Development

ZBA May Not Deny Variances For Pre-Existing Structures

Matter of Cinelli Family Limited Partnership v. Scheyer

NYLJ 5/5/08, p. 35, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to annul variance denials, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the ZBA's determination to deny variances for pre-existing structures was contrary to law.

In 2002, landowner built an extension to his house, and also added a deck, ponds, a retaining wall, and a cabana. The cabana was 14.97
feet high, and the retaining wall was set back less than a foot from the property line. After landowner had completed the improvements, the town amended its zoning ordinance to limit the height of accessory structures to 14 feet, and to impose a four-foot setback requirement for walls higher than 18 inches. Landowner then applied to the ZBA for the right to maintain these improvements. The ZBA granted landowner's application in part, but denied variances for the retaining wall, for the cabana height, and
for the increase in FAR resulting from construction of the cabana. Landowner then brought this article 78 proceeding, and the Supreme Court granted the petition.

In affirming, the court first noted that the retaining wall was not subject to any permit or setback requirements at the time it was built, and therefore qualified as a protected pre-existing non-conforming use. With respect to the cabana, the court acknowledged that landowner had not obtained the building permit required under then-existing law, but noted that failure to secure a required permit or license does not deprive landowner of the right to maintain a pre-existing use that would have been permitted by the applicable zoning ordinance. As a result, landowner was entitled to maintain the cabana despite the excess height. Finally, with respect to the increase in FAR, the court noted that the house itself exceeded the applicable FAR, yet a certificate of occupancy had been issued for the house despite that noncompliance. Because the increase in FAR attributable to the cabana was de minimis, the court concluded that the ZBA's variance denial lacked a rational basis.

Neighbor Not Entitled to Writ of Prohibition Against Planning Board

Matter of Gasland Petroleum Inc. v. Planning Board

NYLJ 4/28/08, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In a neighbor's article 78 proceeding to prohibit the town planning board from continuing review of a site plan, the neighbor appealed from the Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that a writ of prohibition does not lie because the planning board does not act in a judicial or quasi-judicial capacity.

Neighbor operates a gasoline station and convenience store. In July 2005, Stop & Shop applied for site plan approval and for a special permit to permit expansion of an existing shopping center to include addition of a gasoline fueling facility. The proposed plan would require two variances. In October 2005, Stop & Shop applied to the zoning board of appeals for the variances. The ZBA then adjourned further action awaiting SEQRA review by the planning board, which had declared itself lead agency. Neighbor then brought this proceeding to prevent the planning board from taking further action unless and until the ZBA acts on the variance application, and to compel the ZBA to continue its review of the variance application. The Supreme Court dismissed the proceeding.

In affirming, the Appellate Division started by noting that a writ of prohibition is available only against an entity acting in a judicial or quasi-judicial capacity. The court concluded that the planning board was not acting in such a capacity. But the court went on to hold that in any event, the neighbor had failed to establish a clear legal right to the remedy, or that its grievance could not adequately be addressed by seeking review of the planning board determination after it is made. Similarly, the neighbor had failed to establish a clear legal right to mandamus compelling the ZBA to act. As a result, the Supreme Court properly dismissed the proceeding.

ZBA May Not Deny Variances For Pre-Existing Structures

Matter of Cinelli Family Limited Partnership v. Scheyer

NYLJ 5/5/08, p. 35, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to annul variance denials, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the ZBA's determination to deny variances for pre-existing structures was contrary to law.

In 2002, landowner built an extension to his house, and also added a deck, ponds, a retaining wall, and a cabana. The cabana was 14.97
feet high, and the retaining wall was set back less than a foot from the property line. After landowner had completed the improvements, the town amended its zoning ordinance to limit the height of accessory structures to 14 feet, and to impose a four-foot setback requirement for walls higher than 18 inches. Landowner then applied to the ZBA for the right to maintain these improvements. The ZBA granted landowner's application in part, but denied variances for the retaining wall, for the cabana height, and
for the increase in FAR resulting from construction of the cabana. Landowner then brought this article 78 proceeding, and the Supreme Court granted the petition.

In affirming, the court first noted that the retaining wall was not subject to any permit or setback requirements at the time it was built, and therefore qualified as a protected pre-existing non-conforming use. With respect to the cabana, the court acknowledged that landowner had not obtained the building permit required under then-existing law, but noted that failure to secure a required permit or license does not deprive landowner of the right to maintain a pre-existing use that would have been permitted by the applicable zoning ordinance. As a result, landowner was entitled to maintain the cabana despite the excess height. Finally, with respect to the increase in FAR, the court noted that the house itself exceeded the applicable FAR, yet a certificate of occupancy had been issued for the house despite that noncompliance. Because the increase in FAR attributable to the cabana was de minimis, the court concluded that the ZBA's variance denial lacked a rational basis.

Neighbor Not Entitled to Writ of Prohibition Against Planning Board

Matter of Gasland Petroleum Inc. v. Planning Board

NYLJ 4/28/08, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In a neighbor's article 78 proceeding to prohibit the town planning board from continuing review of a site plan, the neighbor appealed from the Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that a writ of prohibition does not lie because the planning board does not act in a judicial or quasi-judicial capacity.

Neighbor operates a gasoline station and convenience store. In July 2005, Stop & Shop applied for site plan approval and for a special permit to permit expansion of an existing shopping center to include addition of a gasoline fueling facility. The proposed plan would require two variances. In October 2005, Stop & Shop applied to the zoning board of appeals for the variances. The ZBA then adjourned further action awaiting SEQRA review by the planning board, which had declared itself lead agency. Neighbor then brought this proceeding to prevent the planning board from taking further action unless and until the ZBA acts on the variance application, and to compel the ZBA to continue its review of the variance application. The Supreme Court dismissed the proceeding.

In affirming, the Appellate Division started by noting that a writ of prohibition is available only against an entity acting in a judicial or quasi-judicial capacity. The court concluded that the planning board was not acting in such a capacity. But the court went on to hold that in any event, the neighbor had failed to establish a clear legal right to the remedy, or that its grievance could not adequately be addressed by seeking review of the planning board determination after it is made. Similarly, the neighbor had failed to establish a clear legal right to mandamus compelling the ZBA to act. As a result, the Supreme Court properly dismissed the proceeding.