Development

BZA Must Consider Five Statutory Factors in Evaluating Area Variance

Matter of Kaufman v. Incorporated Village of Kings Point

NYLJ 6/19/08, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to annul the grant of an area variance by the Board of Zoning and Appeals (BZA), the village appealed from the Supreme Court's grant of the petition. The Appellate Division modified, holding that neighbors could not raise in the Supreme Court issues that they had not raised before the BZA, but that the BZA's determination should nevertheless be annulled because the record did not indicate that the BZA had considered the five factors enumerated in Village Law 7-712-b(3).

Landowner sought a building permit for demolition of their existing house and construction of a new one. Their house stood on two lots along the shore of Long Island Sound, but had a street frontage of only 27 feet and a width of 20 feet for the first 117 feet of the property. As a result, the building inspector denied the permit for failure to meet the requirement for 150 feet of street frontage and 150 feet of lot width for the first 200 feet of lot depth. Because the survey commissioned by landowner revealed a lot size of 49,960 square feet, a size in excess of minimum lot size requirements, the building inspector did not make any finding of inadequate size. Landowner then sought an area variance from the BZA. Neighbors objected, contending that the BZA lacked jurisdiction to grant an area variance without a building plan. The BZA granted the area variance, finding that the lot size was 49,960 square feet, and noting that in the past, the BZA had consistently granted similar variances because allowing landowners to replace existing dwellings on pre-existing lots increased marketability and protected the village's tax base. Neighbors then brought this article 78 proceeding, contending for the first time that landowner's survey was inaccurate because it had failed to exclude tidal wetlands. Neighbors submitted their own surveys. The Supreme Court granted the petition, holding that in adopting landowner's survey without further scrutiny, the BZA had acted irrationally. The village appealed.

In modifying, the Appellate Division first held that the Supreme Court's review of the BZA determination should have been limited to the arguments and record before the BZA. Because neighbors had not challenged the lot size before the BZA, the Supreme Court should not have considered the issue. At the same time, however, the Appellate Division noted that the record before the BZA did not indicate that the BZA considered the five factors enumerated in Villate Law section 7-712-b(3)(b), the statute governing area variances. As a result, the Supreme Court had properly annulled the grant of the variance, and the court remitted to the BZA for a new hearing and determination of the application for frontage and lot width variances.

Planning Board Had Adequate Basis to Deny Wireless Permit

Omnipoint Communications Inc. v. Town of Islip Planning Board

NYLJ 7/8/08, p. 27, col. 3

Supreme Ct., Suffolk Cty

(Rebolini, J.)

A telecommunications service provider sought to annul a planning board determination denying a special permit to construct a wireless telecommunications facility. The court denied the petition, concluding that the planning board had an adequate basis for denial of the permit.

The service provided presented testimony about a coverage gap in the area, and proposed to erect a 90-foot tower on a landscaped island on a location occupied by a McDonald's restaurant.

The planning board noted that the proposed tower would be visible to residents of a high-density senior citizen development, and that the proposed location would not allow enough room for the required stockade fence and evergreen screen required by the town code.

The planning board suggested a number of alternative sites, but the service provider rejected the sites, contending that they either provided redundant coverage or did not eliminate the coverage gap. The planning board nevertheless denied the permit, agreeing that no one of the suggested alternatives would eliminate the coverage gap, but concluding that a combination of the sites would eliminate the gap in a less intrusive manner than the proposed new site, because the sites proposed by the planning department were pre-existing, and would involve less intrusion than construction of a new tower. Service provider then brought this proceeding.

In denying relief to the service provider, the court indicated that service provider had failed to demonstrate that the planning board's alternative solution was not viable or reasonable. The court noted that municipalities were entitled to consider aesthetic impact if there is evidence establishing that a service gap can be closed by less intrusive means. Because the planning board's determination was supported by substantial evidence, the court found not violation of the Federal Telecommunications Act of 1996 (47 U.S.C. sec. 332).

BZA Must Consider Five Statutory Factors in Evaluating Area Variance

Matter of Kaufman v. Incorporated Village of Kings Point

NYLJ 6/19/08, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to annul the grant of an area variance by the Board of Zoning and Appeals (BZA), the village appealed from the Supreme Court's grant of the petition. The Appellate Division modified, holding that neighbors could not raise in the Supreme Court issues that they had not raised before the BZA, but that the BZA's determination should nevertheless be annulled because the record did not indicate that the BZA had considered the five factors enumerated in Village Law 7-712-b(3).

Landowner sought a building permit for demolition of their existing house and construction of a new one. Their house stood on two lots along the shore of Long Island Sound, but had a street frontage of only 27 feet and a width of 20 feet for the first 117 feet of the property. As a result, the building inspector denied the permit for failure to meet the requirement for 150 feet of street frontage and 150 feet of lot width for the first 200 feet of lot depth. Because the survey commissioned by landowner revealed a lot size of 49,960 square feet, a size in excess of minimum lot size requirements, the building inspector did not make any finding of inadequate size. Landowner then sought an area variance from the BZA. Neighbors objected, contending that the BZA lacked jurisdiction to grant an area variance without a building plan. The BZA granted the area variance, finding that the lot size was 49,960 square feet, and noting that in the past, the BZA had consistently granted similar variances because allowing landowners to replace existing dwellings on pre-existing lots increased marketability and protected the village's tax base. Neighbors then brought this article 78 proceeding, contending for the first time that landowner's survey was inaccurate because it had failed to exclude tidal wetlands. Neighbors submitted their own surveys. The Supreme Court granted the petition, holding that in adopting landowner's survey without further scrutiny, the BZA had acted irrationally. The village appealed.

In modifying, the Appellate Division first held that the Supreme Court's review of the BZA determination should have been limited to the arguments and record before the BZA. Because neighbors had not challenged the lot size before the BZA, the Supreme Court should not have considered the issue. At the same time, however, the Appellate Division noted that the record before the BZA did not indicate that the BZA considered the five factors enumerated in Villate Law section 7-712-b(3)(b), the statute governing area variances. As a result, the Supreme Court had properly annulled the grant of the variance, and the court remitted to the BZA for a new hearing and determination of the application for frontage and lot width variances.

Planning Board Had Adequate Basis to Deny Wireless Permit

Omnipoint Communications Inc. v. Town of Islip Planning Board

NYLJ 7/8/08, p. 27, col. 3

Supreme Ct., Suffolk Cty

(Rebolini, J.)

A telecommunications service provider sought to annul a planning board determination denying a special permit to construct a wireless telecommunications facility. The court denied the petition, concluding that the planning board had an adequate basis for denial of the permit.

The service provided presented testimony about a coverage gap in the area, and proposed to erect a 90-foot tower on a landscaped island on a location occupied by a McDonald's restaurant.

The planning board noted that the proposed tower would be visible to residents of a high-density senior citizen development, and that the proposed location would not allow enough room for the required stockade fence and evergreen screen required by the town code.

The planning board suggested a number of alternative sites, but the service provider rejected the sites, contending that they either provided redundant coverage or did not eliminate the coverage gap. The planning board nevertheless denied the permit, agreeing that no one of the suggested alternatives would eliminate the coverage gap, but concluding that a combination of the sites would eliminate the gap in a less intrusive manner than the proposed new site, because the sites proposed by the planning department were pre-existing, and would involve less intrusion than construction of a new tower. Service provider then brought this proceeding.

In denying relief to the service provider, the court indicated that service provider had failed to demonstrate that the planning board's alternative solution was not viable or reasonable. The court noted that municipalities were entitled to consider aesthetic impact if there is evidence establishing that a service gap can be closed by less intrusive means. Because the planning board's determination was supported by substantial evidence, the court found not violation of the Federal Telecommunications Act of 1996 (47 U.S.C. sec. 332).