Development

Planning Board Had Duty to Act on Application Despite Village Moratorium

Matter of Mamaroneck Beach & Yacht Club, Inc. v. Fraioli

NYLJ 5/1/06, p. 21, col. 3

Supreme Ct., Westchester Cty

(Lippman, J.)

In landowner's article 78 proceeding to compel the village planning board to initiate review of a site plan, landowner moved for contempt against members of the planning board. The court held that landowner had established its entitlement to contempt sanctions, but exercised its discretion to hold that members would be in contempt if they did not initiate review within 30 days.

Landowner's parcel is located in a Marine Recreation Zoning district, which permits membership clubs as a principal use. Within the district, 'seasonal residences for club members and guests' are a permitted accessory use. In 2004, landowner submitted for site plan review an application to build 31 'seasonal residences' on its 12.84-acre waterfront parcel. At landowner's request, the village building inspector reviewed the application for consistency with the zoning code, and determined that the application was consistent with the code. A neighborhood association then appealed the building inspector's determination to the village's zoning board of appeals. The planning board took the position that it could not consider the application for site plan review until the zoning board of appeals resolved the appeal by the neighborhood association. Landowner then brought this article 78 proceeding challenging the refusal to act. The following day, the village board of trustees noticed a public hearing on a proposed building moratorium in the MR District to permit the village to consider the meaning of seasonal residence within the ordinance. Before the moratorium was enacted, Supreme Court granted landowner's article 78 petition, and ordered the planning board to proceed with site plan review, rejecting the village's contention that the planning board could not act until the zoning board of appeals acted on the appeal of the building inspector's determination. Because the village appealed, enforcement of Supreme Court's order was stayed. Meanwhile, the village board enacted the moratorium. In December 2005, the Appellate Division affirmed Supreme Court's decision, effectively lifting the stay of enforcement. The planning board, however, did not consider the application in deference to the moratorium, which had not been enacted at the time of the original Supreme Court decision. Landowner then moved for contempt.

The Supreme Court held that its earlier determination had been issued in contemplation of the impending moratorium, and that the moratorium did not, therefore, alter the planning board's obligation to act on the application under the terms of the ordinance in place at the time the court made its initial order. Hence, the court concluded that landowner had established the requisites for contempt, but nevertheless concluded that members of the planning board would be held in contempt if site plan review did not begin within 30 days from the date of the court's decision.

COMMENT

See article by Stewart Sterk and Cara Koss.

 

Zoning Board Must Consider Variance Application Despite 20-Year-Old Denial of Similar Application

Matter of Moore v. Town of Islip Zoning Board

NYLJ 5/1/06, p. 35, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to review denial of an application for an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and remitted to the zoning board of appeals, holding that the board could not refuse to consider an application based on a 20-year-old denial of a similar application.

Landowner sought an area variance to build a single-family home on a substandard lot. A prior landowner had sought a similar variance in 1984, and that variance was denied. The zoning board of appeals took the position that the prior determination precluded consideration of the new application. Supreme Court agreed and dismissed landowner's article 78 proceeding. Landowner appealed.

In reversing, the Appellate Division held that when there has been a change in landowner since an earlier variance denial, a zoning board of appeals cannot refuse to consider a new application if there has been a change of circumstance since the earlier denial. Here, the new application did not seek permission to construct a two-car garage, did not seek a variance from the minimum side yard requirement. These changes, together with the 20-year time gap, required the zoning board of appeals to consider the new application.

 

Developer Entitled to Name Undedicated Streets

B.V. Builders, Inc. v. Koury

NYLJ 5/9/06, p. 20, col. 1

Supreme Ct., Orange Cty

(McQuirk, J.)

Developer brought an article 78 proceeding to require the village board of trustees to accept the names developer had proposed for streets in the subdivision. The court granted the petition, holding that the village could not impose names on private streets before the village accepts ownership.

After the village planning board approved developer's application for a 60-lot subdivision, developer notified the village building inspector of the names developer had selected for the five streets within the subdivision. According to the village code, the planning board must approve street names, and the planning board proposed names associated with historically significant places or people within the village. The village board of trustees rejected both alternatives, and named the streets after people who had died on 9/11. Developer then brought this proceeding to compel the village board to accept the names it had selected.

In granting the petition, the court noted that before 1972, the village law explicitly gave village boards the right to name streets, but the current village law confers no similar rights on village boards. The court concluded, nevertheless, that the police power conferred on village boards by Village Law section 4-412(1) gives village boards the power to name streets by local law or resolution. The court, however, concluded that this statute did not extend to naming of private streets. The court acknowledged the absence of cases on point, but nevertheless concluded that developer was entitled to name the streets so long as they have not yet been dedicated to the village.

Planning Board Had Duty to Act on Application Despite Village Moratorium

Matter of Mamaroneck Beach & Yacht Club, Inc. v. Fraioli

NYLJ 5/1/06, p. 21, col. 3

Supreme Ct., Westchester Cty

(Lippman, J.)

In landowner's article 78 proceeding to compel the village planning board to initiate review of a site plan, landowner moved for contempt against members of the planning board. The court held that landowner had established its entitlement to contempt sanctions, but exercised its discretion to hold that members would be in contempt if they did not initiate review within 30 days.

Landowner's parcel is located in a Marine Recreation Zoning district, which permits membership clubs as a principal use. Within the district, 'seasonal residences for club members and guests' are a permitted accessory use. In 2004, landowner submitted for site plan review an application to build 31 'seasonal residences' on its 12.84-acre waterfront parcel. At landowner's request, the village building inspector reviewed the application for consistency with the zoning code, and determined that the application was consistent with the code. A neighborhood association then appealed the building inspector's determination to the village's zoning board of appeals. The planning board took the position that it could not consider the application for site plan review until the zoning board of appeals resolved the appeal by the neighborhood association. Landowner then brought this article 78 proceeding challenging the refusal to act. The following day, the village board of trustees noticed a public hearing on a proposed building moratorium in the MR District to permit the village to consider the meaning of seasonal residence within the ordinance. Before the moratorium was enacted, Supreme Court granted landowner's article 78 petition, and ordered the planning board to proceed with site plan review, rejecting the village's contention that the planning board could not act until the zoning board of appeals acted on the appeal of the building inspector's determination. Because the village appealed, enforcement of Supreme Court's order was stayed. Meanwhile, the village board enacted the moratorium. In December 2005, the Appellate Division affirmed Supreme Court's decision, effectively lifting the stay of enforcement. The planning board, however, did not consider the application in deference to the moratorium, which had not been enacted at the time of the original Supreme Court decision. Landowner then moved for contempt.

The Supreme Court held that its earlier determination had been issued in contemplation of the impending moratorium, and that the moratorium did not, therefore, alter the planning board's obligation to act on the application under the terms of the ordinance in place at the time the court made its initial order. Hence, the court concluded that landowner had established the requisites for contempt, but nevertheless concluded that members of the planning board would be held in contempt if site plan review did not begin within 30 days from the date of the court's decision.

COMMENT

See article by Stewart Sterk and Cara Koss.

 

Zoning Board Must Consider Variance Application Despite 20-Year-Old Denial of Similar Application

Matter of Moore v. Town of Islip Zoning Board

NYLJ 5/1/06, p. 35, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to review denial of an application for an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and remitted to the zoning board of appeals, holding that the board could not refuse to consider an application based on a 20-year-old denial of a similar application.

Landowner sought an area variance to build a single-family home on a substandard lot. A prior landowner had sought a similar variance in 1984, and that variance was denied. The zoning board of appeals took the position that the prior determination precluded consideration of the new application. Supreme Court agreed and dismissed landowner's article 78 proceeding. Landowner appealed.

In reversing, the Appellate Division held that when there has been a change in landowner since an earlier variance denial, a zoning board of appeals cannot refuse to consider a new application if there has been a change of circumstance since the earlier denial. Here, the new application did not seek permission to construct a two-car garage, did not seek a variance from the minimum side yard requirement. These changes, together with the 20-year time gap, required the zoning board of appeals to consider the new application.

 

Developer Entitled to Name Undedicated Streets

B.V. Builders, Inc. v. Koury

NYLJ 5/9/06, p. 20, col. 1

Supreme Ct., Orange Cty

(McQuirk, J.)

Developer brought an article 78 proceeding to require the village board of trustees to accept the names developer had proposed for streets in the subdivision. The court granted the petition, holding that the village could not impose names on private streets before the village accepts ownership.

After the village planning board approved developer's application for a 60-lot subdivision, developer notified the village building inspector of the names developer had selected for the five streets within the subdivision. According to the village code, the planning board must approve street names, and the planning board proposed names associated with historically significant places or people within the village. The village board of trustees rejected both alternatives, and named the streets after people who had died on 9/11. Developer then brought this proceeding to compel the village board to accept the names it had selected.

In granting the petition, the court noted that before 1972, the village law explicitly gave village boards the right to name streets, but the current village law confers no similar rights on village boards. The court concluded, nevertheless, that the police power conferred on village boards by Village Law section 4-412(1) gives village boards the power to name streets by local law or resolution. The court, however, concluded that this statute did not extend to naming of private streets. The court acknowledged the absence of cases on point, but nevertheless concluded that developer was entitled to name the streets so long as they have not yet been dedicated to the village.