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Obstacles to Settlement of Land-Use Disputes
Article 78 proceedings between landowners and municipalities are a staple for New York's court system, often reaching the Appellate Division on
disputes that seem insignificant to the outside observer. Often, these proceedings do not involve novel or important legal issues, yet they rarely settle before judicial resolution. In part, the problem arises because all parties to these disputes hold strong views about the merits of their position. But also in part, the failure to settle arises because of the structure of land use law in New York. This article explores the structural obstacles to settlement of land use disputes.
A Hypothetical
Suppose a hypothetical developer wants to build a small strip-mall shopping center in an exurban town or village. Shopping centers are permitted within the district, but questions arise about whether the ordinance would permit a restaurant that plans a takeout business, and whether the proposed shopping center meets the parking requirements of the local zoning ordinance. When the developer seeks site plan approval from the local planning board, the board refers the application to the zoning board of appeals (ZBA) for an interpretation of the ordinance. Suppose further that the ZBA interprets the ordinance in a way that leaves the developer unhappy. If the developer brings an article 78 proceeding challenging the interpretation, consider the obstacles to settlement.
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