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No Vested Rights In Non-Conforming Townhouse Subdivision

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 court rejected both arguments, holding that as far as the legal non-conforming use is concerned “the townhouse lot was never developed or used for 14 townhouses as approved in 1979. Rather, that use and construction were merely contemplated.” As for the claim of vested rights the court found:

“The record supports the ZBA’s finding that the dedication of the parkland to the Village at the time of the subdivision approval in 1979 conferred a benefit on the petitioner as well as on the Village, and the ZBA reasonably concluded that the dedication of the parkland, standing alone, under the circumstances presented, did not confer vested rights on the petitioner to develop the townhouse lot in accordance with the 1979 approval. Further, although a developer who improves his property pursuant to original subdivision approval may acquire a vested right in continued approval despite subsequent zoning changes, “where the amended zoning ordinance relates only to lot size or other restrictions with respect to development, and the site improvements made under the original subdivision plat would be equally useful or valuable, a vested right in the subdivision as approved could not be claimed on the basis of those improvements” (Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of the Inc. Vil. of New Hempstead, 152 AD2d 365, 373, affd 77 NY2d 114; see Ramapo 287 Ltd. Partnership v Village of Montebello, 165 AD2d 544). Here, the majority of the improvements to the townhouse lot were used for the entire subdivision, and will be useable if the townhouse lot is developed in accordance with the current zoning ordinances.”

It will be interesting to see whether the petitioner here seeks, or obtains leave to appeal to the Court of Appeals, which has appeared to signal what might be argued to be an expanded view of vested rights in its decision in Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127 (which have been discussed previously in this Blog in February 2010). This case may provide an opportunity for the Court of Appeals to clarify whether its ruling in that case was limited to the nature of the specific use or was intended to broaden the application of vested rights in New York.

-Steven Silverberg

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