Development

Site Plan Review Permits Reduction of Size in
Code-Compliant Building

Matter of Greencove Associates, LLC. v. Town Board

NYLJ 9/26/11, p. 21, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding, landowner challenged a condition imposed by the town board in approving a site plan application. The Appellate Division confirmed the town's determination and denied the petition, holding that the Board had the power to require reduction of the size of a proposed building even though the building was code-compliant.

Landowner owns a 5.26-acre parcel improved with a commercial shopping center. A 1959 zoning change permitted construction of the shopping center, but required maintenance of a landscaped buffer adjoining a residential neighborhood. In 1999, the town board approved a site plan application to expand the center, subject to conditions requiring improvements to the landscaped buffer. In 2010, landowner submitted a new site plan application seeking to expand the center by building a new 10,000 square-foot structure that would encroach on the landscaped buffer. The application was referred to the Nassau County Planning Commission, which recommended reduction in the size of the structure to 6,800 square feet to permit maintenance of the existing buffer. After a public hearing, the town board approved the site plan, subject to the reduction recommended by the County Planning Commission. Landowner then brought this article 78 proceeding, which Supreme Court transferred to the Appellate Division. Although the Appellate Division concluded that the transfer was made in error, the court nevertheless reviewed the determination based on the full administrative record.

In confirming the town board's determination, the Appellate Division noted that Town Law section 274-a(2) authorizes review of site plans that describe landscaping and physical features meant to protect adjacent land uses, and also noted that the town code authorizes the board to consider the adequacy of screening from residential properties. The court rejected landowner's argument that the town board could not prohibit a structure whose dimensions complied with the zoning code. The court concluded that the town board's determination was not arbitrary and capricious, and therefore denied the petition.

COMMENT

Town Law section 274(a)(2) gives planning boards broad powers to consider a variety of issues in the site plan review process, including parking, means of access, signs, and architectural features such as fences and safety devices. Courts have suggested that planning boards may also consider other factors incidental to comfort, peace, enjoyment, health or safety of the surrounding area. See Koncelik v. Planning Board of the Town of East Hampton, 188 A.D.2d 469 (upholding numerous conditions imposed by the board, including precise location of building sites to protect undisturbed forest and plant species). However, the boards' powers are limited in at least two ways: first, no off-site construction mandates, and second, no conditions pre-empted by other state law regulations. Although planning boards generally have power to regulate means of access, that power does not extend to mandating that an owner improve a street outside the site in question. In Peckham Indus. v. Ross, 61 Misc.2d 616, the court struck down a board's condition requiring the lessee of a proposed quarry to improve a road outside of the site plan, even though the lessee would use the road for access. Second, boards may not usurp the power of other regulatory agencies. Thus, where the state regulates location of fire hydrants, a board may not reject a site plan due to the lack of nearby public water for fire protection purposes. See Moriarty v. Planning Board of the Village of Sloatsburg, 119 A.D.2d 188.

In addition, boards may not, as a condition for site plan approval, impose limitations that are not imposed on similarly situated landowners in the area. In the Matter of Home Depot, U.S.A. et al. v. Town Bd. of the Town of Hempstead, 63 A.D.3d 938, the court invalidated the board's imposition of hourly restrictions for operation and parking because no other “big box” stores in the same business district were subject to the same limitation. Similarly, a board cannot prohibit one landowner from using a public road open to all other members of the public. Thus, in Peckham Indus. v. Ross, supra, in addition to holding that the board could not require the quarry to improve a road outside the site, the court also held that the board could not prohibit this landowner from using a public road.

Easement Not Abandoned

Djoganopouloos v. Polkes

NYLJ 9/21/11

Supreme Ct., Suffolk Cty.

(Gazzillo, J.)

In landowner's hybrid article 78 proceeding/declaratory judgment action, the village and neighbors moved to dismiss. The court denied the dismissal motions, holding that landowner had established an easement over neighbors' land, and that landowner's challenge to the village's failure to act on its appeal to the zoning board of appeals (ZBA) was timely.

In 1967, landowner's predecessor subdivided a parcel of land bounded on Moriches Bay to the North and the Atlantic Ocean to the south. Dune Road bisected the parcel. The predecessor retained the oceanfront parcel, and the deeds to the parcel to the north reserved to the predecessor an easement to reach Moriches Bay, while also granting cross easements to reach the ocean over the predecessor's retained land. The easements were for foot traffic only, and were four feet in width. In 2004, landowner, who owns one of the parcels to the north of Dune Road, began constructing a narrow boardwalk-type structure from Dune Road toward the ocean. The owner of the oceanfront parcel removed the structure, although the zoning ordinance at that time did not require any permit for construction of such a structure. Subsequently, the village (perhaps at the behest of the oceanfront owner, who was a village trustee at the time) amended its ordinance to require a permit for dune walkover structures, and to require either permission of the owner or a court order before such a structure could be built. Landowner then sought a permit, which the building inspector denied. When landowner appealed, the ZBA did not act on the appeal. Landowner then brought this hybrid action/proceeding seeking to establish the existence of an easement, and to compel issuance of the building permit. The oceanfront neighbors and the village moved to dismiss.

In denying the motions to dismiss, the court first rejected the argument that the easement had been abandoned. Although at one time the parcels north of Dune Road had all been conveyed to a single owner, the court held that the conveyance did not result in abandonment, and did not constitute a merger of dominant and servient estate, since at all times the servient estate ' the land to the south or Dune Road ' was held in separate ownership. The court then turned to the permit, and rejected the village's argument that the permit denial was not final, noting that landowner had properly and timely appealed the building inspector's decision to the ZBA, which had not acted on the appeal within the time frame provided in the local ordinance. The court also denied the motion to dismiss landowner's claims that landowner had acquired a vested right to the walkover structure when he erected the structure before the current ordinance was enacted, and the motion to dismiss landowner's challenge to the constitutionality of the village ordinance.

Site Plan Review Permits Reduction of Size in
Code-Compliant Building

Matter of Greencove Associates, LLC. v. Town Board

NYLJ 9/26/11, p. 21, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding, landowner challenged a condition imposed by the town board in approving a site plan application. The Appellate Division confirmed the town's determination and denied the petition, holding that the Board had the power to require reduction of the size of a proposed building even though the building was code-compliant.

Landowner owns a 5.26-acre parcel improved with a commercial shopping center. A 1959 zoning change permitted construction of the shopping center, but required maintenance of a landscaped buffer adjoining a residential neighborhood. In 1999, the town board approved a site plan application to expand the center, subject to conditions requiring improvements to the landscaped buffer. In 2010, landowner submitted a new site plan application seeking to expand the center by building a new 10,000 square-foot structure that would encroach on the landscaped buffer. The application was referred to the Nassau County Planning Commission, which recommended reduction in the size of the structure to 6,800 square feet to permit maintenance of the existing buffer. After a public hearing, the town board approved the site plan, subject to the reduction recommended by the County Planning Commission. Landowner then brought this article 78 proceeding, which Supreme Court transferred to the Appellate Division. Although the Appellate Division concluded that the transfer was made in error, the court nevertheless reviewed the determination based on the full administrative record.

In confirming the town board's determination, the Appellate Division noted that Town Law section 274-a(2) authorizes review of site plans that describe landscaping and physical features meant to protect adjacent land uses, and also noted that the town code authorizes the board to consider the adequacy of screening from residential properties. The court rejected landowner's argument that the town board could not prohibit a structure whose dimensions complied with the zoning code. The court concluded that the town board's determination was not arbitrary and capricious, and therefore denied the petition.

COMMENT

Town Law section 274(a)(2) gives planning boards broad powers to consider a variety of issues in the site plan review process, including parking, means of access, signs, and architectural features such as fences and safety devices. Courts have suggested that planning boards may also consider other factors incidental to comfort, peace, enjoyment, health or safety of the surrounding area. See Koncelik v. Planning Board of the Town of East Hampton, 188 A.D.2d 469 (upholding numerous conditions imposed by the board, including precise location of building sites to protect undisturbed forest and plant species). However, the boards' powers are limited in at least two ways: first, no off-site construction mandates, and second, no conditions pre-empted by other state law regulations. Although planning boards generally have power to regulate means of access, that power does not extend to mandating that an owner improve a street outside the site in question. In Peckham Indus. v. Ross, 61 Misc.2d 616, the court struck down a board's condition requiring the lessee of a proposed quarry to improve a road outside of the site plan, even though the lessee would use the road for access. Second, boards may not usurp the power of other regulatory agencies. Thus, where the state regulates location of fire hydrants, a board may not reject a site plan due to the lack of nearby public water for fire protection purposes. See Moriarty v. Planning Board of the Village of Sloatsburg, 119 A.D.2d 188 .

In addition, boards may not, as a condition for site plan approval, impose limitations that are not imposed on similarly situated landowners in the area. In the Matter of Home Depot, U.S.A. et al. v. Town Bd. of the Town of Hempstead, 63 A.D.3d 938, the court invalidated the board's imposition of hourly restrictions for operation and parking because no other “big box” stores in the same business district were subject to the same limitation. Similarly, a board cannot prohibit one landowner from using a public road open to all other members of the public. Thus, in Peckham Indus. v. Ross, supra, in addition to holding that the board could not require the quarry to improve a road outside the site, the court also held that the board could not prohibit this landowner from using a public road.

Easement Not Abandoned

Djoganopouloos v. Polkes

NYLJ 9/21/11

Supreme Ct., Suffolk Cty.

(Gazzillo, J.)

In landowner's hybrid article 78 proceeding/declaratory judgment action, the village and neighbors moved to dismiss. The court denied the dismissal motions, holding that landowner had established an easement over neighbors' land, and that landowner's challenge to the village's failure to act on its appeal to the zoning board of appeals (ZBA) was timely.

In 1967, landowner's predecessor subdivided a parcel of land bounded on Moriches Bay to the North and the Atlantic Ocean to the south. Dune Road bisected the parcel. The predecessor retained the oceanfront parcel, and the deeds to the parcel to the north reserved to the predecessor an easement to reach Moriches Bay, while also granting cross easements to reach the ocean over the predecessor's retained land. The easements were for foot traffic only, and were four feet in width. In 2004, landowner, who owns one of the parcels to the north of Dune Road, began constructing a narrow boardwalk-type structure from Dune Road toward the ocean. The owner of the oceanfront parcel removed the structure, although the zoning ordinance at that time did not require any permit for construction of such a structure. Subsequently, the village (perhaps at the behest of the oceanfront owner, who was a village trustee at the time) amended its ordinance to require a permit for dune walkover structures, and to require either permission of the owner or a court order before such a structure could be built. Landowner then sought a permit, which the building inspector denied. When landowner appealed, the ZBA did not act on the appeal. Landowner then brought this hybrid action/proceeding seeking to establish the existence of an easement, and to compel issuance of the building permit. The oceanfront neighbors and the village moved to dismiss.

In denying the motions to dismiss, the court first rejected the argument that the easement had been abandoned. Although at one time the parcels north of Dune Road had all been conveyed to a single owner, the court held that the conveyance did not result in abandonment, and did not constitute a merger of dominant and servient estate, since at all times the servient estate ' the land to the south or Dune Road ' was held in separate ownership. The court then turned to the permit, and rejected the village's argument that the permit denial was not final, noting that landowner had properly and timely appealed the building inspector's decision to the ZBA, which had not acted on the appeal within the time frame provided in the local ordinance. The court also denied the motion to dismiss landowner's claims that landowner had acquired a vested right to the walkover structure when he erected the structure before the current ordinance was enacted, and the motion to dismiss landowner's challenge to the constitutionality of the village ordinance.