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Court Upholds ZBA Decision Including Land Under Water in Lot Area

The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: “the ZBA’s determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion.”

Unfortunately, the Appellate Division did not discuss the facts of this case. It is necessary to read the lower court decision to fully understand the facts of this unusual and complex case, in which the zoning board concluded that local regulations did not preclude the property owner from using certain underwater lands in calculating the area of the lot and ultimately deciding the size of the permitted structure based upon FAR.

The appellate brief and oral argument on behalf of the zoning board was by our partner Katherine Zalantis.

-Steven Silverberg

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