Development

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging variance denials, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA was entitled to apply a code provision enacted during the pendency of landowner's application.

Landowner sought to subdivide a large lot into two lots, one behind the other, and sought a permit to build a single-family home on the rear lot. Neither of the two proposed lots met the 30,000 square-foot minimum lot size required by the local zoning code. As a result, landowner sought area variances. While the application was pending, the village amended the code to impose a 125-foot street frontage requirement, which the rear lot could not satisfy. The zoning board of appeals (ZBA) then denied the variance applications. Landowner then brought this proceeding challenging the denials and contending that the special facts exception prevents the village from applying the new frontage application to landowner's application. Supreme Court dismissed the proceeding.

In affirming, the Appellate Division emphasized the discretion enjoyed by local zoning boards in considering area variance applications, and concluded that the ZBA had rationally decided that the variances would produce an undesirable change in the character of the neighborhood, especially in light of the substantial nature of the variances. The court then held that the newly enacted frontage requirement was applicable to landowner's application, noting that in general, courts apply the zoning ordinance in effect at the time the court renders its decision. The court acknowledged the existence of a “special facts exception” when the municipality unduly delays proceeding, and acts in bad faith while enacting a change in law. The court held, however, that the special facts exception applies only when landowner would otherwise have been entitled to relief as a matter of right before the change in law. Here, because landowner was not entitled to the minimum lot size variances as a matter of right, the special facts exception was inapplicable.

COMMENT

To benefit from the “special facts exception,” a landowner must show that it was entitled to the permit as a matter of right, and that the municipality acted in bad faith in delaying review of landowner's application. In Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, the Court of Appeals held that landowner was entitled to a building permit when his application fully complied with the code requirements, but the building inspector denied the permit and the ZBA delayed action on landowner's appeal until the village could amend the ordinance to prohibit the proposed use. In Pokoik, the village board of trustees amended the zoning ordinance limiting the number of bedrooms permitted in a single-family home in response to landowner's application for a building permit. The court determined that if landowner's revised application had been reviewed within reasonable time of it being submitted, landowner would have had a year in which to begin construction before the effective date of the amendment, and thus would have acquired a vested right. See also Town of Orangetown v. Magee, 88 N.Y.2d 41, 47, 665 N.E.2d 1061, 1064 (1996) (“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development.”)

Generally, landowners may not invoke the special facts exception where the initial application was subject to discretionary review by state or local officials. For example, in Matter of Anstu Farm, L.L. C. v. Town Board, 285 A.D.2d 503, the Second Department held that the special facts exception didn't apply where landowner's application was subject to the discretion of the Commissioner of Transportation of the State of New York. Similarly, courts have consistently denied application of the special facts exception in cases involving the review of special permit applications. In Morgan v. Town of W. Bloomfield, 295 A.D.2d 902, the Fourth Department held that the special facts exception was
inapplicable when the board retained discretion to evaluate the landowners'
special permit application. Thus, landowners were not entitled to a special permit under the law as it existed prior to the town's amendment restricting the number of housing units permitted in manufactured home parks. Similarly, in Preble Aggregate Inc. v. Town of Preble, 263 A.D.2d 849, the Third Department denied the benefit of the exception to landowners on the grounds that the special permit application was subject to the planning board's discretion, although the court also noted that the municipality's delay lacked the “malice, oppression, manipulation or corruption” necessary to constitute special facts. Id. at 851.

By contrast, courts have been willing to apply the special facts exception where landowner claims a municipality's delay in acting on a site plan denied landowner his or her right to a permit. Although local boards retain considerable discretion in reviewing site plan applications, the special facts exception has applied where the municipality amended the ordinance to prohibit a use that was previously permitted, subject to site plan review. In Figgie Int'l, Inc. v. Town of Huntington, 203 A.D.2d 416, the Second Department held that that special facts exception was applicable when the planning board delayed acting on a site plan to permit enactment of a zoning amendment prohibiting industrial use of the property. Pursuant to the town code, petitioner's complete site plan application was entitled to default approval where the town planning board failed to act on the plan within 45 days of submission. That delay, designed to allow the town to enact the amendment, was enough for the court to hold that landowner was entitled to proceed under the old ordinance rather than the new one. Additionally, in Mamaroneck Beach & Yacht Club, Inc. v. Zoning Bd. of Appeals of Vill. of Mamaroneck, 53 A.D.3d 494, the Second Department held that the special facts exception applied even though landowner's application was subject to site plan review by the planning board. In Mamaroneck Beach & Yacht Club, the village enacted a law clarifying the meaning of “seasonal residence” with the intention of reversing the building inspector's determination that landowners' proposed seasonal residences complied with code requirements. The court held the clarifying amendment inapplicable to landowner's application when the village had enacted a moratorium preventing approval of landowner's site plan.

Amended Code Provision

Matter of Nathan v. Zoning Board of Appeals

NYLJ 5/14/12, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging variance denials, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA was entitled to apply a code provision enacted during the pendency of landowner's application.

Landowner sought to subdivide a large lot into two lots, one behind the other, and sought a permit to build a single-family home on the rear lot. Neither of the two proposed lots met the 30,000 square-foot minimum lot size required by the local zoning code. As a result, landowner sought area variances. While the application was pending, the village amended the code to impose a 125-foot street frontage requirement, which the rear lot could not satisfy. The zoning board of appeals (ZBA) then denied the variance applications. Landowner then brought this proceeding challenging the denials and contending that the special facts exception prevents the village from applying the new frontage application to landowner's application. Supreme Court dismissed the proceeding.

In affirming, the Appellate Division emphasized the discretion enjoyed by local zoning boards in considering area variance applications, and concluded that the ZBA had rationally decided that the variances would produce an undesirable change in the character of the neighborhood, especially in light of the substantial nature of the variances. The court then held that the newly enacted frontage requirement was applicable to landowner's application, noting that in general, courts apply the zoning ordinance in effect at the time the court renders its decision. The court acknowledged the existence of a “special facts exception” when the municipality unduly delays proceeding, and acts in bad faith while enacting a change in law. The court held, however, that the special facts exception applies only when landowner would otherwise have been entitled to relief as a matter of right before the change in law. Here, because landowner was not entitled to the minimum lot size variances as a matter of right, the special facts exception was inapplicable.

COMMENT

To benefit from the “special facts exception,” a landowner must show that it was entitled to the permit as a matter of right, and that the municipality acted in bad faith in delaying review of landowner's application. In Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, the Court of Appeals held that landowner was entitled to a building permit when his application fully complied with the code requirements, but the building inspector denied the permit and the ZBA delayed action on landowner's appeal until the village could amend the ordinance to prohibit the proposed use. In Pokoik, the village board of trustees amended the zoning ordinance limiting the number of bedrooms permitted in a single-family home in response to landowner's application for a building permit. The court determined that if landowner's revised application had been reviewed within reasonable time of it being submitted, landowner would have had a year in which to begin construction before the effective date of the amendment, and thus would have acquired a vested right. See also Town of Orangetown v. Magee, 88 N.Y.2d 41, 47, 665 N.E.2d 1061, 1064 (1996) (“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development.”)

Generally, landowners may not invoke the special facts exception where the initial application was subject to discretionary review by state or local officials. For example, in Matter of Anstu Farm, L.L. C. v. Town Board, 285 A.D.2d 503, the Second Department held that the special facts exception didn't apply where landowner's application was subject to the discretion of the Commissioner of Transportation of the State of New York. Similarly, courts have consistently denied application of the special facts exception in cases involving the review of special permit applications. In Morgan v. Town of W. Bloomfield, 295 A.D.2d 902, the Fourth Department held that the special facts exception was
inapplicable when the board retained discretion to evaluate the landowners'
special permit application. Thus, landowners were not entitled to a special permit under the law as it existed prior to the town's amendment restricting the number of housing units permitted in manufactured home parks. Similarly, in Preble Aggregate Inc. v. Town of Preble, 2 63 A.D.2d 849, the Third Department denied the benefit of the exception to landowners on the grounds that the special permit application was subject to the planning board's discretion, although the court also noted that the municipality's delay lacked the “malice, oppression, manipulation or corruption” necessary to constitute special facts. Id. at 851.

By contrast, courts have been willing to apply the special facts exception where landowner claims a municipality's delay in acting on a site plan denied landowner his or her right to a permit. Although local boards retain considerable discretion in reviewing site plan applications, the special facts exception has applied where the municipality amended the ordinance to prohibit a use that was previously permitted, subject to site plan review. In Figgie Int'l, Inc. v. Town of Huntington, 203 A.D.2d 416, the Second Department held that that special facts exception was applicable when the planning board delayed acting on a site plan to permit enactment of a zoning amendment prohibiting industrial use of the property. Pursuant to the town code, petitioner's complete site plan application was entitled to default approval where the town planning board failed to act on the plan within 45 days of submission. That delay, designed to allow the town to enact the amendment, was enough for the court to hold that landowner was entitled to proceed under the old ordinance rather than the new one. Additionally, in Mamaroneck Beach & Yacht Club, Inc. v. Zoning Bd. of Appeals of Vill. of Mamaroneck, 5 3 A.D.3d 494, the Second Department held that the special facts exception applied even though landowner's application was subject to site plan review by the planning board. In Mamaroneck Beach & Yacht Club, the village enacted a law clarifying the meaning of “seasonal residence” with the intention of reversing the building inspector's determination that landowners' proposed seasonal residences complied with code requirements. The court held the clarifying amendment inapplicable to landowner's application when the village had enacted a moratorium preventing approval of landowner's site plan.