Development

Access Road Not a Permitted Use

Matter of BBJ Associates, LLC v. Zoning Board of Appeals

NYLJ 7/2/09, p. 25, col. 3

AppDiv, Second Dept.

(Opinion by Chambers, J.)

In landowner's article 78 proceeding challenging the zoning board of appeals' interpretation of the town code, the town appealed from a Supreme Court judgment granting the petition. The Appellate Division reversed, denied the petition and dismissed the proceeding, holding that the landowner's proposed access road was not a permitted use in the zoning district.

Landowner owns an 88-acre parcel, 80 acres of which lies in the Town of Carmel and eight acres of which lies in the Town of Kent. Landowner sought to build a multi-family senior citizens' development on the portion of the parcel lying in Carmel. Landowner sought to build an access road to the development through the eight acres in the Kent, ultimately connecting the development with a state highway. The eight acres located within Kent are zoned for commercial and single-family residential use. When landowner submitted the proposal to the Kent town planning board for site plan approval, the building inspector sent a letter to the planning board indicating that the proposed entrance was an accessory use to a principal use, and “we do not have a principal use.” Landowner then applied to the zoning board of appeals (ZBA) for an interpretation of the ordinance. The ZBA concluded that because the proposed road would be constructed in areas zoned for commercial and single-family use, but would not be used in conjunction with one of those uses, the road was not a permitted use. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition, concluding that the ZBA had acted in bad faith by raising objections at the “11th hour” after participating in environmental review of the project for two and a half years. The town appealed.

In reversing, the Appellate Division first noted that during the pendency of the appeal, the Town of Kent had amended its zoning ordinance to explicitly prohibit construction of roads in one district to serve uses in another district that would not be permitted in the district in which the road is located. The court, however, did not reach the applicability of the amendment, concluding that prior law would have generated the same result. The court noted that in general, a public way is not restricted by local zoning regulations, but concluded that landowner's proposed road did not qualify as a public way because it was not a mapped street and had never been approved by the Kent planning board. As a result, Kent was entitled to apply its own ordinance to the roadway. The court concluded that the proposed roadway did not qualify as a street or highway within the meaning of the Kent town code, because it was neither a mapped street nor shown on an approved subdivision plat. Therefore, the proposed roadway was not permitted under the town code, because it was an accessory use to a principal use not permitted within the zoning district.

Unexcavated Quarry Land Protected As Non-Conforming Use

Buffalo Crushed Stone, Inc. v. Town of Cheektowaga

NYLJ 7/1/09, p. 34, col. 1

Court of Appeals

(5-2 decision; majority opinion by Ciparick, J; dissenting opinion by Lippman, Ch. J.)

In landowner's action seeking a declaratory judgment that zoning regulations applicable to unexcavated portions of its land were void, landowner appealed from the Appellate Division's modification of a Supreme Court determination that a number of landowner's parcels were subject to ordinances prohibiting quarrying. The Court of Appeals modified, holding that unexcavated land owned by landowner at the time the ordinance took effect was entitled to protection as a pre-existing non-conforming use.

Landowner owns 280 acres of land on which it has operated a rock quarry for 80 years. Landowner has acquired the land it now owns in a series of transactions between 1929 and 1991. In 1969, the town enacted a zoning ordinance dividing landowner's land into various districts. The ordinance permitted continuation of nonconforming activities but not their extension or enlargement. Although landowner has never used the land for any purpose other than as a quarry, much of the land has remained unexcavated over time. Landowner brought this declaratory judgment action to establish its right to extend quarrying operations to the unexcavated land. Supreme Court held that much of the land was entitled to nonconforming use protection, but held that two significant parcels did not merit such protection. The Appellate Division modified to hold that additional parcels should be denied nonconforming use protection because they had not been mined before 1969. Landowner appealed.

In modifying, the Court of Appeals started by observing that quarries present unique problems with respect to nonconforming use protection. A quarry operator typically will not excavate all of his land at once, but leaves areas untouched until they are actually needed. As a result a prior nonconforming use for quarrying is not limited to areas actually excavated. Instead, a landowner who actively mines part of his land, and demonstrates an intention to do so on other portions, establishes a prior nonconforming use to the boundaries of his property. In this case, the court rejected the Appellate Division's conclusion that one area of landowner's parcel was not protected because it was separated by a road from the rest of the land. The majority emphasized that the road did not create a physical impasse for quarrying operations, and that landowner had long manifested an intent to mine both sides of the road. The court did hold, however, that with respect to certain portions of the land, the town had raised questions of fact about whether landowner had acquired title before enactment of the 1969 ordinance.

Chief Judge Lippman, dissenting for himself and Judge Graffeo, would have held that the parcel separated by a roadway was a separate parcel not entitled to non-conforming use protection. Moreover, with respect to the parcels about which the majority saw questions of fact, the dissenters would have awarded summary judgment to the town on the ground that even if landowner had owned the land before 1969, landowner did not have the necessary permits to operate quarries on the land at that time. As a result, because operating a quarry would not have been lawful, quarries could not qualify as a protected non-conforming use.

Helicopter Landing Area Constitutes Airport for Zoning Purposes

Town of Riverhead v. Gezari

NYLJ 6/30/09, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an action by the town to enjoin landowner from using his parcel for landing and takeoff of a helicopter, landowner appealed from Supreme Court's grant of a preliminary injunction to the town. The Appellate Division affirmed, holding that the town had demonstrated a likelihood of success on the merits of its claim that landowner was using the parcel as an airport, which was not a permitted use within the zoning district.

The town code defines airport as a “landing area used regularly by aircraft for receiving or discharging passengers ' or for the landing and takeoff of aircraft being used for personal or training purposes.” Landowner used his parcel for landing and takeoff of a helicopter, but landowner contended that the landings and takeoffs did not occur on a “regular” basis. The town, however, argued that use had to be regular only if the area was used for receiving or discharging passengers, not if used for landing and takeoff for personal purposes.

In upholding Supreme Court's grant of the preliminary injunction to the town, the Appellate Division acknowledged that the zoning ordinance was ambiguous, but noted that landowner himself had acknowledged that his use of the property was akin to a homeowner driving his vehicle to and from his property which, in the court's view, bore some indicia of regularity. As a result, the court concluded that the town had demonstrated a likelihood of success on the merits. The court also observed that landowner had not demonstrated any hardship, and that the town had demonstrated noise and safety concerns associated with helicopter takeoffs and landings. The court concluded, therefore, that the balance of equities favored the town and supported grant of the preliminary injunction.

Modifications in Variance Application Permit Grant of Variance, Despite Previous Denial

Matter of Waidler v. Young

NYLJ 6/29/09, p. 37, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to challenge area variances, neighbors appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the board of appeals had adequately distinguished the grant of this variance from denial of a prior variance application by the same applicant.

Landowner sought to subdivide a parcel into two substandard lots, and to relocate the current house, which is currently in the middle of the parcel, to one of the two new lots. Landowner plans to construct a new single-family residence
on the other lot. When the board of appeals granted the variance, neighbors brought this proceeding, arguing that the board had failed to distinguish this application from a substantially similar prior application which had been denied three years earlier.

In affirming Supreme Court's denial of the petition and dismissal of the proceeding, the Appellate Division acknowledged that a board determination that neither adheres to its own prior precedent nor indicates reasons for reaching a
different result is invalid because it is arbitrary and capricious. In this case, however, the court noted that the applicant had made several modifications, including changed location of the two dwellings, increased side yard distances from neighboring homes, and an agreement that the homes would have no accessory apartments. The court noted that it is within the discretion of a board of appeals to give weight to even slight difference “not easily discernible.” Here, there were enough differences
between the current application and the prior one to permit the board of appeals to reach a different result.

Failure to Comply with Zoning Standards Justifies Denial of Special Exception

Matter of Franklin Square Donut System LLC v. Wright

NYLJ 6/29/09, p. 37, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special exception permit for operation of drive-thru windows, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the board of appeals had properly denied the permit based on evidence that the landowner's use had not complied with local ordinance standards.

In 1986, landowner obtained a special exception permit to operate a drive-thru window at its Dunkin' Donuts franchise. The permit was granted fir five years on condition that the drive-thru would not permit vehicle back-up onto the adjoining streets. The permit was renewed every five years. In 2004, landowner sought to renew the permit and to legalize a second drive-thru window that it had installed on the premises. The board of appeals denied the permits, concluding that the proposed use would prevent orderly and reasonable use of adjacent properties, and that location of the drive-thrus would adversely affect safety, health and welfare. Landowner then brought this article 78 proceeding.

In affirming Supreme Court's denial of the petition, the Appellate Division acknowledged that an application for a special exception permit bears a lighter burden of proof than an applicant for a variance. But the court emphasized that a special exception permit is not a matter of right, and that an applicant must show compliance with local ordinance standards. In this case, testimony at the public hearing established that despite landowner's improvements, customers waiting to enter the drive-thru backed up traffic onto the adjoining street, causing congestion, and blocking in one resident's driveway on many mornings. In light of this testimony, the board was entitled to deny the special exception permit.

Hearing Necessary to Determine Whether Municipal Misconduct Requires Application of Superseded Ordinance

Matter of Golden Horizon Terryville Corp. v. Prusinowski

NYLJ 6/29/09, p. 38, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to compel review of its site plan application, the town appealed from Supreme Court's grant of the petition and Supreme Court's order directing the planning board to consider landowner's application in accordance with the zoning laws in effect on Oct. 31, 2006. The Appellate Division reversed and remitted to Supreme Court for an evidentiary hearing to determine whether the municipality had engaged in misconduct or extraordinary delay that would justify application of a superseded ordinance.

In September 2005, landowner filed a commercial site plan application with the town's planning department for development of a retail building, which was permitted under the zoning ordinance then in effect. The planning department responded six months later with a number of conditions before it would submit the application to the planning board. Landowner then submitted a revised application on Oct. 31, 2006. Meanwhile, however, the parcel had been designated a historic district, requiring another approval. Before the public hearing was completed, the town, in August 2007, enacted a moratorium on all site plan applications for the area in which landowner's parcel was located. Landowner then brought this article 78 proceeding to compel processing of its site plan application. Supreme Court granted the petition and ordered the planning board to consider the application in accordance with the ordinance in effect on Oct. 31, 2006. The town appealed.

In reversing, the Appellate Division relied on well-established law that courts are to apply the zoning laws in existence at the time decision is rendered. In the present case, that would require the court to apply the moratorium on development and on consideration of site plan application. The court noted, however, that if a municipality may be estopped from applying the current ordinance upon a showing that it prevented the landowner from obtaining vested rights under the prior ordinance by some sort of misconduct or extraordinary delay. The court remitted to Supreme Court for a hearing to determine whether landowner had been prevented from using its property in a lawful manner by “some form of misconduct or extraordinary delay.”

Access Road Not a Permitted Use

Matter of BBJ Associates, LLC v. Zoning Board of Appeals

NYLJ 7/2/09, p. 25, col. 3

AppDiv, Second Dept.

(Opinion by Chambers, J.)

In landowner's article 78 proceeding challenging the zoning board of appeals' interpretation of the town code, the town appealed from a Supreme Court judgment granting the petition. The Appellate Division reversed, denied the petition and dismissed the proceeding, holding that the landowner's proposed access road was not a permitted use in the zoning district.

Landowner owns an 88-acre parcel, 80 acres of which lies in the Town of Carmel and eight acres of which lies in the Town of Kent. Landowner sought to build a multi-family senior citizens' development on the portion of the parcel lying in Carmel. Landowner sought to build an access road to the development through the eight acres in the Kent, ultimately connecting the development with a state highway. The eight acres located within Kent are zoned for commercial and single-family residential use. When landowner submitted the proposal to the Kent town planning board for site plan approval, the building inspector sent a letter to the planning board indicating that the proposed entrance was an accessory use to a principal use, and “we do not have a principal use.” Landowner then applied to the zoning board of appeals (ZBA) for an interpretation of the ordinance. The ZBA concluded that because the proposed road would be constructed in areas zoned for commercial and single-family use, but would not be used in conjunction with one of those uses, the road was not a permitted use. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition, concluding that the ZBA had acted in bad faith by raising objections at the “11th hour” after participating in environmental review of the project for two and a half years. The town appealed.

In reversing, the Appellate Division first noted that during the pendency of the appeal, the Town of Kent had amended its zoning ordinance to explicitly prohibit construction of roads in one district to serve uses in another district that would not be permitted in the district in which the road is located. The court, however, did not reach the applicability of the amendment, concluding that prior law would have generated the same result. The court noted that in general, a public way is not restricted by local zoning regulations, but concluded that landowner's proposed road did not qualify as a public way because it was not a mapped street and had never been approved by the Kent planning board. As a result, Kent was entitled to apply its own ordinance to the roadway. The court concluded that the proposed roadway did not qualify as a street or highway within the meaning of the Kent town code, because it was neither a mapped street nor shown on an approved subdivision plat. Therefore, the proposed roadway was not permitted under the town code, because it was an accessory use to a principal use not permitted within the zoning district.

Unexcavated Quarry Land Protected As Non-Conforming Use

Buffalo Crushed Stone, Inc. v. Town of Cheektowaga

NYLJ 7/1/09, p. 34, col. 1

Court of Appeals

(5-2 decision; majority opinion by Ciparick, J; dissenting opinion by Lippman, Ch. J.)

In landowner's action seeking a declaratory judgment that zoning regulations applicable to unexcavated portions of its land were void, landowner appealed from the Appellate Division's modification of a Supreme Court determination that a number of landowner's parcels were subject to ordinances prohibiting quarrying. The Court of Appeals modified, holding that unexcavated land owned by landowner at the time the ordinance took effect was entitled to protection as a pre-existing non-conforming use.

Landowner owns 280 acres of land on which it has operated a rock quarry for 80 years. Landowner has acquired the land it now owns in a series of transactions between 1929 and 1991. In 1969, the town enacted a zoning ordinance dividing landowner's land into various districts. The ordinance permitted continuation of nonconforming activities but not their extension or enlargement. Although landowner has never used the land for any purpose other than as a quarry, much of the land has remained unexcavated over time. Landowner brought this declaratory judgment action to establish its right to extend quarrying operations to the unexcavated land. Supreme Court held that much of the land was entitled to nonconforming use protection, but held that two significant parcels did not merit such protection. The Appellate Division modified to hold that additional parcels should be denied nonconforming use protection because they had not been mined before 1969. Landowner appealed.

In modifying, the Court of Appeals started by observing that quarries present unique problems with respect to nonconforming use protection. A quarry operator typically will not excavate all of his land at once, but leaves areas untouched until they are actually needed. As a result a prior nonconforming use for quarrying is not limited to areas actually excavated. Instead, a landowner who actively mines part of his land, and demonstrates an intention to do so on other portions, establishes a prior nonconforming use to the boundaries of his property. In this case, the court rejected the Appellate Division's conclusion that one area of landowner's parcel was not protected because it was separated by a road from the rest of the land. The majority emphasized that the road did not create a physical impasse for quarrying operations, and that landowner had long manifested an intent to mine both sides of the road. The court did hold, however, that with respect to certain portions of the land, the town had raised questions of fact about whether landowner had acquired title before enactment of the 1969 ordinance.

Chief Judge Lippman, dissenting for himself and Judge Graffeo, would have held that the parcel separated by a roadway was a separate parcel not entitled to non-conforming use protection. Moreover, with respect to the parcels about which the majority saw questions of fact, the dissenters would have awarded summary judgment to the town on the ground that even if landowner had owned the land before 1969, landowner did not have the necessary permits to operate quarries on the land at that time. As a result, because operating a quarry would not have been lawful, quarries could not qualify as a protected non-conforming use.

Helicopter Landing Area Constitutes Airport for Zoning Purposes

Town of Riverhead v. Gezari

NYLJ 6/30/09, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an action by the town to enjoin landowner from using his parcel for landing and takeoff of a helicopter, landowner appealed from Supreme Court's grant of a preliminary injunction to the town. The Appellate Division affirmed, holding that the town had demonstrated a likelihood of success on the merits of its claim that landowner was using the parcel as an airport, which was not a permitted use within the zoning district.

The town code defines airport as a “landing area used regularly by aircraft for receiving or discharging passengers ' or for the landing and takeoff of aircraft being used for personal or training purposes.” Landowner used his parcel for landing and takeoff of a helicopter, but landowner contended that the landings and takeoffs did not occur on a “regular” basis. The town, however, argued that use had to be regular only if the area was used for receiving or discharging passengers, not if used for landing and takeoff for personal purposes.

In upholding Supreme Court's grant of the preliminary injunction to the town, the Appellate Division acknowledged that the zoning ordinance was ambiguous, but noted that landowner himself had acknowledged that his use of the property was akin to a homeowner driving his vehicle to and from his property which, in the court's view, bore some indicia of regularity. As a result, the court concluded that the town had demonstrated a likelihood of success on the merits. The court also observed that landowner had not demonstrated any hardship, and that the town had demonstrated noise and safety concerns associated with helicopter takeoffs and landings. The court concluded, therefore, that the balance of equities favored the town and supported grant of the preliminary injunction.

Modifications in Variance Application Permit Grant of Variance, Despite Previous Denial

Matter of Waidler v. Young

NYLJ 6/29/09, p. 37, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors to challenge area variances, neighbors appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the board of appeals had adequately distinguished the grant of this variance from denial of a prior variance application by the same applicant.

Landowner sought to subdivide a parcel into two substandard lots, and to relocate the current house, which is currently in the middle of the parcel, to one of the two new lots. Landowner plans to construct a new single-family residence
on the other lot. When the board of appeals granted the variance, neighbors brought this proceeding, arguing that the board had failed to distinguish this application from a substantially similar prior application which had been denied three years earlier.

In affirming Supreme Court's denial of the petition and dismissal of the proceeding, the Appellate Division acknowledged that a board determination that neither adheres to its own prior precedent nor indicates reasons for reaching a
different result is invalid because it is arbitrary and capricious. In this case, however, the court noted that the applicant had made several modifications, including changed location of the two dwellings, increased side yard distances from neighboring homes, and an agreement that the homes would have no accessory apartments. The court noted that it is within the discretion of a board of appeals to give weight to even slight difference “not easily discernible.” Here, there were enough differences
between the current application and the prior one to permit the board of appeals to reach a different result.

Failure to Comply with Zoning Standards Justifies Denial of Special Exception

Matter of Franklin Square Donut System LLC v. Wright

NYLJ 6/29/09, p. 37, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special exception permit for operation of drive-thru windows, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the board of appeals had properly denied the permit based on evidence that the landowner's use had not complied with local ordinance standards.

In 1986, landowner obtained a special exception permit to operate a drive-thru window at its Dunkin' Donuts franchise. The permit was granted fir five years on condition that the drive-thru would not permit vehicle back-up onto the adjoining streets. The permit was renewed every five years. In 2004, landowner sought to renew the permit and to legalize a second drive-thru window that it had installed on the premises. The board of appeals denied the permits, concluding that the proposed use would prevent orderly and reasonable use of adjacent properties, and that location of the drive-thrus would adversely affect safety, health and welfare. Landowner then brought this article 78 proceeding.

In affirming Supreme Court's denial of the petition, the Appellate Division acknowledged that an application for a special exception permit bears a lighter burden of proof than an applicant for a variance. But the court emphasized that a special exception permit is not a matter of right, and that an applicant must show compliance with local ordinance standards. In this case, testimony at the public hearing established that despite landowner's improvements, customers waiting to enter the drive-thru backed up traffic onto the adjoining street, causing congestion, and blocking in one resident's driveway on many mornings. In light of this testimony, the board was entitled to deny the special exception permit.

Hearing Necessary to Determine Whether Municipal Misconduct Requires Application of Superseded Ordinance

Matter of Golden Horizon Terryville Corp. v. Prusinowski

NYLJ 6/29/09, p. 38, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to compel review of its site plan application, the town appealed from Supreme Court's grant of the petition and Supreme Court's order directing the planning board to consider landowner's application in accordance with the zoning laws in effect on Oct. 31, 2006. The Appellate Division reversed and remitted to Supreme Court for an evidentiary hearing to determine whether the municipality had engaged in misconduct or extraordinary delay that would justify application of a superseded ordinance.

In September 2005, landowner filed a commercial site plan application with the town's planning department for development of a retail building, which was permitted under the zoning ordinance then in effect. The planning department responded six months later with a number of conditions before it would submit the application to the planning board. Landowner then submitted a revised application on Oct. 31, 2006. Meanwhile, however, the parcel had been designated a historic district, requiring another approval. Before the public hearing was completed, the town, in August 2007, enacted a moratorium on all site plan applications for the area in which landowner's parcel was located. Landowner then brought this article 78 proceeding to compel processing of its site plan application. Supreme Court granted the petition and ordered the planning board to consider the application in accordance with the ordinance in effect on Oct. 31, 2006. The town appealed.

In reversing, the Appellate Division relied on well-established law that courts are to apply the zoning laws in existence at the time decision is rendered. In the present case, that would require the court to apply the moratorium on development and on consideration of site plan application. The court noted, however, that if a municipality may be estopped from applying the current ordinance upon a showing that it prevented the landowner from obtaining vested rights under the prior ordinance by some sort of misconduct or extraordinary delay. The court remitted to Supreme Court for a hearing to determine whether landowner had been prevented from using its property in a lawful manner by “some form of misconduct or extraordinary delay.”