Development

No Vested Rights When Landowner Submitted Inaccurate Survey

GRA V, LLC v. Srinivasan

NYLJ 8/5/08, p. 26, col. 1

AppDiv, First Dept.

(3-2 decision; majority opinion by Buckley, J; dissenting opinion by McGuire, J.)

In landowner's article 78 proceeding to annul a determination by the Board of Standards and Appeals that landowner had not acquired common law vested rights, landowner appealed from the Supreme Court's denial of the petition. A divided Appellate Division affirmed, holding that because the foundation had been laid pursuant to a building permit that could not have been issued if landowner had submitted an accurate survey, landowner did not acquire vested rights.

When landowner applied for a building permit, landowner's parcel was zoned R6, which permitted construction of buildings up to 12 stories. In applying for the permit, landowner relied on map that inaccurately depicted a building on an adjacent lot as flush with the street line. That building was actually set back by one foot, nine inches. Because the applicable zoning ordinance did not permit new construction to be closer to the street than adjacent existing buildings, landowner's proposed structure, which extended to the street line, was not authorized by the zoning ordinance. Relying on the inaccurate map, however, the Department of Buildings (DOB) issued a foundation and excavation permit, and landowner poured 85% of the foundation, expending approximately $450,000. On the same date that the foundation was poured, the City Council rezoned the area to R4A, allowing only one and two-family residences on the parcel. The DOB immediately filed a stop-work order because the permit had been revoked by the rezoning. Landowner, however, asserted that it had acquired vested rights. At first, the DOB did not contest the vested rights claim, but when neighbors pointed out the inaccuracy in landowner's map, the DOB refused to vacate its stop work order. Landowner appealed to the Board of Standards and Appeals, which concluded that no rights had bested because the foundation permit on which landowner relied was invalid because of the defect in the boundary survey. Landowner then brought this proceeding, and the Supreme Court denied the petition. Landowner appealed.

In affirming, the Appellate Division majority concluded that vested rights cannot be acquired in reliance upon an invalid permit. The court rejected the argument that the foundation permit itself was not invalidly issued, because a conforming building could be built on the foundation that had been laid. Instead, the court's majority concluded that the proposed (nonconforming) above-ground structure “must be deemed an integral part of the foundation permit.” Because the structure itself would have been nonconforming, the permit was invalidly issued, and no rights could vest.

Justice McGuire's dissent emphasized that the foundation permit authorized only construction of the foundation, and noted that with minor revisions to the superstructure, a conforming building could easily have been built on the foundation. The dissenters concluded, therefore, that because the foundation itself was conforming, landowner had acquired vested rights to build under the pre-existing ordinance.

Special Facts Exception Requires Application of Superseded Ordinance

Matter of Mamaroneck Beach & Yacht Club, Inc. v. Zoning Board of Appeals

NYLJ 7/9/08, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding by landowner to annul an interpretation of the Zoning Board of Appeals that landowner's proposed use was not an accessory use under the applicable zoning ordinance, the zoning board of appeals and a neighborhood association appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the “special facts exception” required application of a superseded ordinance.

Landowner operates a membership club in a “marine recreation” district. The prior zoning ordinance listed “seasonal residences for club members and guests” as a permitted accessory use within the district. When landowner applied to build 32 apartment units, a neighborhood association sought an interpretation of the ordinance. Meanwhile, the village board enacted a moratorium on development in the district, and subsequently amended the ordinance to limit the number of permitted seasonal residences, and to impose other limits on seasonal residences. When the moratorium was lifted and the new ordinance enacted, the zoning board of appeals concluded that even under the old ordinance, the proposed seasonal residences were not permitted because they would not have been “customarily incidental and subordinate to” the principal use on the premises. Landowner then brought this article 78 proceeding, and the Supreme Court granted the petition. The village and the neighborhood association appealed.

In affirming, the Appellate Division first rejected the argument that the current ordinance, not the superseded ordinance, should apply. The court concluded that because the ordinance had been amended in response to landowner's application, the special facts exception mandated application of the superseded ordinance, not the current ordinance. The court then concluded that the ZBA had acted arbitrarily in deciding, under the old ordinance, that the seasonal residences did not constitute a permitted accessory use. The court invoked the principle that because zoning codes are in derogation of the common law, they must be strictly construed against the municipality and in favor of the property owner.

New Ordinance Does Not Exempt Substandard Lots From Width Requirements

Matter of Conti v. Zoning Board of Appeals

NYLJ 7/11/08, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to annul an interpretation of the zoning code to permit development of substandard lots, neighbors appealed from a Supreme Court judgment denying the petition and dismissing the proceeding. The Appellate Division reversed, holding that a 2003 zoning ordinance did not exempt substandard lots from newly imposed width requirements.

Landowners purchased four laterally contiguous 50-foot lots in 1954. The lots were conforming single-family lots until 2003, when the village board amended the ordinance to increase the minimum lot width to 60 feet. In February 2005, landowners applied for an interpretation of a separate provision of the code, which provides that the zoning board of appeals (ZBA) shall permit erection of a dwelling on a separately owned lot “containing, at the time of passage of this chapter, an area or width smaller than that required for a one-family dwelling.” The quoted provision had not been changed in substance or language since it was first adopted in 1959. Landowner contended that the provision entitled landowner to build on 50-foot lots because at the time of the passage of the 2003 amendment, single-family homes on 50-foot lots were permissible. The ZBA agreed, and determined that landowner could build four houses as a matter of right. Neighbors brought this article 78 proceeding. The Supreme Court dismissed the proceeding, and the neighbors appealed.

In reversing, the Appellate Division held that the disputed code provision applied only to lots made substandard by the original 1959 ordinance, not to lots made substandard by subsequent amendments. Because the court concluded that the issue was a pure question of law, no deference was due to the interpretation of the ZBA. Because landowners' lots were in conformity until the 2003 amendment, the exemption did not apply to them, and they were not entitled to build as a matter of right.

No Vested Rights When Landowner Submitted Inaccurate Survey

GRA V, LLC v. Srinivasan

NYLJ 8/5/08, p. 26, col. 1

AppDiv, First Dept.

(3-2 decision; majority opinion by Buckley, J; dissenting opinion by McGuire, J.)

In landowner's article 78 proceeding to annul a determination by the Board of Standards and Appeals that landowner had not acquired common law vested rights, landowner appealed from the Supreme Court's denial of the petition. A divided Appellate Division affirmed, holding that because the foundation had been laid pursuant to a building permit that could not have been issued if landowner had submitted an accurate survey, landowner did not acquire vested rights.

When landowner applied for a building permit, landowner's parcel was zoned R6, which permitted construction of buildings up to 12 stories. In applying for the permit, landowner relied on map that inaccurately depicted a building on an adjacent lot as flush with the street line. That building was actually set back by one foot, nine inches. Because the applicable zoning ordinance did not permit new construction to be closer to the street than adjacent existing buildings, landowner's proposed structure, which extended to the street line, was not authorized by the zoning ordinance. Relying on the inaccurate map, however, the Department of Buildings (DOB) issued a foundation and excavation permit, and landowner poured 85% of the foundation, expending approximately $450,000. On the same date that the foundation was poured, the City Council rezoned the area to R4A, allowing only one and two-family residences on the parcel. The DOB immediately filed a stop-work order because the permit had been revoked by the rezoning. Landowner, however, asserted that it had acquired vested rights. At first, the DOB did not contest the vested rights claim, but when neighbors pointed out the inaccuracy in landowner's map, the DOB refused to vacate its stop work order. Landowner appealed to the Board of Standards and Appeals, which concluded that no rights had bested because the foundation permit on which landowner relied was invalid because of the defect in the boundary survey. Landowner then brought this proceeding, and the Supreme Court denied the petition. Landowner appealed.

In affirming, the Appellate Division majority concluded that vested rights cannot be acquired in reliance upon an invalid permit. The court rejected the argument that the foundation permit itself was not invalidly issued, because a conforming building could be built on the foundation that had been laid. Instead, the court's majority concluded that the proposed (nonconforming) above-ground structure “must be deemed an integral part of the foundation permit.” Because the structure itself would have been nonconforming, the permit was invalidly issued, and no rights could vest.

Justice McGuire's dissent emphasized that the foundation permit authorized only construction of the foundation, and noted that with minor revisions to the superstructure, a conforming building could easily have been built on the foundation. The dissenters concluded, therefore, that because the foundation itself was conforming, landowner had acquired vested rights to build under the pre-existing ordinance.

Special Facts Exception Requires Application of Superseded Ordinance

Matter of Mamaroneck Beach & Yacht Club, Inc. v. Zoning Board of Appeals

NYLJ 7/9/08, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding by landowner to annul an interpretation of the Zoning Board of Appeals that landowner's proposed use was not an accessory use under the applicable zoning ordinance, the zoning board of appeals and a neighborhood association appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the “special facts exception” required application of a superseded ordinance.

Landowner operates a membership club in a “marine recreation” district. The prior zoning ordinance listed “seasonal residences for club members and guests” as a permitted accessory use within the district. When landowner applied to build 32 apartment units, a neighborhood association sought an interpretation of the ordinance. Meanwhile, the village board enacted a moratorium on development in the district, and subsequently amended the ordinance to limit the number of permitted seasonal residences, and to impose other limits on seasonal residences. When the moratorium was lifted and the new ordinance enacted, the zoning board of appeals concluded that even under the old ordinance, the proposed seasonal residences were not permitted because they would not have been “customarily incidental and subordinate to” the principal use on the premises. Landowner then brought this article 78 proceeding, and the Supreme Court granted the petition. The village and the neighborhood association appealed.

In affirming, the Appellate Division first rejected the argument that the current ordinance, not the superseded ordinance, should apply. The court concluded that because the ordinance had been amended in response to landowner's application, the special facts exception mandated application of the superseded ordinance, not the current ordinance. The court then concluded that the ZBA had acted arbitrarily in deciding, under the old ordinance, that the seasonal residences did not constitute a permitted accessory use. The court invoked the principle that because zoning codes are in derogation of the common law, they must be strictly construed against the municipality and in favor of the property owner.

New Ordinance Does Not Exempt Substandard Lots From Width Requirements

Matter of Conti v. Zoning Board of Appeals

NYLJ 7/11/08, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to annul an interpretation of the zoning code to permit development of substandard lots, neighbors appealed from a Supreme Court judgment denying the petition and dismissing the proceeding. The Appellate Division reversed, holding that a 2003 zoning ordinance did not exempt substandard lots from newly imposed width requirements.

Landowners purchased four laterally contiguous 50-foot lots in 1954. The lots were conforming single-family lots until 2003, when the village board amended the ordinance to increase the minimum lot width to 60 feet. In February 2005, landowners applied for an interpretation of a separate provision of the code, which provides that the zoning board of appeals (ZBA) shall permit erection of a dwelling on a separately owned lot “containing, at the time of passage of this chapter, an area or width smaller than that required for a one-family dwelling.” The quoted provision had not been changed in substance or language since it was first adopted in 1959. Landowner contended that the provision entitled landowner to build on 50-foot lots because at the time of the passage of the 2003 amendment, single-family homes on 50-foot lots were permissible. The ZBA agreed, and determined that landowner could build four houses as a matter of right. Neighbors brought this article 78 proceeding. The Supreme Court dismissed the proceeding, and the neighbors appealed.

In reversing, the Appellate Division held that the disputed code provision applied only to lots made substandard by the original 1959 ordinance, not to lots made substandard by subsequent amendments. Because the court concluded that the issue was a pure question of law, no deference was due to the interpretation of the ZBA. Because landowners' lots were in conformity until the 2003 amendment, the exemption did not apply to them, and they were not entitled to build as a matter of right.