Development

Board's Failure to Override Planning Commission Invalid As Arbitrary and Capricious

Matter of Brower v. Board of Appeals

NYLJ 3/22/05, p. 128, col. 1

Supreme Ct., Nassau Cty

(Ayres, J.)

After the county planning commission recommended disapproval of the landowners' variance application, the town board of appeals (BOA) failed to override the planning commission's determination. When the landowners brought this article 78 proceeding challenging the resulting variance denial, the court granted the petition, holding that the board minority's action was arbitrary and capricious.

The landowners sought to create two 40- by 100-foot lots from their existing property. Each lot would be smaller than the minimum in the zoning district, thus requiring a variance. Because the landowners' parcel was within 500 feet of a county road, the General Municipal Law required review by the county planning commission. When the commission recommended disapproval, section 239-m of the General Municipal Law required a majority plus one of the town board of appeals to approve the application. Of the seven-member BOA, three members supported the application, two opposed it, and the other two failed to cast votes. Hence, the variance was denied, prompting this proceeding.

In granting the petition, the court noted that the two-member minority of the BOA focused on all properties within a 200-foot radius of the subject property, and noted that many of them were conforming parcels. The minority chose not to focus on the properties on the same street as the subject property, many of which were already substandard. On this record, the court concluded that the minority could not support its conclusion that the granting of the application would result in a change in area character. As a result, the court concluded that the variance denial was arbitrary, and annulled the BOA's determination. The court ordered the BOA to issue area variances.

Covenants Denying Residents Access to District Services Upheld

Water Club Homeowners Association v. Town Board

NYLJ 4/4/2005, p. 37, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an action by a homeowners association for a judgment declaring a restrictive covenant illegal, the association appealed from the Supreme Court's grant of summary judgment to the town, and from the Supreme Court's denial of the association's motion to add a cause of action challenging a tax levied on members of the association. The Appellate Division affirmed, holding that the restrictions were not illegal.

The homeowners association members live in a gated community within the Atlantic Beach Estates Park District in the Town of North Hempstead. In 1986, the town's Zoning Board of Appeals (ZBA) granted permission to construct the gated community subject to recording of a declaration of covenants, restrictions, easements, charges, and liens. One of the required covenants is a waiver by members of the association of any right to use facilities at the Park District's beach club. To fund the park district and its facilities, the town assessed an ad valorem tax on all residents of the park district, including members of the homeowners association. In 2002, the association and its members brought this action for a judgment declaring that the restrictive covenant was illegal. Subsequently, the association sought leave to add a cause of action challenging the validity of the ad valorem tax. The Supreme Court granted summary judgment to the town, and denied leave to add the cause of action. The Association appealed.

In affirming, the Appellate Division emphasized that the declaration of covenants provides that the association may amend, alter, or repeal the covenants at any time. The court also emphasized that the condition for approval of the subdivision was merely recording of the declaration, not a prohibition on amendment. As a result, the covenants were not illegal, because it was entirely within the control of the association to repeal the waiver of the rights of its members to use park district facilities. The court also held that the Supreme Court had acted properly in refusing leave to add a challenge to the ad valorem tax, emphasizing that the challenge was patently devoid of merit. In particular, the court emphasized that any inequity that might result from taxation without the right to use the facilities for which the taxes were imposed was a self-imposed inequity. Moreover, the court noted that members of the association did have a right to use a variety of the facilities provided by the park district. Because the association members did derive benefit from the services provided by the tax, the tax was not illegal.

Town Not Estopped By Erroneously Issued Building Permit

Town of Putnam Vallye v. Sacramone

NYLJ 4/4/05, p. 36, col. 5

AppDiv, Second Dept

(memorandum opinion)

In the town's action to enjoin a landowner from performing construction work without a building permit and from occupying premises without a certificate of occupancy, the landowner appealed from the Supreme Court's grant of summary judgment to the town. The Appellate Division affirmed, concluding that the town could not be estopped by an erroneously issued building permit.

The town had issued a building permit to the landowner increasing the height of the building on the landowner's parcel. That permit was issued in contravention of the existing zoning laws. When the town later sought to enforce the building code, the landowner objected. In affirming Supreme Court's grant of summary judgment to the town, the Appellate Division emphasized that erroneous issuance of a building permit does not estop a municipality from correcting errors, even when there are harsh results.

Board's Failure to Override Planning Commission Invalid As Arbitrary and Capricious

Matter of Brower v. Board of Appeals

NYLJ 3/22/05, p. 128, col. 1

Supreme Ct., Nassau Cty

(Ayres, J.)

After the county planning commission recommended disapproval of the landowners' variance application, the town board of appeals (BOA) failed to override the planning commission's determination. When the landowners brought this article 78 proceeding challenging the resulting variance denial, the court granted the petition, holding that the board minority's action was arbitrary and capricious.

The landowners sought to create two 40- by 100-foot lots from their existing property. Each lot would be smaller than the minimum in the zoning district, thus requiring a variance. Because the landowners' parcel was within 500 feet of a county road, the General Municipal Law required review by the county planning commission. When the commission recommended disapproval, section 239-m of the General Municipal Law required a majority plus one of the town board of appeals to approve the application. Of the seven-member BOA, three members supported the application, two opposed it, and the other two failed to cast votes. Hence, the variance was denied, prompting this proceeding.

In granting the petition, the court noted that the two-member minority of the BOA focused on all properties within a 200-foot radius of the subject property, and noted that many of them were conforming parcels. The minority chose not to focus on the properties on the same street as the subject property, many of which were already substandard. On this record, the court concluded that the minority could not support its conclusion that the granting of the application would result in a change in area character. As a result, the court concluded that the variance denial was arbitrary, and annulled the BOA's determination. The court ordered the BOA to issue area variances.

Covenants Denying Residents Access to District Services Upheld

Water Club Homeowners Association v. Town Board

NYLJ 4/4/2005, p. 37, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an action by a homeowners association for a judgment declaring a restrictive covenant illegal, the association appealed from the Supreme Court's grant of summary judgment to the town, and from the Supreme Court's denial of the association's motion to add a cause of action challenging a tax levied on members of the association. The Appellate Division affirmed, holding that the restrictions were not illegal.

The homeowners association members live in a gated community within the Atlantic Beach Estates Park District in the Town of North Hempstead. In 1986, the town's Zoning Board of Appeals (ZBA) granted permission to construct the gated community subject to recording of a declaration of covenants, restrictions, easements, charges, and liens. One of the required covenants is a waiver by members of the association of any right to use facilities at the Park District's beach club. To fund the park district and its facilities, the town assessed an ad valorem tax on all residents of the park district, including members of the homeowners association. In 2002, the association and its members brought this action for a judgment declaring that the restrictive covenant was illegal. Subsequently, the association sought leave to add a cause of action challenging the validity of the ad valorem tax. The Supreme Court granted summary judgment to the town, and denied leave to add the cause of action. The Association appealed.

In affirming, the Appellate Division emphasized that the declaration of covenants provides that the association may amend, alter, or repeal the covenants at any time. The court also emphasized that the condition for approval of the subdivision was merely recording of the declaration, not a prohibition on amendment. As a result, the covenants were not illegal, because it was entirely within the control of the association to repeal the waiver of the rights of its members to use park district facilities. The court also held that the Supreme Court had acted properly in refusing leave to add a challenge to the ad valorem tax, emphasizing that the challenge was patently devoid of merit. In particular, the court emphasized that any inequity that might result from taxation without the right to use the facilities for which the taxes were imposed was a self-imposed inequity. Moreover, the court noted that members of the association did have a right to use a variety of the facilities provided by the park district. Because the association members did derive benefit from the services provided by the tax, the tax was not illegal.

Town Not Estopped By Erroneously Issued Building Permit

Town of Putnam Vallye v. Sacramone

NYLJ 4/4/05, p. 36, col. 5

AppDiv, Second Dept

(memorandum opinion)

In the town's action to enjoin a landowner from performing construction work without a building permit and from occupying premises without a certificate of occupancy, the landowner appealed from the Supreme Court's grant of summary judgment to the town. The Appellate Division affirmed, concluding that the town could not be estopped by an erroneously issued building permit.

The town had issued a building permit to the landowner increasing the height of the building on the landowner's parcel. That permit was issued in contravention of the existing zoning laws. When the town later sought to enforce the building code, the landowner objected. In affirming Supreme Court's grant of summary judgment to the town, the Appellate Division emphasized that erroneous issuance of a building permit does not estop a municipality from correcting errors, even when there are harsh results.