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Condition Set by ZBA Negated by Subsequent Zoning Amendment

An appellate court held that a restriction on the height of buildings fixed by a zoning board of appeals did not survive a later change of zoning for the parcel at issue. In Matter of Livingston Parkway Assn., Inc. v. Town of Amherst Zoning Board of Appeals, the Third Department held: ” the language of Condition No. 4 specifically and unambiguously applied the height restriction only to new buildings proposed by a developer in June 1968. That development never came to fruition, and the subject parcel was rezoned in 1976. We therefore conclude that the Amherst Town Board annulled Condition No. 4 when it rezoned the property in 1976 (cf. Matter of D’Angelo v Di Bernardo, 106 Misc 2d 735, 737, affd 79 AD2d 1092, lv denied 53 NY2d 606).”

The Petitioner in the case had claimed that a saving clause in the amendment that stated prior regulations of the Town survived the amendment meant that the ZBA condition on height also survived, In rejecting that argument the Court noted that a condition fixed by a zoning board is not a Town regulation.

The Court also rejected the Petitioner’s argument that the ZBA decision, holding the prior height restriction no longer applied, was fatally defective for failure to make findings of fact. The Court noted that, while generally findings of fact are required to permit intelligent judicial review, when there is a pure question of law:

“we have the power to conduct an independent review of the applicable law (see Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 160; see also Matter of Emmerling v Town of Richmond Zoning Bd. of Appeals, 67 AD3d 1467, 1467-1468), and petitioners correctly concede that this case involves only an issue of legal interpretation. Under the circumstances, we conclude that the record “contain[s] sufficient facts to permit intelligent judicial review of the . . . determination” (Matter of Iwan v Zoning Bd. of Appeals of Town of Amsterdam, 252 AD2d 913, 914…”

-Steven Silverberg

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