New York Zoning And Municipal Law Blog

An appellate court upheld a zoning board determination that the owner of a commercial property maintained a legal preexisting nonconforming use of a parking lot. In Matter of Jacobsen v. Town of Bedford Zoning Board of Appeals, the court reiterated the rule that such a decision will not be overturned “if it is rational and is not illegal or an abuse of discretion, even if the reviewing court would have reached a different result.”

In denying summary judgment to a property owner who challenged the amortization period during which a non-conforming use must be discontinued under a local law, the court held the property owner failed to demonstrate the law is invalid on its face. In the Matter of Suffolk Asphalt Supply, Inc. v. Board of Trustees of Village of Westhampton Beach, the court noted that “there remains a question of fact regarding whether the amortization period provided in the local law was reasonable and thus constitutional as applied to the plaintiff.”

The property owner purchased an asphalt plant which was a legal non-confirming use. The Village adopted the local law under challenge, which provided that such use must be discontinued within one year but that an additional five year extension of the use could be granted upon application to the zoning board of appeals. The owner sought and the zoning board of appeals granted an application extending the period during which the asphalt plant could be operated for the maximum five year additional term. At the same time the property owner brought this action seeking to declare the local law invalid and unconstitutional on the grounds, among others, that the amortization period was too short.

The court stated the general rule in determining the reasonableness of an amortization period holding that: “[w]hether an amortization period is reasonable is a question which must be answered in light of the facts of each particular case” (Modjeska Sign Studios v Berle, 43 NY2d 468, 479-480, appeal dismissed 439 US 809). “Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use” (Matter of Town of Islip v Caviglia, 73 NY2d 544, 561). Factors to be considered in determining reasonableness include “the nature of the business of the property owner, the improvements erected on the land, the character of the neighborhood, and the detriment caused the property owner” (Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563).”

The appellate division issued a decision last week which provides a concise summary of the various issues confronted by a zoning board of appeals in deciding area variances. In Matter of Millennium Custom Homes v. Young, the court upheld the zoning board of appeals noting that the decision was rational and supported by evidence in the record.

After reviewing the balancing test in the statute, the court found there was detailed evidence of the adverse impacts on the neighborhood. The court also noted that the board adequately distinguished this application from other similar cases.

The case is a good primer on the various rules applying to review of zoning board decisions. We believe it is particularly astute as it cites two cases successfully argued by Steven Silverberg of this firm, Matter of Fuhst v Foley 45 NY2d 441 and Matter of Byron Assoc. v. Zoning Bd. of Appeals of Town of Mamaroneck, 142 AD2d 643, for rules applying to review of ZBA decisions which supported the zoning board of appeals in this case.

The appellate division dismissed a challenge to the continuation of a condition to a variance on the grounds that the challenge is barred by the doctrine of res judicata. In Matter of Calapai v. Zoning Board of Appeals of the Village of Babylon, the court held that a variance conditioned upon the removal of the building modifications in the event of a change of circumstances was a condition which could have been challenged when the variance was granted in 2000. Therefore, this challenge to a 2007 renewal of the variance, on grounds that could have been raised in 2000, is barred.

The petitioner applied to convert a garage to living space for her disabled son in 2000. The variance was conditioned upon the requirement that the modifications to the structure be removed upon a change of circumstances and at such time that the structure also be restored to a garage use. The petitioner’s son died and in 2006 petitioner applied for a one year extension of time to convert the structure. In 2007, she applied to delete the condition. Instead the zoning board granted a three year extension with the right to renew every three years and further provided that if the property is sold that the garage would be restored.

Petitioner brought this Article 78 proceeding challenging the condition. The court held that administrative res judicata applied finding that: the issues raised on the variance application that is the subject of this appeal were raised in the petitioner’s initial 2000 application to make alterations to her garage, and the change of circumstances that occurred, to wit, the death of petitioner’s son, cannot be viewed as unanticipated.”

A town zoning ordinance, which established the specific number of residences and the form of ownership of the residences, as well as the size and ownership of recreational facilities for a specific property, was voided by the appellate division in Matter of BLF Associates LLC v Town of Hempstead. In a decision which restates some of the fundamentals of zoning law in New York, the court held the attempt by the Town of Hempstead to control virtually every aspect of the ownership and use of a property exceeded its authority.

The property at issue is a 17 acre parcel previously owned by the United States and used as an army reserve facility. Originally the property was zoned Residence “B” allowing single family or senior housing on 6,000 square foot lots, as well as school, religious, municipal recreational and agricultural uses. The army base was closed in 1996 and Town was given first opportunity to acquire the property. In order to explore the purchase and reuse of the property the Town formed a Local Redevelopment Agency (LRA). The LRA prepared a reuse plan which combined residential uses and recreational uses. Initially the Town contemplated purchasing the property and incorporating the reuse plan in a deed restriction.

Ultimately, the Town did not purchase the property and instead the property was sold through competitive bidding to BLF Associates LLC (BLF) with no reference to the reuse plan in the agreement to purchase the property.

A local zoning board’s interpretation of the application of a zoning ordinance provision to a particular property shall be upheld unless that interpretation is “unreasonable or irrational.” In Kennedy v. Zoning Board of Appeals of the Village of Patchogue, the appellate division reiterated this rule while upholding the zoning board’s application of a specific provision of the zoning code to the property in question.

The local code requires that when a variance is granted “improvement, construction or alteration” must be “substantially commenced” within one year of obtaining the variance. In this case a variance had been granted and a neighbor challenged the continuation of the variance because more than a year had passed, a building permit had been granted but only site clearing had begun. The zoning board interpreted the term “substantially commenced” as being met by merely obtaining a building permit.

In upholding the interpretation by the zoning board, the Court noted that judicial review of such decisions is limited to determining whether the decision was “illegal, arbitrary and capricious or an abuse of discretion.” The Court found the interpretation to be reasonable and rational and therefore should be affirmed.

A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval.

Planning Boards are authorized to make a determination, under appropriate circumstances, that developers should dedicate parkland for recreational purposes or that the developer should pay a fee in lieu of dedicating parkland. The court found that the practice of the particular planning board to make such determination at the time of final approval, rather than preliminary approval, is not arbitrary and capricious. The decision was also influenced by the fact that the applicant was told prior to preliminary approval that a fee would be fixed and that the same procedure was followed for a nearby development by the same applicant.

Reiterating that “vested rights cannot be acquired in reliance upon an invalid permit” the Appellate Division of the First Department upheld a determination of the New York City Board of Standards and Appeals (“BSA”) in the case In re GRA, LLC v. Srinivasan.

The petitioner owned property in the R6 district which initially permitted buildings of up to 12 stories. The neighborhood consists of mostly one and two family homes. As a result of petitioners proposed project the neighbors lobbied for a rezoning to prohibit such construction. As the court noted “a race ensued” to see whether petitioner could complete enough of the building to obtain vested rights under the existing zoning before the rezoning took effect. Initially it appeared the petitioner had won the race as it was able to complete enough of the foundation to obtain a vested right to complete the building under the old zoning.

However apparently in an effort to save time and win the race petitioner used a “Sanborn Map” stamped by his architect as accurate, as opposed to a survey as required by regulations. It turned out the map was inaccurate and as a result the foundation was placed closer to the property line than is permitted under the regulations. When the petitioner produced an actual survey this error was confirmed. The department of buildings therefore rejected the claim by petitioner of vested rights to complete the building under the old zoning based upon percentage of completion of the structure before the new zoning went into effect.