New York Zoning And Municipal Law Blog

The Appellate Division Second Department concluded that a conditional site plan approval, without more, was insufficient to create vested rights in the prior zoning of a parcel. In Matter of Exeter Building Corp. v. Town of Newburgh, the Appellate Division reversed the Supreme Court holding that the Newburgh Zoning Board was incorrect in determining the property owner had no vested rights.

While the property owner was processing its application, obtaining a subdivision and conditional approval of a site plan that required a compliance with a number of conditions, the property was rezoned. In an earlier litigation, it was determined that because part of the property owner’s application process included a subdivision the property had the benefit of Town Law § 265-a, which grants a three year exemption from a rezoning for property that has been subdivided. During that three year period a single family home on the property and water tanks were removed, there was some grading and clearing done and a sign announcing the availability of town homes on the site was erected, pursuant to permits. However, all the conditions to the site plan were not fulfilled and the chair of the planning board was not authorized to sign the site plan until all of the conditions were fulfilled.

Upon the expiration of the three year exemption period, the property owner sought a declaration from the ZBA that it had vested rights. The ZBA disagreed and this lawsuit ensued.

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:

The Appellate Division upheld a Zoning Board’s denial of a use variance to extend a ski lift over a currently unused parcel. In Matter of Holimont, Inc. v Village of Ellicottville Zoning Board of Appeals, et.al. the Court noted that the applicant failed to meet the criteria for obtaining a use variance. Although, the applicant submitted expert evidence on the issue of why it could not obtain a reasonable return without the use variance, the Court held:

“…the “sole province of the ZBA . . . as administrative factfinder” to resolve issues of credibility (Matter of Supkis v Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 781). Additionally, petitioner failed to establish that its proposed development would not alter the essential character of the surrounding neighborhood (see Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147). Indeed, the record establishes that permitting petitioner to maintain an active ski lift and snowmaking equipment on its parcel will alter the quiet residential area surrounded by nature in which that parcel is located because of the increased use of the parcel. Finally, the record establishes that petitioner’s hardship was self-created inasmuch as petitioner previously had stipulated to restrictions calling for an “undisturbed green area” in the location petitioner now seeks to develop…”

-Steven Silverberg

The Appellate division determined that mere proximity of a neighborhood access road was not sufficient to create standing for individuals who reside 1,300 to 2,000 feet from a proposed regional mall. In Matter of Riverhead Neighborhood Preservation Coalition v. Town of Riverhead Town Board, a local neighborhood association challenged the site plan approval for a regional mall that would have its main entrance directly across from the access road that serviced a specific neighborhood that included members of the group challenging the site plan approval. Noting that the standing of the association was dependent on whether individual members of the association would have had standing on their own, the Court held:

“Contrary to the petitioners’ contention, the Supreme Court properly concluded that they lacked standing. ” [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large'” …Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone (see Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420, 1421-1422; Matter of Harris v Town Bd. of Town of Riverhead, 73 AD3d 922, 924; Matter of East End Prop. Co. # 1, LLC v Town Bd. of Town of Brookhaven, 56 AD3d 773, 777-778; Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 595). Further, the individual petitioners’ allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course….”

-Steven Silverberg

The Appellate Division found multiple extensions of a grandfather clause that permitted a specific development to proceed to final approval, despite local regulations that would have otherwise prevented it, is consistent with the Town’s comprehensive plan. In Matter of Birchwood Neighborhood Association v. Planning Board of the Town of Colonie, the Court noted that legislative acts carry a presumption of validity.

“Petitioners primarily argue that the repeated renewals of the first grandfathering provision were unlawful because they did not comport with the Town’s comprehensive plan, rendering approval of the developer’s subdivision plan invalid. We disagree. “A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” (Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018, 1019 [2012], quoting Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [1988]). While “[z]oning laws must be [*3]enacted in accordance with a comprehensive land use plan” (Rocky Point Drive-In, L.P. v Town of Brookhaven, 21 NY3d 729, ___, 2013 NY Slip Op 07513, *2 n 1 [2013]; see Town Law § 263), to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” (Matter of Rossi v Town Bd. of Town of Ballston, 49 AD3d 1138, 1144 [2008], quoting Fred F. French Inv. Co. v City of New York, 39 NY2d 587, 596 [1976], appeal dismissed, cert denied 429 US 990 [1976]).”

In this case, the application at issue was initially submitted in 2002. Thereafter, the Town adopted a comprehensive plan in 2007 and provided for a conservation overlay zone. It also grandfathered any inconsistent application that had already received concept approval, so long as it met certain deadlines for final approval. The deadline was subsequently extended several times by local law allowing the development at issue to receive final approval. The Court found that allowing the particular development to proceed, despite enactment of zoning provisions that would have limited such development, was reasonable under the circumstances.

The Appellate Division upheld the lower court’s reversal of the denial of a special permit and a parking variance for a church use. In the Matter of Gospel Faith Mission International, Inc., v. Weiss, the Court found the ZBA was arbitrary in denying the application due to the fact that “greater flexibility” is to be applied to applications by religious organizations. This rule is based upon New York law not the often cited Religious Land Use and Institutionalized Persons Act (RLUIPA) which does not appear to have been raised in this case.

In reversing the ZBA the Court stated:

“Here, the record reflects that the Board voted to deny the petitioner’s applications without making any attempt to accommodate the proposed religious use (see Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572, 573). The petitioner suggested conditions for the limitation of its use in order to mitigate the impact on the surrounding community. However, despite the conditions proposed by the petitioner, the Board denied the petitioner’s applications in their entirety, even though the proposed religious use could have been substantially accommodated…”