In landowner's article 78 proceeding challenging denial of an area variance, the village appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the board's denial was not supported by substantial evidence.

Landowner sought an area variance to build a home on a substandard lot. Landowner's experts testified that 52 of the 100 lots in the immediate area of the landowner's parcel were built on substandard lots. The experts also testified that the proposed variance would have no impact on adjoining properties. The board nevertheless denied the variance. When landowner brought this article 78 proceeding, Supreme Court granted the petition.

In affirming, the Appellate Division noted that the board was required to balance the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood. Here, the court noted that the record included no evidence that the variance would have any detrimental effect on the neighborhood. As a result, denial of the variance was arbitrary and capricious, and not supported by substantial evidence.

Recording Studio Does Not Constitute Home Occupation

In re Mason v. Department of Buildings

NYLJ 5/30/03, p. 18, col. 1

AppDiv, First Dept

(Opinion by Tom, J.)

In an article 78 proceeding, tenant challenged determinations by the New York City Department of Buildings and the city's Environmental Control Board that his use of a unit as a recording studio did not constitute a 'home occupation' within the meaning of section 12-10 of the New York City Zoning Resolution. The Appellate Division dismissed the proceeding, holding that renting out the unit for recording sessions was inconsistent with applicable zoning restrictions.

Tenant began renting the subject unit in 1976, when the lease permitted use of the unit for operation of a sound studio business and for no other purpose. Landlord subsequently converted all units in the building (except tenant's unit) to residential condominiums, and obtained residential certificates of occupancy for all units, including tenant's. In 1997, landlord filed complaints with the Department of Buildings (DOB) alleging that tenant's commercial use of the premises was inconsistent with zoning restrictions and with the certificate of occupancy. After a hearing, an administrative law judge determined that tenant had engaged in the practice of renting out the studio to outside musicians, and that such use violated the home occupation provisions of the zoning ordinance. The Environmental Control Board (ECB) affirmed those findings, and tenant brought this article 78 proceeding.

In dismissing tenant's petition, the Appellate Division first focused on the zoning resolution's definition of 'home occupation' and concluded that renting out space and services to others for a fee is not incidental to tenant's own residence as required by the ordinance. The court then turned to section 276 of the Loft Law, which provides an exemption for artists. The court concluded that one who rents space and technical equipment to composers and performers did not come within the statutory exemption.

Denial of Special Permit Supported by Substantial Evidence

Matter of Dries v. Town Board

NYLJ 5/27/03, p. 28, col. 2

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul the town board's denial of a special permit, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that safety concerns were adequate to support denial of the permit.

Landowner sought a special use permit to build two restaurants between two outlet malls. The majority of the town board voted against a resolution that would have conditionally approved the permit subject to changes. These board members were concerned about pedestrian safety.

In upholding the board's determination, the Appellate Division acknowledged that it is impermissible to deny a special use permit based solely on generalized community objections. Here, however, the board based its decision on evidence submitted by landowners' experts, on a report prepared pursuant to SEQRA, and on 'knowledge of the Town Board and community members about the traffic flow in the vicinity.' Moreover, the court noted that landowners had been given an opportunity to address concerns about pedestrian safety, and chose not to, responding that details about crossings would be developed at a later time. Under these circumstances, the court held that the town board's determination was supported by substantial evidence in the record.

In re Mason v. Department of Buildings
NYLJ 5/30/03, p. 18, col. 1
AppDiv, First Dept
(Opinion by Tom, J.)

In an article 78 proceeding, tenant challenged determinations by the New York City Department of Buildings and the city's Environmental Control Board that his use of a unit as a recording studio did not constitute a 'home occupation' within the meaning of section 12-10 of the New York City Zoning Resolution. The Appellate Division dismissed the proceeding, holding that renting out the unit for recording sessions was inconsistent with applicable zoning restrictions.

Tenant began renting the subject unit in 1976, when the lease permitted use of the unit for operation of a sound studio business and for no other purpose. Landlord subsequently converted all units in the building (except tenant's unit) to residential condominiums, and obtained residential certificates of occupancy for all units, including tenant's. In 1997, landlord filed complaints with the Department of Buildings (DOB) alleging that tenant's commercial use of the premises was inconsistent with zoning restrictions and with the certificate of occupancy. After a hearing, an administrative law judge determined that tenant had engaged in the practice of renting out the studio to outside musicians, and that such use violated the home occupation provisions of the zoning ordinance. The Environmental Control Board (ECB) affirmed those findings, and tenant brought this article 78 proceeding.

In dismissing tenant's petition, the Appellate Division first focused on the zoning resolution's definition of 'home occupation' and concluded that renting out space and services to others for a fee is not incidental to tenant's own residence as required by the ordinance. The court then turned to section 276 of the Loft Law, which provides an exemption for artists. The court concluded that one who rents space and technical equipment to composers and performers did not come within the statutory exemption.

Matter of Dries v. Town Board
NYLJ 5/27/03, p. 28, col. 2
AppDiv, Second Dept
(memorandum opinion)

In landowner's article 78 proceeding to annul the town board's denial of a special permit, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that safety concerns were adequate to support denial of the permit.

Landowner sought a special use permit to build two restaurants between two outlet malls. The majority of the town board voted against a resolution that would have conditionally approved the permit subject to changes. These board members were concerned about pedestrian safety.

In upholding the board's determination, the Appellate Division acknowledged that it is impermissible to deny a special use permit based solely on generalized community objections. Here, however, the board based its decision on evidence submitted by landowners' experts, on a report prepared pursuant to SEQRA, and on 'knowledge of the Town Board and community members about the traffic flow in the vicinity.' Moreover, the court noted that landowners had been given an opportunity to address concerns about pedestrian safety, and chose not to, responding that details about crossings would be developed at a later time. Under these circumstances, the court held that the town board's determination was supported by substantial evidence in the record.

Area Variance Denial Not Supported by Substantial Evidence

Matter of Crystal Pond Homes, Inc. v. Prior

NYLJ 5/27/03, p. 28, col. 2

AppDiv, Second Dept

(memorandum opinion).

In landowner's article 78 proceeding challenging denial of an area variance, the village appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the board's denial was not supported by substantial evidence.

Landowner sought an area variance to build a home on a substandard lot. Landowner's experts testified that 52 of the 100 lots in the immediate area of the landowner's parcel were built on substandard lots. The experts also testified that the proposed variance would have no impact on adjoining properties. The board nevertheless denied the variance. When landowner brought this article 78 proceeding, Supreme Court granted the petition.

In affirming, the Appellate Division noted that the board was required to balance the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood. Here, the court noted that the record included no evidence that the variance would have any detrimental effect on the neighborhood. As a result, denial of the variance was arbitrary and capricious, and not supported by substantial evidence.

Recording Studio Does Not Constitute Home Occupation

In re Mason v. Department of Buildings

NYLJ 5/30/03, p. 18, col. 1

AppDiv, First Dept

(Opinion by Tom, J.)

In an article 78 proceeding, tenant challenged determinations by the New York City Department of Buildings and the city's Environmental Control Board that his use of a unit as a recording studio did not constitute a 'home occupation' within the meaning of section 12-10 of the New York City Zoning Resolution. The Appellate Division dismissed the proceeding, holding that renting out the unit for recording sessions was inconsistent with applicable zoning restrictions.

Tenant began renting the subject unit in 1976, when the lease permitted use of the unit for operation of a sound studio business and for no other purpose. Landlord subsequently converted all units in the building (except tenant's unit) to residential condominiums, and obtained residential certificates of occupancy for all units, including tenant's. In 1997, landlord filed complaints with the Department of Buildings (DOB) alleging that tenant's commercial use of the premises was inconsistent with zoning restrictions and with the certificate of occupancy. After a hearing, an administrative law judge determined that tenant had engaged in the practice of renting out the studio to outside musicians, and that such use violated the home occupation provisions of the zoning ordinance. The Environmental Control Board (ECB) affirmed those findings, and tenant brought this article 78 proceeding.

In dismissing tenant's petition, the Appellate Division first focused on the zoning resolution's definition of 'home occupation' and concluded that renting out space and services to others for a fee is not incidental to tenant's own residence as required by the ordinance. The court then turned to section 276 of the Loft Law, which provides an exemption for artists. The court concluded that one who rents space and technical equipment to composers and performers did not come within the statutory exemption.

Denial of Special Permit Supported by Substantial Evidence

Matter of Dries v. Town Board

NYLJ 5/27/03, p. 28, col. 2

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul the town board's denial of a special permit, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that safety concerns were adequate to support denial of the permit.

Landowner sought a special use permit to build two restaurants between two outlet malls. The majority of the town board voted against a resolution that would have conditionally approved the permit subject to changes. These board members were concerned about pedestrian safety.

In upholding the board's determination, the Appellate Division acknowledged that it is impermissible to deny a special use permit based solely on generalized community objections. Here, however, the board based its decision on evidence submitted by landowners' experts, on a report prepared pursuant to SEQRA, and on 'knowledge of the Town Board and community members about the traffic flow in the vicinity.' Moreover, the court noted that landowners had been given an opportunity to address concerns about pedestrian safety, and chose not to, responding that details about crossings would be developed at a later time. Under these circumstances, the court held that the town board's determination was supported by substantial evidence in the record.

In re Mason v. Department of Buildings
NYLJ 5/30/03, p. 18, col. 1
AppDiv, First Dept
(Opinion by Tom, J.)

In an article 78 proceeding, tenant challenged determinations by the New York City Department of Buildings and the city's Environmental Control Board that his use of a unit as a recording studio did not constitute a 'home occupation' within the meaning of section 12-10 of the New York City Zoning Resolution. The Appellate Division dismissed the proceeding, holding that renting out the unit for recording sessions was inconsistent with applicable zoning restrictions.

Tenant began renting the subject unit in 1976, when the lease permitted use of the unit for operation of a sound studio business and for no other purpose. Landlord subsequently converted all units in the building (except tenant's unit) to residential condominiums, and obtained residential certificates of occupancy for all units, including tenant's. In 1997, landlord filed complaints with the Department of Buildings (DOB) alleging that tenant's commercial use of the premises was inconsistent with zoning restrictions and with the certificate of occupancy. After a hearing, an administrative law judge determined that tenant had engaged in the practice of renting out the studio to outside musicians, and that such use violated the home occupation provisions of the zoning ordinance. The Environmental Control Board (ECB) affirmed those findings, and tenant brought this article 78 proceeding.

In dismissing tenant's petition, the Appellate Division first focused on the zoning resolution's definition of 'home occupation' and concluded that renting out space and services to others for a fee is not incidental to tenant's own residence as required by the ordinance. The court then turned to section 276 of the Loft Law, which provides an exemption for artists. The court concluded that one who rents space and technical equipment to composers and performers did not come within the statutory exemption.

Matter of Dries v. Town Board
NYLJ 5/27/03, p. 28, col. 2
AppDiv, Second Dept
(memorandum opinion)

In landowner's article 78 proceeding to annul the town board's denial of a special permit, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that safety concerns were adequate to support denial of the permit.

Landowner sought a special use permit to build two restaurants between two outlet malls. The majority of the town board voted against a resolution that would have conditionally approved the permit subject to changes. These board members were concerned about pedestrian safety.

In upholding the board's determination, the Appellate Division acknowledged that it is impermissible to deny a special use permit based solely on generalized community objections. Here, however, the board based its decision on evidence submitted by landowners' experts, on a report prepared pursuant to SEQRA, and on 'knowledge of the Town Board and community members about the traffic flow in the vicinity.' Moreover, the court noted that landowners had been given an opportunity to address concerns about pedestrian safety, and chose not to, responding that details about crossings would be developed at a later time. Under these circumstances, the court held that the town board's determination was supported by substantial evidence in the record.