. In Matter of Fuentes v. Planning Board of the Village of Woodbury, the petitioner had purchased two lots in a tax sale, with the only notation on the filed subdivision map being ” not approved for building lots.” Thereafter, petitioner sought permission to build on the lots. The planning board denied the application finding that the original subdivision was a cluster layout and that the two lots in question were intended to be maintained as permanent open space.

The Court noted that the minutes of the original subdivision approval reflected the intended restriction on the lots. However, the Court found that statements in the minutes were inadequate because they did not place the restriction in any document that would appear in the chain of title.

As a result the Court found:

The Appellate Division held that a planning erred in imposing a recreation fee without first doing an analysis of the recreation needs created by approving a site plan. In Matter of Dobbs Ferry Development Associates v. Bd. of Trustees of the Village of Dobbs Ferry, the court found that in granting site plan approval for development of a single family home on a vacant lot, the planning board failed to undertake “individualized consideration” by making findings as to the recreational needs created by development of the lot.

However, the court modified the lower court’s judgment which directed that the site plan approval be granted without the recreation fee. Instead, the Appellate Division remitted the matter: “for further consideration as to whether a recreation fee is appropriate, the amount, if any, and the specific findings which support such a fee…”

-Steven Silverberg

The Appellate Division upheld a local planning board on a challenge to the location of access for a retirement community. In Matter of Fairway Manor, Inc. v. Bertinelli, an adjacent retirement community challenged the site plan approval based upon the proximity of the new access for the proposed development to the access for petitioner’s property.

Previously, the property at issue, which is near the Sunrise Highway, had been occupied by a multiplex cinema. After ramps from the Sunrise Highway were relocated, the New York State Department of Transportation (DOT) required that any future access to the site had to be located at the western edge of the property (where petitioner’s property is located) because of safety concerns relating to the relocated Sunrise Highway ramps. In order to develop the property as a retirement community it was necessary to obtain a rezoning and as part of the zoning approval the Town Board also placed restrictions on the location of any access for the property.

When the proposal for the new development came before the planning board it was determined that the existing access should be relocated to the western edge of the property in order to address the safety issues. The petitioner rejected a suggestion that the new development share access with petitioner’s property and brought this challenge to the location approved by the planning board.

The Appellate Division found that a request for an area variance to park in the front yard of the petitioner’s property would produce an undesirable change in the neighborhood and therefore the zoning board properly denied the requested variance. In Matter of Russo v. City of Albany Zoning Board, the Appellate Division Third Department held that the zoning board had properly applied the statutory balancing test (Town Law 267-b(3)) in reviewing the area variance application and therefore the decision should not be overturned.

The petitioner initially claimed that he was parking in his front yard pursuant to a previously issued variance or permit. The City could find no record of any such permit or variance and since petitioner began using the space after the zoning ordinance prohibited parking in the front yard it could not be a legal non-conforming use.

As for the requested variance, the court found that “although other houses in the surrounding area had front-yard parking, this constituted the overwhelming minority of the properties. Furthermore, …compared to those few properties, petitioner’s use drastically differed in that his parking area is in the very middle of the lot, as opposed to on the side of the residence, and caused his vehicle to be parked over the City sidewalk.” The court noted that parking over the sidewalk created a public safety hazard. These factors, coupled with the finding that the petitioner had available alternatives and that the condition was self created as “petitioner constructed a driveway on his front lawn and began parking there with full awareness of the applicable zoning regulations prohibiting such use,” the court found the actions of the zoning board were reasonable.

A court granted summary judgment to the Town of Southold enjoining continued violation of the local zoning ordinance. In Town of Southold v. Estate of Edson, the court restated several basic principles relating to enforcement of local zoning:

“plaintiff was entitled to injunctive relief to enforce its zoning laws…and estoppel is generally unavailable to prevent a municipality from discharging its statutory duties… Moreover, a building permit issued due to a misrepresentation by the applicant or an error by the municipal agency cannot confer rights in contravention of the zoning laws, and is subject to corrective action, even where the results may be harsh (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 282; Town of Putnam Val. v Sacramone, 16 AD3d 669, 670; McGannon v Board of Trustees for Vil. of Pomona, 239 AD2d 392, 393; Baris Shoe Co. v Town of Oyster Bay, 234 AD2d 245; Welland Estates v Smith, 109 AD2d 193, 196, affd 67 NY2d 789).”

-Steven Silverberg