Development

No Vested Rights Based on Invalidly Issued Permit

Matter of Westbury Laundromat, Inc. v. Mammina

NYLJ 5/26/09, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an hybrid action/article 78 proceeding brought by landowner seeking first a declaratory judgment that landowner had acquired vested rights to rebuild a laundromat, and second, invalidation of a variance denial, the town appealed from Supreme Court's declaration that the landowner had acquired vested rights. The Appellate Division reversed, holding that landowner could not acquire vested rights based on an invalidly issued permit.

Landowner had operated a laundromat on the subject premiss until December 2005, when fire destroyed it. In November 2006, landowner sought a building permit to rebuild the laundromat. While the application was pending, the town board changed the zoning ordinance to prohibit laundromats in the district. The amendment was effective Jan. 2, 2007. Nevertheless, on Jan. 18, the town building inspector issued a building permit. Landowner then spent substantial sums renovating the premises. On Oct. 23, the building department revoked the permit on the ground that it was contrary to the town code. Landowner then sought a use variance, which the board of zoning appeals denied. Landowner then brought this action/proceeding, contending that it had acquired vested rights to build the laundromat, and challenging denial of the use variance. Supreme Court granted the declaration and the petition, and the town appealed.

In reversing, the Appellate Division noted that a landowner can only obtain vested rights when the landowner incurs substantial expenses in reliance on a legally issued permit. Vested rights cannot be acquired in reliance on an invalid permit. Here, no legal nonconforming use was in existence at the time the town prohibited laundromats in the district, and landowner was therefore required to rebuild in conformity with the ordinance. The court then held that landowner was not entitled to a use variance because landowner had not established that no permissible use would yield a reasonable return. As a result, the court reinstated the variance denial.

Village Board Cannot Reserve Final Approval of Cluster Subdivision

Liberty Meadows LLC v. Incorporated Village of Port Jefferson

NYLJ 5/19/09, p. 30, col. 1

Supreme Ct., Suffolk Cty

(Pines, J.).

Landowner brought an action for a declaratory judgment that a local law authorizing cluster subdivisions exceeded the village's authority. The court granted landlord's declaratory judgment, holding that the village board of trustees could not reserve for itself final approval power over cluster subdivisions.

Village Law section 7-738 authorizes a village board of trustees to authorize a village planning board to approve a cluster development “[s]ubject to the conditions set forth in this section and in such local law.” Port Jefferson enacted a local law granting its planning board authority to approve cluster subdivisions in certain areas. That local law also provided that any application approved by the planning board “shall be subject to final approval or rejection by the Board of Trustees ' ” Landowner challenged this local law as inconsistent with the state statute.

In granting landowner the requested relief, the court relied on Woodhull Associates v. Board of Trustees, 63 AD2d 677, which had held that a village could not reserve the right to approve its planning board's final approval of a subdivision map. Although Woodhull was decided before the most recent amendment of Village Law section 7-738, the court held that the changes enacted since Woodhull did not authorize a different result in this case.

COMMENT

Both before and after the statutory amendment to section 7-738, the statute authorized a village board of trustees to impose conditions on the planning board's authority to approve cluster subdivisions. Before the 1995 amendment, the planning board's authority to approve a cluster subdivision was subject to conditions set forth in the statute and
“[s]uch other reasonable conditions as the Board of Trustees may in its discretion add thereto.” In Woodhull, decided pursuant to that statute, the Second Department held that the village's reservation of its right to approve a final subdivision map was inconsistent with the statute, because the condition imposed on the planning board's approval ' final approval by the board of trustees ' was not enumerated by state law and was not “reasonable.”

Among the changes made to the statute in 1995 was the omission of the word “reasonable.” The current statute gives the board of trustees power to approve cluster developments “[s]ubject to the conditions set forth in this section and in such local law.” The village argued that the new provision, by eliminating the word reasonable, gave broader power to the board of trustees than did the prior statute. The court rejected that argument, holding that the statute was not intended to permit the village board to reduce the role of the planning board to that of an advisory body.

No Need To Re-Notice Zoning Amendment

Matter of Benson Point Realty Corp. v. Town of East Hampton

NYLJ 6/1/09, p. 37, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a zoning amendment, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that the town had provided adequate notice of the zoning amendment.

Landowner owned a 13-acre parcel in a zoning district that required a minimum lot area of one acre for each house. When landowner proposed to subdivide into nine lots, the town board proposed a town-wide zoning reclassification that would have rezoned landowner's lot into a district that required a minimum of five acres for each lot. Landowner received written notice of the proposed rezoning, and submitted written objections. After hearing objections and completing environmental review, the town board rezoned the parcel to place it into a district that required three acres per lot. Landowner then brought this proceeding, contending that the rezoning did not comply with state statutes or the town code because the town did not provide notice to landowners after changing the proposed rezoning to require three rather than five acres for each lot. Supreme Court granted the petition, concluding that the town code's notice requirements are more stringent than those imposed by state law. The town appealed.

In reversing, the Appellate Division noted that under state law, when changes are made to a proposed zoning amendment after the conclusion of a public hearing, new notice and another hearing are not required if the amendment as adopted is embraced within the public notice or not substantially different from the amendment as noticed. In this case, the court concluded that the three-acre rezoning was embraced within the notice for the five-acre proposal. The court also rejected landowner's argument that the town code's notice provision was more stringent than state law, emphasizing that no purpose would be served by requiring the town to provide a new notice and a new public hearing when landowner was fully award of the proposed amendment and had ample opportunity to make objections.

SEQRA Challenge to Settlement Not Time-Barred

Matter of Marcus v. Board of Trustees

NYLJ 5/20/09, p. 34, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In neighbors' hybrid action and article 78 proceeding challenging enactment of a local law permitting nurseries as a special permit use in a residential district, neighbors appealed from Supreme Court's dismissal of most of its claims. The Appellate Division modified to reinstate neighbors' claim that the village board had failed to comply with the State Environmental Quality Review Act (SEQRA).

Landowner has been operating a plant nursery in a residential district for a number of years. In 2001, the village board of zoning appeals determined that the nursery was not a legal non-conforming use, and the courts upheld that determination. The village then brought an enforcement proceeding against landowner, contending that landowner had illegally expanded a prior nonconforming use. The village and landowner then entered into a stipulation of settlement providing that the village would refrain from taking actions against landowner while the village considered adoption an amendment to its zoning law to create a new special permit use in the district. If the village did not adopt the amendment, or if the planning board denied landowner a special permit, landowner would be required to wind up its business. The village then adopted the amendment and filed it with the Secretary of State, triggering this action/proceeding by neighbors challenging the stipulation and the local law. Supreme Court dismissed 10 of neighbors' 12 causes of action, finding that they were either time-barred or failed to state a cause of action. Neighbors appealed.

In modifying, the Appellate Division held that neighbors' claim that the amendment violated SEQRA was not time-barred. The court noted that the effective date of the local law was the date on which the local law was filed with the Secretary of State, and observed that this action/proceeding had been brought within four months of filing, even though beyond four months measured from the date of the board's action. The court also held that two other claims were timely for the same reason.

No Vested Rights Based on Invalidly Issued Permit

Matter of Westbury Laundromat, Inc. v. Mammina

NYLJ 5/26/09, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an hybrid action/article 78 proceeding brought by landowner seeking first a declaratory judgment that landowner had acquired vested rights to rebuild a laundromat, and second, invalidation of a variance denial, the town appealed from Supreme Court's declaration that the landowner had acquired vested rights. The Appellate Division reversed, holding that landowner could not acquire vested rights based on an invalidly issued permit.

Landowner had operated a laundromat on the subject premiss until December 2005, when fire destroyed it. In November 2006, landowner sought a building permit to rebuild the laundromat. While the application was pending, the town board changed the zoning ordinance to prohibit laundromats in the district. The amendment was effective Jan. 2, 2007. Nevertheless, on Jan. 18, the town building inspector issued a building permit. Landowner then spent substantial sums renovating the premises. On Oct. 23, the building department revoked the permit on the ground that it was contrary to the town code. Landowner then sought a use variance, which the board of zoning appeals denied. Landowner then brought this action/proceeding, contending that it had acquired vested rights to build the laundromat, and challenging denial of the use variance. Supreme Court granted the declaration and the petition, and the town appealed.

In reversing, the Appellate Division noted that a landowner can only obtain vested rights when the landowner incurs substantial expenses in reliance on a legally issued permit. Vested rights cannot be acquired in reliance on an invalid permit. Here, no legal nonconforming use was in existence at the time the town prohibited laundromats in the district, and landowner was therefore required to rebuild in conformity with the ordinance. The court then held that landowner was not entitled to a use variance because landowner had not established that no permissible use would yield a reasonable return. As a result, the court reinstated the variance denial.

Village Board Cannot Reserve Final Approval of Cluster Subdivision

Liberty Meadows LLC v. Incorporated Village of Port Jefferson

NYLJ 5/19/09, p. 30, col. 1

Supreme Ct., Suffolk Cty

(Pines, J.).

Landowner brought an action for a declaratory judgment that a local law authorizing cluster subdivisions exceeded the village's authority. The court granted landlord's declaratory judgment, holding that the village board of trustees could not reserve for itself final approval power over cluster subdivisions.

Village Law section 7-738 authorizes a village board of trustees to authorize a village planning board to approve a cluster development “[s]ubject to the conditions set forth in this section and in such local law.” Port Jefferson enacted a local law granting its planning board authority to approve cluster subdivisions in certain areas. That local law also provided that any application approved by the planning board “shall be subject to final approval or rejection by the Board of Trustees ' ” Landowner challenged this local law as inconsistent with the state statute.

In granting landowner the requested relief, the court relied on Woodhull Associates v. Board of Trustees , 63 AD2d 677, which had held that a village could not reserve the right to approve its planning board's final approval of a subdivision map. Although Woodhull was decided before the most recent amendment of Village Law section 7-738, the court held that the changes enacted since Woodhull did not authorize a different result in this case.

COMMENT

Both before and after the statutory amendment to section 7-738, the statute authorized a village board of trustees to impose conditions on the planning board's authority to approve cluster subdivisions. Before the 1995 amendment, the planning board's authority to approve a cluster subdivision was subject to conditions set forth in the statute and
“[s]uch other reasonable conditions as the Board of Trustees may in its discretion add thereto.” In Woodhull, decided pursuant to that statute, the Second Department held that the village's reservation of its right to approve a final subdivision map was inconsistent with the statute, because the condition imposed on the planning board's approval ' final approval by the board of trustees ' was not enumerated by state law and was not “reasonable.”

Among the changes made to the statute in 1995 was the omission of the word “reasonable.” The current statute gives the board of trustees power to approve cluster developments “[s]ubject to the conditions set forth in this section and in such local law.” The village argued that the new provision, by eliminating the word reasonable, gave broader power to the board of trustees than did the prior statute. The court rejected that argument, holding that the statute was not intended to permit the village board to reduce the role of the planning board to that of an advisory body.

No Need To Re-Notice Zoning Amendment

Matter of Benson Point Realty Corp. v. Town of East Hampton

NYLJ 6/1/09, p. 37, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a zoning amendment, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that the town had provided adequate notice of the zoning amendment.

Landowner owned a 13-acre parcel in a zoning district that required a minimum lot area of one acre for each house. When landowner proposed to subdivide into nine lots, the town board proposed a town-wide zoning reclassification that would have rezoned landowner's lot into a district that required a minimum of five acres for each lot. Landowner received written notice of the proposed rezoning, and submitted written objections. After hearing objections and completing environmental review, the town board rezoned the parcel to place it into a district that required three acres per lot. Landowner then brought this proceeding, contending that the rezoning did not comply with state statutes or the town code because the town did not provide notice to landowners after changing the proposed rezoning to require three rather than five acres for each lot. Supreme Court granted the petition, concluding that the town code's notice requirements are more stringent than those imposed by state law. The town appealed.

In reversing, the Appellate Division noted that under state law, when changes are made to a proposed zoning amendment after the conclusion of a public hearing, new notice and another hearing are not required if the amendment as adopted is embraced within the public notice or not substantially different from the amendment as noticed. In this case, the court concluded that the three-acre rezoning was embraced within the notice for the five-acre proposal. The court also rejected landowner's argument that the town code's notice provision was more stringent than state law, emphasizing that no purpose would be served by requiring the town to provide a new notice and a new public hearing when landowner was fully award of the proposed amendment and had ample opportunity to make objections.

SEQRA Challenge to Settlement Not Time-Barred

Matter of Marcus v. Board of Trustees

NYLJ 5/20/09, p. 34, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In neighbors' hybrid action and article 78 proceeding challenging enactment of a local law permitting nurseries as a special permit use in a residential district, neighbors appealed from Supreme Court's dismissal of most of its claims. The Appellate Division modified to reinstate neighbors' claim that the village board had failed to comply with the State Environmental Quality Review Act (SEQRA).

Landowner has been operating a plant nursery in a residential district for a number of years. In 2001, the village board of zoning appeals determined that the nursery was not a legal non-conforming use, and the courts upheld that determination. The village then brought an enforcement proceeding against landowner, contending that landowner had illegally expanded a prior nonconforming use. The village and landowner then entered into a stipulation of settlement providing that the village would refrain from taking actions against landowner while the village considered adoption an amendment to its zoning law to create a new special permit use in the district. If the village did not adopt the amendment, or if the planning board denied landowner a special permit, landowner would be required to wind up its business. The village then adopted the amendment and filed it with the Secretary of State, triggering this action/proceeding by neighbors challenging the stipulation and the local law. Supreme Court dismissed 10 of neighbors' 12 causes of action, finding that they were either time-barred or failed to state a cause of action. Neighbors appealed.

In modifying, the Appellate Division held that neighbors' claim that the amendment violated SEQRA was not time-barred. The court noted that the effective date of the local law was the date on which the local law was filed with the Secretary of State, and observed that this action/proceeding had been brought within four months of filing, even though beyond four months measured from the date of the board's action. The court also held that two other claims were timely for the same reason.