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Zoning Board Lacks Authority to Place Time Limit on Approval

The Appellate Division held that a zoning board exceeded its authority when it placed a five year term limit on a permit. In Matter of Citrin v. Board of Zoning and Appeals of the Town of North Hempstead, the Court overturned the lower court, finding that the Board of Zoning and Appeals (“Zoning Board“)  lacked specific authority in the Town Zoning Code to place time limits on permits issued by the Zoning Board.

Section 70-225 of the local Zoning Code provides:

” E. Permit a use authorized on a portion of a lot in a lower restricted district to extend to the entire lot, but not more than 50 feet beyond the boundary line of the higher restricted district in a case where a use district boundary line divides a lot in a single ownership at the effective date of this chapter.”

The Petitioner owned property that was split by two zoning districts. An established  restaurant was located in a business district and a parking lot, serving the restaurant, was located in a residential district. Petitioner applied for a permit in accordance with section 70-225 (E) to allow the restaurant to continue to maintain its parking in the residential district.  After hearing the application the Zoning Board issued the permit, but placed a five year time limit on the permit.

The Petitioner appealed to the State Supreme Court by way of an Article 78 proceeding. The Lower Court upheld the time limit placed by the Zoning Board.  On appeal the Appellate Division reversed.

The Court held:

“The Board did not have the authority to impose a durational limit on a permit granted pursuant to Town Code § 70-225(E). “Judicial review of a determination by a zoning board is generally limited to determining whether the action taken by the zoning board was illegal, arbitrary and capricious, or an abuse of discretion” (Matter of Witkowich v Zoning Bd. of Appeals of Town of Yorktown, 84 AD3d 1101, 1102). “[W]here the issue involves pure legal interpretation of statutory terms, deference [to the board] is not required” (Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 160, citing Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 419-420; see Matter of Toys R Us v Silva, 89 NY2d 411, 419; Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York, 82 NY2d 35, 41-42)….

Here, Town Code § 70-225(E) does not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section. Thus, it was improper for the Board to include a five-year durational limit on a permit granted pursuant to that provision, and the durational limit must be annulled (see Matter of Community Synagogue v Bates, 1 NY2d at 445-458; Matter of SV Space Dev. Corp. v Town of Babylon Zoning Bd. of Appeals, 256 AD2d at 471; Matter of Long Is. Univ. v Board of Appeals of Inc. Vil. of Old Westbury, 122 AD2d at 54; Matter of Schlosser v Michaelis, 18 AD2d at 941).”

Curiously, the actual Notice of Decision filed by the Zoning Board notes the approval is to continue the use of a parking lot in connection with an “established restaurant” but fails to provide any rational for the five year time limitation.  The question comes to mind whether the Court would have reached the same result, despite the conclusion of the Court that the Code “…does not explicitly provide the Board with authority…” to fix a time limit,  if the Zoning Board had provided a well reasoned basis for the condition?


-Steven Silverberg




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