Development

Area Variance Denial Upheld When Landowner Could Purchase Neighboring Vacant Lot

Matter of Chandler Property v. Trotta

NYLJ 7/16/04, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to annul denial of an area variance, the Board of Zoning Appeals appealed from the Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that the Board's determination had a rational basis and was supported by substantial evidence.

The landowner owns a substandard parcel and sought an area variance to build a single-family house. The area was largely undeveloped, and the only two improved lots on the street were larger in area than the landowner's lot. The board denied the area variance.

In holding that the Supreme Court improperly granted the landlord's petition, the Appellate Division emphasized that all neighboring lots were vacant, raising the possibility that the landowner could purchase an adjoining lot, or could sell the subject lot to a neighboring landowner. In either event, the landowner could derive benefit from the parcel without benefit of a variance. Combining these facts with the possibility that development of substandard parcels could produce an undesirable change in the character of the neighborhood, the Appellate Division concluded that the Board's denial of the variance was rational and supported by substantial evidence.

Not-for-Profit Entitled to Use Variance

Matter of Homes for the Homeless, Inc. v. Board of Standards and Appeals

NYLJ 7/23/04, p. 18, col. 3

Supreme Ct., N.Y. Cty

(Soto, J.)

In an article 78 proceeding, a not-for-profit corporation providing transitional housing for the homeless challenged denial of a variance that would have permitted expansion. The court granted the petition, holding that denial of the variance was arbitrary and capricious.

Homes for the Homeless has been providing sleeping accommodations on the subject site for 16 years. The site is located in an M-1 District, which does not permit sleeping accommodations. Homes for the Homeless now seeks to build a third building on the site to expand its operation. Homes for the Homeless sought a use variance to legalize the existing use, and another variance to permit use of the new building for sleeping accommodations. The expansion plan was opposed by the local community board and the Queens Borough President. After public hearings, the Board of Standards and Appeals (BSA) granted the variance to legalize the existing use, but denied the variance for expansion. The BSA concluded that the expansion variance was not the minimum necessary for relief, because Housing for the Homeless had failed to show that an increased number of shelter units was needed. Housing for the Homeless then brought this article 78 proceeding.

In granting the petition, the court held that the BSA improperly relied on Housing for the Homeless' failure to show increased need. The court noted that Housing for the Homeless was expecting to receive an additional contract from the Department of Human Services, but could not obtain the contract without a variance. Under those circumstances, the court concluded that the BSA acted arbitrarily in denying the variance for failure to establish need.

Zoning Fine Reduced Where Accusatory Instrument Did Not Specify That Each Week's Non-Compliance Constituted Separate Violation

People v. Melchner

NYLJ 7/14/04, p. 30, col. 4

AppTerm, 9th and 10th Districts

(memorandum opinion)

In a criminal prosecution for violation of town code provisions, a landowner appealed from the Supreme Court's judgment of conviction and sentence to fines of $52,000 on one count and $51,000 on each of two other counts.

The Appellate Term modified to vacate one conviction and to reduce the sentence on the other two counts to fines of $250 each because the accusatory instrument did not allege that each week would constitute a separate violation.

The town code requires site plan approval and a building permit for construction of a wharf. When the landowner purchased the parcel, the existing wharf and walkway were in disrepair, and the landowner removed the old wharf and constructed an entirely new one without obtaining the necessary approval and permit. The town filed an accusatory instrument alleging first that the landowner had constructed a new wharf and walkway without obtaining site plan approval, and second that the landowner had constructed the wharf and walkway without obtaining a building permit. Another count alleged that the landowner had used a neighboring parcel for a use not allowed as of right. A jury convicted the landowner on all three counts, and imposed sentence. The landowner appealed.

In modifying, the Appellate Term first dismissed the count with respect to the neighboring parcel because the accusatory instrument failed to allege that the subject lot was located in an R-40/10 district, and was therefore jurisdictionally defective. With respect to the lot on which the landowner had built the wharf, the court first conceded that the town code provided that each week's continued violation shall constitute a separate violation. The court noted, however, that the accusatory instrument did not allege that each week would constitute a separate count. As a result, the court held that the accusatory instrument should be read only to charge one violation of each count. Hence, the landowner was subject to a maximum of $250 fine on each of the two counts.

Area Variance Denial Upheld When Landowner Could Purchase Neighboring Vacant Lot

Matter of Chandler Property v. Trotta

NYLJ 7/16/04, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to annul denial of an area variance, the Board of Zoning Appeals appealed from the Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that the Board's determination had a rational basis and was supported by substantial evidence.

The landowner owns a substandard parcel and sought an area variance to build a single-family house. The area was largely undeveloped, and the only two improved lots on the street were larger in area than the landowner's lot. The board denied the area variance.

In holding that the Supreme Court improperly granted the landlord's petition, the Appellate Division emphasized that all neighboring lots were vacant, raising the possibility that the landowner could purchase an adjoining lot, or could sell the subject lot to a neighboring landowner. In either event, the landowner could derive benefit from the parcel without benefit of a variance. Combining these facts with the possibility that development of substandard parcels could produce an undesirable change in the character of the neighborhood, the Appellate Division concluded that the Board's denial of the variance was rational and supported by substantial evidence.

Not-for-Profit Entitled to Use Variance

Matter of Homes for the Homeless, Inc. v. Board of Standards and Appeals

NYLJ 7/23/04, p. 18, col. 3

Supreme Ct., N.Y. Cty

(Soto, J.)

In an article 78 proceeding, a not-for-profit corporation providing transitional housing for the homeless challenged denial of a variance that would have permitted expansion. The court granted the petition, holding that denial of the variance was arbitrary and capricious.

Homes for the Homeless has been providing sleeping accommodations on the subject site for 16 years. The site is located in an M-1 District, which does not permit sleeping accommodations. Homes for the Homeless now seeks to build a third building on the site to expand its operation. Homes for the Homeless sought a use variance to legalize the existing use, and another variance to permit use of the new building for sleeping accommodations. The expansion plan was opposed by the local community board and the Queens Borough President. After public hearings, the Board of Standards and Appeals (BSA) granted the variance to legalize the existing use, but denied the variance for expansion. The BSA concluded that the expansion variance was not the minimum necessary for relief, because Housing for the Homeless had failed to show that an increased number of shelter units was needed. Housing for the Homeless then brought this article 78 proceeding.

In granting the petition, the court held that the BSA improperly relied on Housing for the Homeless' failure to show increased need. The court noted that Housing for the Homeless was expecting to receive an additional contract from the Department of Human Services, but could not obtain the contract without a variance. Under those circumstances, the court concluded that the BSA acted arbitrarily in denying the variance for failure to establish need.

Zoning Fine Reduced Where Accusatory Instrument Did Not Specify That Each Week's Non-Compliance Constituted Separate Violation

People v. Melchner

NYLJ 7/14/04, p. 30, col. 4

AppTerm, 9th and 10th Districts

(memorandum opinion)

In a criminal prosecution for violation of town code provisions, a landowner appealed from the Supreme Court's judgment of conviction and sentence to fines of $52,000 on one count and $51,000 on each of two other counts.

The Appellate Term modified to vacate one conviction and to reduce the sentence on the other two counts to fines of $250 each because the accusatory instrument did not allege that each week would constitute a separate violation.

The town code requires site plan approval and a building permit for construction of a wharf. When the landowner purchased the parcel, the existing wharf and walkway were in disrepair, and the landowner removed the old wharf and constructed an entirely new one without obtaining the necessary approval and permit. The town filed an accusatory instrument alleging first that the landowner had constructed a new wharf and walkway without obtaining site plan approval, and second that the landowner had constructed the wharf and walkway without obtaining a building permit. Another count alleged that the landowner had used a neighboring parcel for a use not allowed as of right. A jury convicted the landowner on all three counts, and imposed sentence. The landowner appealed.

In modifying, the Appellate Term first dismissed the count with respect to the neighboring parcel because the accusatory instrument failed to allege that the subject lot was located in an R-40/10 district, and was therefore jurisdictionally defective. With respect to the lot on which the landowner had built the wharf, the court first conceded that the town code provided that each week's continued violation shall constitute a separate violation. The court noted, however, that the accusatory instrument did not allege that each week would constitute a separate count. As a result, the court held that the accusatory instrument should be read only to charge one violation of each count. Hence, the landowner was subject to a maximum of $250 fine on each of the two counts.