You are here: / Zoning
, ,

BUYER WAS ENTITLED TO SPECIFIC PERFORMANCE OF A CONTRACT FOR THE SALE OF “INCLUSIONARY AIR RIGHTS” (IAR’S); IAR’S DICTATE THE ALLOWED SQUARE FOOTAGE OF BUILDINGS ON A PARCEL OF LAND (THE ALLOWED NUMBER OF FLOORS FOR EXAMPLE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined that a contract for the purchase of “inclusionary air rights” (IAR’s) was subject to specific performance. “Air rights” are controlled by zoning regulations. For example, if a 10,000 square-foot parcel of land is allowed 50,000 square feet of floor space, the air rights for that 10,000 square-foot parcel constitute 40,000 square feet. Here the contract for the purchase of air rights between sophisticated real estate developers was deemed to be subject to specific performance. Defendant seller tried to back out of the deal because the selling price was too low:

… New York courts have consistently considered air rights an “interest in real property” … . … [S]pecific performance is not solely limited to real property; the remedy may also apply in other instances, such as a conveyance of shares of stock in a close corporation or an agreement to sell shares in a cooperative real estate corporation … .

… [S]pecific performance may be available in actions where the market is opaque and the price of the goods is subject to intense fluctuation … . … [S]pecific performance is warranted because of the parties’ incorporation of a specific performance in their agreement, defendant’s willful breach of the agreement, the absence of an inequitable or disproportionate burden, and the admitted uncertainty of valuing IARs.  301 E. 60th St. LLC v Competitive Solutions LLC, 2023 NY Slip Op 02842, First Dept 5-30-23

Practice Point: A contract for the sale of “inclusionary air right” (IAR’s) which, for example, dictate the number of floors allowed in a building constructed on a parcel of land, can be subject to specific performance.

 

THE ZONING BOARD OF APPEALS’ INTERPRETATION OF THE CODE RE: THE PARKING OF A CAMPER TRAILER ON THE PETITIONER’S PROPERTY WAS IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the zoning board of appeals’ (ZBA’s) interpretation of the zoning code was irrational. Petitioner was ordered to remedy the violation which was alleged to be his parking his camper trailer on his property within 250 feet of the property line. But the code provisions did not support the alleged violation:

The interpretation by a zoning board of its governing code is generally entitled to great deference by the courts” … . In the end, “[s]o long as its interpretation is neither ‘irrational, unreasonable nor inconsistent with the governing statute,’ it will be upheld” … . “Where, however, the question is one of pure legal interpretation of [a zoning code’s] terms, deference to the zoning board is not required” … . “[T]he ultimate responsibility of interpreting the law is with the court” … .

… [W]e agree with petitioner that respondents’ interpretation of the Zoning Code is irrational and unreasonable … . The “order to remedy violation” stated that petitioner violated the setback requirement set forth in section 110-3 of the Town’s Zoning Code, which limits “[t]he number of tents, trailers, houseboats, recreational vehicles, or other portable shelters in a camp” … . The Zoning Code, however, defines a “[c]amp” as “[a]ny temporary or portable shelter, such as a tent, recreational vehicle, or trailer” … . Respondents do not explain how a trailer or recreational vehicle can constitute both a “[c]amp” as defined in section 103-2 as well as a shelter “in a camp,” as defined in section 110-3, and the Zoning Code does not have additional provisions that clarify the issue. Matter of Lemmon v Town of Scipio, 2023 NY Slip Op 02446, Fpurth Dept 5-5-23

Practice Point: Here the zoning code was self-contradictory and the zoning board of appeals applied the code irrationally with respect to petitioner’s parking a camper trailer on his property.

 

,

THE TOWN PLANNING BOARD COMPLIED WITH THE “HARD LOOK” REQUIREMENTS OF SEQRA AND PROPERLY GRANTED A SPECIAL USE PERMIT, CRITERIA EXPLAINED IN SOME DETAIL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town planning board complied with the State Environmental Quality Review Act (SEQRA) and properly considered the criteria for a special use permit when it approved a project:

… [T]he Planning Board identified groundwater resources, noise, and scenic resources as relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its negative determination of significance. * * *

… [T]he record demonstrates that the Planning Board complied with Zoning Code § 143-117(A)(6) and (9), which required it to assess the “[a]dequacy of water supply and sewage disposal facilities,” and to provide the protection of “neighboring properties against noise, glare, unsightliness or other objectionable features.”

Lastly, “[a] use permitted by a special use permit is a use that has been found by the local legislative body to be appropriate for the zoning district and ‘in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . Although the Planning Board “‘does not have the authority to waive or modify any conditions set forth in the ordinance'” … , “[t]he permit must be granted if the application satisfies the criteria set forth in the zoning law” … . Matter of Tampone v Town of Red Hook Planning Bd., 2023 NY Slip Op 02011, Second Dept 4-19-23

Practice Point: The Second Department explained the judicial-review criteria for a town planning board’s negative declaration under SEQRA and a town planning board’s compliance with the zoning code and special-use-permit requirements.

 

,

THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT).

The Fourth Department, sending the matter back to the Town Board for the second time in this variance proceeding, determined the board’s failure make adequate findings of fact and explain the reasons for its decision precluded appellate review:

Generally, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination” … . Here, we conclude that the Town Board has once again precluded intelligent judicial review of its determination inasmuch as its “purported findings of fact are speculative and mere conclusions and contain very little[, if any,] factual matter” … . The Town Board “must do more than merely restate the terms of the applicable ordinance” and the procedural history preceding and subsequent to the determination; rather, the Town Board must set forth “findings of the facts essential to its conclusion” to grant the variance in the first instance—i.e., the determination that is the subject of the appeal … . Given that the Town Board has “failed to articulate the reasons for its determination and failed to set forth …, we continue to hold the case, reserve decision and remit the matter to the Town Board to properly set forth the factual basis for its determination within 30 days of the date of entry of the order of this Court. We remind the parties that “[a]n attorney or party who fails to comply with a[n] . . . order of th[is C]ourt . . . shall be subject to such sanction as [we] may impose” upon motion or our own initiative after the attorney or party has a reasonable opportunity to be heard (22 NYCRR 1250.1 [h]). Matter of Guttman v Covert Town Bd., 2023 NY Slip Op 01632, Fourth Dept 3-24-23

Practice Point: An appellate court cannot review a Town Board’s ruling in a variance proceeding when the board does not explain its ruling and make findings of fact. Here the matter was sent back to the board for its reasons and findings of fact for a second time, under threat of sanctions.

 

,

PERMIT/ORDER ALLOWING DEVELOPMENT OF MARINAS ON LOWER SARANAC LAKE IN THE ADIRONDACK PARK ANNULLED (THIRD DEPT).

The Third Department, reversing the Adirondack Park Agency (APA), in a full-fledged opinion by Justice Ceresia, determined that the APA misapplied its wetlands regulations in issuing a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled. The opinion is too detailed and comprehensive to fairly summarize here:

LS Marina’s wetlands permit application required APA to evaluate the freshwater wetland at the Annex location and assign it a value rating between one and four, with one representing the highest value (see 9 NYCRR 578.5). The value rating is arrived at by first determining whether the wetland possesses any one or more of 24 different characteristics, each of which, in turn, has an assigned value of one through four (see 9 NYCRR 578.5 [a]-[x]). These 24 characteristics are grouped under six headings or categories, which APA refers to as “factors.” The wetland’s overall value is to be no lower than the highest value of any of its characteristics (see 9 NYCRR 578.6 [a]). Furthermore, as is relevant here, if the wetland has three or more characteristics with a value of two, which fall under “more than one factor,” this will raise the wetland’s value to one (9 NYCRR 578.6 [c]).

There is no dispute that the wetland at the Annex has three value-two characteristics, and that these three characteristics fall under two separate factors (see 9 NYCRR 578.5 [c], [g], [k]). Nevertheless, APA assigned the wetland an overall value of two rather than one … . … Therefore, APA should have assigned an overall value of one to the Annex wetland and should have analyzed the wetlands permit application accordingly (see 9 NYCRR 578.10 [a] [1]). Matter of Jorling v Adirondack Park Agency, 2023 NY Slip Op 01118, Third Dept 3-2-23

Practice Point: Here the Adirondack Park Agency misapplied its wetlands regulations with respect to a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled.

 

THE REASONS PROVIDED BY THE ZONING BOARD OF APPEALS FOR THE DENIAL OF A USE VARIANCE TO ALLOW CONSTRUCTION OF A SOLAR ARRAY WERE IRRATIONAL (THIRD DEPT). ​

The Third Department reversed Supreme Court and annulled the determination of the zoning board of appeals [ZBA] which denied a use variance to allow construction of a solar array by Source Renewables. The decision is fact-specific and cannot be fairly summarized here. The Third Department determined the reasons the board gave for finding certain criteria for a use variance were not met were irrational:

… [T]here is no basis in the record for the ZBA’s conclusion that Source Renewables failed to prove that the alleged hardship results from ” ‘unique conditions peculiar to and inherent in the property as compared to other properties in the zoning district’ ” or neighborhood … . … [T]he evidence before the ZBA established that the … parcel is poorly suited for residential development due its lack of access to public utilities…. . …

There is also no evidence in the record to support the ZBA’s conclusion that Source Renewables failed to satisfy the third criteria for a use variance — that the variance would not alter the essential character of the neighborhood. The ZBA acknowledged the negative SEQRA declaration, which …found that the … project would not impair the quality of aesthetic resources or of existing community or neighborhood character … , but ultimately relied upon the opinion of one of its members that the solar array would not be visually pleasing from certain vantage points, particularly in the fall and winter. …

… Supreme Court concluded that Source Renewables failed to prove that the alleged hardship was not self-created because it entered into the subject contract knowing its proposed project was prohibited. This was not the basis articulated by the ZBA … . …

… [T]he ZBA concluded that, because the property has not changed since [the seller] purchased it in 1963, any alleged hardship was self-imposed. This was an irrational reason for branding the hardship self-created. Although a hardship is considered self-created, for zoning purposes, where property is acquired subject to the restrictions from which relief is sought … , here, [the seller]  purchased the … parcel in 1963, and it was not until 1986 and 2018, respectively, that the Town adopted any zoning law … or regulated solar energy systems … . Matter of Source Renewables, LLC v Town of Cortlandville Zoning Bd. of Appeals, 2023 NY Slip Op 01036, Third Dept 2-23-23

Practice Point: Here the reasons provided by the zoning board of appeals for the denial of a use variance to allow construction of a solar array were deemed irrational.

 

,

THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) MAY APPROVE MINING WHERE MINING IS OTHERWISE PROHIBITED IF THE MINING IS AN UNDISPUTED PRIOR NONCONFORMING USE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Department of Environment Conservation (DEC) can renew mining permits where mining is an undisputed prior nonconforming use. The “mining” at issue in this case is a sand and gravel mine on Long Island. Although mining was a permitted use when the mine opened, the area where the mine is located had been rezoned as a residential district where mining is prohibited:

The question raised on this appeal is whether Environmental Conservation Law 23-2703 (3) bars the Department of Environmental Conservation from processing all applications for permits to mine in covered counties, including applications for renewal and modification permits, when “local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” … . We hold that DEC may process renewal and modification applications when such applications seek to mine land that falls within the scope of an undisputed prior nonconforming use. The applications at issue implicate some prior nonconforming uses that are undisputed and others that are disputed but not yet resolved. Because prior nonconforming use was not taken into account by either DEC or the courts below, we modify and remit for further proceedings. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2023 NY Slip Op 00689, Second Dept 2-9-23

Practice Point: Where mining is currently prohibited by zoning, the DEC cam renew mining permits when the mining is an undisputed prior nonconforming use.

 

, , ,

THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

,

PETITIONER WAS ISSUED A PERMIT TO CONSTRUCT COMMERCIAL SPACE WITH 557 PARKING SPACES; THE PERMIT WAS REVOKED BECAUSE THE TOWN CODE REQUIRED 624 PARKING SPACES; BECAUSE THE PERMIT WAS INVALID, PETITIONER COULD NOT INVOKE THE “DOCTRINE OF VESTED RIGHTS” FOR A VARIANCE ALLOWING 557 SPACES (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the petitioner was not entitled to a variance pursuant to the doctrine of vested rights. Petitioner had been issued a permit to build commercial space which included 557 parking spaces. The town subsequently revoked the permit because the town code required 624 parking spaces. Petitioner then applied for a variance arguing the permit which had been issued conveyed a vested right to the originally approved 557 parking spaces:

“The doctrine of vested rights is implicated when a property owner seeks to continue to use property, or to initiate the use of property, in a way that was permissible before enactment or amendment of a zoning ordinance but would not be permitted under a new zoning law” … . Such “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” … . However, “[v]ested rights cannot be acquired in reliance upon an invalid permit” … . “[T]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results” … . Here, as the ZBA [zoning board of appeals] soundly determined, the permit issued to the petitioner was invalid, since the Town Code plainly sets forth the method for calculating the nonresidential gross floor area according to which the number of required parking spaces is set and pursuant to that method, the required number of spaces exceeded the 557 spaces planned by the petitioner … . Since the permit issued to the petitioner was invalid, it could not have conferred vested rights … . Matter of C & B Realty #3, LLC v Van Loan, 2022 NY Slip Op 05036, Second Dept 8-24-22

Practice Point: Here the petitioner was issued a permit for construction which was later revoked as invalid because it violated the town code. The “doctrine of vested rights” does not apply to the provisions in an invalid permit. Therefore petitioner’s application for a variance to build according to the provisions of the revoked permit was denied. The “doctrine of vested rights” is explained in the decision.

 

, , , ,

THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated the failure to issue a timely decision as a denial by default. which it then annulled, ordering the town to issue the permit and the variance; and (3) Supreme Court should not have denied the Board’s motion to vacate Supreme Court’s order and judgment (ordering the issuance of the permit and variance):

Pursuant to Town Law § 267-a(8), the Board must render a decision within 62 days after the close of the hearing. The Town Law also contains a default provision which provides that if the Board, in exercising its appellate jurisdiction, fails to render a decision within 62 days of the hearing, the application is deemed denied (see id. § 267-a[13][b]). …

A proceeding to annul a determination by an administrative body “should not be concluded in the petitioner’s favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits” … . Here, there was no evidence demonstrating a deliberate default by the Board … .

Contrary to the petitioner’s contention, its application for a special exception permit was not denied by default. The Board’s failure to comply with the time period prescribed by Town Law § 267-a(8) only results in a denial by default when the Board exercises its appellate jurisdiction (see id. § 267-a[13][b]). The Board exercises its original jurisdiction in special exception cases … , and thus, there was no denial by default of the petitioner’s application for a special exception permit … . With no final determination having been rendered on the application for a special exception permit, that issue was not ripe for judicial review, and the Supreme Court lacked subject matter jurisdiction over that issue … . We note that ripeness “is a matter pertaining to subject matter jurisdiction which may be raised at any time, including sua sponte” … . Matter of 999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 2022 NY Slip Op 04721, Second Dept 7-29-22

Practice Point: A town Board of Appeals’ failure to issue a decision on an application for a permit and an area variance within the 62 days prescribed by the Town Law is not a denial of the petition by default. Supreme Court, therefore, did not have subject matter jurisdiction over he purported “denial by default” and the matter was not ripe for review.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy