Development

Operators Acquired Vested Right to Use Property As Land Fill

Jones v. Town of Carroll

NYLJ 6/18/10, p. 39, col. 1

Court of Appeals

(Opinion by Graffeo, J.)

In an action by operators of a land fill for a declaration that a local law prohibiting land fills could not be applied to their land, the operators appealed from an Appellate Division order vacating Supreme Court's judgment in their favor, and holding that the local law was applicable to the subject property. The Court of Appeals reversed, holding that operators had obtained a vested right to use their property as a land fill.

Operators purchased a 50-acre parcel in 1984, and obtained a special-use variance permitting operation of a land fill on the entire parcel, provided that the state Department of Environmental Conservation (DEC) regulated the land fill. Operators obtained a DEC permit to commence land fill operations on two acres; the permit was subsequently expanded to three acres. In 2005, the town enacted a new zoning law that prohibited expansion of any land fill beyond the scope already permitted by DEC. The town then sought to prevent operators from using the remaining 47 acres for land fill purposes. Operators then brought this action seeking declaratory relief. Supreme Court granted summary judgment to operators, but the Appellate Division modified, holding that the new law was applicable because operators had merely contemplated future expansion, but had not obtained a permit for operation of a land fill on the other 47 acres.

In reversing, the Court of Appeals held that the principles applicable to mining operations should also apply to land fills. The court noted that in mining cases, the court had previously found it unreasonable to limit the boundaries of a landowner's vested right to the area approved for mining under a DEC permit. The court emphasized the uniqueness of a land fill, where a landowner cannot use all of the land for the designated purpose at one time; once the land is filled, landowner can no longer use it for fill purposes. As a result, it is reasonable to expect a landowner to reserve a portion of the land for future expansion of the activity. The court emphasized that the operators had purchased heavy equipment, employed a dozen people, developed plans for multi-stage enlargement of the fill, and engaged in discussions with investors, all before the 2005 enactment of the new law. On these facts, the court concluded that operators had acquired a vested right to use all 50 acres for land fill purposes, and that the 2005 local law could not extinguish their right to use the land for that purpose.

Denial of Area Variance Had Rational Basis

Matter of Kaiser v. Town of Islip Zoning Board of Appeals

NYLJ 6/28/10, p. 32, col. 5

AppDiv., Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance for an above-ground swimming pool, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed, concluding that the denial by the zoning board of appeals (ZBA) had a rational basis.

The town code prohibits all in-ground swimming pools, and permits above-ground pools only on lots larger than 12,000 square feet. Until 2006, the code also permitted above-ground pools on smaller lots by renewable temporary special exception permits for people whose medical conditions made a pool necessary for physical therapy purposes. In 2006, the town repealed the special exception provision.

Landowner owns a 10,00 square-foot lot, and sought a building permit for an above-ground pool with decking. When the permit was denied, landowner sought an area variance, and the ZBA denied the variance. Landowner brought this article 78 proceeding, and Supreme Court granted the petition.

In reversing, the Appellate Division noted that evidence before the ZBA supported the conclusion that granting the variance would produce an undesirable change in neighborhood character. Evidence established that only two above-ground pools had been built by variance in a community of more than 300 homes. The ZBA also had a rational basis for its conclusion that the variance was substantial and that any hardship was self-created. The court then rejected landowner's argument that past precedent bound the ZBA to grant the variance, noting that landowner had failed to show substantial similarity between this application and other variance applications that had previously been granted. Finally, the court rejected landowner's argument that a pool on a 10,000 square-foot lot would have no greater impact than a pool on a conforming lot, noting that a grant on this basis alone would render meaningless the town code's 12,000 square-foot minimum. As a result, the court denied the petition and dismissed the proceeding.

No Evidence of Bad Faith in Moratorium Enactment

Matter of Alfano v. Zoning Board of Appeals

NYLJ 6/15/10, p. 36, col. 5

AppDiv., Second Dept.

(memorandum opinion)

In landowners' article 78 proceeding to review denial of an area variance, the zoning board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division reversed, holding that Supreme Court had improperly relied on alleged bad faith by the zoning board of appeals, even though no allegations of bad faith had ever been advanced before the board or before Supreme Court itself.

In 2004, landowners purchased a lot with 100 feet of frontage. In 2006, they sought to subdivide the parcel into two separate parcels, each with 50 feet of frontage, and to relocate the existing home onto one of the two lots. Their permit application was not reviewed because the village had enacted a temporary building moratorium while it reviewed its zoning ordinance. When the moratorium expired, the village enacted a new zoning provision requiring a minimum frontage of 60 feet for all new construction. As a result, landowners' permit application was denied. Landowners then sought an area variance from the zoning board of appeals (ZBA). The ZBA denied the permit, noting that the variance would result in a detrimental change to the character of the neighborhood, that the variance would set a bad precedent, and that landowner's situation was self-created. Landowner then brought this article 78 proceeding. Supreme Court granted the petition, concluding that the village had enacted the moratorium in bad faith in an effort do delay granting of the landowners' original permit application. The ZBA appealed.

In reversing, the Appellate Division first noted the general rule that boards and courts should apply the ordinance in place at the time a decision is made, subject only to the “special-facts” exception when the municipality has acted in bad faith and unduly delayed acting on an application. In this case, landowners did not contend before the ZBA or before Supreme Court that there had been bad faith in enacting the moratorium or undue delay in processing its application. As a result, the Appellate Division held that the issue was not properly before Supreme Court, and the Supreme Court improperly granted the petition on that ground. Indeed, the court noted that the village had posted notice of the moratorium before landowners had submitted their initial permit application. The court then concluded that the ZBA's determination had a rational basis, even though the court disagreed with the ZBA's contention that landowners' situation was self-created.

Operators Acquired Vested Right to Use Property As Land Fill

Jones v. Town of Carroll

NYLJ 6/18/10, p. 39, col. 1

Court of Appeals

(Opinion by Graffeo, J.)

In an action by operators of a land fill for a declaration that a local law prohibiting land fills could not be applied to their land, the operators appealed from an Appellate Division order vacating Supreme Court's judgment in their favor, and holding that the local law was applicable to the subject property. The Court of Appeals reversed, holding that operators had obtained a vested right to use their property as a land fill.

Operators purchased a 50-acre parcel in 1984, and obtained a special-use variance permitting operation of a land fill on the entire parcel, provided that the state Department of Environmental Conservation (DEC) regulated the land fill. Operators obtained a DEC permit to commence land fill operations on two acres; the permit was subsequently expanded to three acres. In 2005, the town enacted a new zoning law that prohibited expansion of any land fill beyond the scope already permitted by DEC. The town then sought to prevent operators from using the remaining 47 acres for land fill purposes. Operators then brought this action seeking declaratory relief. Supreme Court granted summary judgment to operators, but the Appellate Division modified, holding that the new law was applicable because operators had merely contemplated future expansion, but had not obtained a permit for operation of a land fill on the other 47 acres.

In reversing, the Court of Appeals held that the principles applicable to mining operations should also apply to land fills. The court noted that in mining cases, the court had previously found it unreasonable to limit the boundaries of a landowner's vested right to the area approved for mining under a DEC permit. The court emphasized the uniqueness of a land fill, where a landowner cannot use all of the land for the designated purpose at one time; once the land is filled, landowner can no longer use it for fill purposes. As a result, it is reasonable to expect a landowner to reserve a portion of the land for future expansion of the activity. The court emphasized that the operators had purchased heavy equipment, employed a dozen people, developed plans for multi-stage enlargement of the fill, and engaged in discussions with investors, all before the 2005 enactment of the new law. On these facts, the court concluded that operators had acquired a vested right to use all 50 acres for land fill purposes, and that the 2005 local law could not extinguish their right to use the land for that purpose.

Denial of Area Variance Had Rational Basis

Matter of Kaiser v. Town of Islip Zoning Board of Appeals

NYLJ 6/28/10, p. 32, col. 5

AppDiv., Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance for an above-ground swimming pool, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed, concluding that the denial by the zoning board of appeals (ZBA) had a rational basis.

The town code prohibits all in-ground swimming pools, and permits above-ground pools only on lots larger than 12,000 square feet. Until 2006, the code also permitted above-ground pools on smaller lots by renewable temporary special exception permits for people whose medical conditions made a pool necessary for physical therapy purposes. In 2006, the town repealed the special exception provision.

Landowner owns a 10,00 square-foot lot, and sought a building permit for an above-ground pool with decking. When the permit was denied, landowner sought an area variance, and the ZBA denied the variance. Landowner brought this article 78 proceeding, and Supreme Court granted the petition.

In reversing, the Appellate Division noted that evidence before the ZBA supported the conclusion that granting the variance would produce an undesirable change in neighborhood character. Evidence established that only two above-ground pools had been built by variance in a community of more than 300 homes. The ZBA also had a rational basis for its conclusion that the variance was substantial and that any hardship was self-created. The court then rejected landowner's argument that past precedent bound the ZBA to grant the variance, noting that landowner had failed to show substantial similarity between this application and other variance applications that had previously been granted. Finally, the court rejected landowner's argument that a pool on a 10,000 square-foot lot would have no greater impact than a pool on a conforming lot, noting that a grant on this basis alone would render meaningless the town code's 12,000 square-foot minimum. As a result, the court denied the petition and dismissed the proceeding.

No Evidence of Bad Faith in Moratorium Enactment

Matter of Alfano v. Zoning Board of Appeals

NYLJ 6/15/10, p. 36, col. 5

AppDiv., Second Dept.

(memorandum opinion)

In landowners' article 78 proceeding to review denial of an area variance, the zoning board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division reversed, holding that Supreme Court had improperly relied on alleged bad faith by the zoning board of appeals, even though no allegations of bad faith had ever been advanced before the board or before Supreme Court itself.

In 2004, landowners purchased a lot with 100 feet of frontage. In 2006, they sought to subdivide the parcel into two separate parcels, each with 50 feet of frontage, and to relocate the existing home onto one of the two lots. Their permit application was not reviewed because the village had enacted a temporary building moratorium while it reviewed its zoning ordinance. When the moratorium expired, the village enacted a new zoning provision requiring a minimum frontage of 60 feet for all new construction. As a result, landowners' permit application was denied. Landowners then sought an area variance from the zoning board of appeals (ZBA). The ZBA denied the permit, noting that the variance would result in a detrimental change to the character of the neighborhood, that the variance would set a bad precedent, and that landowner's situation was self-created. Landowner then brought this article 78 proceeding. Supreme Court granted the petition, concluding that the village had enacted the moratorium in bad faith in an effort do delay granting of the landowners' original permit application. The ZBA appealed.

In reversing, the Appellate Division first noted the general rule that boards and courts should apply the ordinance in place at the time a decision is made, subject only to the “special-facts” exception when the municipality has acted in bad faith and unduly delayed acting on an application. In this case, landowners did not contend before the ZBA or before Supreme Court that there had been bad faith in enacting the moratorium or undue delay in processing its application. As a result, the Appellate Division held that the issue was not properly before Supreme Court, and the Supreme Court improperly granted the petition on that ground. Indeed, the court noted that the village had posted notice of the moratorium before landowners had submitted their initial permit application. The court then concluded that the ZBA's determination had a rational basis, even though the court disagreed with the ZBA's contention that landowners' situation was self-created.