Development

ZBA'S Construction of Ordinance Held Irrational

Matter of Baker v. Town of Islip Zoning Board

NYLJ 8/1/05, p. 29, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to challenge denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the construction of the zoning ordinance adopted by the zoning board of appeals (ZBA) was irrational as applied to landowner's application.

Landowner sought to build a two-story residence on vacant land on Fire Island. Both the town code and federal regulations require that any residence in the area be built above ground level and on pilings. Landowner's proposed dwelling includes a second floor, part of which is to be constructed on pilings with bare ground underneath. Landowner applied for an area variance, because the FAR of their house was, according to landowner's calculations, 35.2%, which was in excess of the 30% permitted by the ordinance. The ZBA, however, counted the floor area located on bare ground under the second story, and calculated the FAR as 45%. The ZBA then concluded that the variance of 50% was substantial, and also concluded that the second story and roof deck would be high in the air, causing an undesirable change in the neighborhood. As a result, the ZBA denied the area variance. Landowner brought this article 78 proceeding, but Supreme Court denied the petition, concluding that the ZBA had consistently applied the same interpretation of its FAR requirement.

In reversing, the Appellate Division held first that the ZBA's interpretation of the local ordinance was not entitled to “unquestioning judicial deference” because interpretation of a zoning code is ultimately a question of law for the court. In this case, the ordinance defines total floor area to include “the ground floor and all other floors, decks, open or closed porches, breezeways, sheds, garages and other accessory uses” and also provides that ground floor area includes “the area within the exterior walls of the dwelling at grade level.” The court went on to conclude that the bare ground under a portion of the second story does not count as floor area because it is not enclosed by exterior walls and doesn't have a floor. As a result, the court concluded that the ZBA's interpretation of the ordinance was irrational and unreasonable, requiring remand to the ZBA for a new determination excluding from the FAR calculation the unenclosed portion beneath the second floor of the residence.

Subdivision Conditions Properly Imposed

Matter of International Innovative Technology Group Corp. v. Planning Board

NYLJ 8/1/05, p. 29, col. 4

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's imposition of conditions on final subdivision approval, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that the conditions had been properly imposed.

Landowner sought subdivision approval for a 21-lot residential development. The town planning board imposed a number of conditions on the subdivision, including a restriction on installation of lawn sprinkler systems and posting of a bond obligating landowner to investigate reported impacts on surrounding wells after development. Landowner brought this article 78 proceeding challenging these restrictions, but the Supreme Court denied the petition.

In affirming, the Appellate Division first disposed of landowner's objections to other conditions, noting that because those conditions had been imposed at the time landowner had been granted preliminary subdivision approval, objections to those conditions had become time-barred. With respect to the sprinkler restriction and the bond-posting requirement, the court noted that a planning board is entitled to impose restrictions to protect the safety and welfare of adjacent areas, and went on to note that these restrictions were reasonably related to the problem the planning board sought to alleviate – assuring residents an adequate water supply. The court emphasized that the property was in close proximity to a local reservoir, and also rejected landowner's contentions that the town had acted in bad faith.

State Not Subject to Town Zoning Regulations

Town of Hempstead v. State of New York

NYLJ 8/2/05, p. 19, col. 3

Supreme Ct., Nassau Cty

(O'Connell, J.)

The Town of Hempstead sought a preliminary injunction restraining construction of a cell phone tower on state land located within the town's borders. The court denied the preliminary injunction, concluding that the state was not subject to town zoning restrictions.

When the town received an application for construction of a cell phone tower on the roof of a commercial building in Wantagh, the town contacted the state to see whether the state would permit construction of a tower on state-owned property near the Sunrise Highway and the Seaford Oyster Bay Expressway.

The state's Department of Transportation apparently recommended against construction within 110 feet of Long Island Railroad tracks, and also recommended against construction near the highway intersection because of a scheduled realignment of ramps. The state then received plans for proposed construction of a cell phone tower by Crown Communications in a residential area. After the Department of Transportation issued a negative declaration under SEQRA, the DOT issued as work permit for construction of the tower. In response to objections from the town, the DOT concluded that the town had no jurisdiction, because the state was not subject to local zoning regulations. The town then brought this action.

In denying a preliminary injunction to the town, the court relied on Crown Communications v. Department of Transportation, 4 NY3d 159, in which the Court of Appeals held that state-owned cell phone towers with commercial wireless antenna attachments are not subject to local zoning regulations.

The court held that the Court of Appeals decision in Crown Communications was dispositive here, rejecting the town's contention that the circumstances are different because the instant case involved construction of a new tower rather than mere replacement of an existing tower. The court ultimately concluded that the town had demonstrated no likelihood of success on the merits.

ZBA'S Construction of Ordinance Held Irrational

Matter of Baker v. Town of Islip Zoning Board

NYLJ 8/1/05, p. 29, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to challenge denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the construction of the zoning ordinance adopted by the zoning board of appeals (ZBA) was irrational as applied to landowner's application.

Landowner sought to build a two-story residence on vacant land on Fire Island. Both the town code and federal regulations require that any residence in the area be built above ground level and on pilings. Landowner's proposed dwelling includes a second floor, part of which is to be constructed on pilings with bare ground underneath. Landowner applied for an area variance, because the FAR of their house was, according to landowner's calculations, 35.2%, which was in excess of the 30% permitted by the ordinance. The ZBA, however, counted the floor area located on bare ground under the second story, and calculated the FAR as 45%. The ZBA then concluded that the variance of 50% was substantial, and also concluded that the second story and roof deck would be high in the air, causing an undesirable change in the neighborhood. As a result, the ZBA denied the area variance. Landowner brought this article 78 proceeding, but Supreme Court denied the petition, concluding that the ZBA had consistently applied the same interpretation of its FAR requirement.

In reversing, the Appellate Division held first that the ZBA's interpretation of the local ordinance was not entitled to “unquestioning judicial deference” because interpretation of a zoning code is ultimately a question of law for the court. In this case, the ordinance defines total floor area to include “the ground floor and all other floors, decks, open or closed porches, breezeways, sheds, garages and other accessory uses” and also provides that ground floor area includes “the area within the exterior walls of the dwelling at grade level.” The court went on to conclude that the bare ground under a portion of the second story does not count as floor area because it is not enclosed by exterior walls and doesn't have a floor. As a result, the court concluded that the ZBA's interpretation of the ordinance was irrational and unreasonable, requiring remand to the ZBA for a new determination excluding from the FAR calculation the unenclosed portion beneath the second floor of the residence.

Subdivision Conditions Properly Imposed

Matter of International Innovative Technology Group Corp. v. Planning Board

NYLJ 8/1/05, p. 29, col. 4

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's imposition of conditions on final subdivision approval, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that the conditions had been properly imposed.

Landowner sought subdivision approval for a 21-lot residential development. The town planning board imposed a number of conditions on the subdivision, including a restriction on installation of lawn sprinkler systems and posting of a bond obligating landowner to investigate reported impacts on surrounding wells after development. Landowner brought this article 78 proceeding challenging these restrictions, but the Supreme Court denied the petition.

In affirming, the Appellate Division first disposed of landowner's objections to other conditions, noting that because those conditions had been imposed at the time landowner had been granted preliminary subdivision approval, objections to those conditions had become time-barred. With respect to the sprinkler restriction and the bond-posting requirement, the court noted that a planning board is entitled to impose restrictions to protect the safety and welfare of adjacent areas, and went on to note that these restrictions were reasonably related to the problem the planning board sought to alleviate – assuring residents an adequate water supply. The court emphasized that the property was in close proximity to a local reservoir, and also rejected landowner's contentions that the town had acted in bad faith.

State Not Subject to Town Zoning Regulations

Town of Hempstead v. State of New York

NYLJ 8/2/05, p. 19, col. 3

Supreme Ct., Nassau Cty

(O'Connell, J.)

The Town of Hempstead sought a preliminary injunction restraining construction of a cell phone tower on state land located within the town's borders. The court denied the preliminary injunction, concluding that the state was not subject to town zoning restrictions.

When the town received an application for construction of a cell phone tower on the roof of a commercial building in Wantagh, the town contacted the state to see whether the state would permit construction of a tower on state-owned property near the Sunrise Highway and the Seaford Oyster Bay Expressway.

The state's Department of Transportation apparently recommended against construction within 110 feet of Long Island Railroad tracks, and also recommended against construction near the highway intersection because of a scheduled realignment of ramps. The state then received plans for proposed construction of a cell phone tower by Crown Communications in a residential area. After the Department of Transportation issued a negative declaration under SEQRA, the DOT issued as work permit for construction of the tower. In response to objections from the town, the DOT concluded that the town had no jurisdiction, because the state was not subject to local zoning regulations. The town then brought this action.

In denying a preliminary injunction to the town, the court relied on Crown Communications v. Department of Transportation , 4 NY3d 159, in which the Court of Appeals held that state-owned cell phone towers with commercial wireless antenna attachments are not subject to local zoning regulations.

The court held that the Court of Appeals decision in Crown Communications was dispositive here, rejecting the town's contention that the circumstances are different because the instant case involved construction of a new tower rather than mere replacement of an existing tower. The court ultimately concluded that the town had demonstrated no likelihood of success on the merits.