Development

Time Limit on Existing Variance

Matter of Haberman v. Zoning Board of Appeals

NYLJ 11/20/07, p. 28, col. 3

Court of Appeals (Opinion by Smith, J.)

In landowner's proceeding to annul denial of a variance, landowner appealed from the Appellate Division's reversal of Supreme Court's determination annulling the variance. The Court of Appeals reversed and remanded to the Appellate Division, holding that the Corporation Counsel had authority to bind the city to an extension of a time limit imposed on an existing variance.

In the 1980s, the City of Long Beach Zoning Board of Appeals (ZBA) granted landowner a variance to build a four-tower residential condominium complex. After construction of the first tower, dispute arose about the terms of the variance. Litigation between landowner and city officials was settled by a 1989 stipulation. By the terms of the stipulation, landowner would apply for new variances to permit construction of the three towers not yet built. The stipulation required the landowner to apply for building permits within specified time limits after grant of the variances, and also required landowner to pay $200,000 for public improvements, with the city to construct those improvements (including installation of underground utility lines) within two years after receipt of the money. Landowner applied for the variances, the ZBA granted the variances on Aug. 4, 1989, and landowner paid the required $200,000. The city, however, did not begin installation of utility lines within two years. The city asked landowner for an extension of time, and the landowner granted the extension on condition that the time limits on applying for building permits would also be extended. In 1992, landowner and the city's Corporation Counsel agreed that the time limits on applying for the building permits would be tolled until the city had complied with its obligations to install public improvements.

In 2002, landowner applied for a building permit for the second tower, and the city's building department issued the permit. The cooperative corporation that had acquired the first tower opposed the new construction and asked the ZBA to revoke the building permit. The ZBA revoked the permit, relying on landowner's failure to meet the time limits in the 1989 stipulation. The ZBA concluded that it was not bound by the extension of time agreed to by the Corporation Counsel. Landowner then brought this proceeding challenging revocation of the permit. The Supreme Court annulled the revocation, but the Appellate Division reversed, and landowner appealed.

In reversing, the Court of Appeals acknowledged that grant of a variance typically requires action by the ZBA, but concluded that in this case, the variance had already been issued in 1989. The court concluded that the same formality was not required to extend the time limits specified in the variance. The court concluded that the Corporation Counsel had apparent authority to act on behalf of the ZBA, and that it would be unfair to hold that the agreement between landowner and the Corporation Counsel was a nullity because the parties did not follow a procedure that no statute and no precedent required.

Time Limit on Existing Variance

Matter of Haberman v. Zoning Board of Appeals

NYLJ 11/20/07, p. 28, col. 3

Court of Appeals (Opinion by Smith, J.)

In landowner's proceeding to annul denial of a variance, landowner appealed from the Appellate Division's reversal of Supreme Court's determination annulling the variance. The Court of Appeals reversed and remanded to the Appellate Division, holding that the Corporation Counsel had authority to bind the city to an extension of a time limit imposed on an existing variance.

In the 1980s, the City of Long Beach Zoning Board of Appeals (ZBA) granted landowner a variance to build a four-tower residential condominium complex. After construction of the first tower, dispute arose about the terms of the variance. Litigation between landowner and city officials was settled by a 1989 stipulation. By the terms of the stipulation, landowner would apply for new variances to permit construction of the three towers not yet built. The stipulation required the landowner to apply for building permits within specified time limits after grant of the variances, and also required landowner to pay $200,000 for public improvements, with the city to construct those improvements (including installation of underground utility lines) within two years after receipt of the money. Landowner applied for the variances, the ZBA granted the variances on Aug. 4, 1989, and landowner paid the required $200,000. The city, however, did not begin installation of utility lines within two years. The city asked landowner for an extension of time, and the landowner granted the extension on condition that the time limits on applying for building permits would also be extended. In 1992, landowner and the city's Corporation Counsel agreed that the time limits on applying for the building permits would be tolled until the city had complied with its obligations to install public improvements.

In 2002, landowner applied for a building permit for the second tower, and the city's building department issued the permit. The cooperative corporation that had acquired the first tower opposed the new construction and asked the ZBA to revoke the building permit. The ZBA revoked the permit, relying on landowner's failure to meet the time limits in the 1989 stipulation. The ZBA concluded that it was not bound by the extension of time agreed to by the Corporation Counsel. Landowner then brought this proceeding challenging revocation of the permit. The Supreme Court annulled the revocation, but the Appellate Division reversed, and landowner appealed.

In reversing, the Court of Appeals acknowledged that grant of a variance typically requires action by the ZBA, but concluded that in this case, the variance had already been issued in 1989. The court concluded that the same formality was not required to extend the time limits specified in the variance. The court concluded that the Corporation Counsel had apparent authority to act on behalf of the ZBA, and that it would be unfair to hold that the agreement between landowner and the Corporation Counsel was a nullity because the parties did not follow a procedure that no statute and no precedent required.