The Effect of Zoning Amendments on Pending Applications

The Court of Appeals has recognized that when an application for development rights is reviewed by municipal authorities or a court, the reviewing body must generally apply the law in effect at the time of review. Thus, if a zoning ordinance is amended while an application is under review, the amended ordinance is controlling. For example, in Matter of Alscot Investing Corp. v. Village of Rockville Centre, 64 N.Y.2d 921, the court refused to permit construction of a roof sign because, although such roof signs were allowed at the time petitioner filed his application, a subsequent zoning ordinance amendment prohibited these signs. The court held that the amended Code applied and dismissed landowner's article 78 proceeding.

Courts and boards apply amended ordinances to pending development applications because development rights do not vest until the developer has made substantial expenditures and undertaken substantial construction. As the Court of Appeals explained in Matter of Ellington Constr. Corp. v. Zoning Bd. of Appeals, 77 N.Y.2d 114, 'where a more restrictive zoning ordinance is enacted, an owner will be permitted to complete a structure or a development which an amendment has rendered nonconforming only where the owner has undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment.' (In Ellington itself, the court construed what is now Village Law section 7-709 to permit a developer to acquire vested rights in an approved subdivision when, during the statutory exemption period, the developer completed the substantial construction with respect to some, but not all, of the lots in the subdivision). Matter of Smith v. M. Spiegel & Sons, Inc., 31 A.D.2d 819, aff'd 24 N.Y.2d 920, illustrates application of the general rule on vesting of rights. There, the court held that landowner had acquired no vested rights even though landowner had purchased land with the intention of constructing a gasoline service station, had demolished existing structures on the site, and had retained the services of an architect to prepare plans for the service station. As a result, the court held that a subsequently enacted zoning ordinance banning gasoline service stations was applicable to landowner's parcel, as the landowner's preparatory work was not 'work of a substantial character.'