Development

Ordinance Invalidated As Exclusionary

Land Master Montg I LLC v. Town of Montgomery

NYLJ 9/29/06, p. 24, col. 1

Supreme Ct., Orange Cty

(Owen, J.).

In an action by developers challenging the town's enactment of zoning amendments, the developers moved for a declaration that two local laws constituted unlawful exclusionary zoning and that the town board failed to comply with SEQRA in enacting both local laws. The court granted developers' motions, reinstating the pre-existing zoning ordinance.

In its 1965 comprehensive plan, the town designated the 'Scott's Corners' area as a priority growth area, and zoned that area RM-1 (residential multi-family), RA-2, or RA-3 (both residential agricultural designations). In 2001, one developer submitted to the town planning board an application for a 139-acre mixed-use development in the Scott's Corners area that included single-family homes, multi-family homes, and retail facilities. The proposed development included no low or moderate-income housing. The following year, another developer submitted an application for multi-family homes, single-family homes, retail facilities, a swimming pool, and a club house. In the same month as that application was submitted, the town created a committee to prepare a new comprehensive plan. The following month, the town adopted a moratorium on all residential developments in excess of three-dwelling units. The comprehensive plan committee then recommended a reduction in density in the Scott's Corners area. The County Planning department approved the plan, subject to modifications, but expressed concerns about the effect of the proposed amendments on the supply of affordable housing in the area. The Town Board designated itself as lead agency under SEQRA with respect to environmental review of the draft plan, and held public hearings. Ultimately, the Town Board issued a negative declaration, held a public meeting to address implementation of the new plan through rezoning, and rezoned the subject areas into RA-5 and RA-2 districts, deleting from the zoning map ay reference to RM-1, RA-2, or RA-3 districts. The effect of the amendment was to exclude multi-family housing from all areas of the town. The developers then brought this action, contending that the amendment constituted impermissible exclusionary zoning, and that the town board had failed to take the 'hard look' required by SEQRA.

In invalidating the zoning amendment, the court conceded that town officials were entitled to consider traffic issues in considering zoning amendments. But the court held that the town had failed to demonstrate a reasonable relationship between traffic concerns and the complete exclusion of multi-family housing. In particular, the court noted that the town had failed to demonstrate why it could not implement alternative traffic control methods. As a result, the court held that the amendments constituted illegal exclusionary zoning. The court also held that the town had violated SEQRA by failing to consider the impact of the amendments on the supply of affordable housing in the town. The court held that the town had failed to take a hard look at this issue, and did not provide a 'reasoned elaboration' of its determination to eliminate the only multi-family zoning district within its borders. The court held, however, that there was no need to direct a rezoning of the property, because invalidity of the amendments left the pre-existing zoning in effect.

COMMENT

New York courts have struck down residential zoning ordinances that are found to have exclusionary effects, even if those ordinance provide for multi-family housing. Thus, in Continental Bldg. Co. v. Town of North Salem, 211 AD2d 88, the Third Department struck down a zoning ordinance reducing the permitted number of multi-family housing units in the Town from 379 to 129, because the Town could not explain the reduction in multi-family units when the record demonstrated a need for multi-family housing in the Town. In determining that a need for multi-family housing existed in the Town, the court relied on the record, which established that the median household income in the Town was less than one-half of that necessary to sustain a mortgage on the Town's median-priced single-family homes. The court reasoned that, because a multi-family housing need existed and was unjustifiably ignored by the Town, the zoning ordinance was invalid.

However, establishing a residential zoning ordinance's exclusionary effect requires proof that someone was actually excluded. Thus, in Kurzius v. Village of Upper Brookville, 51 NY2d 338, the Court of Appeals upheld a zoning ordinance creating minimum residential lot requirements of two acres in most residential portions of a village and five acres in all other residential areas, because the plaintiff failed to prove that the ordinance actually excluded anyone from housing in the village. The court reasoned that, because the plaintiff brought forth no evidence that people of low and moderate income were excluded from village because of the 'unavailability of properly zoned land,' the zoning ordinance did not have an exclusionary effect. Even when low-income residents have been excluded from a municipality, a challenge to the municipality's zoning practices will be unsuccessful unless the challengers can establish that those practices caused the exclusion. For example, in Suffolk Housing Services v. Town of Brookhaven, 70 NY2d 122, the Court of Appeals upheld a zoning ordinance requiring all multi-family housing developers to obtain special permits ' even when there was inadequate multi-family housing in the area ' because the record demonstrated that rising construction and financing costs as well as economic stagnation were deterring multi-family housing development, not the municipality's special permit requirement. In fact, the court noted that numerous multi-family developer applications had been approved despite the special permit requirement and emphasized the absence of a causal link between the municipality's special permit requirement and the town's lack of multi-family housing.

 

Landowner Entitled to Variance from New Ordinance

Matter of Brentwood Preservation Committee, Inc. v. Town of Harrison

NYLJ 9/27/06, p. 25, col. 1

Supreme Ct., Westchester Cty

(Lippman, J.)

Neighbors brought an article 78 proceeding challenging grant of a variance from a newly enacted zoning ordinance limiting lot coverage. The court denied the petition and dismissed the proceeding, holding that the zoning board of appeals (ZBA) had adequately considered the statutory factors relevant to applications for area variances.

In October 2004, landowner purchased a parcel of land and planned to build two two-family homes, as permitted by the existing zoning ordinance. Landowner sought subdivision approval and approval from the board of architectural review to build the two homes, each of which would cover 34.9% of its respective lot ' consistent with the 35% maximum lot coverage required by the zoning ordinance. In 2005, the town board considered and enacted a zoning amendment limiting lot coverage to 30% of each lot, responding to neighborhood concerns about parking and flooding conditions in the area. Although landowner received subdivision approval and approval from the board of architectural review before the enactment of the ordinance, no building permit had yet been issued. As a result, landowner applied for an area variance from the lot coverage requirement in the amended ordinance. The ZBA granted the variance, concluding that landowner's situation was unique because of the actions landowner had taken before amendment of the ordinance. Neighbors then brought this article 78 proceeding, challenging grant of the variance.

In denying the petition, the court noted that the ZBA had considered the factors relevant to grant of an area variance. The ZBA had emphasized that three newly constructed two family homes had been built to the 35% standard, so that grant of a variance would not produce an undesirable change in the neighborhood. The ZBA also concluded that the variance was not substantial, permitting only an additional 250 square feet of building coverage. Moreover, because landowner had purchased the property before enactment of the amendment, the ZBA had concluded that landowner's hardship was not self-created. In upholding the ZBA's determination, the court emphasized the broad discretion local zoning authorities have in interpreting local zoning ordinances. Here, the court concluded that the ZBA had not abused its discretion.

COMMENT

Vested rights to complete a structure accrue when the developer, pursuant to a valid building permit, makes substantial changes and incurs substantial expenses to further the development of the structure. Thus, rights vest when the developer substantially completes the foundation of the structure pursuant to a legally issued permit. In Glenel Realty Corp. v. Worthington, 4 A.D. 2d 702, the court held that the developer had acquired a vested right to complete structures when, in reliance on four permits, the developer had poured all of the concrete for the foundations prior to the adoption of a zoning amendment that would have rendered the structures nonconforming. By contrast, in Riverdale Community Planning Association v. Crinnion, 133 N.Y.S. 2d 706, the court held that the builder did not acquire a vested right to complete a ten-story apartment building when the builder had not poured any concrete for the foundation before enactment of a new ordinance.

Vested rights to complete a subdivision accrue when the developer, pursuant to subdivision approval, makes substantial improvements that will not be equally useful under an amended zoning ordinance. In Ellington Construction Corporation v. Zoning Board of Appeals 77 N.Y.2d 114, the court held that rights to complete the subdivision had vested when, after receiving subdivision approval, the developer had installed drainage facilities, water and sewer lines, fire hydrants and underground telephone and electric service. The developer established that conformity with a subsequently amended ordinance would have required relocation of every installation. By contrast, in Padwee v. Lustenberger, 226 A.D. 2d 897 the court held that a developer had not acquired a vested right to complete a five-lot subdivision, despite installation of a road and water and sewer mains, because those installations would have been equally useful in the three-lot subdivision allowed by the amended zoning ordinance.

A developer does not, however, acquire vested rights to complete a structure when the developer makes substantial changes and incurs substantial expenses pursuant to an invalid building permit. In Parkview Associates v. City of New York, 71 N.Y.2d 274, the court required developer to remove 12 stories of a 19-story building, even though the developer had relied on issuance of a permit, because the building inspector had interpreted the applicable zoning maps incorrectly and the permit was thus invalid.

Ordinance Invalidated As Exclusionary

Land Master Montg I LLC v. Town of Montgomery

NYLJ 9/29/06, p. 24, col. 1

Supreme Ct., Orange Cty

(Owen, J.).

In an action by developers challenging the town's enactment of zoning amendments, the developers moved for a declaration that two local laws constituted unlawful exclusionary zoning and that the town board failed to comply with SEQRA in enacting both local laws. The court granted developers' motions, reinstating the pre-existing zoning ordinance.

In its 1965 comprehensive plan, the town designated the 'Scott's Corners' area as a priority growth area, and zoned that area RM-1 (residential multi-family), RA-2, or RA-3 (both residential agricultural designations). In 2001, one developer submitted to the town planning board an application for a 139-acre mixed-use development in the Scott's Corners area that included single-family homes, multi-family homes, and retail facilities. The proposed development included no low or moderate-income housing. The following year, another developer submitted an application for multi-family homes, single-family homes, retail facilities, a swimming pool, and a club house. In the same month as that application was submitted, the town created a committee to prepare a new comprehensive plan. The following month, the town adopted a moratorium on all residential developments in excess of three-dwelling units. The comprehensive plan committee then recommended a reduction in density in the Scott's Corners area. The County Planning department approved the plan, subject to modifications, but expressed concerns about the effect of the proposed amendments on the supply of affordable housing in the area. The Town Board designated itself as lead agency under SEQRA with respect to environmental review of the draft plan, and held public hearings. Ultimately, the Town Board issued a negative declaration, held a public meeting to address implementation of the new plan through rezoning, and rezoned the subject areas into RA-5 and RA-2 districts, deleting from the zoning map ay reference to RM-1, RA-2, or RA-3 districts. The effect of the amendment was to exclude multi-family housing from all areas of the town. The developers then brought this action, contending that the amendment constituted impermissible exclusionary zoning, and that the town board had failed to take the 'hard look' required by SEQRA.

In invalidating the zoning amendment, the court conceded that town officials were entitled to consider traffic issues in considering zoning amendments. But the court held that the town had failed to demonstrate a reasonable relationship between traffic concerns and the complete exclusion of multi-family housing. In particular, the court noted that the town had failed to demonstrate why it could not implement alternative traffic control methods. As a result, the court held that the amendments constituted illegal exclusionary zoning. The court also held that the town had violated SEQRA by failing to consider the impact of the amendments on the supply of affordable housing in the town. The court held that the town had failed to take a hard look at this issue, and did not provide a 'reasoned elaboration' of its determination to eliminate the only multi-family zoning district within its borders. The court held, however, that there was no need to direct a rezoning of the property, because invalidity of the amendments left the pre-existing zoning in effect.

COMMENT

New York courts have struck down residential zoning ordinances that are found to have exclusionary effects, even if those ordinance provide for multi-family housing. Thus, in Continental Bldg. Co. v. Town of North Salem, 211 AD2d 88, the Third Department struck down a zoning ordinance reducing the permitted number of multi-family housing units in the Town from 379 to 129, because the Town could not explain the reduction in multi-family units when the record demonstrated a need for multi-family housing in the Town. In determining that a need for multi-family housing existed in the Town, the court relied on the record, which established that the median household income in the Town was less than one-half of that necessary to sustain a mortgage on the Town's median-priced single-family homes. The court reasoned that, because a multi-family housing need existed and was unjustifiably ignored by the Town, the zoning ordinance was invalid.

However, establishing a residential zoning ordinance's exclusionary effect requires proof that someone was actually excluded. Thus, in Kurzius v. Village of Upper Brookville, 51 NY2d 338, the Court of Appeals upheld a zoning ordinance creating minimum residential lot requirements of two acres in most residential portions of a village and five acres in all other residential areas, because the plaintiff failed to prove that the ordinance actually excluded anyone from housing in the village. The court reasoned that, because the plaintiff brought forth no evidence that people of low and moderate income were excluded from village because of the 'unavailability of properly zoned land,' the zoning ordinance did not have an exclusionary effect. Even when low-income residents have been excluded from a municipality, a challenge to the municipality's zoning practices will be unsuccessful unless the challengers can establish that those practices caused the exclusion. For example, in Suffolk Housing Services v. Town of Brookhaven, 70 NY2d 122, the Court of Appeals upheld a zoning ordinance requiring all multi-family housing developers to obtain special permits ' even when there was inadequate multi-family housing in the area ' because the record demonstrated that rising construction and financing costs as well as economic stagnation were deterring multi-family housing development, not the municipality's special permit requirement. In fact, the court noted that numerous multi-family developer applications had been approved despite the special permit requirement and emphasized the absence of a causal link between the municipality's special permit requirement and the town's lack of multi-family housing.

 

Landowner Entitled to Variance from New Ordinance

Matter of Brentwood Preservation Committee, Inc. v. Town of Harrison

NYLJ 9/27/06, p. 25, col. 1

Supreme Ct., Westchester Cty

(Lippman, J.)

Neighbors brought an article 78 proceeding challenging grant of a variance from a newly enacted zoning ordinance limiting lot coverage. The court denied the petition and dismissed the proceeding, holding that the zoning board of appeals (ZBA) had adequately considered the statutory factors relevant to applications for area variances.

In October 2004, landowner purchased a parcel of land and planned to build two two-family homes, as permitted by the existing zoning ordinance. Landowner sought subdivision approval and approval from the board of architectural review to build the two homes, each of which would cover 34.9% of its respective lot ' consistent with the 35% maximum lot coverage required by the zoning ordinance. In 2005, the town board considered and enacted a zoning amendment limiting lot coverage to 30% of each lot, responding to neighborhood concerns about parking and flooding conditions in the area. Although landowner received subdivision approval and approval from the board of architectural review before the enactment of the ordinance, no building permit had yet been issued. As a result, landowner applied for an area variance from the lot coverage requirement in the amended ordinance. The ZBA granted the variance, concluding that landowner's situation was unique because of the actions landowner had taken before amendment of the ordinance. Neighbors then brought this article 78 proceeding, challenging grant of the variance.

In denying the petition, the court noted that the ZBA had considered the factors relevant to grant of an area variance. The ZBA had emphasized that three newly constructed two family homes had been built to the 35% standard, so that grant of a variance would not produce an undesirable change in the neighborhood. The ZBA also concluded that the variance was not substantial, permitting only an additional 250 square feet of building coverage. Moreover, because landowner had purchased the property before enactment of the amendment, the ZBA had concluded that landowner's hardship was not self-created. In upholding the ZBA's determination, the court emphasized the broad discretion local zoning authorities have in interpreting local zoning ordinances. Here, the court concluded that the ZBA had not abused its discretion.

COMMENT

Vested rights to complete a structure accrue when the developer, pursuant to a valid building permit, makes substantial changes and incurs substantial expenses to further the development of the structure. Thus, rights vest when the developer substantially completes the foundation of the structure pursuant to a legally issued permit. In Glenel Realty Corp. v. Worthington, 4 A.D. 2d 702, the court held that the developer had acquired a vested right to complete structures when, in reliance on four permits, the developer had poured all of the concrete for the foundations prior to the adoption of a zoning amendment that would have rendered the structures nonconforming. By contrast, in Riverdale Community Planning Association v. Crinnion, 133 N.Y.S. 2d 706, the court held that the builder did not acquire a vested right to complete a ten-story apartment building when the builder had not poured any concrete for the foundation before enactment of a new ordinance.

Vested rights to complete a subdivision accrue when the developer, pursuant to subdivision approval, makes substantial improvements that will not be equally useful under an amended zoning ordinance. In Ellington Construction Corporation v. Zoning Board of Appeals 77 N.Y.2d 114, the court held that rights to complete the subdivision had vested when, after receiving subdivision approval, the developer had installed drainage facilities, water and sewer lines, fire hydrants and underground telephone and electric service. The developer established that conformity with a subsequently amended ordinance would have required relocation of every installation. By contrast, in Padwee v. Lustenberger, 226 A.D. 2d 897 the court held that a developer had not acquired a vested right to complete a five-lot subdivision, despite installation of a road and water and sewer mains, because those installations would have been equally useful in the three-lot subdivision allowed by the amended zoning ordinance.

A developer does not, however, acquire vested rights to complete a structure when the developer makes substantial changes and incurs substantial expenses pursuant to an invalid building permit. In Parkview Associates v. City of New York, 71 N.Y.2d 274, the court required developer to remove 12 stories of a 19-story building, even though the developer had relied on issuance of a permit, because the building inspector had interpreted the applicable zoning maps incorrectly and the permit was thus invalid.