Development

Developer Not Entitled to Non-Conforming Use or Vested Rights Protection

Matter of Mar-Vera Corp. v. Zoning Board of Appeals of the Village of Irvington

NYLJ 6/2/11, p. 39, col,. 6

AppDiv, Second Dept.

(memorandum opinion)

In developer's article 78 proceeding to review the ZBA's confirmation of the Building Inspector's denial of a building permit, developer appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that developer was not entitled to non-conforming use protection or vested rights protection.

In 1979, the village approved a subdivision plan permitting construction of 27 single-family homes and 14 attached townhouses. As a condition of approval, the village required the developer to dedicate 12 acres to the village for public park purposes. Developer built the single-family homes but not the townhouses, and then, in 2000, sought a building permit for the townhouses. The village building inspector denied the permit, noting that the townhouses did not comply with the new zoning ordinance enacted after the approval of the original subdivision. The ZBA confirmed the building inspector's denial, and developer brought this article 78 proceeding.

In denying the petition and dismissing the proceeding, the Appellate Division first rejected the argument that the lot on which the townhouses were to be built constituted a legal nonconforming use. The court emphasized that to qualify as a legal nonconforming use, the property must actually be used for the nonconforming purpose at the time the zoning ordinance is amended. Here, the townhouses had not yet been built. The court then turned to, and rejected, developer's argument that it had acquired a vested right to build the townhouses. The developer had argued that the dedication of the parkland conferred a benefit on the village that conferred vested rights on the developer. In rejecting that argument, the court held that dedication alone would not cause rights to vest. The court then conceded that a developer who improves property pursuant to a subdivision approval may acquire a vested rights to the rest of the improvements, but where, as here, the site improvements under the original plan would be equally valuable under the new ordinance, landowner cannot claim that vested rights exempt him from complying with the new ordinance. Because the majority of the improvements to the townhouse lot were used for the entire subdivision, no rights vested. As a result, the ZBA's determination was not arbitrary and capricious.

Library Qualifies for Deferential Treatment on Variance Application

Matter of East Hampton Library v. Zoning Board of Appeals

NYLJ 6/7/11

Supreme Ct., Suffolk, Ct.

(Whelan, J.)

Landowner brought an article 78 proceeding challenging the ZBA's SEQRA determination and subsequent denial of area variances and a special use permit. The court granted the petition, holding that a library qualified for the deferential treatment accorded religious and education institutions.

The East Hampton Library sought to improve its library building and services. To do that, it applied for a special permit for a proposed expansion of 10,300 square feet. Subsequently, the library reduced its proposed expansion to 6,802 square feet. The ZBA determined that the proposed expansion was a “type 1″ action under SEQRA. The library prepared a draft environmental impact statement (DEIS), while simultaneously advising the ZBA that the action was a type 2 action because the library qualified as an educational institution, and educational expansions of fewer than 10,000 square feet are exempt from the SEQRA review process. The ZBA rejected the library's position, and also determined that the project would need two variances and a special permit. The ZBA denied both the variances and the special permit, prompting the library to bring this article 78 proceeding.

In granting the petition, the court first held that libraries chartered by the University of the State of New York qualified as educational institutions entitled to the same deferential zoning treatment as schools and religious institutions. The court therefore held that classifying the expansion as a type 1 action was an error, and annulled the ZBA's determination that the expansion was a type 1 action. The court then annulled the denial of setback and lot coverage variances because the ZBA failed in its duty to suggest reasonable measures to accommodate the library expansion to mitigation any adverse effects to the community. The court also held that ZBA's expressed traffic concerns were not supported by the record, which included evidence that the proposed expansion would have negligible traffic effects on surrounding streets. The court annulled denial of the special use permit for similar reasons, and held that the proposed expansion should proceed, subject to such reasonable conditions as the ZBA might impose within 30 days of a hearing to be conducted with 60 days of the date of the court's decision.

Developer Not Entitled to Non-Conforming Use or Vested Rights Protection

Matter of Mar-Vera Corp. v. Zoning Board of Appeals of the Village of Irvington

NYLJ 6/2/11, p. 39, col,. 6

AppDiv, Second Dept.

(memorandum opinion)

In developer's article 78 proceeding to review the ZBA's confirmation of the Building Inspector's denial of a building permit, developer appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that developer was not entitled to non-conforming use protection or vested rights protection.

In 1979, the village approved a subdivision plan permitting construction of 27 single-family homes and 14 attached townhouses. As a condition of approval, the village required the developer to dedicate 12 acres to the village for public park purposes. Developer built the single-family homes but not the townhouses, and then, in 2000, sought a building permit for the townhouses. The village building inspector denied the permit, noting that the townhouses did not comply with the new zoning ordinance enacted after the approval of the original subdivision. The ZBA confirmed the building inspector's denial, and developer brought this article 78 proceeding.

In denying the petition and dismissing the proceeding, the Appellate Division first rejected the argument that the lot on which the townhouses were to be built constituted a legal nonconforming use. The court emphasized that to qualify as a legal nonconforming use, the property must actually be used for the nonconforming purpose at the time the zoning ordinance is amended. Here, the townhouses had not yet been built. The court then turned to, and rejected, developer's argument that it had acquired a vested right to build the townhouses. The developer had argued that the dedication of the parkland conferred a benefit on the village that conferred vested rights on the developer. In rejecting that argument, the court held that dedication alone would not cause rights to vest. The court then conceded that a developer who improves property pursuant to a subdivision approval may acquire a vested rights to the rest of the improvements, but where, as here, the site improvements under the original plan would be equally valuable under the new ordinance, landowner cannot claim that vested rights exempt him from complying with the new ordinance. Because the majority of the improvements to the townhouse lot were used for the entire subdivision, no rights vested. As a result, the ZBA's determination was not arbitrary and capricious.

Library Qualifies for Deferential Treatment on Variance Application

Matter of East Hampton Library v. Zoning Board of Appeals

NYLJ 6/7/11

Supreme Ct., Suffolk, Ct.

(Whelan, J.)

Landowner brought an article 78 proceeding challenging the ZBA's SEQRA determination and subsequent denial of area variances and a special use permit. The court granted the petition, holding that a library qualified for the deferential treatment accorded religious and education institutions.

The East Hampton Library sought to improve its library building and services. To do that, it applied for a special permit for a proposed expansion of 10,300 square feet. Subsequently, the library reduced its proposed expansion to 6,802 square feet. The ZBA determined that the proposed expansion was a “type 1″ action under SEQRA. The library prepared a draft environmental impact statement (DEIS), while simultaneously advising the ZBA that the action was a type 2 action because the library qualified as an educational institution, and educational expansions of fewer than 10,000 square feet are exempt from the SEQRA review process. The ZBA rejected the library's position, and also determined that the project would need two variances and a special permit. The ZBA denied both the variances and the special permit, prompting the library to bring this article 78 proceeding.

In granting the petition, the court first held that libraries chartered by the University of the State of New York qualified as educational institutions entitled to the same deferential zoning treatment as schools and religious institutions. The court therefore held that classifying the expansion as a type 1 action was an error, and annulled the ZBA's determination that the expansion was a type 1 action. The court then annulled the denial of setback and lot coverage variances because the ZBA failed in its duty to suggest reasonable measures to accommodate the library expansion to mitigation any adverse effects to the community. The court also held that ZBA's expressed traffic concerns were not supported by the record, which included evidence that the proposed expansion would have negligible traffic effects on surrounding streets. The court annulled denial of the special use permit for similar reasons, and held that the proposed expansion should proceed, subject to such reasonable conditions as the ZBA might impose within 30 days of a hearing to be conducted with 60 days of the date of the court's decision.