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ZONING BOARD DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE DURATIONAL LIMIT ON PERMIT FOR A NONCONFORMING USE.

The Second Department, reversing Supreme Court, determined the zoning board did not have statutory authority to impose a durational limit on a permit allowing property in a residential zone to be used as a parking lot for the adjacent restaurant:

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” … . “[W]here the issue involves pure legal interpretation of statutory terms, deference [to the board] is not required” … .

“[C]onditions imposed by a Board of Zoning Appeals must be authorized by the zoning ordinance” … . “[I]f a zoning board imposes unreasonable or improper conditions, those conditions may be annulled although the variance is upheld” … .

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 … . Matter of Citrin v Board of Zoning & Appeals of Town of N. Hempstead, 2016 NY Slip Op 06827, 2nd Dept 10-19-16

 

ZONING (ZONING BOARD DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE DURATIONAL LIMIT ON PERMIT FOR A NONCONFORMING USE)

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