Development

Economic Motive Does Not Defeat Standing to Challenge Site Plan Approval

Matter of John John LLC v. Planning Board

NYLJ 2/22/05, p. 33, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In a neighbor's article 78 proceeding to annul grant of site plan approval and a height variance, the neighbor appealed from the Supreme Court's judgment denying the petition for lack of standing. The Appellate Division reversed and reinstated the petition, holding that the petition alleged sufficient proximity to establish standing.

The landowner sought, and the planning board granted, site plan approval for development of an extended-stay hotel, together with a height variance. When the neighbor brought an article 78 proceeding challenging the decision, the landowner moved to dismiss for lack of standing, contending that the neighbor's motive was to avoid business competition. The landowner argued that the traffic and environmental concerns advanced by neighbor were without merit. The Supreme Court agreed and dismissed the petition. In reversing, the Appellate Division noted that the presence of an economic motive will not defeat standing if an adjacent property owner also has the concerns which are within the zone of interest. Moreover, the allegations in the petition are deemed to be true for purposes of a motion to dismiss. Because the neighbor's allegations were within the zone of interest to be protected, the petition should not have been dismissed.

COMMENT

Generally, to establish standing, a petitioner must show an actual injury different from the effects on the community at large; however, landowners of the property regulated by the challenged government action will be granted standing even if unable to prove an actual injury because they are presumed to have a legally cognizable interest different from the community. In the Matter of Har Enterprises v. Town of Brookhaven, 74 N.Y. 2d 524 (1989), after the petitioner entered into a contract to construct a supermarket, the town rezoned his land from commercial to residential. The Court of Appeals reversed the lower courts' dismissal for lack of standing, holding an owner of the property subject to the zone change does not have to prove specific environmental harm to gain standing. Id. at 529.

Likewise, adjacent landowners and other landowners in the immediate vicinity of the affected property do not have to prove any likelihood of actual injury. In the Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead, 69 N.Y. 2d 406 (1987), the Court of Appeals held that an adjacent landowner has standing as a “member of a group presumptively affected by the change on neighboring property.” Id. at 415-416. However, an adjacent landowner or a landowner in the immediate vicinity of the affected property must allege environmental harm. For example, in the companion case in Sun-Brite, the Court of Appeals held that a competing car wash lacked standing to challenge a variance permitting a car wash across the street. Even though petitioner was in the immediate vicinity, petitioner did not have standing because its only substantiated objection was based on the threat of increased business competition, which is not within the zone of interests protected by the zoning laws. Id. at 415.

While business competition cannot be the sole basis for challenging an administrative action, the presence of an economic motive will not defeat standing so long as the petitioner has also alleged environmental impacts. In the Matter of Duke & Benedict, Inc. v. Town of Southeast, 253 A.D. 2d 877 (1998), petitioner's adjacent land owners asked the Town Board to rezone its property from “office professional” to “highway commercial” in order to develop a large retail store. After the Board rezoned the property, the Appellate Division held that the adjacent owner had standing, despite its economic motives, because it had also alleged adverse environmental effects such as increased noise and traffic. Id. at 878.

Mortgage Broker Business Is Permitted Home Occupation

Matter of Arceri v. Town of Islip Zoning Board

NYLJ 3/11/05, p. 33, col. 4

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to review an interpretation of the zoning ordinance issued by the zoning board of appeals (ZBA), the ZBA appealed from the Supreme Court's order granting the petition and remanding to the ZBA for reconsideration. The Appellate Division modified to direct the ZBA to issue the interpretation requested by landowner, and otherwise affirmed.

The landowner seeks to use the garage of her house as an office for her husband's mortgage broker business. The local zoning ordinance provides that home offices “of a single physician, dentist, chiropractor, lawyer … financial planner, insurance agent or teacher” are permissible home occupations as of right in a residential district. The ordinance also provides that “similar uses, which do not alter the character of the house as a residence, may … be permitted.” The landowner sought a determination from the ZBA that her husband's office would be permitted under the terms of the ordinance. The ZBA, after a public hearing, determined that the mortgage brokerage business was closer in character to that of the prohibited home occupation of a real estate broker than it was to permitted home occupations. Hence, the ZBA determined that use of the garage for an office for the mortgage brokerage business was not permitted by the ordinance. The landowner brought this article 78 proceeding.

The Appellate Division concluded that the ZBA had focused on the wrong question when it compared the business of a mortgage broker with that of a real estate broker or an insurance agent. The court held instead that the ZBA should have been guided by whether the proposed use altered the residential character of the home. On the facts presented at the public hearing, it was clear that the office use would not alter that residential character. As a result, the Appellate Division concluded that the Supreme Court had properly granted the petition, but the Appellate Division also held that the Supreme Court should have issued the interpretation requested by the landowner rather than remanding to the ZBA.

Economic Motive Does Not Defeat Standing to Challenge Site Plan Approval

Matter of John John LLC v. Planning Board

NYLJ 2/22/05, p. 33, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In a neighbor's article 78 proceeding to annul grant of site plan approval and a height variance, the neighbor appealed from the Supreme Court's judgment denying the petition for lack of standing. The Appellate Division reversed and reinstated the petition, holding that the petition alleged sufficient proximity to establish standing.

The landowner sought, and the planning board granted, site plan approval for development of an extended-stay hotel, together with a height variance. When the neighbor brought an article 78 proceeding challenging the decision, the landowner moved to dismiss for lack of standing, contending that the neighbor's motive was to avoid business competition. The landowner argued that the traffic and environmental concerns advanced by neighbor were without merit. The Supreme Court agreed and dismissed the petition. In reversing, the Appellate Division noted that the presence of an economic motive will not defeat standing if an adjacent property owner also has the concerns which are within the zone of interest. Moreover, the allegations in the petition are deemed to be true for purposes of a motion to dismiss. Because the neighbor's allegations were within the zone of interest to be protected, the petition should not have been dismissed.

COMMENT

Generally, to establish standing, a petitioner must show an actual injury different from the effects on the community at large; however, landowners of the property regulated by the challenged government action will be granted standing even if unable to prove an actual injury because they are presumed to have a legally cognizable interest different from the community. In the Matter of Har Enterprises v. Town of Brookhaven, 74 N.Y. 2d 524 (1989), after the petitioner entered into a contract to construct a supermarket, the town rezoned his land from commercial to residential. The Court of Appeals reversed the lower courts' dismissal for lack of standing, holding an owner of the property subject to the zone change does not have to prove specific environmental harm to gain standing. Id. at 529.

Likewise, adjacent landowners and other landowners in the immediate vicinity of the affected property do not have to prove any likelihood of actual injury. In the Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead, 69 N.Y. 2d 406 (1987), the Court of Appeals held that an adjacent landowner has standing as a “member of a group presumptively affected by the change on neighboring property.” Id. at 415-416. However, an adjacent landowner or a landowner in the immediate vicinity of the affected property must allege environmental harm. For example, in the companion case in Sun-Brite, the Court of Appeals held that a competing car wash lacked standing to challenge a variance permitting a car wash across the street. Even though petitioner was in the immediate vicinity, petitioner did not have standing because its only substantiated objection was based on the threat of increased business competition, which is not within the zone of interests protected by the zoning laws. Id. at 415.

While business competition cannot be the sole basis for challenging an administrative action, the presence of an economic motive will not defeat standing so long as the petitioner has also alleged environmental impacts. In the Matter of Duke & Benedict, Inc. v. Town of Southeast, 253 A.D. 2d 877 (1998), petitioner's adjacent land owners asked the Town Board to rezone its property from “office professional” to “highway commercial” in order to develop a large retail store. After the Board rezoned the property, the Appellate Division held that the adjacent owner had standing, despite its economic motives, because it had also alleged adverse environmental effects such as increased noise and traffic. Id. at 878.

Mortgage Broker Business Is Permitted Home Occupation

Matter of Arceri v. Town of Islip Zoning Board

NYLJ 3/11/05, p. 33, col. 4

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to review an interpretation of the zoning ordinance issued by the zoning board of appeals (ZBA), the ZBA appealed from the Supreme Court's order granting the petition and remanding to the ZBA for reconsideration. The Appellate Division modified to direct the ZBA to issue the interpretation requested by landowner, and otherwise affirmed.

The landowner seeks to use the garage of her house as an office for her husband's mortgage broker business. The local zoning ordinance provides that home offices “of a single physician, dentist, chiropractor, lawyer … financial planner, insurance agent or teacher” are permissible home occupations as of right in a residential district. The ordinance also provides that “similar uses, which do not alter the character of the house as a residence, may … be permitted.” The landowner sought a determination from the ZBA that her husband's office would be permitted under the terms of the ordinance. The ZBA, after a public hearing, determined that the mortgage brokerage business was closer in character to that of the prohibited home occupation of a real estate broker than it was to permitted home occupations. Hence, the ZBA determined that use of the garage for an office for the mortgage brokerage business was not permitted by the ordinance. The landowner brought this article 78 proceeding.

The Appellate Division concluded that the ZBA had focused on the wrong question when it compared the business of a mortgage broker with that of a real estate broker or an insurance agent. The court held instead that the ZBA should have been guided by whether the proposed use altered the residential character of the home. On the facts presented at the public hearing, it was clear that the office use would not alter that residential character. As a result, the Appellate Division concluded that the Supreme Court had properly granted the petition, but the Appellate Division also held that the Supreme Court should have issued the interpretation requested by the landowner rather than remanding to the ZBA.