Development

In 2005, the planning board approved a site plan for construction of a two-story retail building on Route 107 in Hicksville. The second story of the building was to be used for storage. In 2008, however, landowner sought approval of a modified site plan, which would permit use of the second story for 11 residential apartments. The applicable zoning ordinance permits residential apartments above retail space. A consulting engineer determined that the 11 apartments would add 60 vehicular trips during peak traffic hours, one more than the previously approved site plan. The modified site plan
provided for 73 off-street parking spaces, six more than required under the zoning ordinance. The county planning board approved the site plan, concluding that it might encourage redevelopment of other marginal properties along route 107. The town planning board nevertheless denied the application after community residents expressed opposition at two public hearings. The community objections centered on a fear that the apartments would attract undesirable tenants, but the planning board rested its decision on concerns about access to the premises, the propensity for excessive traffic congestion, and lack of parking. Landowner then brought this article 78 proceeding, but Supreme Court upheld the planning board's decision.

In reversing, the Appellate Division concluded that the record lacked sufficient evidence to support the planning board's determination. The court emphasized that the modified site plan application complied fully with the requirements of the town code, and indicated that the board's concerns over congestion, access, and parking were contradicted by the record. As a result, the court concluded that the planning board's action was impermissibly based on generalized community opposition, and should have been annulled.

COMMENT

A local planning board may deny site plan approval to a project that fully complies with the applicable zoning code unless the board's decision violates state or local law, is unsupported by substantial evidence, or is arbitrary or capricious. In Matter of Valentine v. McLaughlin, 87 A.D.3d 1155, the court, after noting that a “a local planning board has broad discretion” in considering the proposed project's effects on surrounding properties, area aesthetics, and public welfare, affirmed the planning board's denial of a site plan that fully complied with applicable zoning laws. The court emphasized that the planning board had made specific findings ' e.g., that the development would make it difficult for large emergency vehicles to navigate and that the project may encroach on or require excavation of neighboring properties ' and that the findings, although subject to conflicting evidence, were supported by substantial evidence.

On the other hand, a planning board's decision may be overturned for violating either local law or the state's enabling legislation. For instance, in Moriarty v. Planning Bd. of Sloatsburg, 119 A.D.2d 188, the court invalidated a planning board decision for exceeding the powers delegated to it by local law The planning board rejected a site plan application based on concerns about fire prevention. The power to deny permits based on concerns about fire prevention, however, was reserved by local law to the building inspector. Similarly, in Town of Alexandria v. Mac Knight, 281 A.D.2d 945, the court overturned a planning board decision for violating state law when the board denied site plan approval to a project proposed to be built on state waters. The court held that the local planning board had no power to issue determinations on state property.

Courts often find a planning board decision to be arbitrary and capricious where the board's findings are based largely on neighbor opposition and not supported by the record. Thus, in Ernalex Const. Reality Corp. v. Bellissimo, 256 A.D.2d 338, a planning board's decision was held “arbitrary and capricious where the board's denial was largely based on six speculative comments [that were] uncorroborated by empirical evidence or expert opinion.” And in Sackson v. Zimmerman, 103 A.D.2d 843, the planning board denied an application to divide a very large lot into two smaller lots, with the smallest of the two being above the minimum dwelling size established by local zoning codes. The court reversed the planning board's denial after finding the denial improper because it was based “a generalized feeling that neighbors should have the aesthetic pleasure of viewing a [single, very large mansion].”

Nonconforming Use Had Been Abandoned

Matter of Steiert Enterprises, Inc. v. City of Glen Cove
NYLJ 12/19/11, p. 28, col. 1
AppDiv, Second Dept.
(memorandum opinion)

In landowner's article 78 proceeding challenging a decision by the zoning board of appeals (ZBA) denying its application to operate a landscape business on its premises, and denying area variances to permit an accessory structure, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that the ZBA had properly denied landowner's application.

Landowner's predecessors have, for more than 60 years, operated a nursery on the subject 1.2-acre parcel located in a residential zoning district. The property supported a number of buildings, including a residential dwelling. In 1971, the dwelling building ceased to be used for residential purposes, and has since been used in connection with the nursery business. When landowner acquired the property, landowner applied to amend the certificate of occupancy to recognize the pre-existing nonconforming nursery use, and also to permit operation of a landscape maintenance and design business on the premises. Landowner also sought area variances to build an accessory storage building, and also sought permission to use the residential building for commercial purposes consistent with its nonconforming use. The ZBA denied permission to operate the landscape business, and denied the area variances. The ZBA held that landowner could continue to use the residential building for commercial purposes ' but could not introduce mixed residential and commercial uses into the building because mixed uses were prohibited in the zoning district. Supreme Court then dismissed landowner's article 78 proceeding, and landowner appealed.

In affirming, the Appellate Division held that the ZBA had appropriately balanced the statutory factors in denying the variance application. With respect to the landscape business, the court held that the ZBA properly determined that the building would be an impermissible expansion of a prior nonconforming use. Finally, the court held that once the mixed use of the residential building was abandoned, the use no longer qualified as a prior nonconforming use. As a result, the ZBA appropriately granted landowner the choice of using the building for it nonconforming commercial use, or instead converting the entire building to residential use.

Planning Board May Not Deny Site Plan Based on Generalized Community
Opposition

Matter of Bagga v. Stanco
NYLJ 12/28/11, p. 23, col. 2
AppDiv, Second Dept.
(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an application for modified site plan approval, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed,
holding that the planning board's determination was improperly based on generalized community opposition.

In 2005, the planning board approved a site plan for construction of a two-story retail building on Route 107 in Hicksville. The second story of the building was to be used for storage. In 2008, however, landowner sought approval of a modified site plan, which would permit use of the second story for 11 residential apartments. The applicable zoning ordinance permits residential apartments above retail space. A consulting engineer determined that the 11 apartments would add 60 vehicular trips during peak traffic hours, one more than the previously approved site plan. The modified site plan
provided for 73 off-street parking spaces, six more than required under the zoning ordinance. The county planning board approved the site plan, concluding that it might encourage redevelopment of other marginal properties along route 107. The town planning board nevertheless denied the application after community residents expressed opposition at two public hearings. The community objections centered on a fear that the apartments would attract undesirable tenants, but the planning board rested its decision on concerns about access to the premises, the propensity for excessive traffic congestion, and lack of parking. Landowner then brought this article 78 proceeding, but Supreme Court upheld the planning board's decision.

In reversing, the Appellate Division concluded that the record lacked sufficient evidence to support the planning board's determination. The court emphasized that the modified site plan application complied fully with the requirements of the town code, and indicated that the board's concerns over congestion, access, and parking were contradicted by the record. As a result, the court concluded that the planning board's action was impermissibly based on generalized community opposition, and should have been annulled.

COMMENT

A local planning board may deny site plan approval to a project that fully complies with the applicable zoning code unless the board's decision violates state or local law, is unsupported by substantial evidence, or is arbitrary or capricious. In Matter of Valentine v. McLaughlin, 87 A.D.3d 1155, the court, after noting that a “a local planning board has broad discretion” in considering the proposed project's effects on surrounding properties, area aesthetics, and public welfare, affirmed the planning board's denial of a site plan that fully complied with applicable zoning laws. The court emphasized that the planning board had made specific findings ' e.g., that the development would make it difficult for large emergency vehicles to navigate and that the project may encroach on or require excavation of neighboring properties ' and that the findings, although subject to conflicting evidence, were supported by substantial evidence.

On the other hand, a planning board's decision may be overturned for violating either local law or the state's enabling legislation. For instance, in Moriarty v. Planning Bd. of Sloatsburg, 119 A.D.2d 188, the court invalidated a planning board decision for exceeding the powers delegated to it by local law The planning board rejected a site plan application based on concerns about fire prevention. The power to deny permits based on concerns about fire prevention, however, was reserved by local law to the building inspector. Similarly, in Town of Alexandria v. Mac Knight, 281 A.D.2d 945, the court overturned a planning board decision for violating state law when the board denied site plan approval to a project proposed to be built on state waters. The court held that the local planning board had no power to issue determinations on state property.

Courts often find a planning board decision to be arbitrary and capricious where the board's findings are based largely on neighbor opposition and not supported by the record. Thus, in Ernalex Const. Reality Corp. v. Bellissimo, 256 A.D.2d 338, a planning board's decision was held “arbitrary and capricious where the board's denial was largely based on six speculative comments [that were] uncorroborated by empirical evidence or expert opinion.” And in Sackson v. Zimmerman, 103 A.D.2d 843, the planning board denied an application to divide a very large lot into two smaller lots, with the smallest of the two being above the minimum dwelling size established by local zoning codes. The court reversed the planning board's denial after finding the denial improper because it was based “a generalized feeling that neighbors should have the aesthetic pleasure of viewing a [single, very large mansion].”

Nonconforming Use Had Been Abandoned

Matter of Steiert Enterprises, Inc. v. City of Glen Cove
NYLJ 12/19/11, p. 28, col. 1
AppDiv, Second Dept.
(memorandum opinion)

In landowner's article 78 proceeding challenging a decision by the zoning board of appeals (ZBA) denying its application to operate a landscape business on its premises, and denying area variances to permit an accessory structure, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that the ZBA had properly denied landowner's application.

Landowner's predecessors have, for more than 60 years, operated a nursery on the subject 1.2-acre parcel located in a residential zoning district. The property supported a number of buildings, including a residential dwelling. In 1971, the dwelling building ceased to be used for residential purposes, and has since been used in connection with the nursery business. When landowner acquired the property, landowner applied to amend the certificate of occupancy to recognize the pre-existing nonconforming nursery use, and also to permit operation of a landscape maintenance and design business on the premises. Landowner also sought area variances to build an accessory storage building, and also sought permission to use the residential building for commercial purposes consistent with its nonconforming use. The ZBA denied permission to operate the landscape business, and denied the area variances. The ZBA held that landowner could continue to use the residential building for commercial purposes ' but could not introduce mixed residential and commercial uses into the building because mixed uses were prohibited in the zoning district. Supreme Court then dismissed landowner's article 78 proceeding, and landowner appealed.

In affirming, the Appellate Division held that the ZBA had appropriately balanced the statutory factors in denying the variance application. With respect to the landscape business, the court held that the ZBA properly determined that the building would be an impermissible expansion of a prior nonconforming use. Finally, the court held that once the mixed use of the residential building was abandoned, the use no longer qualified as a prior nonconforming use. As a result, the ZBA appropriately granted landowner the choice of using the building for it nonconforming commercial use, or instead converting the entire building to residential use.