Development

Neighbors' Appeal to Board Of Zoning Appeals Dismissed

Matter of Jamil v. Village of Scarsdale Board of Appeals

NYLJ 10/9/03, p. 20, col. 3

Supreme Ct., Westchester Cty

(Dickerson., J.)

In an article 78 proceeding, neighbors challenged a determination by the Board of Zoning Appeals that their appeal was untimely. The court denied the petition, holding that neighbors' appeals was filed more than 60 days after filing of the building inspector's determination.

Developer planned to build a 115-unit assisted living facility for the elderly. In 1998, developer received a determination from the village building inspector that the project was a permitted use subject to a special permit. The building inspector submitted his staff notes to the village planning board during a pre-application conference with the planning board, and the board filed minutes of the conference with the village. The planning board then reviewed the project for four years. Neighbors participated in the public hearings. On April 4, 2002, the planning board accepted a final environmental impact statement (FEIS) on the project, noting that the village building inspector had determined that the proposed facility qualified as a special permit use. On May 22, the planning board adopted a SEQRA findings statement approving the project with modifications. On April 23, 2003, the planning board finally approved the project. On Oct. 22, 2002, however, neighbors filed an appeal with the Board of Zoning Appeals, contending that the building inspector had erroneously concluded that the use was a permitted use subject to a special permit. The Board of Appeals, by a vote of 4-1, denied the appeal as untimely, citing Village Law section 7-712-a(5), which permits appeals within 60 days from the filing of the building inspector's determination. Three members of the board concluded that the determination had been filed with the village in 1998, when the minutes of the planning board meeting were filed. Those three members concluded, in the alternative, that the building inspector's determination had been filed when, on April 24, 2002, the planning board accepted the FEIS, citing the building inspector's determination. The fourth member of the board majority concluded that a reasonableness standard should be applied to deny the appeal. Neighbors then brought this article 78 proceeding challenging the determination that their appeal was untimely.

In upholding the determination by the Board of Zoning Appeals, the court held that the building inspector's determination had been filed twice — once in 1998 when the planning board minutes were filed with the village, and again on April 24, 2002, when the planning board accepted the FEIS, which was subsequently filed with the village. The court also held that the appeal was barred by laches, especially because neighbors had opposed the project from its inception and were long aware of the building inspector's determination. The court then noted that there was substantial evidence to support the board's determination that the appeal was untimely. As a result, the court denied the petition.

Board Members Entitled to Rely on Personal Knowledge

Matter of Leon Petroleum, LLC v. Board of Trustees

NYLJ 10/20/03, p. 29, col. 5

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding challenging the village board's denial of special permits, the village appealed from Supreme Court's judgment granting the petition and ordering the board to issue the permits. The Appellate Division modified, holding that there was substantial evidence to support the board's determination that the subject parcel included insufficient space to accommodate both a convenience store and a gasoline service station.

In 1999, landowner purchased the subject parcel, on which landowner has operated a gasoline station as a non-conforming use in a business zoning district. A year later, landowner sought permits to move two of the gasoline pumps and to add a convenience store. The building department determined that moving the pumps constituted expansion of a non-conforming use, which required review by the Board of Trustees, and that the convenience store required a special permit from the Board of Trustees. The Board denied landowner's applications, concluding that the combined convenience store/gasoline station would be hazardous to patrons and to the immediate neighborhood, and that the traffic would congest an overburdened area. The Board also denied, without explanation, the application to move the gasoline pumps. Landowner then brought this article 78 proceeding. Supreme Court granted the petition and directed the board to issue the permits subject to reasonable conditions.

The Appellate Division started its analysis by noting that inclusion of a permitted use in the zoning ordinance “is tantamount to a legislative finding that the permitted use … will not adversely affect the neighborhood.” The court went on to note that a zoning board may not deny a special exception or permit on the basis of generalized objections and concerns expressed by members of the community. Nevertheless, the court went on to hold that a reviewing court may examine a board's permit denial only to determine whether substantial evidence supports the board's determination. Here, the court concluded that board members were entitled to rely on their own personal knowledge of the community in deciding a zoning matter. As a result, the court concluded that there was substantial evidence to support the board's denial of the special permit. The court conceded, however, that Supreme Court had properly annulled the denial of landowner's request to move the gasoline pumps, emphasizing the summary nature of the denial.

COMMENT

North Shore Steak House v. Board of Appeals, 30 N.Y.2d 238, held that in considering an application for a special permit, a zoning board is bound by a legislative finding that the proposed use is consistent with the ordinance and in harmony with the community. In contrast, Retail Property Trust v. Board of Zoning Appeals, 98 N.Y.2d 190, permitted a board to reject a special permit use despite the implicit legislative finding that the use is compatible with the neighboring community.

In North Shore, the developer needed both a special permit and a variance to complete the proposed project. The board of appeals denied both applications, concluding that the project would adversely affect the surrounding property. The Court of Appeals directed the board to issue the special permit, explaining that although a board can deny variances based on substantial evidence that the proposed use would be harmful, a board cannot deny special permits on the same ground. The Court held that the board must rely on the legislative finding that the specially permitted use, by virtue of its inclusion in the ordinance, is in harmony with the community's needs.

In Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, however, the Court of Appeals introduced confusion into the appropriate treatment of special permit applications. In Retail Property, the Board denied a shopping center developer's request for a special permit, concluding that the surrounding community would be adversely affected. When the case reached the Court of Appeals, the court cited the North Shore formulation with apparent approval, but then held that deference to the board's conclusion was appropriate because it was supported by substantial evidence. The court largely ignored North Shore's emphasis on legislative findings.

The two cases might be reconciled by reading Retail Property Trust to require a board to respect the legislative finding, but then to require courts to defer to the board's determination if supported by substantial evidence, even if the court would conclude that the board's determination is erroneous. Alternatively, Retail Property Trust might represent an implicit overruling of North Shore. Either alternative blurs the practical distinction between variances and special permits. Nevertheless, the holding in Leon Petroleum reflects the influence of the Court of Appeals opinion in Retail Property Trust.

Neighbors' Appeal to Board Of Zoning Appeals Dismissed

Matter of Jamil v. Village of Scarsdale Board of Appeals

NYLJ 10/9/03, p. 20, col. 3

Supreme Ct., Westchester Cty

(Dickerson., J.)

In an article 78 proceeding, neighbors challenged a determination by the Board of Zoning Appeals that their appeal was untimely. The court denied the petition, holding that neighbors' appeals was filed more than 60 days after filing of the building inspector's determination.

Developer planned to build a 115-unit assisted living facility for the elderly. In 1998, developer received a determination from the village building inspector that the project was a permitted use subject to a special permit. The building inspector submitted his staff notes to the village planning board during a pre-application conference with the planning board, and the board filed minutes of the conference with the village. The planning board then reviewed the project for four years. Neighbors participated in the public hearings. On April 4, 2002, the planning board accepted a final environmental impact statement (FEIS) on the project, noting that the village building inspector had determined that the proposed facility qualified as a special permit use. On May 22, the planning board adopted a SEQRA findings statement approving the project with modifications. On April 23, 2003, the planning board finally approved the project. On Oct. 22, 2002, however, neighbors filed an appeal with the Board of Zoning Appeals, contending that the building inspector had erroneously concluded that the use was a permitted use subject to a special permit. The Board of Appeals, by a vote of 4-1, denied the appeal as untimely, citing Village Law section 7-712-a(5), which permits appeals within 60 days from the filing of the building inspector's determination. Three members of the board concluded that the determination had been filed with the village in 1998, when the minutes of the planning board meeting were filed. Those three members concluded, in the alternative, that the building inspector's determination had been filed when, on April 24, 2002, the planning board accepted the FEIS, citing the building inspector's determination. The fourth member of the board majority concluded that a reasonableness standard should be applied to deny the appeal. Neighbors then brought this article 78 proceeding challenging the determination that their appeal was untimely.

In upholding the determination by the Board of Zoning Appeals, the court held that the building inspector's determination had been filed twice — once in 1998 when the planning board minutes were filed with the village, and again on April 24, 2002, when the planning board accepted the FEIS, which was subsequently filed with the village. The court also held that the appeal was barred by laches, especially because neighbors had opposed the project from its inception and were long aware of the building inspector's determination. The court then noted that there was substantial evidence to support the board's determination that the appeal was untimely. As a result, the court denied the petition.

Board Members Entitled to Rely on Personal Knowledge

Matter of Leon Petroleum, LLC v. Board of Trustees

NYLJ 10/20/03, p. 29, col. 5

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding challenging the village board's denial of special permits, the village appealed from Supreme Court's judgment granting the petition and ordering the board to issue the permits. The Appellate Division modified, holding that there was substantial evidence to support the board's determination that the subject parcel included insufficient space to accommodate both a convenience store and a gasoline service station.

In 1999, landowner purchased the subject parcel, on which landowner has operated a gasoline station as a non-conforming use in a business zoning district. A year later, landowner sought permits to move two of the gasoline pumps and to add a convenience store. The building department determined that moving the pumps constituted expansion of a non-conforming use, which required review by the Board of Trustees, and that the convenience store required a special permit from the Board of Trustees. The Board denied landowner's applications, concluding that the combined convenience store/gasoline station would be hazardous to patrons and to the immediate neighborhood, and that the traffic would congest an overburdened area. The Board also denied, without explanation, the application to move the gasoline pumps. Landowner then brought this article 78 proceeding. Supreme Court granted the petition and directed the board to issue the permits subject to reasonable conditions.

The Appellate Division started its analysis by noting that inclusion of a permitted use in the zoning ordinance “is tantamount to a legislative finding that the permitted use … will not adversely affect the neighborhood.” The court went on to note that a zoning board may not deny a special exception or permit on the basis of generalized objections and concerns expressed by members of the community. Nevertheless, the court went on to hold that a reviewing court may examine a board's permit denial only to determine whether substantial evidence supports the board's determination. Here, the court concluded that board members were entitled to rely on their own personal knowledge of the community in deciding a zoning matter. As a result, the court concluded that there was substantial evidence to support the board's denial of the special permit. The court conceded, however, that Supreme Court had properly annulled the denial of landowner's request to move the gasoline pumps, emphasizing the summary nature of the denial.

COMMENT

North Shore Steak House v. Board of Appeals, 30 N.Y.2d 238, held that in considering an application for a special permit, a zoning board is bound by a legislative finding that the proposed use is consistent with the ordinance and in harmony with the community. In contrast, Retail Property Trust v. Board of Zoning Appeals, 98 N.Y.2d 190, permitted a board to reject a special permit use despite the implicit legislative finding that the use is compatible with the neighboring community.

In North Shore, the developer needed both a special permit and a variance to complete the proposed project. The board of appeals denied both applications, concluding that the project would adversely affect the surrounding property. The Court of Appeals directed the board to issue the special permit, explaining that although a board can deny variances based on substantial evidence that the proposed use would be harmful, a board cannot deny special permits on the same ground. The Court held that the board must rely on the legislative finding that the specially permitted use, by virtue of its inclusion in the ordinance, is in harmony with the community's needs.

In Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, however, the Court of Appeals introduced confusion into the appropriate treatment of special permit applications. In Retail Property, the Board denied a shopping center developer's request for a special permit, concluding that the surrounding community would be adversely affected. When the case reached the Court of Appeals, the court cited the North Shore formulation with apparent approval, but then held that deference to the board's conclusion was appropriate because it was supported by substantial evidence. The court largely ignored North Shore's emphasis on legislative findings.

The two cases might be reconciled by reading Retail Property Trust to require a board to respect the legislative finding, but then to require courts to defer to the board's determination if supported by substantial evidence, even if the court would conclude that the board's determination is erroneous. Alternatively, Retail Property Trust might represent an implicit overruling of North Shore. Either alternative blurs the practical distinction between variances and special permits. Nevertheless, the holding in Leon Petroleum reflects the influence of the Court of Appeals opinion in Retail Property Trust.