Development

Landowner Did Not Establish Right to Build on Non-Conforming Lot

Matter of Rusciano v. Ross

NYLJ 11/09/10, p. 30, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination by the village building inspector, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner had not established that the parcel in question constituted a legal non-conforming building lot.

In 1971, landowner, by a single deed, acquired title to land described by metes and bounds, and also described as Lots 6 and 6A. A single-family home is located on Lot 6, and a storage shed is located on Lot 6A. Until 1928, the lots were a single undivided lot. In 1928, the owner of the lot subdivided by conveying Lot 6A to another person. No subdivision map was ever filed. Then, in 1948, the two lots were once again owned by a common owner, who conveyed them both to current landowner in 1971. The two lots have been taxed separately since at least 1971. In 2008, landowner requested that the village building inspector approve Lot 6A as a legal non-conforming building lot. The building inspector concluded that the lot was not a legal non-conforming lot, and the Zoning Board of Appeals affirmed that determination. When Supreme Court dismissed landowner's article 78 proceeding, landowner appealed.

In affirming, the Appellate Division emphasized that the 1928 deed purporting to subdivide the parcel would have created two lots that failed to conform to existing zoning ordinances. As a result, Lot 6A was never a legal nonconforming lot, and the building inspector's determination was not arbitrary or capricious.

COMMENT

In New York, the common law affords no protection to lot owners whose lots are rendered non-conforming by a newly enacted zoning ordinance; all protections must be rooted in a local ordinance. In Khan v. Zoning Board of Appeals of the Village of Irving, 87 N.Y.2d 344, the Court of Appeals held that a landowner whose unimproved lot was located in a flood plain did not qualify for non-conforming lot status under the terms of the local ordinance. In the course of its opinion, the court explicitly rejected the position taken in other states affording common law protections to non-conforming uses.

When the local ordinance does provide protection to pre-existing non-conforming lots, an owner who also acquires title to a neighboring lot loses the right to build on the non-conforming lot if and only if the local ordinance includes a zoning merger provision. In Van Perlstein v. Oakley, 203 A.D.2d 853, the court upheld the ZBA's grant of an area variance to construct a one-family dwelling on a substandard lot, noting that because the town's ordinance contained no specific merger clause, the landowner's acquisition of a contiguous lot did not result in a merger. As a result, landowner was entitled to a variance for her non-conforming lot. In contrast, the court in Wiggin v. Kern, 161 A.D.2d 716, found that a non-conforming landowner was not entitled to a variance where the zoning ordinance contained a specific merger doctrine and a merger effectively occurred where the landowner and his wife held adjoining parcels in common ownership, maintained both parcels as a single piece of property and also offered to sell both parcels as a single unit.

If the owner of a substandard lot is unable to show that his parcel has a legal non-conforming use, he may not be entitled to any judicial relief, and instead may be relegated to market transactions. Thus, in Wolfson v. Curcio, 150 A.D.2d 586, the court upheld denial of an area variance to the owner of a substandard lot. The court emphasized that the landowner knew of the area restrictions when he made the investment and that he failed to consider the possibility of alternative available uses for the property, such as merging the lot with an adjacent lot through sale to an adjacent landowner or purchase of an adjacent lot. Similarly, in Chandler Property v. Trotta, 9 A.D.3d 408, the court upheld denial of an area variance, noting that the substandard lot owner would still be able to find a conforming use of his land through purchase of an adjacent lot to bring the lot into conformity, or through a sale to an adjacent landowner.

Town Not Estopped from Enforcing Ordinance

Town of Southold v. Estate of Edson

NYLJ 11/16/10, p. 31, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In the town's action to enjoin operation of a retail store in violation of the zoning ordinance, landowner appealed from Supreme Court's grant of injunctive relief. The Appellate Division affirmed, rejecting landowner's acquiescence and estoppel defenses.

The applicable zoning ordinance prohibits sale of products not grown on landowner's premises without proper authorization from the town. The town's certificates of occupancy for the premises, issued in 1987 and 1990, did not authorize the retail sales landowner had been conducting. Landowner argued, however, that the town should be estopped from enforcing the code provisions because it had acquiesced in improper use over a period of years. Supreme Court rejected that argument, and landowner appealed.

In affirming, the Appellate Division emphasized that estoppel is not generally available to prevent a municipality from discharging its statutory duties. Even a building permit issued due to an error by a municipal agency does not confer rights in violation of zoning laws. As a result, the court rejected landowner's estoppel claim and held that the town was entitled to injunctive relief.

Area Variances Annulled

Matter of Switzgable v. Board of Zoning Appeals

NYLJ 11/16/10, p. 29, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging the grant of eight area variances, all parties appealed from Supreme Court's grant of the petition annulling an area variance permitting construction of a 10-foot solid fence, but denying the rest of the petition. The Appellate Division modified to annul all of the area variances, holding that the Board of Zoning Appeals (BZA) disregarded evidence about adverse impact to the community, and gave too little weight to the self-created nature of the hardship.

Landowner, a member of the Pines Zoning Advisory Committee, sought eight variances in connection with his Fire Island property. The variances were for an addition to his residence, together with additional decks and fences. Landowner had apparently built on his property without regard to the zoning laws. The BZA granted the variances, citing to other comparable structures in the area. Neighbor challenged the variances, and Supreme Court denied the petition, except with respect to a variance to build a solid fence along the eastern property line of the parcel. Neighbor, landowner, and the BZA appealed.

In modifying, the Appellate Division concluded that the BZA had abused its discretion, because all of the comparable structure the BZA had relied upon to justify the variances were either nonconforming uses build prior to enactment of the current zoning restrictions, or were illegally built by landowner. The court held that it was improper for the BZA to issue a variance based on such comparable structures. The court also noted that because landowner had acted with disregard of the zoning laws, any hardship was self-created, a factor to which the BZA gave inadequate weight. As a result, the court held that the petition should have been granted in its entirety.

Landowner Did Not Establish Right to Build on Non-Conforming Lot

Matter of Rusciano v. Ross

NYLJ 11/09/10, p. 30, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination by the village building inspector, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner had not established that the parcel in question constituted a legal non-conforming building lot.

In 1971, landowner, by a single deed, acquired title to land described by metes and bounds, and also described as Lots 6 and 6A. A single-family home is located on Lot 6, and a storage shed is located on Lot 6A. Until 1928, the lots were a single undivided lot. In 1928, the owner of the lot subdivided by conveying Lot 6A to another person. No subdivision map was ever filed. Then, in 1948, the two lots were once again owned by a common owner, who conveyed them both to current landowner in 1971. The two lots have been taxed separately since at least 1971. In 2008, landowner requested that the village building inspector approve Lot 6A as a legal non-conforming building lot. The building inspector concluded that the lot was not a legal non-conforming lot, and the Zoning Board of Appeals affirmed that determination. When Supreme Court dismissed landowner's article 78 proceeding, landowner appealed.

In affirming, the Appellate Division emphasized that the 1928 deed purporting to subdivide the parcel would have created two lots that failed to conform to existing zoning ordinances. As a result, Lot 6A was never a legal nonconforming lot, and the building inspector's determination was not arbitrary or capricious.

COMMENT

In New York, the common law affords no protection to lot owners whose lots are rendered non-conforming by a newly enacted zoning ordinance; all protections must be rooted in a local ordinance. In Khan v. Zoning Board of Appeals of the Village of Irving, 87 N.Y.2d 344, the Court of Appeals held that a landowner whose unimproved lot was located in a flood plain did not qualify for non-conforming lot status under the terms of the local ordinance. In the course of its opinion, the court explicitly rejected the position taken in other states affording common law protections to non-conforming uses.

When the local ordinance does provide protection to pre-existing non-conforming lots, an owner who also acquires title to a neighboring lot loses the right to build on the non-conforming lot if and only if the local ordinance includes a zoning merger provision. In Van Perlstein v. Oakley, 203 A.D.2d 853, the court upheld the ZBA's grant of an area variance to construct a one-family dwelling on a substandard lot, noting that because the town's ordinance contained no specific merger clause, the landowner's acquisition of a contiguous lot did not result in a merger. As a result, landowner was entitled to a variance for her non-conforming lot. In contrast, the court in Wiggin v. Kern, 161 A.D.2d 716, found that a non-conforming landowner was not entitled to a variance where the zoning ordinance contained a specific merger doctrine and a merger effectively occurred where the landowner and his wife held adjoining parcels in common ownership, maintained both parcels as a single piece of property and also offered to sell both parcels as a single unit.

If the owner of a substandard lot is unable to show that his parcel has a legal non-conforming use, he may not be entitled to any judicial relief, and instead may be relegated to market transactions. Thus, in Wolfson v. Curcio, 150 A.D.2d 586, the court upheld denial of an area variance to the owner of a substandard lot. The court emphasized that the landowner knew of the area restrictions when he made the investment and that he failed to consider the possibility of alternative available uses for the property, such as merging the lot with an adjacent lot through sale to an adjacent landowner or purchase of an adjacent lot. Similarly, in Chandler Property v. Trotta, 9 A.D.3d 408, the court upheld denial of an area variance, noting that the substandard lot owner would still be able to find a conforming use of his land through purchase of an adjacent lot to bring the lot into conformity, or through a sale to an adjacent landowner.

Town Not Estopped from Enforcing Ordinance

Town of Southold v. Estate of Edson

NYLJ 11/16/10, p. 31, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In the town's action to enjoin operation of a retail store in violation of the zoning ordinance, landowner appealed from Supreme Court's grant of injunctive relief. The Appellate Division affirmed, rejecting landowner's acquiescence and estoppel defenses.

The applicable zoning ordinance prohibits sale of products not grown on landowner's premises without proper authorization from the town. The town's certificates of occupancy for the premises, issued in 1987 and 1990, did not authorize the retail sales landowner had been conducting. Landowner argued, however, that the town should be estopped from enforcing the code provisions because it had acquiesced in improper use over a period of years. Supreme Court rejected that argument, and landowner appealed.

In affirming, the Appellate Division emphasized that estoppel is not generally available to prevent a municipality from discharging its statutory duties. Even a building permit issued due to an error by a municipal agency does not confer rights in violation of zoning laws. As a result, the court rejected landowner's estoppel claim and held that the town was entitled to injunctive relief.

Area Variances Annulled

Matter of Switzgable v. Board of Zoning Appeals

NYLJ 11/16/10, p. 29, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging the grant of eight area variances, all parties appealed from Supreme Court's grant of the petition annulling an area variance permitting construction of a 10-foot solid fence, but denying the rest of the petition. The Appellate Division modified to annul all of the area variances, holding that the Board of Zoning Appeals (BZA) disregarded evidence about adverse impact to the community, and gave too little weight to the self-created nature of the hardship.

Landowner, a member of the Pines Zoning Advisory Committee, sought eight variances in connection with his Fire Island property. The variances were for an addition to his residence, together with additional decks and fences. Landowner had apparently built on his property without regard to the zoning laws. The BZA granted the variances, citing to other comparable structures in the area. Neighbor challenged the variances, and Supreme Court denied the petition, except with respect to a variance to build a solid fence along the eastern property line of the parcel. Neighbor, landowner, and the BZA appealed.

In modifying, the Appellate Division concluded that the BZA had abused its discretion, because all of the comparable structure the BZA had relied upon to justify the variances were either nonconforming uses build prior to enactment of the current zoning restrictions, or were illegally built by landowner. The court held that it was improper for the BZA to issue a variance based on such comparable structures. The court also noted that because landowner had acted with disregard of the zoning laws, any hardship was self-created, a factor to which the BZA gave inadequate weight. As a result, the court held that the petition should have been granted in its entirety.