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A Town’s Zoning Powers Include the Creation of a Zoning District for Senior Citizens—Residents of a Retirement Community Had the Power to Enforce the Zoning Ordinance Limiting the Use of the Community Portion of a Building to Community Residents—Agreement to Pay Social Membership Fees Re: a Community Golf Course Constituted a Covenant Which Ran with the Land

The Second Department, in a detailed decision dealing with many issues, resolved a dispute concerning the use of the community portion of a building within a retirement community, which included a golf course. The plaintiffs (residents) alleged the community portion of the building was to be used solely by the community residents and should not be used for special events involving non-residents. The Second Department determined (1) the plaintiffs had the power to enforce the zoning ordinance requiring that the community portion of the building be for the exclusive use of the retirement-community (over 55) residents, (2) the residents were benefitted by easements over the common areas held by the defendants and therefore were obligated to share in the cost of maintenance of those areas, and (3) the requirement that the residents pay social membership fees (re: the golf course) was a covenant which ran with the land, binding subsequent purchasers. The Second Department specifically held that zoning ordinances may properly create a zoning district for senior citizens:

… Town Law § 268(2) permits the individual plaintiffs to enforce the Town Code § 198-21.2(F)(1)(b) to the extent it gives them exclusive use of the community building portion of the combined building. The defendants contend, however, that even if the individual plaintiffs may use Town Law § 268(2) to seek enforcement of this portion of Town Code § 198-21.2(F)(1)(b), it, in fact, may not be enforced because the Town lacked the authority to regulate who owns or occupies land …  . A town does not act in excess of its authority when it creates a zoning district for senior citizens …, or when it limits the occupancy of dwelling units within a planned retirement community to persons aged 55 or over … . Since these are valid exercises of a town’s zoning power, it must follow that a town may also limit the use of a recreational facility within a senior residential community to those seniors living there.  * * *

The defendants were given an easement over the common areas and common elements, including roadways, walkways, and landscaped areas, for ingress, egress, and the retrieval of golf balls. … Generally, absent an express agreement, all persons benefitted by an easement must share ratably in the cost of its maintenance and repair … .  * * *

…[T]the defendants established that the covenant to pay social membership fees runs with the land, as the record demonstrates that the “grantor and grantee intended that the covenant should run with the land,” “the covenant is one touching or concerning the land with which it runs,” and “there is privity of estate between the . . . party claiming the benefit of the covenant and the right to enforce it, and the . . . party who rests under the burden of the covenant” … . Greens at Half Hollow Home Owners Assn., Inc. v Greens Golf Club, LLC, 2015 NY Slip Op 06887, 2nd Dept 9-23-15

 

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Petition Sufficiently Alleged the Town’s Restrictive Covenant Was Invalid (1) Because It Sought to Regulate the Owner of Land Rather than the Use of the Land, (2) Because It No Longer Could Accomplish Its Purpose, and (3) Because It Effected an Unconstitutional Taking of Petitioner’s Land

The Second Department determined petitioner had stated causes of action contesting the validity and enforceability of a restrictive covenant promulgated by the town requiring that condominiums built by petitioner be sold rather than leased. Petitioner had sufficiently alleged (1) the restrictive covenant was invalid because it regulated the person who owned the land (petitioner) rather than the use of the land, (2) the restrictive covenant was not enforceable because its purpose could not be accomplished, and (3) the restrictive covenant amounted to an unconstitutional taking. The court explained the applicable legal principles:

The power to zone “is not a general police power, but a power to regulate land use” … . “It is a fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it'” … . Furthermore, ” a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare'” … .

“[R]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy” … . However, even the ” [p]urchase of property with knowledge of [a] restriction does not bar the purchaser from testing the validity of the zoning ordinance [because] the zoning ordinance in the very nature of things has reference to land rather than to owner'” … .

…[Petitioner] sufficiently alleged that the restrictive covenant is improper because it regulates [petiioner’s] ability as the owner of the property to rent the units rather than the use of the land itself. [Petitioner] has further alleged that, particularly in light of the provision permitting future owners to lease units in the development, the restrictive covenant “bears no substantial relation to . . . the public health, safety, morals or general welfare”… .

“Pursuant to RPAPL 1951(1), a restrictive covenant shall not be enforced if, at the time enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason'” . Here, assuming that there is a benefit to be obtained by requiring the units to be sold rather than rented, [petitioner] has alleged that, because the rental restriction imposed by the restrictive covenant applies only to it and not to any subsequent owner of any of the units in the planned development, it is of no substantial benefit to the Town or its citizens. In support of its motion to dismiss, the Town has offered no explanation as to why this is not so. … * * *

With respect to the third cause of action, which alleged an unconstitutional taking based upon “denial of development, as opposed to excessive exactions” …, the test set forth by the United States Supreme Court in Agins v City of Tiburon (447 US 255) applies … . Pursuant to this test, “a zoning law effects a regulatory taking if either: (1) the ordinance does not substantially advance legitimate state interests’ or (2) the ordinance denies an owner economically viable use of his land'” … . However, “[a] reasonable land use restriction imposed by the government in the exercise of its police power characteristically diminishes the value of private property, but is not rendered unconstitutional merely because it causes the property’s value to be substantially reduced, or because it deprives the property of its most beneficial use” … . Thus, a court must examine “(1) [t]he economic impact of the regulation on the claimant’; (2) the extent to which the regulation has interfered with distinct investment-backed expectations’; and (3) the character of the governmental action'”… . Blue Is. Dev., LLC v Town of Hempstead, 2015 NY Slip Op 06488, 2nd Dept 8-12-15

 

Courts’ Review Powers Re: Zoning Board’s Grant of Area Variances Explained

In affirming the zoning board’s grant of area variances to “34 Cove” (re: construction of a tennis court), the Second Department explained the court’s limited review powers and noted that the board applied the appropriate balancing test and considered all the statutory factors. That is as far as a reviewing court can go:

” Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'” … . “Thus, the determination of a zoning board should be sustained upon judicial review if it is not illegal, has a rational basis, and is not arbitrary and capricious” … . ” It matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them'” … .

In determining whether to grant an application for an area variance, a zoning board is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted …

Here, the Zoning Board engaged in the required balancing test and considered the relevant statutory factors … . While we agree with the petitioner that the proposed variances were substantial …, and that the alleged difficulty was self-created …, there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community … . Moreover, the Zoning Board rationally concluded that the benefit sought by 34 Cove, namely, to maximize its use of the proposed tennis court, could not be achieved by the alternative site proposed by the petitioner … . Matter of Borrok v Town of Southampton, 2015 NY Slip Op 06340, 2nd Dept 7-29-15

 

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New York City Was Unable to Demonstrate Amendments to the Adult Use Zoning Regulations Were Necessary to Reduce the Negative Effects of Such Businesses on the Surrounding Areas–Therefore the Amendments Constituted an Unjustified Restriction on Speech

In a lengthy, full-fledged opinion by Justice Kapnick, over a two-justice dissenting opinion, the First Department upheld Supreme Court’s determination that the 2001 amendments to New York City’s adult use zoning regulations, re: adult eating and drinking establishments and adult video and book stores, constituted a violation of the First Amendment precluding enforcement of the amendments. In an attempt to change the character of the adult businesses the city had enacted a “60-40” rule requiring that 60% of each business be devoted to “non-adult” products and/or activities. The City later amended the regulations, removing the “60-40” rule, and re-writing the criteria so that a business could be deemed to focus on sexually explicit entertainment irrespective of the amount of space or inventory devoted to “adult” activities and materials. It was those amendments which were challenged. The controversy boiled down to a factual one: Is the City able to demonstrate that the adult-businesses’ response to the “60-40” rule was a “sham response” such that the character of the businesses, and the consequent negative effects on the surrounding community, had not been altered? If the City could so demonstrate, the recent amendments would constitute a justified restriction of speech, if not, the amendments result in an unjustified restriction of speech. The First Department determined the City failed to demonstrate the response to the “60-40” rule was a “sham response” and that the businesses remained unaltered in character by the rule. For The People Theaters of N.Y. Inc. v City of New York, 2015 NY Slip Op 06200, 1st Dept 7-21-15

 

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Defendants Ordered to Dismantle and Remove Boathouses Built Without Permits/Immediate Neighbors Had Standing to Bring an Action to Enjoin the Zoning Violations

The Third Department, in a full-fledged opinion by Justice Egan, determined that boathouses constructed without permits (required by the New York State Uniform Fire Prevention and Building Code [SBC] and the Village of Lake Placid/Town of North Elba Land Use Code [LUC]) must be completely dismantled and removed.  The defendants were aware from the start that proceeding with the building of the boathouses without permits would be at their own risk. The permits were ultimately denied. The opinion is extensive and much of it is devoted to explaining the litigation/appeal history and refuting defendants’ arguments (not addressed here).  With respect to the finding that the neighbors had standing to bring an action to enjoin the asserted zoning violations re: one of the parcels (referred to as the “children’s parcel”), the court wrote:

As a threshold matter, Supreme Court correctly concluded that the neighbors have standing to challenge the asserted zoning violations and to seek injunctive relief against the children. Although municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries (see Town Law § 268 [2]), this “does not prevent . . . private property owner[s] who suffer[] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]” … . To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected” by the statute or ordinance at issue … .

To that end, the neighbors both alleged and submitted proof that they own land (improved with single-family homes) on either side of the children’s parcel and that the children’s boathouse was built without the permits required by the LUC and SBC. The neighbors also demonstrated that the children’s boathouse violates various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building (see Joint Village of Lake Placid/Town of North Elba Land Use Code part IV, art III, § 4; art V, appendix F [II]). Where, as here, the offending premises are immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” … . We find that the neighbors’ specific allegations of close proximity give rise to an inference of damage and injury, thereby permitting them to maintain action No. 2. Moreover, the neighbors have demonstrated that their interests fall within the “zone of interest” protected by the LUC, in that violations thereof adversely affect their privacy and property values … . Indeed, we recognized as much in our prior decision permitting the neighbors to intervene, concluding that they “have an interest in the litigation by virtue of their status as owners of adjoining premises” … . Town of N. Elba v Grimditch, 2015 NY Slip Op 05740, 3rd Dept 7-2-15

 

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Zoning Board’s Interpretation of Village Ordinances Upheld—Keeping of Chickens Is Not an Allowed “Residential Use”

The Third Department determined the village zoning board of appeals’ interpretation of a zoning ordinance had a rational basis.  Petitioner sought a ruling allowing him to keep chickens in a residential zone. Because “poultry husbandry” was specifically mentioned in the zoning ordinances as an agricultural use, and was not mentioned as an allowed residential use, the board’s interpretation was upheld as “neither irrational nor unreasonable:”

Here, Village of Champlain Zoning Code § 119-20 (B) states that the permitted uses in an R1 residential district are “one- and two-family dwellings” and “accessory uses.” The code allows for accessory uses that are “of a nature customarily incidental and subordinate to the principal use of the structure, such as garages, outbuildings, swimming pools, energy collection devices and the keeping of domesticated animals” (Village of Champlain Zoning Code § 119-16). The code also defines “agriculture” as “[t]he use of land for agricultural purposes, including tilling of the soil, dairying, pasture, apiculture, arboriculture, horticulture, floriculture, viticulture, forestry, animal and poultry husbandry and the necessary accessory uses for packing or storing of products” (Village of Champlain Zoning Code § 119-16). The code further states that “[a]ny use not listed as permitted [w]ithin a [z]oning district is assumed to be prohibited in that [z]oning district” (Village of Champlain Zoning Code § 119-191). Matter of Meier v Village of Champlain Zoning Bd. of Appeals, 2015 NY Slip Op 05245, 3rd Dept 6-18-15

 

Denial of an Area Variance for a Parking Lot, Based Solely on the Subjective/Aesthetic Objections of Residents, Was Arbitrary and Capricious—Statutory Factors Not Applied to the Decision-Making Process

The Second Department reversed Supreme Court, finding the Zoning Board of Appeals’ (ZBA’s) denial of an area variance (re: a parking lot for residents of a cooperative),based solely upon the subjective objections of town residents, was arbitrary and capricious. The ZBA’s decision did not address the statutory factors applied to area variances:

Pursuant to General City Law § 81-b, in determining whether to grant an application for an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . This inquiry also includes a consideration of whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than an area variance; (3) the requested area variance is substantial; (4) granting the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created (see General City Law § 81-b[4][b]…).

Here, while it was rational for the ZBA to conclude that the requested variance was substantial, its determination to deny the variance was otherwise conclusory and lacked an objective factual basis. In particular, no evidence was adduced which demonstrated that the health, safety, and welfare of the neighborhood or community would be detrimentally affected by the granting of the requested variance … . Rather, the ZBA was merely presented with the subjective objections and general community opposition of neighboring property owners, most of whom expressed their subjective opinions as to the negative aesthetics of a parking lot. Further, the ZBA did not provide an objective basis upon which to conclude that the petitioner had a feasible alternative to the requested variance, and there was no evidence that the situation was self-created. In light of the current condition of the property, the legality of using the lot as a small parking lot, and the fact that the lot is fenced so as to block ground-level water views, the ZBA failed to explain how the expansion of the number of spaces in the lot would change the character of the neighborhood.

Accordingly, the record does not contain sufficient evidence to support the rationality of the ZBA’s determination denying the proposed area variance … . Since the ZBA’s determination was irrational and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the ZBA’s determination, and remitted the matter to the ZBA for the issuance of the requested area variance. Matter of Marina’s Edge Owner’s Corp. v City of New Rochelle Zoning Bd. of Appeals, 2015 NY Slip Op 04851, 2nd Dept 6-10-15

 

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Application for Area Variances Properly Denied—Court’s Review Criteria Explained—General City Law and Town Law Criteria for Area Variance Explained

The Second Department determined the city zoning board properly denied the application for area variances.  The court explained its role in reviewing the board’s determination and the criteria applied to applications for area variances under the General City Law and the Town Law:

” Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'” … . “Therefore, a zoning board’s determination should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious” … .

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted . . . against the detriment to the health, safety and welfare of the neighborhood or community by such grant” (General City Law § 81-b[4][b];… see also Town Law § 267-b[3]). The zoning board must also consider: “(i) 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; (ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) 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[4][b]…). Matter of Goodman v City of Long Beach, 2015 NY Slip Op 04484, 2nd Dept 5-27-15

 

Application for Area Variance Properly Denied—Analytical Criteria Described

The Second Department determined the village zoning board properly denied petitioner’s application for an area variance by considering all of the required factors enumerated in Village Law 7-712-b(3): “When determining whether to grant an application for an area variance, a Village zoning board of appeals, pursuant to Village Law § 7-712-b(3), must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted” … . A Village board of zoning appeals must also consider “whether (1) 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) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self created” … . Matter of Affordable Homes of Long Is., LLC v Monteverde, 2015 NY Slip Op 04480, 2nd Dept 5-27-15

 

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Town Planning Board’s Approval of the Installation of Wind Turbines Should Not Have Been Reversed—Board Properly Considered All the Factors Mandated by the Land Use Ordinance and Supreme Court Did Not Have the Authority to Substitute Its Judgment for the Board’s

The Third Department, reversing Supreme Court, determined that the town planning board had properly issued a special use permit for the installation of wind turbines. The court noted that the burden of proof on the owner for seeking a special exception (special use permit) is lower than the burden for seeking a variance.  The court held that all of the analytical factors mandated by the land use ordinance had been properly considered by the board and Supreme Court did not have the authority to substitute its own judgment for the board’s:

The Land Use Ordinance permits specified uses in the area where the project is to be built and allows “[a]ll other uses” for which a special use permit is obtained. Contrary to petitioners’ assertion, while the project is not allowed as of right in the district, the fact that it is “permitted . . . is ‘tantamount to a legislative finding that [it] is in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . As such, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance, [with] the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use” … . The determination of the Board that those conditions had been met here will be upheld if it “has a rational basis and is supported by substantial evidence in the record” … .

The parties do not dispute upon this appeal, and we agree with Supreme Court, that the Board’s findings with regard to six of the eight conditions enumerated in the Land Use Ordinance are supported by substantial evidence. The first of the remaining two conditions requires that the “[l]ocation, use and size of structure, nature and intensity of operations involved, size of site in relation to it, and location of site with respect to existing or future streets giving access, are such that it will be in harmony with orderly development of the district.” The second requires that the “[l]ocation, nature and height of buildings, walls, fences and signs will not discourage the appropriate development and use of adjacent land and buildings or impair their value.”

With regard to those two conditions, the wind turbines are almost 500 feet tall when the rotor blades are fully vertical [FN2]. Notwithstanding their size, the Board pointed out that the turbines are located in an area where high-voltage electric transmission lines have already altered the landscape, and noted that other factors minimized the impact of the project upon the viewshed. The project will have minimal impact upon traffic after construction is completed and, given the economic benefits that will accrue to participating landowners, the Board found that it would help to preserve existing uses of the surrounding properties. Moreover, the Board cited a study in the record finding that property values would not be impacted by the project. The Board also pointed to proof that the applicant had entered into setback agreements with nonparticipating landowners who resided within 2,000 feet of the turbines, further ensuring that the project would not impair the use of nearby parcels or development in the zoning district. Supreme Court pointed to conflicting evidence submitted by petitioners with regard to both conditions but, even if that evidence was properly considered, “a court may not substitute its own judgment” where substantial evidence supports the determination of the Board … . Matter of Frigault v Town of Richfield Planning Bd., 2015 NY Slip Op 04355, 3rd Dept 5-21-15

 

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