Development

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging an interpretation by the Zoning Board of Appeals (ZBA), landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had not acted unreasonably in concluding that a pigeon coop did not constitute a permitted accessory use in a residential district.

The applicable zoning ordinance permits as an accessory use in a single-family district the keeping of a “reasonable number of customary household pets.” Landowner sought an interpretation of the ordinance to establish that racing pigeons qualified as customary household pets. The ZBA determined that landowner's proposal to maintain a pigeon coop housing 40 or more racing pigeons did not constitute a permissible accessory use, and landowner brought this article 78 proceeding challenging that determination. Supreme Court denied the petition.

In affirming, the Appellate Division noted that an interpretation by the ZBA would control unless it is unreasonable or irrational. Here, the court noted that the evidence before the ZBA established that the pigeons would be specially bred to compete in races, that only the landowner and his father would handle most of the birds because they were “too valuable” for the rest of the household to touch them. The ZBA also relied on the absence of evidence that any other residents of the village kept 40 or more pigeons on their residential property. In light of the record before the ZBA, the court concluded that the ZBA's interpretation was not unreasonable.

COMMENT

When interpreting a zoning ordinance concerns only “pure legal interpretation of statutory terms,” courts independently analyze the ordinance and do not defer to the zoning board's interpretations. Matter of Toys R Us v. Silva, 89 N.Y.2d 411, 419. Purely legal questions arise when courts are called upon to determine how the ordinance treats general categories of landowners, businesses, or buildings. Evidence on those questions focuses on the legislature's purpose and language, issues on which a zoning board possesses no special expertise Accordingly, in Toys R Us, the Court of Appeals held that a landowner was not entitled to continue his nonconforming use of property as a warehouse and did not defer to the zoning board on the pure legal question of whether abandonment of a nonconforming use under New York City Zoning Resolution ' 52-61 required complete cessation of the nonconforming use. The court held that substantial cessation of the nonconforming use sufficed for abandonment under ' 52-61. Id. at 421. Similarly, in Matter of Teachers Ins. & Annuity Ass'n of Am. v. City of New York, the Court of Appeals held that the Landmarks Preservation Commission could landmark the interior of a restaurant, noting that determining whether restaurants ' as a category ' met the New York City Landmark Law's “jurisdictional predicate” of being “customarily open or accessible to the public” was a purely legal question not requiring deference to the Commission. 82 N.Y.2d 35, 42. Likewise, in Matter of Raritan Dev. Corp. v. Silva, the Court of Appeals overturned the zoning board's decision to include a building's cellar as part of its FAR because: 1) New York City Zoning Resolution ' 12-10 defined a cellar based on “its physical location in a building”; and 2) “cellar space” was “expressly excluded from FAR calculations.” As a result, an individual owner's intended use of a particular cellar could not factor into whether the cellar should be included in FAR calculation. 91 N.Y.2d 98, 103.

However, when the zoning board exercises its fact-finding expertise in assessing how the zoning ordinance applies to a particular set of facts, courts must give deference to the zoning board's finding. Matter of Toys R Us, 89 N.Y.2d at 419. Accordingly, the Toys R Us court deferred to the zoning board's factual finding that landowner had abandoned the disputed warehouse. The court indicated that because there was substantial evidence to support the board's finding, and the landowner failed to produce evidence that he had continued the nonconforming use of his property as a warehouse over the relevant period of time, the court would not make its own independent determination about whether landowner had abandoned. Id. at 423-24. Likewise, in Matter of New York Botanical Garden v. Bd. of Standards & Appeals of City of New York, the Court of Appeals deferred to the zoning board's finding that a radio tower of a particular wattage was an accessory use incidental to and customarily found on a college campus because the college in that case produced evidence that 180 colleges used radio towers with that wattage. 91 N.Y.2d 413, 421-22.'

'

Planning Commission Had Discretion to Set and Enforce Minimum Standards

Matter of Panetta v. City of Rye

NYLJ 4/5/13, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning commission's denial of his application to modify the standards for dwellings built on a private street, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, relying on the broad discretion enjoyed by local planning boards.

Landowner owns a vacant parcel fronting on Howard Place, a private street. In 1968, the planning commission adopted minimum standards for determining whether a private street is suitably improved to permit issuance of new building permits for houses fronting on the street. Howard Street apparently did not meet those standards, and landowner applied for a change in those standards, but the planning commission denied the application. Landowner then brought this proceeding, seeking to overturn the planning commission's determination, and also contending that the city's ordinances worked a regulatory taking of his land. Supreme Court severed the regulatory takings claim, but denied the remainder of landowner's petition.

In affirming, the Appellate Division first rejected landowner's contention that Howard Place was not a private street, noting that the 1968 resolution included a list of private streets that were not suitably improved, and Howard Place was on the list. The court then concluded that the planning commission's determination that Howard Place did not provide suitable access from a single-family dwelling to a suitably improved street had an entirely rational basis and was not arbitrary or capricious.

'

Commercial Developer Not Entitled to Use Variance Permitting Parking in Residential District

Matter of Hejna v. Board of Appeals

NYLJ 4/12/13, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging grant of a special exception and use variance, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division modified to grant the petition in part, holding that commercial landowner was not entitled to a use variance authorizing parking in a residential district.

Pursuant to a previously granted special exception, landowner operates an auto body shop on a parcel zoned partly in a B-2 business district and partly in a residential district. The body shop itself is located in the business district. Landowner applied to the zoning board of appeals (ZBA) for modification of its special exception to permit construction of a 7,500 square-foot addition to the building, all to be located in the B-2 district, and to permit parking on the residential portion of the parcel. Because a recent zoning ordinance had eliminated public garages as a special exception use in a B-2 business district, landowner sought, in the alternative, a use variance to permit the project to go forward. The ZBA approved the project, both as a special exception and a use variance, and neighbor brought this article 78 proceeding challenging that determination. Supreme Court denied the petition.

In modifying, the Appellate Division first held that the ZBA had rationally determined that the ordinance provision eliminating garages as a special exception use was not intended to prohibit modification of an existing special exception to permit expansion of an existing operation. But the court then held that the ZBA's determination permitting parking in the residential district was inconsistent with the village code. The code permits a special exception to allow parking in the residential district only when the parking is needed to meet code requirements. In this case, landowner did not need parking to comply with those requirements. Moreover, the court held that landowner had not established, by dollars-and-cents proof, the hardship needed to justify a use variance for parking on the residential parcel. As a result, the court annulled the ZBA determination with respect to parking in the residential district.

'

'

Pigeon Coop Does Not Constitute Accessory Use in Residential District

Matter of LaRusso v. Neuringer

NYLJ 4/5/13, p. 27, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging an interpretation by the Zoning Board of Appeals (ZBA), landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA had not acted unreasonably in concluding that a pigeon coop did not constitute a permitted accessory use in a residential district.

The applicable zoning ordinance permits as an accessory use in a single-family district the keeping of a “reasonable number of customary household pets.” Landowner sought an interpretation of the ordinance to establish that racing pigeons qualified as customary household pets. The ZBA determined that landowner's proposal to maintain a pigeon coop housing 40 or more racing pigeons did not constitute a permissible accessory use, and landowner brought this article 78 proceeding challenging that determination. Supreme Court denied the petition.

In affirming, the Appellate Division noted that an interpretation by the ZBA would control unless it is unreasonable or irrational. Here, the court noted that the evidence before the ZBA established that the pigeons would be specially bred to compete in races, that only the landowner and his father would handle most of the birds because they were “too valuable” for the rest of the household to touch them. The ZBA also relied on the absence of evidence that any other residents of the village kept 40 or more pigeons on their residential property. In light of the record before the ZBA, the court concluded that the ZBA's interpretation was not unreasonable.

COMMENT

When interpreting a zoning ordinance concerns only “pure legal interpretation of statutory terms,” courts independently analyze the ordinance and do not defer to the zoning board's interpretations. Matter of Toys R Us v. Silva, 89 N.Y.2d 411, 419. Purely legal questions arise when courts are called upon to determine how the ordinance treats general categories of landowners, businesses, or buildings. Evidence on those questions focuses on the legislature's purpose and language, issues on which a zoning board possesses no special expertise Accordingly, in Toys R Us, the Court of Appeals held that a landowner was not entitled to continue his nonconforming use of property as a warehouse and did not defer to the zoning board on the pure legal question of whether abandonment of a nonconforming use under New York City Zoning Resolution ' 52-61 required complete cessation of the nonconforming use. The court held that substantial cessation of the nonconforming use sufficed for abandonment under ' 52-61. Id. at 421. Similarly, in Matter of Teachers Ins. & Annuity Ass'n of Am. v. City of New York, the Court of Appeals held that the Landmarks Preservation Commission could landmark the interior of a restaurant, noting that determining whether restaurants ' as a category ' met the New York City Landmark Law's “jurisdictional predicate” of being “customarily open or accessible to the public” was a purely legal question not requiring deference to the Commission. 82 N.Y.2d 35, 42. Likewise, in Matter of Raritan Dev. Corp. v. Silva, the Court of Appeals overturned the zoning board's decision to include a building's cellar as part of its FAR because: 1) New York City Zoning Resolution ' 12-10 defined a cellar based on “its physical location in a building”; and 2) “cellar space” was “expressly excluded from FAR calculations.” As a result, an individual owner's intended use of a particular cellar could not factor into whether the cellar should be included in FAR calculation. 91 N.Y.2d 98, 103.

However, when the zoning board exercises its fact-finding expertise in assessing how the zoning ordinance applies to a particular set of facts, courts must give deference to the zoning board's finding. Matter of Toys R Us, 89 N.Y.2d at 419. Accordingly, the Toys R Us court deferred to the zoning board's factual finding that landowner had abandoned the disputed warehouse. The court indicated that because there was substantial evidence to support the board's finding, and the landowner failed to produce evidence that he had continued the nonconforming use of his property as a warehouse over the relevant period of time, the court would not make its own independent determination about whether landowner had abandoned. Id. at 423-24. Likewise, in Matter of New York Botanical Garden v. Bd. of Standards & Appeals of City of New York, the Court of Appeals deferred to the zoning board's finding that a radio tower of a particular wattage was an accessory use incidental to and customarily found on a college campus because the college in that case produced evidence that 180 colleges used radio towers with that wattage. 91 N.Y.2d 413, 421-22.'

'

Planning Commission Had Discretion to Set and Enforce Minimum Standards

Matter of Panetta v. City of Rye

NYLJ 4/5/13, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning commission's denial of his application to modify the standards for dwellings built on a private street, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, relying on the broad discretion enjoyed by local planning boards.

Landowner owns a vacant parcel fronting on Howard Place, a private street. In 1968, the planning commission adopted minimum standards for determining whether a private street is suitably improved to permit issuance of new building permits for houses fronting on the street. Howard Street apparently did not meet those standards, and landowner applied for a change in those standards, but the planning commission denied the application. Landowner then brought this proceeding, seeking to overturn the planning commission's determination, and also contending that the city's ordinances worked a regulatory taking of his land. Supreme Court severed the regulatory takings claim, but denied the remainder of landowner's petition.

In affirming, the Appellate Division first rejected landowner's contention that Howard Place was not a private street, noting that the 1968 resolution included a list of private streets that were not suitably improved, and Howard Place was on the list. The court then concluded that the planning commission's determination that Howard Place did not provide suitable access from a single-family dwelling to a suitably improved street had an entirely rational basis and was not arbitrary or capricious.

'

Commercial Developer Not Entitled to Use Variance Permitting Parking in Residential District

Matter of Hejna v. Board of Appeals

NYLJ 4/12/13, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging grant of a special exception and use variance, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division modified to grant the petition in part, holding that commercial landowner was not entitled to a use variance authorizing parking in a residential district.

Pursuant to a previously granted special exception, landowner operates an auto body shop on a parcel zoned partly in a B-2 business district and partly in a residential district. The body shop itself is located in the business district. Landowner applied to the zoning board of appeals (ZBA) for modification of its special exception to permit construction of a 7,500 square-foot addition to the building, all to be located in the B-2 district, and to permit parking on the residential portion of the parcel. Because a recent zoning ordinance had eliminated public garages as a special exception use in a B-2 business district, landowner sought, in the alternative, a use variance to permit the project to go forward. The ZBA approved the project, both as a special exception and a use variance, and neighbor brought this article 78 proceeding challenging that determination. Supreme Court denied the petition.

In modifying, the Appellate Division first held that the ZBA had rationally determined that the ordinance provision eliminating garages as a special exception use was not intended to prohibit modification of an existing special exception to permit expansion of an existing operation. But the court then held that the ZBA's determination permitting parking in the residential district was inconsistent with the village code. The code permits a special exception to allow parking in the residential district only when the parking is needed to meet code requirements. In this case, landowner did not need parking to comply with those requirements. Moreover, the court held that landowner had not established, by dollars-and-cents proof, the hardship needed to justify a use variance for parking on the residential parcel. As a result, the court annulled the ZBA determination with respect to parking in the residential district.

'

'