INFORMATION REAL ESTATE PRACTITIONERS SHOULD KNOW ABOUT ZONING AND LAND USE AS INFORMED BY RECENT CASE LAW

Transcription

1 INFORMATION REAL ESTATE PRACTITIONERS SHOULD KNOW ABOUT ZONING AND LAND USE AS INFORMED BY RECENT CASE LAW Adam L. Wekstein, Esq. Noelle Crisalli Wolfson, Esq. Hocherman Tortorella & Wekstein, LLP One North Broadway, Suite 701 White Plains, New York

2 THE ZONING POWER IS DEFINED BY STATE LAW; IT IS NOT A GENERAL POLICE POWER In New York, the authority to adopt and enforce zoning ordinances is set forth in the Town, Village and General City Laws. Although this power is broad, and zoning legislation enjoys a presumption of validity, such legislation must comply with the purposes and limitations of the enabling legislation, and will be invalidated if it does not. For example, zoning ordinances must establish uniform regulations, must regulate only the use, not the user of property, and must be in accordance with a comprehensive plan. Statutory Reference: Town Law 261, 262, 263, 272-A Village Law 7-700, 7-702, 7-704, General City Law 20(24), 20(25), 28-A Recent Case Law: Use vs. User: Mead Square Commons, LLC v. Village of Victor, 97 A.D.3d 1162, 948 N.Y.S.2d 514 (4 th Dept. 2012) In Mead Square Commons, LLC, the plaintiff sought a declaration that the prohibition in the Village of Victor s zoning code of formula fast food restaurants (FFFRs) in the Central Business District ( CBD ) is unlawful, invalid and unenforceable. Under Section (C)(1)(b) of the village s code an FFFR is defined as [a]ny establishment, required by contract, franchise or other arrangements, to offer two or more of the following: [1] Standardized menus, ingredients, food preparation, and/or uniforms[;] [2] Prepared food in ready-to-consume state[;] [3] Food sold over the counter in disposable containers and wrappers[;] [4] Food selected from a limited menu[;] [5] Food sold for immediate consumption on or off premises [;] [6] Where customer pays before eating. The stated purpose of section (C)(1)(a) is to maintain [defendant's]... unique village character, the vitality of [its] commercial districts, and the quality of life of [its] residents. Mead Square Commons, LLC, 97 A.D.3d at 1163, 948 N.Y.S.2d at 515. The plaintiff sought to lease space it owned in the CBD to a Subway restaurant. As an FFFR under the village s code, Subway was prohibited in the CBD. The plaintiff contended that the prohibition against FFFRs in the CBD is unconstitutional and invalid because it is based upon the ownership or control of property and not its use, and impermissibly regulates the business operations of the user rather than the land use. 2

3 The Fourth Department held that the FFFR regulations constituted a valid limitation on the use of property, not an improper regulation based on the user or the nature of user s business. In so holding it reasoned that: the challenged Ordinance section does not single out a particular property owner for favorable or unfavorable treatment.... Rather, all property owners in the Central Business District are treated the same under section inasmuch as all property owners are prohibited from operating an FFFR.... Contrary to plaintiff's related contention, we conclude that section regulates the use, not the ownership, of the subject property. Indeed, plaintiff is not an FFFR, nor does it seek to operate an FFFR. Instead, plaintiff is a property owner that seeks to rent commercial space to an FFFR. Thus, it is plaintiff's use of the property that is being regulated, and its ownership status is irrelevant. *** We further conclude that the [lower] court properly determined that Ordinance does not improperly regulate the manner of plaintiff's business operations. Mead Square Commons, LLC, 97 A.D.3d at , 948 N.Y.S.2d at 516. Notably, the plaintiff did not preserve for the Fourth Department s review the argument that no rational basis exists for distinguishing between FFFRs and non-fffrs that meet two or more of the criteria set forth in Section of the village s code. This question goes to the heart of whether the village s regulations are defensible. It may be difficult to explain from a zoning perspective why a Subway restaurant that meets two or more of the FFFR criteria should be prohibited, but an independent sub shop that operates in essentially the same manner as the Subway and also meets two or more of the FFFR criteria should be permitted, simply because the independent sub shop is not required by contract, franchise or other arrangements to offer two or more of the FFFR criteria. Sunrise Check Cashing and Payroll Services, Inc. v. Town of Hempstead, 20 N.Y.3d 481, 964 N.Y.S.2d 64 (2013) In Sunrise Check Cashing and Payroll Services, Inc., New York s highest Court invalidated Section 302(K) of Article XXXIV of the Town of Hempstead s Zoning Ordinance, which, among other things, prohibited check cashing businesses in the defendant-town s business district. It found that Section 302(K) impermissibly regulated the identity of the user rather than the use of land. The decision reached this result because the town s purpose in adopting Section 302(K) -- encouraging young people and the poor to utilize more conventional banking institutions rather than, in the town s view, seedy check cashing establishments -- was beyond the authority granted to the town by section 261 of the Town Law to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of 3

4 population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes[.] Sunrise Check Cashing, 20 N.Y.3d at 485, 964 N.Y.S.2d 65 (quoting Town Law 261). Like the Mead Square Commons case, the most interesting aspect of Sunrise Check Cashing is not its direct holding, but the impact it will have. Here, it appears that the town created a sub-class of use check cashing business from its more general financial services use category and adopted different regulations applicable to those use categories. The approach does not constitute a novel zoning technique; many municipalities define a general use class and then define and regulate differently sub-classes of such use. The interesting question raised by Sunrise Check Cashing, therefore, is: how, specifically, can a municipality define a use and regulate it differently from other generically similar uses without impermissibly regulating user rather than use, in derogation of its zoning authority? Uniformity Requirement: Tupper v. City of Syracuse, 93 A.D.3d 1277, 941 N.Y.S.2d 383 (4 th Dep t 2012), lv. denied, 96 A.D.3d 1514, 945 N.Y.S.2d 587 (2012) 1 In Tupper, the plaintiffs, owners of non-owner-occupied one- and two- family homes in the City of Syracuse and an association of such owners, brought an action challenging the adoption of General Ordinances 20 and 21 of the City of Syracuse (sometimes collectively the General Ordinances ). General Ordinance 20 added a definition of workable parking space to the City s Zoning Ordinance and set forth the maximum area that could be occupied by workable parking spaces on properties improved with one- and two-family residences. General Ordinance 21, among other things, required that the owners of non-owner- occupied one- and two-family residences in the City s University Special Neighborhood District (the SND ) provide one workable parking space per potential bedroom in such homes. In contrast, owner-occupied one- and two-family residences in the SND were only required to provide one workable parking space per unit (i.e., one space per one-family home and two spaces for two-family home). In combination, the General Ordinances effectively foreclosed many properties in the SND from being rented to non-owner occupants because the required number of parking spaces could not be provided within the available area (many of the homes in the SND are older, large homes with a number of potential bedrooms). Plaintiffs challenged the adoption of the General Ordinances on grounds, among others, that: (1) the City of Syracuse Planning Commission and City Council failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act ( SEQRA ; collectively referring to Article 8 of the Environmental Conservation Law and 6 N.Y.C.R.R. Part 617); (2) the General Ordinances were impermissibly adopted by the city council on the night on which they were introduced without the unanimous consent of the counselors, in violation of Second Class Cities Law 35 and a parallel provision of the City of Syracuse Charter (the Charter ); and (3) the imposition by General Ordinance 21 of a more burdensome parking requirement for one- and two-family residences in the SND, based solely on 1 The authors of these materials represented the petitioners/plaintiffs in the Tupper case. 4

5 the fact that the occupants were tenants rather than owners, violated the uniformity requirement of Section 20(24) of the General City Law and a parallel provision of the Charter. The Supreme Court, Onondaga County granted the city summary judgment dismissing the litigation. The Fourth Department affirmed the lower court s finding that the city complied with the procedural and substantive requirements and SEQRA, even though the common council had issued a negative declaration for a Type I rezoning action. However, it annulled General Ordinances 20 and 21, holding that: (1) they were adopted in violation of the unanimity requirement of Second Class Cities Law 35 and the parallel provision of the Charter; and (2) General Ordinance 21 contravened the uniformity requirement of General City Law 20(24) and the analogous section of the Charter because the parking requirements were not uniform for each class of buildings in the SND. With respect to uniformity the Fourth Department reasoned as follows: General Ordinance 21 was enacted in violation of General City Law 20(24) and Syracuse City Charter because the ordinance is not uniform for each class of buildings within the District. The statute and charter provide in relevant part that the City has the power [t]o regulate and limit the height, bulk and location of buildings hereafter erected, to regulate and determine the area of yards, courts and other open spaces, and to regulate the density of population in any given area, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other districts [emphasis original to decision]. *** Contrary to defendants' contention, the statute and charter section apply to General Ordinance 21 inasmuch as that ordinance regulates open spaces. The creation of off-street parking regulations is included in the authority to regulate the use of land and open spaces ( see Salkin, New York Zoning Law and Practice 7:45 [4th ed. 2011] ). The uniformity required by the statute and charter is uniformity for each class of buildings throughout any district (General City Law 20[24] [emphasis added]; see Syracuse City Charter ). To avoid the uniformity requirements, defendants contend that absentee-owner properties are in a different class from owner-occupied properties. That contention lacks merit inasmuch as [t]he uniformity requirement is intended to assure property holders that all owners in the same district will be treated alike and that there will be no improper discrimination (Rice, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 61, Town Law 262, at 64 [emphasis added]). Uniformity provisions protect against legislative overreaching by requiring regulations to be passed without reference to the particular owners ( see id.). General Ordinance 21 treats buildings within the same class differently based solely on the status of the property owner, i.e., absentee property owners as opposed to owners who occupy the property. Even though such a distinction may be constitutionally 5

6 valid, it is invalid under the uniformity requirements of the General City Law and the City of Syracuse Charter. Tupper, 93 A.D.3d at , 941 N.Y.S.2d at Tupper is significant for several reasons. Cases interpreting and applying the zoning uniformity requirement are few and far between, so any case doing so is worthy of note. Additionally, Tupper confirms that even though parking is not specifically enumerated as an aspect of zoning that must be uniform for each class of building in a given district, off-street parking regulations are a type of regulation that must be uniform since they, among other things, regulate open space. Finally, the Tupper court makes clear that while distinctions between owner occupants and non-owner occupants may withstand constitutional scrutiny (e.g., due process or equal protection claims), they can meet a different fate under the specific provisions of New York s zoning enabling legislation. Zoning In Accordance with a Comprehensive Plan: Marcus v. Board of Trustees of Village of Wesley Hills, 96 A.D.3d 1063, 947 N.Y.S.2d 591 (2d Dep t 2012). In Marcus, the Second Department reinforces the proposition that a zoning change is not necessarily impermissible spot zoning even if it affects only a single parcel and is primarily adopted for the benefit of that parcel s owner. Rather, unlawful spot zoning occurs only when a zoning amendment is contrary to the municipality s comprehensive plan or otherwise is out of step with the surrounding community. The local law upheld in Marcus added a special permit allowing Arborist Services, Landscape Services, and/or Wholesale Nurseries in the Village s R-35 zoning district. Although the local law was apparently enacted to benefit a certain user, at least two other properties in the Village would have met the criteria, and the proposed use was not out of character with the other permitted uses in the R-35 district and was in conformity with the village s comprehensive plan. VTR FV, LLC v. Town of Guilderland, 101 A.D.3d 1532, 957 N.Y.S.2d 454 (3d Dep t 2012) In VTR FV, LLC the Third Department considered, among other things, whether a town s expansion of the definition of nursing home to include an assisted living facility and/or memory care facility, as it related to a specific planned unit development district in the Town, constituted illegal spot zoning. By way of background, in 1993 the respondent-town adopted a planned unit development law to facilitate the establishment of an affordable community for elderly Guilderland residents. The housing options in the development were to range from independent living, to assisted living, to a full-service nursing home. The first phase of the development was to include an assisted living facility with the fourth to encompass the nursing home. As relevant to the decision, an assisted living facility, owned by the petitioners, was constructed in Phase I within the planned unit development. The nursing home was not constructed. In 2011, the Guilderland Town Board amended its zoning code to include assisted living facilities and/or memory care facilities as a part of the town s definition of nursing home, effectively permitting a second assisted living facility within the planned unit development. The 6

7 petitioners challenged the zoning amendment claiming that it: (1) was inconsistent with the town s planned unit development regulations, (2) violated SEQRA; (3) constituted illegal spot zoning; and (4) effected a regulatory taking of the petitioners property without just compensation. The court dismissed the first and second causes of action on standing grounds, reasoning that the petitioners did not allege injury within the zone of interest protected by the town s zoning code or SEQRA (the Court found that the only injury alleged was business competition), and rejected the petitioners takings claim by finding, among other things, that the challenged zoning amendment did not eliminate all economically viable uses of the petitioners property or interfere with the petitioners reasonable investment-backed expectations. Rejecting the petitioners spot zoning challenge, the Third Department held that the petitioners failed to establish that the amendment was not part of a well-considered and comprehensive plan calculated to serve the general welfare or the community. The Court recognized that although the original plan called for a full service nursing home in Phase IV, as after 17 years one had not been constructed the Town s expansion of the definition of nursing home to include an assisted living facility properly took into account changing conditions, and found that the use was not so out of character with the surrounding area or the purpose of the planned unit development as to constitute impermissible spot zoning. Although the Appellate Division acknowledged that the amendment may have benefitted the specific private entity planning to construct the second assisted living facility in the planned unit development, it held that such incidental private benefit did not render the zoning amendment illegal spot zoning. Bergami v. Town Board of Town of Rotterdam, 97 A.D.3d 1018, 949 N.Y.S.2d 245 (3d Dep t 2012) In Bergami, the non-municipal respondents Maria Iovinella, Robert Iovinella and Aladin Properties, LLC (collectively Aladin ) owned two adjoining parcels in the Town of Rotterdam. One parcel was improved with a house and a barn and the other was vacant. The properties were located in an agricultural zoning district, although the town s comprehensive plan and revisions thereto had contemplated the rezoning of the properties to an industrial or light industrial use and subsequently to a professional office residential use (allowing offices within residences). The proposed zoning changes were never enacted. In March of 2009, Aladin applied to rezone the properties, changing their designation from agricultural to B-2, a general business district. The town board, acting as lead agency in the SEQRA review, adopted a negative declaration and a resolution approving the rezoning. The petitioners sued to annul the rezoning and the negative declaration. The Third Department rejected the spot zoning claim. Even though the B-2 zoning was inconsistent with designations recommended in the comprehensive plan and amendments thereto, the court found that the petitioners had failed to meet the heavy burden to overcome the presumption of validity which attaches to zoning. It stated that the petitioners had not shown that the B-2 designation conflicts with the fundamental land use policies and development plans of the community, relying, inter alia, on the recommendations in the plans for commercial development for the area near the properties in general and the fact that the properties were surrounded on three sides by commercial and business zoning and located in proximity to a truck stop, fast food restaurants, and an interchange between an interstate highway and the New York 7

8 State Thruway. The decision did, however, annul the negative declaration and rezoning based on the town board s violation of SEQRA. The court stated that although the town board identified the relevant areas of environmental concern in the negative declaration, it failed to take a hard look at them. 8

9 THERE ARE A VARIETY OF TYPES OF ZONING APPROVALS New York State Law authorizes municipal governments to issue a variety of zoning approvals. The following is a summary of the primary species of zoning approvals issued by municipal boards, accompanied by recent salient case law. Variances, Appeals and Interpretations: All municipalities that adopt a zoning ordinance must create a zoning board of appeals. Pursuant to state law, that board is authorized to vary the requirements of a zoning ordinance, hear appeals from administrative determinations involving municipal zoning regulations, and interpret the meaning of municipal zoning regulations. Variances are authorizations from a municipal zoning board of appeals to use land in a manner not otherwise allowed by a zoning ordinance. There are two types of variances area variances and use variances. Area variances permit use of the land in a manner that is not allowed by the physical or dimensional requirements of a zoning ordinance and use variances permit a use of the land that is proscribed by the use requirements of a zoning ordinance. The variance standards in New York are established by state law and may not be altered by municipal zoning ordinances. While the area variance standard is generally a flexible one, allowing the zoning board of appeals to grant a variance when the benefit to the applicant by the grant of the variance outweighs the detriment to the health, safety and welfare of the community by such grant, taking into account five statutory factors for balancing such considerations, 2 the use variance standard is very difficult to satisfy. Pursuant to that standard, a zoning board of appeals may not grant a use variance unless the applicant can demonstrate that: (1) it cannot realize a reasonable return on the property, demonstrating lack of reasonable return by competent financial evidence; (2) the hardship is unique to the property and not general to the area; (3) the use proposed will not negatively alter the character of the neighborhood; and (4) the hardship is 2 The five statutory factors are: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. General City Law 81-b; Town Law 267-b(3)(b); Village Law b. 9

10 not self-created, which generally means that the objectionable zoning legislation was not in place when the applicant acquired its interest in the property. Statutory Reference: Town Law 267, 267-a, 267-b, 267-c General City Law 81, 81-a, 81-b, 81-c Village Law 7-712, a, b, c Recent Case Law: Variances: Colin Realty Co., LLC v. Town of North Hempstead, 107 A.D.3d 708, 966 N.Y.S.2d 501 (2d Dep t 2013) In Colin Realty Co., a town s board of zoning appeals granted an area variance and conditional use permit authorizing establishment of a restaurant in a vacant storefront. The space to be occupied by the restaurant was located in a building that had been constructed before the inclusion in the town s code of a minimum off-street parking requirement. It was clear that the restaurant would provide no on-site parking or loading spaces, even though 24 spaces were required by code. Because of this deficiency, the restaurant operator sought a variance from these parking and loading space requirements. The board of zoning appeals determined that the proposed variances were area variances, not use variances, applied the five-part area variance balancing test, and granted the requested variances. A neighboring business owner brought an action to annul the variances, arguing that they should have been considered as use variances (and thus subject to the more stringent use variance standard) or, in the alternative, that the applicant failed to demonstrate that it met even the lower thresholds of the area variance standard. Citing the deference that courts are required to afford to the determinations of zoning boards, the court upheld the board of zoning appeals classification of the parking and loading variances as area variances and affirmed the grant of the variances, reasoning that the board applied the requisite balancing test and that its findings in doing so were reasonable. Luburic v. Zoning Board of Appeals of Village of Irvington, 106 A.D.3d 824, 966 N.Y.S.2d 440 (2d Dep t 2013) The petitioner in Luburic needed a site capacity variance (an area variance in nature) to permit her to build a single-family home on property she owned in the Village of Irvington. The zoning board of appeals denied the variance, finding that the proposed residence would adversely affect the environment and the character of the surrounding neighborhood. 10

11 Notwithstanding the deference that must be given to determinations of zoning boards, the court reversed the denial, finding it to be arbitrary and capricious. With respect to environmental impacts, the court noted that the petitioner worked closely with the village s planning board, which served as lead agency in the review of the petitioner s application under SEQRA. As lead agency, the Planning Board adopted a conditional negative declaration, finding that provided certain conditions were met, the construction of the new residence would not have any significant environmental impacts. In light of this determination, the court held that the zoning board of appeals finding that the variance, if granted, would negatively impact the environment was arbitrary. Similarly, to reject the finding of the zoning board that the proposed home would undesirably impact the character of the neighborhood, the court again relied on the petitioner s cooperation with the village to design a mutually-agreeable home and on the fact that only a single variance was sought. Accordingly, the court annulled the zoning board s denial and remanded the matter to that board with a direction to issue the variance. Hejna v. Board of Appeals of Village of Amityville, 105 A.D.3d 843, 964 N.Y.S.2d 164 (2d Dep t 2013) In Hejna, the respondent, JAMM Holding Inc. ( JAMM ), owned a parcel of property in the respondent village that was located in part in the B-2 Business District and in part in the BB Residence District. JAMM operated an auto body shop on the commercially-zoned portion pursuant to a previously-issued special use permit. It applied to the respondent zoning board of appeals (the ZBA ) to modify its special use permit to approve construction of a 7,500-squarefoot addition to its existing building. It also sought to construct parking on the residentiallyzoned portion of the property. The ZBA approved the application, granting both a special use permit and use variance for the proposed use (apparently, between the initial grant of the special permit and the present application, the auto body shop use was eliminated as a special permit use in the B-2 District). The petitioner commenced an Article 78 proceeding challenging the grant of the approvals. First, addressing whether the proposed building addition could be permitted by an amendment to the special use permit for the existing use or whether a use variance was required, the court agreed with the ZBA that the permit could be amended and upheld the ZBA s approval of the amendment to allow the construction of the 7,500-square-foot addition. However, the Court reversed the ZBA s grant of a use variance to permit parking on the residentially-zoned portion of the property. It was undisputed that parking on this portion of the property was not permitted by the special permit standards in the code, thus the petitioner was required to obtain a use variance. To do so, it was required to satisfy the four-part statutory use variance standard -- a very difficult task. Since it was unable to demonstrate that it could not utilize the residentially-zoned property for any permitted use so as to realize a reasonable return of the property, one of the four statutory use variance criteria, the ZBA was prohibited from 11

12 granting the variance to permit parking on the residentially-zoned portion of the petitioner s property. 3 Appeals and Conditional Approvals Edson v. Southold Town Zoning Board of Appeals, 102 A.D.3d 687, 957 N.Y.S.2d 724 (2d Dep t 2013) In Edson, the petitioner was the owner of a Christmas tree farm in the Town of Southhold, which was improved with, among other things, a 7,826-square-foot building. Petitioner sought to use 3,000 square feet of the building for a farm stand (3,000 square feet apparently being the maximum permitted area for a farm stand under the Town s Code), from which he would sell merchandise produced both on and off his property. His application to the town s building department for a permit to operate the farm stand was denied. He appealed the denial to the town s zoning board of appeals, contending that he could partition the building so that the farm stand would not occupy more than 3,000 square feet of area within the building. Following a public hearing, the board reversed the building department s denial and granted the permit on the conditions that petitioner refrain from storing incidental accessory items that were not produced on his farm in the remaining 4,826 square feet of his building and that the farm stand s season of operation be limited to Labor Day through March 31. The petitioner commenced an Article 78 proceeding to challenge the conditions. Although it is well established that a zoning board of appeals (and other municipal boards) may impose conditions on zoning approvals, such conditions must be reasonable and directly related and incidental to the proposed use of the property. Here, the court determined, the conditions did not comply with this rule. It held that there was no authority in the Town Law or Town Code, or any evidentiary basis, for the imposition of the condition limiting the dates of operation. The decision further found that while the board might have limited the storage of all farm stand merchandise to the 3,000-square-foot farm stand area, if it allowed storage in the other portion of the building it could not require petitioner to store only products produced on site in that area. Accordingly, both of the challenged conditions were annulled. Interpretations: Avramis v. Sarachan, 97 A.D.3d 874, 948 N.Y.S.2d 191 (3d Dep t 2012) In Avramis, the Third Department upheld the determination of the City of Ithaca Zoning Board of Appeals (the ZBA ) that the owner of a nonconforming multifamily residential structure required a use variance to expand the amount of parking on her property. The petitioner was the owner of a four-unit, 12 bedroom, multifamily dwelling. The subject property 3 The Court refused to consider petitioners argument concerning JAMM s right to access its property over a private right of way reasoning that its right of access over the private way involved only the enforcement of private property rights which is not within the ZBA s jurisdiction. 12

13 was located in a one- and two-family residential zoning district, but was a legally nonconforming use. In addition to the building, the property was improved with four parking spaces in the front yard. The petitioner received permits to perform interior renovation work and to remove a rear porch. Without a permit, however, the petitioner began to construct a parking area in the rear of the building in order to relocate and expand available parking. Following a complaint from a neighbor, Ithaca s Building Department notified the petitioner that she was required to obtain site plan approval to relocate the four grandfathered parking spaces to the rear of the building, and, if she wanted to add additional spaces, to secure a use variance from the ZBA. Ultimately, the petitioner applied to the city s planning board for site plan approval to authorize 10 parking spaces in the rear of the building. The planning board declined to process the application absent a use variance for the additional spaces. Agreeing with the building department, the ZBA determined that a use variance was required to increase the number of parking spaces. In the Article 78 proceeding commenced by the petitioner the lower court annulled the ZBA s decision, holding that under the city s zoning ordinance off-street parking in the rear yard was a permitted accessory use and thus could be expanded without a use variance. The Third Department reversed, relying on the well-established (although sometimes difficult to apply) rule that except in cases of pure legal interpretation, deference to a zoning board s interpretation of a municipal code is required. Its analysis expressed that such deference applies with particular vigor where the board s interpretation effectively limits a nonconforming use because of the public policy that favors the restriction and ultimate termination of such uses. Putter v. Zoning Board of Appeals of Village of South Nyack, 101 A.D.3d 1127, 956 N.Y.S.2d 541 (2d Dep t 2012) Putter is also an example of a case in which the court deferred to a ZBA s interpretation of its municipality s zoning ordinance. Therein the petitioner obtained a building permit to develop his property in Some of the improvements were apparently constructed in a manner that was not consistent with the approved site plan for the property, as was revealed on an as-built survey the petitioner submitted to the village s building inspector in 2009 in connection with petitioner s efforts to obtain a renewal of the 1999 building permit. The building inspector denied petitioner s renewal application and advised petitioner to bring the property into conformance with the site plan or apply for area variances to legalize the improperly located improvements. The petitioner appealed the building inspector s refusal to renew the building permit to the ZBA and also sought area variances for the required improvements. The ZBA affirmed the building inspector s refusal to renew the petitioner s building permit citing a provision of the village s code which limits the duration of a building permit to not more than 30 months. The ZBA also refused to adopt a determination on the petitioner s variance application, finding that it had to be reviewed by the village s planning board before the ZBA could render a determination. The petitioner s Article 78 proceeding challenged both of the ZBA s findings. The court dismissed the petition, finding that the ZBA s interpretation on both accounts was reasonable and thus entitled to deference. 13

14 McGrath v. Town of Amherst Zoning Board of Appeals, 94 A.D.3d 1522, 943 N.Y.S.2d 704 (4 th Dep t 2012), lv. denied, 19 N.Y.3d 809, 951 N.Y.S.2d 467 (2012) In McGrath, the Fourth Department annulled a zoning board s denial of a building permit to construct a residence on the petitioners nonconforming lot. The board refused to issue the building permit because the parcel was legally nonconforming as to width. The court stated that the issue before the zoning board was one of pure legal interpretation and granted the petition, finding that the challenged determination was contrary to the clear wording of the town s zoning code, which permitted legally nonconforming lots of record to be developed notwithstanding their failure to conform to certain currently applicable bulk requirements. Atkinson v. Wilt, 94 A.D.3d 1218, 941 N.Y.S.2d 798 (3d Dep t 2012) Atkinson is another case in which the principle that judicial deference to a zoning board s determination is not required as to questions of pure legal interpretation ruled the day. The Third Department upheld the lower court s reversal of a determination of the Town of Arietta Zoning Board of Appeals that the petitioners were operating a tourist accommodation when they advertised on the internet to rent their home on the shores of Piseco Lake, joined the local chamber of commerce, and rented their home on a weekly basis for a seven-week period during the summer. The court held that the petitioners use simply did not rise to the level of a tourist accommodation, which was defined under the town s code as any hotel, motel, resort, tourist cabin or similar transient facility used to house the general public, including an accessory restaurant. Moreover, the court was not persuaded that the weekly rental of the property, without more, was in violation of the zoning ordinance s definition of single-family home and found that any ambiguity in this regard had to be construed in favor of the petitioners, not the municipality. Subdivisions, Inc. v. Town of Sullivan, 92 A.D.3d 1184, 938 N.Y.S.2d 682 (3d Dep t 2012), lv. denied, 19 N.Y.3d 811, 951 N.Y.S.2d 721 (2012) Subdivisions, Inc. reviewed and annulled a zoning board s interpretation that mineral resource uses were prohibited in agricultural districts in the Town of Sullivan. The petitioner owned an 80-acre parcel of land which was located in an agricultural zoning district. It had historically been used for mining. After being delayed for a period of five years by administrative inaction by boards in the town and prior litigation against the town, the petitioner commenced an article 78 proceeding against the Town of Sullivan Zoning Board of Appeals, which had interpreted the zoning ordinance to prohibit mining use of its property. It claimed that the ordinance was ambiguous. In reviewing the zoning board s decision, the Appellate Division recited a number of the standard principles governing judicial review of a zoning interpretation, stating that a reviewing court confronted with an ambiguous ordinance must generally grant great deference to the zoning board s interpretation, except that if the issue is one of pure legal interpretation of the zoning 14

15 ordinance, deference is not required. It also recognized that zoning laws must be strictly construed against the municipality and in favor of the property owner. The court applied the latter two rules, rather than deferring to the zoning board. The Appellate Division acknowledged that mining was not expressly permitted in the town s agricultural zoning district, but rejected the generally-applicable zoning precept that uses which are not specifically permitted in a zone are prohibited. It explained that it was doing so because although mineral resource uses were not permitted in any district in the town, there were existing mining and quarrying operations elsewhere in the municipality which showed that the failure to list the use as being permitted in the agricultural zone did not equate to a prohibition of the use. The Appellate Division bolstered this conclusion based on the inclusion in the special permit provisions of the zoning ordinance of criteria for mineral resource uses. It stated, [s]imply put, if the issuance of a special use permit for mineral resource uses was not permissible under the Town s zoning law, there would be no need to specify the particular standards to be considered in the evaluation thereof. The court continued its analysis by stating: Although we appreciate that a municipality cannot be expected when crafting a zoning ordinance to anticipate each and every potential use to which a property owner may wish to put his or her property, the zoning law here is, in our view, so poorly written with respect to identifying the zoning district(s) within which mineral resource uses are permitted as to be ambiguous. As such ambiguity must be resolved in favor of petitioners... we conclude that the ZBA's determination that mineral resource uses are prohibited in agricultural districts under the 1979 [zoning law], either with or without the issuance of a special use permit, is unreasonable and irrational. Subdivisions, Inc., 92 A.D.3d at 1187, 938 N.Y.S.2d at 686. Site Plan Approval: Under New York law, municipal boards, most often planning boards, may be authorized to approve site plans. Site plans are drawings which show the arrangement, layout and design of the proposed use of a single parcel of land[.] Town Law 274-a[1]. In most municipalities, the local legislature will adopt site plan regulations which set forth the site plan approval procedure and the elements that must be shown on a site plan, which often include features such as parking, means of access, screening, signs, landscaping, architectural details, location and dimensions of buildings and utilities, adjacent land uses and physical features meant to protect adjacent land uses. Although public hearings are not required by state law for site plan applications, many municipal codes include a public hearing requirement. It is imperative that practitioners thoroughly review state enabling laws, local ordinances and local rules when preparing an application for site plan approval (and, in fact, applications for all other types of zoning approvals) to ensure that all proper procedures are being followed. 15

16 Site Plan Approval (Continued): Statutory Reference: Town Law 274-a General City Law 27-A Village Law a Recent Case Law: Kempisty v. Town of Geddes, 93 A.D.3d 1167, 940 N.Y.S.2d 381 (4 th Dep t 2012) Reprinted with permission from: Municipal Lawyer Newsletter, Spring 2012, Vol. 26, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY In Kempisty the Appellate Division, Fourth Department annulled six conditions of site plan approval on the grounds, among others, that such conditions were imposed because of the respondents view of the applicant and not the application before it. In Kempisty, the petitioners were the owner and lessee of two parcels of property in the respondent Town of Geddes. Both properties were located in the town s Commercial C: Heavy Commercial District, in which motor vehicle sales, service and repairs (and uses and structures accessory thereto) were permitted with site plan approval. Notably, such uses were designated as permitted with a special permit in every other district in which they were permitted in the town. One of the petitioners parcels was developed with an automotive use that was established before the applicable zoning code was adopted. The second parcel, which was contiguous to the first, was vacant. Petitioners sought approval from the town to use the second parcel to reconfigure and expand the existing business. Petitioners made an application to the Geddes town board for site plan approval for the proposed expansion and reconfiguration of their automotive use. Originally the site plan application pertained to the vacant parcel only, however, at the town s request, but under protest, the petitioners included the developed parcel in the site plan application (its protest argument being that site plan approval was not required for the improved parcel because it was a preexisting nonconforming use). The town board approved the petitioners site plan for both parcels subject to twelve conditions. Conditions three through eight imposed the special conditions set forth in the section of the town s code applicable to motor vehicle service and repair facilities and motor vehicle sales facilities allowed with a special use permit (collectively, the Special Permit Conditions ). Petitioners commenced this Article 78 proceeding challenging the town board s determination that both parcels were subject to site plan review and the imposition of the Special Permit Conditions. 16

17 The Fourth Department easily held that the entire site not just the vacant parcel was subject to site plan review because the applicant sought approval to enlarge its use over the improved and vacant parcels. However, the Fourth Department held that the inclusion of the Special Permit Conditions in petitioners approval was an abuse of discretion because, in the Commercial C district, the motor vehicle use was a permitted use with site plan approval, it was not a special permit use. Moreover, the proof before the Court demonstrated that the Special Use Conditions were imposed in the context of this particular application because of the town s concerns arising out of petitioners use of the property (apparently one of the petitioners had an acrimonious relationship with the town), rather than the use of the property in and of itself. The Court held that the imposition of the conditions based on the identity of the applicant, rather than to address the impacts of the proposed use, ran afoul of the fundamental principle that conditions imposed on the [approval of a site plan] must relate only to the use of the property that is the subject of the [site plan] without regard to the person who owns or occupies that property. Special Use Permits: A special use permit is an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met. Town Law 274-b(1). Because special permit uses are considered to be permitted uses, the standard to obtain a permit authorizing them is generally considered lighter than the standard for securing a variance. Although planning boards are typically authorized to grant special use permits, in many municipalities zoning boards of appeals, as the legislative body of the municipality, are given the authority to grant such permits. Statutory Reference: Town Law 274-b General City Law 27-B Village Law b Recent Case Law: Hamptons, LLC v. Reichenbach, 98 A.D.3d 736, 950 N.Y.S.2d 182 (2d Dep t 2012) Hamptons, LLC is one of the unusual cases that applies the so-called special facts exception. The general rule is that a court is to apply the law in effect at the time the court reviews the determination of a zoning board or planning board. The special facts exception allows the court to apply the law that was effective at the time a party applied for approval, in instances where the municipality acted in bad faith and engaged in conduct that unduly delayed the administrative proceedings. In Hamptons, the petitioners applied to the Village of East Hampton Zoning Board 17

18 of Appeals for a special use permit to authorize outdoor dining as an accessory use to their restaurant. During the pendency of the application, the Town Board enacted a local law prohibiting outdoor dining as an accessory use to commercial establishments in residential districts. The Second Department held that the special facts exception applied because the petitioners: would have been entitled to a special use permit allowing them to offer outdoor dining at their inn and restaurant under the law as it existed when they applied for such permit, and that the appellants acted in bad faith in both delaying action on the petitioners' application, and hastily enacting Local Law No. 10 (2009) of the Village of East Hampton (hereinafter the Local Law), which was specifically intended to defeat the petitioners' entitlement to the special use permit. Hamptons, 98 A.D.3d at 737, 950 N.Y.S.2d at 184. The court rejected the respondents contention that the special facts exception was inapplicable because the petitioners were not entitled to a special permit on an as-of-right basis. The decision relied on the proposition that, unlike a variance, a special permit involves a use permitted by zoning and that the issuance of a special permit is a duty imposed upon a zoning board, provided that the standards in the ordinance are met... and quoted the Third Department s explanation of the law that: [v]ery clearly where an applicant has met the standards imposed by an ordinance the board is obligated to issue a special use permit... Hampton, 98 A.D. 3d at 737, 950 N.Y.S.2d at 184 (citations omitted). Specifically persuasive in the court s view was that the zoning board had previously granted a special permit for property in the same zoning district as the petitioners restaurant that was virtually identical to that being sought by the petitioners. Accordingly, the Appellate Division upheld the lower court s order which directed the issuance of the permit and held that the local law which prohibited the issuance of the permit was null and void as applied to the petitioners. Subdivision Approvals: Under New York State law, municipal legislative bodies are authorized to give planning boards the authority to grant subdivision approvals. Subdivision is defined as the division of any parcel of land into a number of lots, blocks or sites as specified in a local ordinance, law, rule or regulation, with or without streets or highways, for the purpose of sale, transfer of ownership, or development. The term subdivision may include any alteration of lot lines or dimensions of any lots or sites shown on a plat previously approved and filed in the office of the county clerk or register of the county in which such plat is located. Subdivisions may be defined and delineated by local regulation, as either major or minor, with the review procedures and criteria for each set forth in such local regulations. Town Law 276(4)(a). Generally subdivision review is 18

19 separated into two parts preliminary review and final review. The names are a bit misleading because most of the substantive review, including, in most cases, the review of the action pursuant to SEQRA, takes place during the preliminary review phase, and, provided that the final plat is in substantial agreement with the approved preliminary plat, a planning board may not deny final plat approval. The subdivision approval process is not completed, and the new lots are not created, until the approved final plat is filed in the office of the County Clerk in the county in which the land is situated. Statutory Reference: Town Law 276, 277, 278, 279, 282 General City Law 32, 33, 34, 37, 38 Village Law 7-728, 7-730, 7-732, 7-738, Recent Case Law: Center of Deposit, Inc. v. Village of Deposit, 108 A.D.3d 851, 968 N.Y.S.2d 731 (3d Dep t 2013) In Center of Deposit, Inc., the Third Department reminds us that the statutorily required hearing on an application for subdivision approval cannot be held until a negative declaration is adopted under SEQRA or a notice of completion of an environment impact statement is filed. In that case the petitioner was the owner of an approximately three-acre parcel in the respondent village. The petitioner sought to subdivide its property into two lots, each of which was to contain an existing building. In August 2009, the petitioner applied to the village planning board to subdivide its property. In October of that year the planning board held a public hearing in connection with its SEQRA review of petitioner s application and adopted a positive declaration (a determination that the proposed action had the potential to generate significant environmental impacts). The petitioner brought an Article 78 proceeding challenging the positive declaration and the court annulled the positive declaration and remanded the matter back to the planning board. Center of Deposit, Inc. v. Village of Deposit, 90 A.D.3d 1450, 936 N.Y.S.2d 709 (3d Dep t 2011) Upon remand, the planning board adopted a negative declaration pursuant to SEQRA on March 9, It then held a public hearing on the petitioner s subdivision application on March 28, 2012, after the close of which it denied the application. The petitioner brought a second Article 78 proceeding challenging the denial on the grounds, among others, that the denial was untimely and thus its subdivision was approved by default. It argued that because the planning board held a public hearing on its application in October of 2009, it was without jurisdiction to hold any further public hearing, and the time within which the board was required to make a determination on its application 62 days after the submission of a complete application for preliminary plat approval began to run when the court overturned the board s adoption of a positive declaration of environmental significance. 19