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Criteria for Review of Rulings on Variances Explained

The Second Department explained the general critieria for reviewing a variance-ruling by a town zoning board of appeals (ZBA):

In reaching its determination, the ZBA engaged in the balancing test prescribed by Town Law § 267-b(3)(b), and properly found, inter alia, that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood * * * Since the determination under review was not illegal, arbitrary and capricious, or an abuse of discretion, and was supported by a rational basis …, it must be sustained. Matter of Harbor Park Realty, LLC v Modelewski, 2014 NY Slip Op 02931, 2nd Dept 4-30-14

 

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Keeping Animals In Cages On the Same Lot as Petitioner’s Home, as Part of the Operation of a Business, Constituted a “Home Occupation” Requiring Approval by the Zoning Board

The Third Department determined the zoning board of appeals had properly ruled that petitioner was conducting a business inside his home without approval, a so-called “home occupation.”  The fact that large animals were kept outside petitioner’s home in permanent cages was found to be within the scope of the relevant definition of an “accessory structure:”

Petitioner contends that the activities occur in the cages on his property, not in any building on the property or any offsite location. There is no evidence in this record to show that business activities are conducted “inside the residence” or “at off-site locations,” so such activities must be conducted in “a legally constructed accessory building” to fall within the ordinance (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). An “[a]ccessory [s]tructure” is defined as a building “which is located on the same lot” as, and “the use of which is incidental to that of,” a one- or two-family dwelling (Zoning Law[2008] of the Town of Mayfield § 202 [A] [1]). “Building” is defined as a one- or two-family dwelling or portion thereof “intended to be used for human habitation” but also “shall include accessory structures thereto” (Zoning Law [2008] of theTown of Mayfield § 202 [A] [10]). While cages would not generally be considered buildings, the Zoning Law contains a section on “[w]ord [u]sage” stating that “[t]he word ‘building’ includes the word ‘structure'” (Zoning Law [2008] of the Town of Mayfield § 201). That provision clarifies any ambiguity concerning the definitions of the relevant terms here, as a cage that is built into the ground – like these cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence … .The code enforcement officer did not assert that the cages were illegally constructed. Thus, as petitioner is carrying on business activities in legally constructed accessory structures, he is operating a home occupation. Matter of Salton v Town of Mayfield Zoning Board of Appeals, 516523, 3rd Dept 4-3-14

 

Zoning Board Misinterpreted Term “Auditorium” to Require Fixed Seating and Thereby Wrongly Prohibited Use of Property as a Night Club or Dance Club

The Third Department determined the zoning board of appeals had misinterpreted the term “auditorium” in its ruling that a “Rave party,” night club or dance club violated the permitted use of the petitioner’s building.  In so ruling, the Third Department explained its role in reviewing a determination by a zoning board:

Courts will annul a determination of a board of zoning appeals only if it is irrational or unreasonable … . Although a reviewing court will generally grant deference to the interpretation of an ambiguous zoning ordinance by a board of zoning appeals, where, as here, “the issue presented is one of pure legal interpretation of the underlying zoning law or ordinance, deference is not required” … .Moreover, “[z]oning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them, and any ambiguity in the language used must be resolved in favor of the property owner”… .

* * * Resolving, as we must, any ambiguity in favor of petitioner, we conclude that the BZA’s determination that the proposed use was impermissible – based solely upon its limited interpretation of the definition of auditorium as requiring fixed seating, to the exclusion of other commonly accepted definitions – was irrational and unreasonable… . Albany Basketball & Sports Corporation … v City of Albany, 517313, 3rd Dept 4-3-14

 

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Landowners Who Have Been Granted a Variance Are Necessary Parties In an Action Challenging the Variance (CPLR 1001 (b))

The Second Department determined that landowners who were issued a zoning variance were necessary parties in the action challenging the variance. The landowners had not been properly served and Supreme Court went ahead and determined the merits without the landowners in the suit. On appeal the petitioners did not dispute that the landowners were necessary parties, but argued their presence should be excused under the factors in CPLR 1001 (b). The Second Department disagreed, finding that, under the facts, factors 2 through 5 required the landowners to be parties to the action:

A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b):   (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party… . Matter of Feder v Town of Islip Zoning Board of Appeals, 2014 NY Slip Op 00998, 2nd Dept 2-13-14

 

“Vested Right” Doctrine Explained

The Second Department concluded that the plaintiffs, who were seeking to effect a development plan under less restrictive R-3 zoning regulations, did not have a “vested right” in the plan such that the plan could be carried out after the area was rezoned to implement the more restrictive R-1 zoning regulations. Plaintiffs had negotiated a boundary change and had demolished some structures in furtherance of the development plan. The Planning Board, however, had never granted final unconditional approval of the plan. In explaining the “vested interest” doctrine, the Second Department wrote:

“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . “Neither the issuance of a permit . . . nor the landowner’s substantial improvements and expenditures, standing alone, will establish the right. The landowner’s actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless”… .”Reliance” is an essential element of the doctrine … . Although many cases speak in terms of reliance on permits …, a right may vest in certain situations when “subdivisions” have been given a “final grant of approval” … . Whether a planning board’s final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York …, and it is not before us now. Matter of Exeter Bldg Corp v Town of Newburgh, 2014 NY Slip Op 00996, 2nd Dept 2-13-14

 

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Criteria for Review of a Zoning Amendment Explained

In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment:

It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as here, the amendment is in accordance with the City’s comprehensive plan … .  Further, “[c]ompliance with the statutory requirement is measured . . . in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden” … .  “ ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control’ ” … . “Thus, where the plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld” … .  Restuccio…v City of Oswego…, 1284, 4th Dept 2-7-14

 

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:

“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'” … .  While “[z]oning laws must be enacted in accordance with a comprehensive land use plan” … 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'” … .  … As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.”  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .

Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful”… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

 

Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted

The Second Department affirmed Supreme Court’s determination annulling a zoning board’s denial of variances to allow parking for a religious organization (and granting the variances).  The court noted that religious organizations are not exempt from zoning regulation, but the Board was obligated to make an effort to accommodate the religious use (which it did not do):

The Board’s denial of the petitioner’s applications was arbitrary and capricious. “[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made” … . A local zoning board is required to “suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible” … .

Here, the record reflects that the Board voted to deny the petitioner’s applications without making any attempt to accommodate the proposed religious use… . Matter of Gospel Faith Mission Intl Inc v Weiss, 2013 NY Slip Op 08439, 2nd Dept 12-18-13

 

 

Zoning Board’s Interpretation of a Zoning Ordinance Properly Annulled

The Third Department determined Supreme Court had properly annulled a finding by the zoning board of appeals that petitioner was not excepted from business-district, retail-space, zoning requirements. Petitioner contracted to buy property in the business district to be used to provide a WIC nutrition program for low income women and their children, a Head Start program, a Community Services Department for emergency needs of families, and a Weatherization program for families.  The village zoning ordinance included an exception to the retail-space requirement in the business district for “vital human services.”  In finding that the uses proposed by the petitioner fit the business-district zoning exception for “vital human services,” the court explained the criteria for the judicial interpretation of a zoning ordinance:

The phrase “Vital human services” is defined in the ordinance as “any health related services such as doctors, dentists, physical therapists, hair and skin care and other necessary human services” … . * * *

“When a reviewing court is confronted with an allegedly ambiguous zoning law, it generally will grant great deference to [a zoning board of appeals’] interpretation thereof – disturbing such interpretation only if it is irrational and unreasonable” … .  By the same token, zoning restrictions are in derogation of the common law and, as such, are strictly construed against the regulating municipality and “any ambiguity in the language employed must be resolved in favor of the property owner [or, here, the contract vendee]” … .  Where the dispute presents a question of pure legal interpretation of an unambiguous provision or phrase in a zoning ordinance, “deference is not required” … .

Here, to the extent that “[v]ital human services,” which include “any health related services” and “other necessary human services,” is a somewhat ambiguous phrase, it will be construed in petitioner’s favor.  A statute such as a zoning ordinance must be “construed as a whole, reading all of its parts together,” all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance… . Matter of Saratoga County Economic Opportunity Council, Inc v Village of Ballston Spa Zoning Board of Appeals, 516536, 3rd Dept 12-5-13

 

 

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Criteria Not Met for “Special Facts” Exception to Rule that the Zoning Law in Effect at the Time a Site Plan Application is Decided Is Controlling

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the zoning law in effect at the time the applicant’s (Rocky Point’s) site plan application was decided, as opposed to the zoning law in effect when the application was first submitted, controlled. The criteria for the “special facts” exception to the general rule (general rule = applying the law at the time the application was decided) was not met. The court explained:

In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law … . Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the “special facts” exception to the general time of decision rule.Under the special facts exception, where the land owner establishes that they are entitled as a matter of right to the underlying land use application—here, a “site plan”–the application is determined under the zoning law in effect at the time the application is submitted …. In order for a land owner to establish entitlement to the request as a matter of right, the land owner must be in “full compliance with the requirements at the time of the application,” such that “proper action upon the permit would have given [the land owner] time to acquire a vested right” … . In addition to showing entitlement to the request as a matter of right, the land owner must also show “extensive delay indicative of bad faith,” …, “unjustifiable actions” by the municipal officials, …, or “abuse of administrative procedures” ….As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point Drive-In LP v Town of Brookhaven, 197, CtApp 11-14-13

 

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