Development

AppDiv, Third Dept.

(Opinion by Egan, J.)

In this article 78 proceeding, landowner appealed from Supreme Court's determination upholding a ruling by the zoning board of appeals (ZBA) that landowner's multi-unit apartment buildings constituted a nuisance. The Appellate Division affirmed, relying on the frequency of service calls by the police and fire department.

Landowner owns three multi-unit buildings located in a zoning district that permits only one- and two-family houses. Each building qualifies as a pre-existing nonconforming use. In 2010, neighbors filed applications with the ZBA alleging that each building was a nuisance within the meaning of the city code. Neighbors sought to terminate the nonconforming use status enjoyed by the buildings. The ZBA determined that each property constituted a nuisance, and gave landowner six months within which to amortize his investments. The ZBA also gave landowner 60 days to challenge the amortization period. Landowner then brought this article 78 proceeding, but Supreme Court denied the petition and dismissed the proceeding.

In affirming, the Appellate Division relied on reports and data from the police department indicating that landowner's property had received a disproportionate number of calls, many involving fireworks, domestic incidents, and neighbor disputes, but many also involving weapons and drug sales. The court also noted that numerous arrests had been made on the premises, and indicated that the statistical data, together with comments from neighbors, constituted sufficient evidence to support the ZBA's determination.

ZBA's Interpretation Reasonable

Matter of Futterman v. Zoning Board of Appeals

NYLJ 12/28/12, AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination not to renew a building permit, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had reasonably interpreted the local zoning ordinance.

In 1999, landowner obtained a building permit for a single-family house. Ten years later, when landowner sought to renew the permit, the building inspector denied the application because the “as-built” construction on the property deviated from what was depicted on the site plan application the planning board had approved in 1999. The building inspector informed landowner that he would have to first conform to the 1999 site plan, or else seek a variance. Landowner then appealed to the ZBA from the building inspector's determination, and also sought a variance. The ZBA upheld denial of the building permit on the ground that the permit expired 30 months after its issuance, and declined to issue a variance, noting that under the applicable local law, the ZBA was required to refer such a request to the planning board before acting. Landowner then brought this article 78 proceeding, and Supreme Court denied the petition.

In affirming, the Appellate Division noted that the ZBA's interpretation of the code provision on expiration of permits was reasonable, and therefore entitled to deference. The court then agreed with the ZBA that the local law explicitly prohibited the ZBA from considering an area variance application until the planning board had been afforded an opportunity to issue an advisory opinion.

Denial of Area Variance Upheld

Matter of Pinnetti v. Zoning Board of Appeals

NYLJ 12/28/12, p. 30, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the ZBA's interpretation of the ordinance and denial of its variance application, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had properly considered the statutory factors in denying the area variance.

Landowner sought a building permit to construct a two-family house on two adjacent lots located on an existing road. Although 12 houses front on that road, the building inspector denied the permit, concluding that the road did not qualify as an “official” road within the village. Landowner then challenged that interpretation before the ZBA, and, in the alternative, sought an area variance. The ZBA concluded that the road did not qualify as an official road, and was not “suitably improved” within the meaning of Village Law section 7-726(2) because it did not meet the village's standards for paved width, and lacked a turnaround, adequate curbing, and access for emergency responders. The ZBA also denied the variance application, concluding that the additional home would cause a detriment to neighboring properties, and would exacerbate an already poor traffic situation. Supreme Court dismissed landowner's ensuing article 78 proceeding.

In affirming, the Appellate Division relied on the deference generally extended to determinations by local zoning boards. The court noted that the local planning board, the building inspector, and the fire department all made submissions suggesting that the road was not adequate to serve an additional home. The court also emphasized that the variance was substantial, and observed that landowner had summarily rejected the village's proposed reduction of its certain requirements to permit landowner to build. On those facts, the court held that the ZBA's determination had a rational basis.

'

ZBA Lacked Authority to Impose Conditions

Matter of Edson v. Southold Town Zoning Board of Appeals

NYLJ 1/11/13, p. 28, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging conditions imposed on a permit approval, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the ZBA lacked authority to impose the challenged conditions.

Landowner operates a Christmas tree farm, and sought a permit to build and operate a farm stand on the premises. The Building Department denied the permit, and landowner appealed to the ZBA, contending that he could partition his existing 7,826 square-foot building to create a space for a farm stand that did not exceed the 3,000 square-foot limit for farm stands set forth in the town code. The ZBA determined that landowner qualified for the permit, but imposed two conditions: first, landowner could not store accessory items not produced on the farm in the 4,826 square feet that would not be part of the farm stand, and second, the farm stand could only operate between Labor Day and March 31. Landowner then brought this article 78 proceeding, which Supreme Court dismissed.

In reversing, the Appellate Division first rejected Supreme Court's conclusion that landowner was judicially estopped from challenging imposition of the conditions. The court indicated that landowner's statements before the board were not clearly inconsistent with his current position. The court then held that the town code included no authority for permitting storage of items produced on the farm, while excluding items not produced on the farm, in the 4,826 square feet excluded from the farm stand. Finally, the court held that the code did not authorize the seasonal limitation on the stand.

Non-Conforming Use Terminated As Nuisance

Matter of Ploof v. Apostol

NYLJ 12/20/12, p. 21, col. 3

AppDiv, Third Dept.

(Opinion by Egan, J.)

In this article 78 proceeding, landowner appealed from Supreme Court's determination upholding a ruling by the zoning board of appeals (ZBA) that landowner's multi-unit apartment buildings constituted a nuisance. The Appellate Division affirmed, relying on the frequency of service calls by the police and fire department.

Landowner owns three multi-unit buildings located in a zoning district that permits only one- and two-family houses. Each building qualifies as a pre-existing nonconforming use. In 2010, neighbors filed applications with the ZBA alleging that each building was a nuisance within the meaning of the city code. Neighbors sought to terminate the nonconforming use status enjoyed by the buildings. The ZBA determined that each property constituted a nuisance, and gave landowner six months within which to amortize his investments. The ZBA also gave landowner 60 days to challenge the amortization period. Landowner then brought this article 78 proceeding, but Supreme Court denied the petition and dismissed the proceeding.

In affirming, the Appellate Division relied on reports and data from the police department indicating that landowner's property had received a disproportionate number of calls, many involving fireworks, domestic incidents, and neighbor disputes, but many also involving weapons and drug sales. The court also noted that numerous arrests had been made on the premises, and indicated that the statistical data, together with comments from neighbors, constituted sufficient evidence to support the ZBA's determination.

ZBA's Interpretation Reasonable

Matter of Futterman v. Zoning Board of Appeals

NYLJ 12/28/12, AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination not to renew a building permit, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had reasonably interpreted the local zoning ordinance.

In 1999, landowner obtained a building permit for a single-family house. Ten years later, when landowner sought to renew the permit, the building inspector denied the application because the “as-built” construction on the property deviated from what was depicted on the site plan application the planning board had approved in 1999. The building inspector informed landowner that he would have to first conform to the 1999 site plan, or else seek a variance. Landowner then appealed to the ZBA from the building inspector's determination, and also sought a variance. The ZBA upheld denial of the building permit on the ground that the permit expired 30 months after its issuance, and declined to issue a variance, noting that under the applicable local law, the ZBA was required to refer such a request to the planning board before acting. Landowner then brought this article 78 proceeding, and Supreme Court denied the petition.

In affirming, the Appellate Division noted that the ZBA's interpretation of the code provision on expiration of permits was reasonable, and therefore entitled to deference. The court then agreed with the ZBA that the local law explicitly prohibited the ZBA from considering an area variance application until the planning board had been afforded an opportunity to issue an advisory opinion.

Denial of Area Variance Upheld

Matter of Pinnetti v. Zoning Board of Appeals

NYLJ 12/28/12, p. 30, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the ZBA's interpretation of the ordinance and denial of its variance application, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had properly considered the statutory factors in denying the area variance.

Landowner sought a building permit to construct a two-family house on two adjacent lots located on an existing road. Although 12 houses front on that road, the building inspector denied the permit, concluding that the road did not qualify as an “official” road within the village. Landowner then challenged that interpretation before the ZBA, and, in the alternative, sought an area variance. The ZBA concluded that the road did not qualify as an official road, and was not “suitably improved” within the meaning of Village Law section 7-726(2) because it did not meet the village's standards for paved width, and lacked a turnaround, adequate curbing, and access for emergency responders. The ZBA also denied the variance application, concluding that the additional home would cause a detriment to neighboring properties, and would exacerbate an already poor traffic situation. Supreme Court dismissed landowner's ensuing article 78 proceeding.

In affirming, the Appellate Division relied on the deference generally extended to determinations by local zoning boards. The court noted that the local planning board, the building inspector, and the fire department all made submissions suggesting that the road was not adequate to serve an additional home. The court also emphasized that the variance was substantial, and observed that landowner had summarily rejected the village's proposed reduction of its certain requirements to permit landowner to build. On those facts, the court held that the ZBA's determination had a rational basis.

'

ZBA Lacked Authority to Impose Conditions

Matter of Edson v. Southold Town Zoning Board of Appeals

NYLJ 1/11/13, p. 28, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging conditions imposed on a permit approval, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the ZBA lacked authority to impose the challenged conditions.

Landowner operates a Christmas tree farm, and sought a permit to build and operate a farm stand on the premises. The Building Department denied the permit, and landowner appealed to the ZBA, contending that he could partition his existing 7,826 square-foot building to create a space for a farm stand that did not exceed the 3,000 square-foot limit for farm stands set forth in the town code. The ZBA determined that landowner qualified for the permit, but imposed two conditions: first, landowner could not store accessory items not produced on the farm in the 4,826 square feet that would not be part of the farm stand, and second, the farm stand could only operate between Labor Day and March 31. Landowner then brought this article 78 proceeding, which Supreme Court dismissed.

In reversing, the Appellate Division first rejected Supreme Court's conclusion that landowner was judicially estopped from challenging imposition of the conditions. The court indicated that landowner's statements before the board were not clearly inconsistent with his current position. The court then held that the town code included no authority for permitting storage of items produced on the farm, while excluding items not produced on the farm, in the 4,826 square feet excluded from the farm stand. Finally, the court held that the code did not authorize the seasonal limitation on the stand.