New York Zoning And Municipal Law Blog

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:

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”