Development

Variance Grant Limits Planning Board Power

Matter of Ashley Homes v. Odea

NYLJ 5/27/08, p. 26, col. 3

AppDiv, Second Dept.

(memorandum opinion; concurring memorandum by Lifson, J.)

In landowner's article 78 proceeding challenging the town planning board's rejection of its application for subdivision approval, the planning board appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that a variance grant by the zoning board of appeals (ZBA) deprived the planning board of power to deny subdivision approval on the ground that the subdivision did not comply with the applicable zoning ordinance.

On June 10, 2004, the ZBA granted landowner an area variance permitting two 16,000 square foot lots in a district that required a minimum lot size of 20,000 square feet. Two weeks later, the town board amended the zoning ordinance to require a minimum lot size of 40,000 square feet. Nevertheless, in April 2005, the ZBA granted landowner's application to extend the variance until May 2006. When landowner then applied to the planning board for subdivision approval, the planning board denied the application, concluding that the two proposed lots did not conform to the 40,000 square foot requirement, and also concluding that the variance granted by the ZBA did not apply to the amended zoning ordinance. Landowner then brought this article 78 proceeding challenging the denial, and the Supreme Court granted the petition, directing the planning board to approve the subdivision.

In affirming, the Appellate Division noted that conformity with zoning regulations is within the jurisdiction of the ZBA. The court noted that when the ZBA extended its variance in April 2005, the ZBA “presumably was aware of the amendment to the zoning ordinance.” Because the variance had never been challenged, its validity was not before the court. The planning board, however, was not entitled to deny subdivision approval based on failure to conform to the ordinance once the ZBA had granted a variance from the area requirements of the ordinance. Accordingly, the Supreme Court properly granted the petition.

Justice Lifson wrote a concurring opinion, noting that the ZBA's grant of the variance expired by its terms in May 2006, and that the court's decision did not relieve landowner from its obligation to seek a further extension of time to satisfy the conditions imposed on the variance by the ZBA.

Adult Use Ordinance Upheld

TJS of New York v. Town of Smithtown

NYLJ 6/4/08, p. 37, col. 1

U. S. Dist. Ct, EDNY

(Feuerstein, J.)

Owner of a topless bar brought an action for a declaration that the town's adult use ordinance is unconstitutional because it does not provide a reasonable opportunity for location of adult businesses. After trial the court declined to hold the ordinance unconstitutional, concluding that the town had met its burden of providing sufficient alternative avenues for adult uses.

Predecessor of the current owner had brought an action in 1999 challenging the adult use provisions of the 1994 Smithtown ordinance. The town amended the ordinance in 2000, and later that year, the town and the prior owner entered into a stipulation of settlement under the terms of which owner agreed to make a diligent good faith effort to relocate. In return, the town permitted owner to continued operating until Sept. 1, 2003. In fact, however, adult entertainment continued after that date. In 2004, the town moved in state court for an order compelling closure of the bar. Owner of the bar then brought this action seeking a declaration that the ordinance is unconstitutional because the town did not provide reasonable avenues of communication for adult-oriented businesses.

In declaring the ordinance constitutional, the court started by holding that the town bore the initial burden of demonstrating that there were other sites on which adult businesses would be permitted. The court held that the town had met that burden by providing a detailed list of 35 such sites. That showing shifted the burden to the owner to demonstrate that these sites were unsuitable for adult businesses. The court held that the owner did not meet that burden, because the assertions of its expert about unsuitable were often too general and sometimes inconsistent.

Variance Grant Limits Planning Board Power

Matter of Ashley Homes v. Odea

NYLJ 5/27/08, p. 26, col. 3

AppDiv, Second Dept.

(memorandum opinion; concurring memorandum by Lifson, J.)

In landowner's article 78 proceeding challenging the town planning board's rejection of its application for subdivision approval, the planning board appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that a variance grant by the zoning board of appeals (ZBA) deprived the planning board of power to deny subdivision approval on the ground that the subdivision did not comply with the applicable zoning ordinance.

On June 10, 2004, the ZBA granted landowner an area variance permitting two 16,000 square foot lots in a district that required a minimum lot size of 20,000 square feet. Two weeks later, the town board amended the zoning ordinance to require a minimum lot size of 40,000 square feet. Nevertheless, in April 2005, the ZBA granted landowner's application to extend the variance until May 2006. When landowner then applied to the planning board for subdivision approval, the planning board denied the application, concluding that the two proposed lots did not conform to the 40,000 square foot requirement, and also concluding that the variance granted by the ZBA did not apply to the amended zoning ordinance. Landowner then brought this article 78 proceeding challenging the denial, and the Supreme Court granted the petition, directing the planning board to approve the subdivision.

In affirming, the Appellate Division noted that conformity with zoning regulations is within the jurisdiction of the ZBA. The court noted that when the ZBA extended its variance in April 2005, the ZBA “presumably was aware of the amendment to the zoning ordinance.” Because the variance had never been challenged, its validity was not before the court. The planning board, however, was not entitled to deny subdivision approval based on failure to conform to the ordinance once the ZBA had granted a variance from the area requirements of the ordinance. Accordingly, the Supreme Court properly granted the petition.

Justice Lifson wrote a concurring opinion, noting that the ZBA's grant of the variance expired by its terms in May 2006, and that the court's decision did not relieve landowner from its obligation to seek a further extension of time to satisfy the conditions imposed on the variance by the ZBA.

Adult Use Ordinance Upheld

TJS of New York v. Town of Smithtown

NYLJ 6/4/08, p. 37, col. 1

U. S. Dist. Ct, EDNY

(Feuerstein, J.)

Owner of a topless bar brought an action for a declaration that the town's adult use ordinance is unconstitutional because it does not provide a reasonable opportunity for location of adult businesses. After trial the court declined to hold the ordinance unconstitutional, concluding that the town had met its burden of providing sufficient alternative avenues for adult uses.

Predecessor of the current owner had brought an action in 1999 challenging the adult use provisions of the 1994 Smithtown ordinance. The town amended the ordinance in 2000, and later that year, the town and the prior owner entered into a stipulation of settlement under the terms of which owner agreed to make a diligent good faith effort to relocate. In return, the town permitted owner to continued operating until Sept. 1, 2003. In fact, however, adult entertainment continued after that date. In 2004, the town moved in state court for an order compelling closure of the bar. Owner of the bar then brought this action seeking a declaration that the ordinance is unconstitutional because the town did not provide reasonable avenues of communication for adult-oriented businesses.

In declaring the ordinance constitutional, the court started by holding that the town bore the initial burden of demonstrating that there were other sites on which adult businesses would be permitted. The court held that the town had met that burden by providing a detailed list of 35 such sites. That showing shifted the burden to the owner to demonstrate that these sites were unsuitable for adult businesses. The court held that the owner did not meet that burden, because the assertions of its expert about unsuitable were often too general and sometimes inconsistent.