Development

Landmarks Designation Requires Additional Review

Mosley v. New York City Landmarks Preservation Commission

NYLJ 12/28/05, p. 18, col. 3

Supreme Ct., New York Cty

(Feinman, J.)

In an article 78 proceeding, homeowners sought to compel the Landmarks Preservation Commission (LPC) to remove their home from the Douglaston Hill Historic District, and to remove the designation from the entire district. The court granted the petition in part, vacated the designation of homeowners' home, and remanded to the LPC for a de novo examination of the documentation with respect to the home.

In 2003, the LPC denied an application to create the Douglaston Hill Historic District. A year later, the LPC granted a similar application and created the District. The LPC included homeowners' home in the District based on its conclusion that the house appeared in an 1873 Atlas, and that the house dated from the period of the late 1860s. Current homeowners purchased the house in 2004, without notice of the designation. They uncovered documentation not examined by LPC, which purports to demonstrate that the earlier structure was demolished before 1919, and that the current house was built between 1919 and 1924. They also procured an affidavit from a licensed architect dating the home to the early 20th century. When the LPC Executive Director and Director of Research informed homeowners that LPC would not reconsider the designation, homeowners brought this article 78 proceeding to vacate LPC's designation.

In granting the petition, the court emphasized the LPC's own interest in having an accurate assessment of a historic building, and concluded that LPC had no rational basis for refusing to evaluate the documentary evidence submitted by homeowners. Hence, the court remanded to LPC for de novo review of the designation. At the same time, the court rejected homeowners' contention that the designation of the historic district should be revoked. Home-owners had argued that LPC had not offered any reasons for reversing its 2003 decision not to designate the District, but the court noted differences between the two proposals, and concluded that it was appropriate to defer to the agency's expertise on that issue.

Zoning Board Complied with SEQRA

Matter of Halperin v. City of New Rochelle

NYLJ 1/4/06, p. 39, col. 2

AppDiv, Second Dept

(memorandum opinion)

Neighbors brought an article 78 proceeding challenging the city's grant of a permit to construct a synagogue, and grant or parking variances in connection with that synagogue. The court denied the petition and dismissed the proceeding, holding that the zoning board properly applied statutory criteria for area variances, and complied with all requirements imposed by the State Environmental Quality Review Act (SEQRA).

In preparation for construction of a new house of worship, a congregation sought variances from the off-street parking requirements imposed by the city zoning ordinance. After review of an environmental impact statement, the zoning board approved the project and granted area variances for off-street parking. Neighbors then brought this article 78 proceeding in Supreme Court, and Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division started by concluding that Supreme Court's transfer was improper. Because the zoning board's determination was quasi-legislative, the determination was subject to an “arbitrary and capricious” standard of review — not a “substantial evidence” standard. As a result, the proceeding was governed by CPLR 7803(3), not CPLR 7803(4), and transfer to the Appellate Division was not authorized by statute. The court nevertheless decided the case on the merits in the interests of judicial economy, and emphasized that the zoning board had properly applied the criteria for area variances — not use variances — to the request for a variance from off-street parking requirements. The court went on to reject the argument that the zoning board had delegated to private consultants its functions under SEQRA, noting that the board had reviewed an environmental impact statement, and had made numerous modifications to the congregation's initial proposal. The court also rejected neighbors' contention that the zoning board was required to analyze the cumulative impact of the proposed project in connection with other planned development in the vicinity of the subject property.

Owner May Not Convert Nonconforming Use from Accessory to Principal Use

People v. Orr

NYLJ 1/11/06, p. 25, col. 3

AppTerm, 9th & 10th Districts

(memorandum opinion)

Landowner appealed from a conviction for operating an automobile sales establishment without a special permit. The Appellate Term affirmed the conviction, holding that the non-conforming use of the premises as an automobile repair station did not entitle landowner to use the establishment for sale of automobiles.

Since 1928, the parcel in question has been used primarily as a gasoline station and automobile repair shop. Although there are apparently no longer gasoline pumps at the shop, the premises continue to be used as a repair shop. This nonconforming use predated the existing zoning ordinance, which requires a special permit for use as an automobile sales establishment. The Village brought this proceeding against the owner contending that use for auto sales without a permit constituted a violation. The village justice court agreed, and assessed a fine of $1000.

In affirming, the Appellate Term rejected landowner's argument that automobile sales were a permitted accessory use for an automobile repair shop. The court acknowledged that a nonconforming use carries with it the right to customarily incidental accessory uses, but concluded that sale of automobiles was not “customarily incidental” to the repair shop. Moreover, the court held that even if use of the premises for an occasional auto sale was a valid accessory use, photographs established that use for auto sales was now so extensive that it might have become the principal use. The court went on to hold that change of a nonconforming use from an accessory use to a principal use constitutes a change of use, and causes landowner to lose protection otherwise attached to nonconforming uses.

Landmarks Designation Requires Additional Review

Mosley v. New York City Landmarks Preservation Commission

NYLJ 12/28/05, p. 18, col. 3

Supreme Ct., New York Cty

(Feinman, J.)

In an article 78 proceeding, homeowners sought to compel the Landmarks Preservation Commission (LPC) to remove their home from the Douglaston Hill Historic District, and to remove the designation from the entire district. The court granted the petition in part, vacated the designation of homeowners' home, and remanded to the LPC for a de novo examination of the documentation with respect to the home.

In 2003, the LPC denied an application to create the Douglaston Hill Historic District. A year later, the LPC granted a similar application and created the District. The LPC included homeowners' home in the District based on its conclusion that the house appeared in an 1873 Atlas, and that the house dated from the period of the late 1860s. Current homeowners purchased the house in 2004, without notice of the designation. They uncovered documentation not examined by LPC, which purports to demonstrate that the earlier structure was demolished before 1919, and that the current house was built between 1919 and 1924. They also procured an affidavit from a licensed architect dating the home to the early 20th century. When the LPC Executive Director and Director of Research informed homeowners that LPC would not reconsider the designation, homeowners brought this article 78 proceeding to vacate LPC's designation.

In granting the petition, the court emphasized the LPC's own interest in having an accurate assessment of a historic building, and concluded that LPC had no rational basis for refusing to evaluate the documentary evidence submitted by homeowners. Hence, the court remanded to LPC for de novo review of the designation. At the same time, the court rejected homeowners' contention that the designation of the historic district should be revoked. Home-owners had argued that LPC had not offered any reasons for reversing its 2003 decision not to designate the District, but the court noted differences between the two proposals, and concluded that it was appropriate to defer to the agency's expertise on that issue.

Zoning Board Complied with SEQRA

Matter of Halperin v. City of New Rochelle

NYLJ 1/4/06, p. 39, col. 2

AppDiv, Second Dept

(memorandum opinion)

Neighbors brought an article 78 proceeding challenging the city's grant of a permit to construct a synagogue, and grant or parking variances in connection with that synagogue. The court denied the petition and dismissed the proceeding, holding that the zoning board properly applied statutory criteria for area variances, and complied with all requirements imposed by the State Environmental Quality Review Act (SEQRA).

In preparation for construction of a new house of worship, a congregation sought variances from the off-street parking requirements imposed by the city zoning ordinance. After review of an environmental impact statement, the zoning board approved the project and granted area variances for off-street parking. Neighbors then brought this article 78 proceeding in Supreme Court, and Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division started by concluding that Supreme Court's transfer was improper. Because the zoning board's determination was quasi-legislative, the determination was subject to an “arbitrary and capricious” standard of review — not a “substantial evidence” standard. As a result, the proceeding was governed by CPLR 7803(3), not CPLR 7803(4), and transfer to the Appellate Division was not authorized by statute. The court nevertheless decided the case on the merits in the interests of judicial economy, and emphasized that the zoning board had properly applied the criteria for area variances — not use variances — to the request for a variance from off-street parking requirements. The court went on to reject the argument that the zoning board had delegated to private consultants its functions under SEQRA, noting that the board had reviewed an environmental impact statement, and had made numerous modifications to the congregation's initial proposal. The court also rejected neighbors' contention that the zoning board was required to analyze the cumulative impact of the proposed project in connection with other planned development in the vicinity of the subject property.

Owner May Not Convert Nonconforming Use from Accessory to Principal Use

People v. Orr

NYLJ 1/11/06, p. 25, col. 3

AppTerm, 9th & 10th Districts

(memorandum opinion)

Landowner appealed from a conviction for operating an automobile sales establishment without a special permit. The Appellate Term affirmed the conviction, holding that the non-conforming use of the premises as an automobile repair station did not entitle landowner to use the establishment for sale of automobiles.

Since 1928, the parcel in question has been used primarily as a gasoline station and automobile repair shop. Although there are apparently no longer gasoline pumps at the shop, the premises continue to be used as a repair shop. This nonconforming use predated the existing zoning ordinance, which requires a special permit for use as an automobile sales establishment. The Village brought this proceeding against the owner contending that use for auto sales without a permit constituted a violation. The village justice court agreed, and assessed a fine of $1000.

In affirming, the Appellate Term rejected landowner's argument that automobile sales were a permitted accessory use for an automobile repair shop. The court acknowledged that a nonconforming use carries with it the right to customarily incidental accessory uses, but concluded that sale of automobiles was not “customarily incidental” to the repair shop. Moreover, the court held that even if use of the premises for an occasional auto sale was a valid accessory use, photographs established that use for auto sales was now so extensive that it might have become the principal use. The court went on to hold that change of a nonconforming use from an accessory use to a principal use constitutes a change of use, and causes landowner to lose protection otherwise attached to nonconforming uses.