Development

Owner Must Provide Assurance That Building Would Conform to Zoning Ordinance

Matter of 9^th & 10^th Street LLC v. Board of Standards and Appeals

NYLJ 3/26/08, p. 29, col. 5

Court of Appeals

(Opinion by Smith, J.)

In landowner's article 78 proceeding challenging the denial of a building permit, the Board of Standards and Appeals appealed from the Appellate Division's reversal of Supreme Court's determination dismissing the petition. The Court of Appeals reversed and reinstated Supreme Court's judgment dismissing the petition, holding that the Board could reasonably deny a permit when landowner could not provide assurance that the proposed building would be used in conformity with the applicable zoning ordinance.

Landowner acquired from the city a lot in Manhattan occupied by a former school building. The deed to landowner restricts development to a 'community-facility use' as defined in the city's zoning resolution. Community facility uses include college or school student dormitories. Apartment buildings, by contrast, would not be permitted under the deed restriction, and would be limited under the zoning ordinance to 10 stories. Landowner submitted an application to the Department of Buildings to build a 19-story dormitory that would be configured much like an apartment building. The Department of Buildings denied the permit, concluding that a building qualifies as a dormitory only if it operated by, or on behalf of, at least one college or school. The Department asked landowner to substantiate an institutional nexus, and when landowner failed, the Department denied the permit. The Board of Standards and Appeals denied landowner's appeal, and landowner then brought this article 78 proceeding. Supreme Court dismissed the proceeding, but a divided Appellate Division reversed and granted the petition, holding that the Department could not deny a permit based solely on fear that the building would be put to 'a possible future illegal use.'

In reversing, the Court of Appeals held that the Board had acted properly. The court noted that it would create needless problems if landowner built the 19-story building, only to discover that it could not use the building in a legally permitted way. The city would then have to choose between waiving the restrictions or requiring the building to remain vacant or be torn down. On these facts, the city's decision was not arbitrary. The court distinguished the facts of his case from others in which it was clear that the building would initially be put to a permitted use, but the zoning authorities had denied a permit out of fear that the building would later be converted to an illegal use.

Ordinance not Inconsistent With Town Plan

Infinity Consulting Group v. Town of Huntington

NYLJ 3/31/08, p. 31, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action to declare a zoning classification invalid for failure to comply with the town's comprehensive plan, the town appealed from Supreme Court's declaration that the classification was invalid. The Appellate Division reversed, relying in part on the presumption that one who challenges a legislative act bears a heavy burden.

Landowner's one-acre parcel, which fronts on Route 110 in Huntington, has been zoned for residential use since 1947, and a single-family home sits on the premises. In 1993, the town adopted a comprehensive plan designating the front 250 feet of the parcel for commercial purposes, while the remainder of the parcel would remain residential. The town, however, never amended its zoning ordinance to permit commercial use on the parcel. Current owner bought the parcel in 2000 with the intention of using it for office purposes, and sought an amendment to the zoning ordinance to permit commercial use. When the town board denied the application, landowner brought this action to declare the existing zoning ordinance invalid as inconsistent with the town's comprehensive plan. Supreme Court agreed, and declared the ordinance invalid with respect to landowner's parcel. The town appealed.

In reversing, the Appellate Division acknowledged that Town Law section 272-a(11) provides that when a town has adopted a comprehensive plan, the town's zoning decisions must be consistent with that plan. But the court held that the statute requires only that zoning decisions must be consistent with a total planning strategy, not that there be slavish adherence to a particular comprehensive plan. In this case, the court noted that currently, there is no entrance to the subject property from Route 110, and that the property is at the entrance to a residential neighborhood from a commercial roadway. The court held that in denying any rezoning, the town acted rationally in light of legitimate concerns about the effect a commercial use would have on traffic congestion and the character of the residential neighborhood.

Owner Must Provide Assurance That Building Would Conform to Zoning Ordinance

Matter of 9^th & 10^th Street LLC v. Board of Standards and Appeals

NYLJ 3/26/08, p. 29, col. 5

Court of Appeals

(Opinion by Smith, J.)

In landowner's article 78 proceeding challenging the denial of a building permit, the Board of Standards and Appeals appealed from the Appellate Division's reversal of Supreme Court's determination dismissing the petition. The Court of Appeals reversed and reinstated Supreme Court's judgment dismissing the petition, holding that the Board could reasonably deny a permit when landowner could not provide assurance that the proposed building would be used in conformity with the applicable zoning ordinance.

Landowner acquired from the city a lot in Manhattan occupied by a former school building. The deed to landowner restricts development to a 'community-facility use' as defined in the city's zoning resolution. Community facility uses include college or school student dormitories. Apartment buildings, by contrast, would not be permitted under the deed restriction, and would be limited under the zoning ordinance to 10 stories. Landowner submitted an application to the Department of Buildings to build a 19-story dormitory that would be configured much like an apartment building. The Department of Buildings denied the permit, concluding that a building qualifies as a dormitory only if it operated by, or on behalf of, at least one college or school. The Department asked landowner to substantiate an institutional nexus, and when landowner failed, the Department denied the permit. The Board of Standards and Appeals denied landowner's appeal, and landowner then brought this article 78 proceeding. Supreme Court dismissed the proceeding, but a divided Appellate Division reversed and granted the petition, holding that the Department could not deny a permit based solely on fear that the building would be put to 'a possible future illegal use.'

In reversing, the Court of Appeals held that the Board had acted properly. The court noted that it would create needless problems if landowner built the 19-story building, only to discover that it could not use the building in a legally permitted way. The city would then have to choose between waiving the restrictions or requiring the building to remain vacant or be torn down. On these facts, the city's decision was not arbitrary. The court distinguished the facts of his case from others in which it was clear that the building would initially be put to a permitted use, but the zoning authorities had denied a permit out of fear that the building would later be converted to an illegal use.

Ordinance not Inconsistent With Town Plan

Infinity Consulting Group v. Town of Huntington

NYLJ 3/31/08, p. 31, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action to declare a zoning classification invalid for failure to comply with the town's comprehensive plan, the town appealed from Supreme Court's declaration that the classification was invalid. The Appellate Division reversed, relying in part on the presumption that one who challenges a legislative act bears a heavy burden.

Landowner's one-acre parcel, which fronts on Route 110 in Huntington, has been zoned for residential use since 1947, and a single-family home sits on the premises. In 1993, the town adopted a comprehensive plan designating the front 250 feet of the parcel for commercial purposes, while the remainder of the parcel would remain residential. The town, however, never amended its zoning ordinance to permit commercial use on the parcel. Current owner bought the parcel in 2000 with the intention of using it for office purposes, and sought an amendment to the zoning ordinance to permit commercial use. When the town board denied the application, landowner brought this action to declare the existing zoning ordinance invalid as inconsistent with the town's comprehensive plan. Supreme Court agreed, and declared the ordinance invalid with respect to landowner's parcel. The town appealed.

In reversing, the Appellate Division acknowledged that Town Law section 272-a(11) provides that when a town has adopted a comprehensive plan, the town's zoning decisions must be consistent with that plan. But the court held that the statute requires only that zoning decisions must be consistent with a total planning strategy, not that there be slavish adherence to a particular comprehensive plan. In this case, the court noted that currently, there is no entrance to the subject property from Route 110, and that the property is at the entrance to a residential neighborhood from a commercial roadway. The court held that in denying any rezoning, the town acted rationally in light of legitimate concerns about the effect a commercial use would have on traffic congestion and the character of the residential neighborhood.