Development

Town Law Prohibits Subdivision Review Until ZBA Has Granted Variance

Matter of Deon v. Town of Brookhaven

NYLJ 9/6/06, p. 23, col. 3

Supreme Ct., Suffolk Cty

(Spinner, J.)

In an article 78 proceeding, landowner challenged the town planning board's denial of its subdivision application and the determination of the zoning board of appeals (ZBA) indefinitely deferring consideration of landowner's variance application. The court granted the petition, concluding that the land use review procedures established by the Town of Brookhaven were inconsistent with state law.

Landowner owns a parcel of land comprising about 37,000 square feet. The minimum lot size in the area is 20,000 square feet, but landowner sought to subdivide his parcel into two lots, one of which would be non-conforming. The Town of Brookhaven, however, amended its town code to prohibit the ZBA from acting on variances concerning minor subdivisions before the planning board considers landowner's subdivision application. Nevertheless, landowner applied to the ZBA for a variance, but the ZBA held a hearing and adjourned the matter, marking it 'held indefinitely.' At the same time, landowner applied to the planning board for subdivision approval, contending that the nonconforming lot was no smaller than 64 of the 84 surrounding lots and was in keeping with existing development in the area. The planning board denied subdivision approval, apparently relying in part on the parcel's nonconformity with the applicable zoning ordinance. Landowner then brought this article 78 proceeding.

In granting the petition, the court concluded that the Town Law requires consideration of variance applications by the ZBA before the planning board considers granting relief that requires compliance with the zoning ordinance as a precondition. The court emphasized the independent statutory authority of the ZBA, which precludes the town board from eviscerating determinations by the ZBA or controlling the course of litigation against the ZBA. Hence, the court annulled the determination of the planning board, and remanded to the town for proper review in compliance with state law.

COMMENT

The text of NY CLS Town ' 277 suggests that a zoning board of appeals must resolve zoning compliance issues before a planning board resolves subdivision compliance issues. ' 277(3) requires that a plat 'at least' comply with existing zoning regulations before a planning board conducts its subdivision review. In the event a plat does not comply with zoning regulations, ' 277(6) requires that an application be made to the zoning board of appeals for a variance. ' 277 does not sanction a planning board's conducting a subdivision review on a plat which fails to comply with existing zoning regulations; therefore, when a plat does not conform to existing zoning regulations, an application for a variance must be made to the zoning board of appeals before a planning board conducts its subdivision review. Moreover, the process that ' 277 implicitly requires saves planning boards from making determinations of no effect. A planning board's grant of subdivision approval is of no consequence if a zoning board of appeals finds the plat in violation of a zoning ordinance and refuses to grant a variance. Of course, if a planning board denies subdivision approval after a zoning board of appeals grants a variance, the zoning board of appeals' decision would also be of no consequence, but that seems to be of less concern to the legislature.

Furthermore, once a zoning board of appeals grants a variance, a planning board generally has no authority to disapprove an application for subdivision on the ground that a plat fails to comply with zoning regulations. NY CLS Town '267-b permits zoning boards of appeal to waive or excuse zoning ordinances by way of granting variances. Those variances are binding on planning boards. Thus, in Thurman v. Holahan 123 AD2d 687, the Second Department held that a planning board did not have the power to reject a subdivision application because it failed to conform to a town zoning ordinance, where the zoning board of appeals had already granted an area variance on the ground that the proposed project sufficiently conformed to the zoning ordinance. The court concluded that once the zoning board of appeals had granted a variance, the planning board had to defer to the zoning board of appeal's determination. See also J&R Esposito Builders v. Coffman 183 AD2d 828.

However, a planning board is justified in disapproving an application for subdivision on the ground that a plat does not comply with zoning regulations, even after a variance is granted, if the nature and scope of the variance is unclear. Therefore, in Panariello v. Demetri, 99 AD2d 770, the Second Department affirmed a planning board's rejection of a subdivision application, even though the applicant had obtained a variance from the zoning board of appeals, because the zoning board of appeals failed to specify whether the variance relieved the applicant of frontage requirements along an existing road or whether the applicant was seeking to use a private-right-of-way to access his subdivision. The court noted that because the nature and scope of the variance were unclear, the planning board did not act arbitrarily in rejecting the subdivision application.

Town Law Prohibits Subdivision Review Until ZBA Has Granted Variance

Matter of Deon v. Town of Brookhaven

NYLJ 9/6/06, p. 23, col. 3

Supreme Ct., Suffolk Cty

(Spinner, J.)

In an article 78 proceeding, landowner challenged the town planning board's denial of its subdivision application and the determination of the zoning board of appeals (ZBA) indefinitely deferring consideration of landowner's variance application. The court granted the petition, concluding that the land use review procedures established by the Town of Brookhaven were inconsistent with state law.

Landowner owns a parcel of land comprising about 37,000 square feet. The minimum lot size in the area is 20,000 square feet, but landowner sought to subdivide his parcel into two lots, one of which would be non-conforming. The Town of Brookhaven, however, amended its town code to prohibit the ZBA from acting on variances concerning minor subdivisions before the planning board considers landowner's subdivision application. Nevertheless, landowner applied to the ZBA for a variance, but the ZBA held a hearing and adjourned the matter, marking it 'held indefinitely.' At the same time, landowner applied to the planning board for subdivision approval, contending that the nonconforming lot was no smaller than 64 of the 84 surrounding lots and was in keeping with existing development in the area. The planning board denied subdivision approval, apparently relying in part on the parcel's nonconformity with the applicable zoning ordinance. Landowner then brought this article 78 proceeding.

In granting the petition, the court concluded that the Town Law requires consideration of variance applications by the ZBA before the planning board considers granting relief that requires compliance with the zoning ordinance as a precondition. The court emphasized the independent statutory authority of the ZBA, which precludes the town board from eviscerating determinations by the ZBA or controlling the course of litigation against the ZBA. Hence, the court annulled the determination of the planning board, and remanded to the town for proper review in compliance with state law.

COMMENT

The text of NY CLS Town ' 277 suggests that a zoning board of appeals must resolve zoning compliance issues before a planning board resolves subdivision compliance issues. ' 277(3) requires that a plat 'at least' comply with existing zoning regulations before a planning board conducts its subdivision review. In the event a plat does not comply with zoning regulations, ' 277(6) requires that an application be made to the zoning board of appeals for a variance. ' 277 does not sanction a planning board's conducting a subdivision review on a plat which fails to comply with existing zoning regulations; therefore, when a plat does not conform to existing zoning regulations, an application for a variance must be made to the zoning board of appeals before a planning board conducts its subdivision review. Moreover, the process that ' 277 implicitly requires saves planning boards from making determinations of no effect. A planning board's grant of subdivision approval is of no consequence if a zoning board of appeals finds the plat in violation of a zoning ordinance and refuses to grant a variance. Of course, if a planning board denies subdivision approval after a zoning board of appeals grants a variance, the zoning board of appeals' decision would also be of no consequence, but that seems to be of less concern to the legislature.

Furthermore, once a zoning board of appeals grants a variance, a planning board generally has no authority to disapprove an application for subdivision on the ground that a plat fails to comply with zoning regulations. NY CLS Town '267-b permits zoning boards of appeal to waive or excuse zoning ordinances by way of granting variances. Those variances are binding on planning boards. Thus, in Thurman v. Holahan 123 AD2d 687, the Second Department held that a planning board did not have the power to reject a subdivision application because it failed to conform to a town zoning ordinance, where the zoning board of appeals had already granted an area variance on the ground that the proposed project sufficiently conformed to the zoning ordinance. The court concluded that once the zoning board of appeals had granted a variance, the planning board had to defer to the zoning board of appeal's determination. See also J&R Esposito Builders v. Coffman 183 AD2d 828.

However, a planning board is justified in disapproving an application for subdivision on the ground that a plat does not comply with zoning regulations, even after a variance is granted, if the nature and scope of the variance is unclear. Therefore, in Panariello v. Demetri, 99 AD2d 770, the Second Department affirmed a planning board's rejection of a subdivision application, even though the applicant had obtained a variance from the zoning board of appeals, because the zoning board of appeals failed to specify whether the variance relieved the applicant of frontage requirements along an existing road or whether the applicant was seeking to use a private-right-of-way to access his subdivision. The court noted that because the nature and scope of the variance were unclear, the planning board did not act arbitrarily in rejecting the subdivision application.