Development

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's conditional approval of his subdivision application, the town appealed from Supreme Court's grant of the petition. The Appellate division affirmed, holding that, in the absence of new information, the planning board was not entitled to impose conditions on final subdivision plat approval that it had not imposed when it approved the preliminary plat.

Beginning in 1996, landowner sought to subdivide a parcel into two lots so that it could build one single-family residence on each lot. Landowner first obtained an area variance from the local zoning board, and then, in 2006, obtained a variance from the Suffolk County Department of Health Services (SCDHS) permitting installation of an on-site sewage system. That variance was based in part on a transfer of a “sanitary flow credit” from another parcel to landowner's parcel.

In 2009, SCDHS approved landowner's proposed subdivision. In April 2010, the town planning board granted conditional preliminary approval of the subdivision, making explicit reference to SCDHS's grant of the variance, which in turn rested on the transfer of the sanitary flow credit. On July 12, 2010, however, the planning board conditioned final approval of the subdivision on proof either: 1) that landowner was in compliance with the town sanitary code, which places strict limits on transfers of sanitary flow credits; or 2) that SCDHS's variance grant was not depending on transfer of the credit. Landowner then brought this article 78 proceeding challenging the condition, and Supreme Court granted the petition. The town appealed.

In affirming, the Appellate Division acknowledged that preliminary plat approval by the planning board does not guarantee final approval, but also held that a planning board may not deny final subdivision approval, in the absence of new information, if landowner has complied with all of the conditions or modifications imposed upon the grant of preliminary approval. Here, because the planning board had always been aware that the variance was based on the transfer of sanitary flow credits, the board was not entitled to condition final plat approval on landowner's satisfaction of the newly imposed requirements.

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Standing to Seek Variance

Matter of Huszar v. Bayview Park Properties, LLC

NYLJ 9/20/13, p. 31, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors challenging grant of an area variance, the zoning board of appeals (ZBA) and the landowner appealed from Supreme Court's grant of the petition. The Appellate Division reversed, denied the petition, and dismissed the proceeding, holding that landowner's principal had standing to seek the variance, and that the ZBA had discretion to grant the variance.

Landowner Bayview, an LLC, owns two adjacent lots, each with 50 feet of frontage. One of the lots is improved with a single-family residence; the other is vacant. The minimum lot width for a single-family home in the zoning district is 40 feet, or the average lot width of existing lots within 200 feet of the same lot on the same blockfront, whichever is greater. When landowner applied for a building permit on the vacant lot, the permit was denied because the building department determined that the average lot width within 200 feet was 68.69 feet. Landowner's principal, Seeman, then sought area variances to permit construction of the new home, and the ZBA granted the variances.

Neighbors then brought this article 78 proceeding, and Supreme Court granted the petition, concluding that the ZBA lacked jurisdiction to grant the variances because Seeman had made the application in his individual capacity, and he lacked an ownership interest in the parcels.

In reversing, the Appellate Division held that a duly authorized agent of an owner may submit an application on an owner's behalf. Here, the applications submitted by Seeman indicated that Bayview was the owner and that Seeman was Bayview's agent. The architectural plans submitted to the ZBA also indicated that Bayview was the owner. In light of these facts, the court concluded that Seeman had standing to apply for the variances, and that the board had jurisdiction. Turning to the merits, the court concluded that the ZBA had balanced the statutory factors relevant to area variance applications, and had concluded that the majority of lots in the area had widths of 50 feet or less, so that the requested variance would not produce an undesirable change in the character of the neighborhood.

COMMENT

Only an owner, contract vendee or agent authorized by the owner or contract vendee has standing to apply for a variance or special use permit. In Pioneer-Evans Co. v. Garvin, 191 A.D.2d 1026, 1028, the court upheld a town board's denial of a special use permit to an applicant that had not yet contracted to purchase the property. Although the court's decision to uphold the denial rested on multiple grounds, the court emphasized that at the time of the application, the applicant had not yet entered into a contract to purchase. The property's owner had contracted to sell the parcel to a party other than the applicant, and although that contract vendee apparently intended to assign its interest to the applicant, it did not do so until after the board had rejected the application While a contract vendee under an unconditional contract is an equitable owner of the property and entitled to apply for a variance, not all conditional contracts for sale confer standing. Where a contract vendee's interest is too contingent, the contract vendee may not have sufficient interest in the property to confer standing to apply for a variance. In Madonia v. Bd. of Zoning Appeals of Inc. Vill. of Lindenhurst, 300 A.D.2d 588, 589, the court found that the applicant, though a contract vendee, lacked standing where his right to purchase the property was contingent upon a higher bidder's failure to close on a contract of sale. However, courts have held that a contract vendee has standing to apply for a variance where the purchase is contingent on obtaining the variance. Thus, in Colony Park, Inc. v. Malone, 25 Misc. 2d 1072, the court upheld the standing of a contract vendee whose standing was dependent on grant of a variance, noting that conferring standing on the contract vendee was designed to vindicate the rights of the vendor. See also Commco, Inc. v. Amelkin, 109 A.D.2d 794 (vendee whose contract is contingent on zoning change has standing to apply for use variance).

The requirement for contemporary legal or equitable ownership is strict and failure to prove ownership is a jurisdictional defect. In Hoerner v. Tormey, 24 A.D.2d 597, 598 , the court annulled the determination of the Zoning Board of Appeals that had issued a special exception permit and remitted the case to the Special Term to determine if the applicant was the true owner or an authorized agent at the time the special exception permit was requested. The court explained that where the Board has issued a special exception permit to one who is not the owner or agent, the defect is jurisdictional and is not cured by the fact that more than 30 days may have elapsed since the Board's decision awarding the grant was filed. Hoerner, supra at 598.

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Final Plat Approval

Matter of Nickart Realty v. Southold Town Planning Board

NYLJ 9/20/13, p. 29, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's conditional approval of his subdivision application, the town appealed from Supreme Court's grant of the petition. The Appellate division affirmed, holding that, in the absence of new information, the planning board was not entitled to impose conditions on final subdivision plat approval that it had not imposed when it approved the preliminary plat.

Beginning in 1996, landowner sought to subdivide a parcel into two lots so that it could build one single-family residence on each lot. Landowner first obtained an area variance from the local zoning board, and then, in 2006, obtained a variance from the Suffolk County Department of Health Services (SCDHS) permitting installation of an on-site sewage system. That variance was based in part on a transfer of a “sanitary flow credit” from another parcel to landowner's parcel.

In 2009, SCDHS approved landowner's proposed subdivision. In April 2010, the town planning board granted conditional preliminary approval of the subdivision, making explicit reference to SCDHS's grant of the variance, which in turn rested on the transfer of the sanitary flow credit. On July 12, 2010, however, the planning board conditioned final approval of the subdivision on proof either: 1) that landowner was in compliance with the town sanitary code, which places strict limits on transfers of sanitary flow credits; or 2) that SCDHS's variance grant was not depending on transfer of the credit. Landowner then brought this article 78 proceeding challenging the condition, and Supreme Court granted the petition. The town appealed.

In affirming, the Appellate Division acknowledged that preliminary plat approval by the planning board does not guarantee final approval, but also held that a planning board may not deny final subdivision approval, in the absence of new information, if landowner has complied with all of the conditions or modifications imposed upon the grant of preliminary approval. Here, because the planning board had always been aware that the variance was based on the transfer of sanitary flow credits, the board was not entitled to condition final plat approval on landowner's satisfaction of the newly imposed requirements.

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Standing to Seek Variance

Matter of Huszar v. Bayview Park Properties, LLC

NYLJ 9/20/13, p. 31, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors challenging grant of an area variance, the zoning board of appeals (ZBA) and the landowner appealed from Supreme Court's grant of the petition. The Appellate Division reversed, denied the petition, and dismissed the proceeding, holding that landowner's principal had standing to seek the variance, and that the ZBA had discretion to grant the variance.

Landowner Bayview, an LLC, owns two adjacent lots, each with 50 feet of frontage. One of the lots is improved with a single-family residence; the other is vacant. The minimum lot width for a single-family home in the zoning district is 40 feet, or the average lot width of existing lots within 200 feet of the same lot on the same blockfront, whichever is greater. When landowner applied for a building permit on the vacant lot, the permit was denied because the building department determined that the average lot width within 200 feet was 68.69 feet. Landowner's principal, Seeman, then sought area variances to permit construction of the new home, and the ZBA granted the variances.

Neighbors then brought this article 78 proceeding, and Supreme Court granted the petition, concluding that the ZBA lacked jurisdiction to grant the variances because Seeman had made the application in his individual capacity, and he lacked an ownership interest in the parcels.

In reversing, the Appellate Division held that a duly authorized agent of an owner may submit an application on an owner's behalf. Here, the applications submitted by Seeman indicated that Bayview was the owner and that Seeman was Bayview's agent. The architectural plans submitted to the ZBA also indicated that Bayview was the owner. In light of these facts, the court concluded that Seeman had standing to apply for the variances, and that the board had jurisdiction. Turning to the merits, the court concluded that the ZBA had balanced the statutory factors relevant to area variance applications, and had concluded that the majority of lots in the area had widths of 50 feet or less, so that the requested variance would not produce an undesirable change in the character of the neighborhood.

COMMENT

Only an owner, contract vendee or agent authorized by the owner or contract vendee has standing to apply for a variance or special use permit. In Pioneer-Evans Co. v. Garvin, 191 A.D.2d 1026, 1028, the court upheld a town board's denial of a special use permit to an applicant that had not yet contracted to purchase the property. Although the court's decision to uphold the denial rested on multiple grounds, the court emphasized that at the time of the application, the applicant had not yet entered into a contract to purchase. The property's owner had contracted to sell the parcel to a party other than the applicant, and although that contract vendee apparently intended to assign its interest to the applicant, it did not do so until after the board had rejected the application While a contract vendee under an unconditional contract is an equitable owner of the property and entitled to apply for a variance, not all conditional contracts for sale confer standing. Where a contract vendee's interest is too contingent, the contract vendee may not have sufficient interest in the property to confer standing to apply for a variance. In Madonia v. Bd. of Zoning Appeals of Inc. Vill. of Lindenhurst, 300 A.D.2d 588, 589, the court found that the applicant, though a contract vendee, lacked standing where his right to purchase the property was contingent upon a higher bidder's failure to close on a contract of sale. However, courts have held that a contract vendee has standing to apply for a variance where the purchase is contingent on obtaining the variance. Thus, in Colony Park, Inc. v. Malone, 25 Misc. 2d 1072, the court upheld the standing of a contract vendee whose standing was dependent on grant of a variance, noting that conferring standing on the contract vendee was designed to vindicate the rights of the vendor. See also Commco, Inc. v. Amelkin, 109 A.D.2d 794 (vendee whose contract is contingent on zoning change has standing to apply for use variance).

The requirement for contemporary legal or equitable ownership is strict and failure to prove ownership is a jurisdictional defect. In Hoerner v. Tormey, 24 A.D.2d 597, 598 , the court annulled the determination of the Zoning Board of Appeals that had issued a special exception permit and remitted the case to the Special Term to determine if the applicant was the true owner or an authorized agent at the time the special exception permit was requested. The court explained that where the Board has issued a special exception permit to one who is not the owner or agent, the defect is jurisdictional and is not cured by the fact that more than 30 days may have elapsed since the Board's decision awarding the grant was filed. Hoerner, supra at 598.

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