Development

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging denial of a special permit and parking variance, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town's zoning board of appeals (ZBA) had made inadequate efforts to accommodate landowner's religious needs.

Landowner's parcel is located in a residential district in the Town of North Hempstead. Landowner sought a special exception permit to hold religious services on the parcel, a special use permit to build a parking lot, and area variances waiving off-site parking requirements. Landowner agreed to condition the permit on a maximum of 90 people in the sanctuary, and agreed to provide church vans to transport many parishioners to the site. Nevertheless, the ZBA denied the application in its entirety, prompting landowner to bring this article 78 proceeding. Supreme Court granted the petition and the town appealed.

In affirming, the Appellate Division emphasized that zoning boards must exhibit greater flexibility in evaluating religious use applications than other applications. In particular, a board is required to suggest measures to accommodate the proposed religious use. Here, because the ZBA denied landowner's application without making any effort to accommodate the religious use, the board did not meet its obligation. As a result, Supreme Court properly remanded to the board with instructions to grant the applications on such reasonable conditions that would mitigate any adverse effects to the remainder of the community.

COMMENT

No New York court has permitted a zoning board to unconditionally deny a special use permit or variance for a proposed religious use in a residential district. Courts presume most negative impacts such as traffic or parking shortages can be circumscribed, and therefore routinely reject denials where a zoning board fails to make efforts to accommodate a religious use. Thus, in Tabernacle of Victory Pentecostal Church v. Weiss, 101 A.D.3d 738, the court overturned the denial of a special use permit to conduct religious services and an area variance for waiver of off-street parking requirements where the zoning board ignored applicant's proposed occupancy and parking restrictions and failed to suggest its own accommodating limitations. Also, the zoning board neglected to substantiate its concerns with any compelling reports or testimony. Id. at 740. Although courts have refused to hold that traffic concerns can never be compelling, (see Westchester Day School v. Village of Mamaroneck, 386 F.3d 183 (declining to rule on the matter)), New York's long time policy favoring religious uses in residential areas all but forecloses the possibility. Even in Pine Knolls v. Zoning Bd./Town of Moreau, 5 N.Y.3d 407, in which the court upheld the complete denial of a church's application to build a secondary driveway on its property, the court explained that the board's decision was the “functional equivalent of [an approval with] mitigating conditions.” In refusing to permit the second driveway, the zoning board had suggested that enlarging an existing driveway posed fewer negative externalities and was a viable alternative to accommodate applicant's expansion of religious activities. Id. at 414.'

Two cases suggest that municipalities have a broader right to prohibit religious uses in non-residential areas. In Western NY Dist., Inc. v. Village of Lancaster, 17 Misc.3d 798, the court upheld the zoning board's unconditional denial of applicant's special use permit to build a church on land in an industrial park. The town had specifically created the park with public funds as part of a comprehensive zoning plan to promote manufacturing and industrial uses, create jobs and increase the tax base. Id. at 813. Similarly, in Wesleyan Methodist Church of Canisteo v. Village of Canisteo, 792 F.Supp.2d 667, the district court upheld the zoning board's absolute and final denial of a rezoning/special use permit to construct a church in a light industrial zone. In evaluating applicant's RLUIPA claim, the court found no substantial burden on applicant's religious practice, explaining that the church was already operating on other property in town and could expand its operations there without seeking a variance. Id. at 674. Whether the industrial nature of the property was the determinative factor in these cases is unclear. In both Lancaster and Canisteo, neither applicant owned the land for which it sought board approval; instead applicants merely had the property under contract subject to obtaining a special use permit, and were free to build or expand elsewhere in town. 17 Misc.3d at 799; 792 F.Supp at 674.'

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Increase In Minimum Lot Size Upheld

Nicholson v. Incorporated Village Of Garden City

NYLJ 12/31/13, p. 25, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding for a judgment declaring unconstitutional a local law increasing the minimum size of corner lots, the village appealed from Supreme Court's judgment declaring the law unconstitutional. The Appellate Division reversed and remitted for entry of a judgment declaring that the local law is not unconstitutional.

In light of concerns about subdivision of corner lots on large boulevard-style streets, the village amended its zoning ordinance to prohibit subdivision of corner lots on four avenues in the village unless the resulting corner lot has a minimum lot size of 40,000 square feet. Previously, the minimum lot size was 20,000 square feet. Landowner owns a corner lot on one of those avenues with a square footage of 62,500, and brought this action to declare the ordinance unconstitutional. Supreme Court granted the requested declaration, and the village appealed.

In reversing, the Appellate Division first held that landowner's claim was ripe for review because landowner had mounted a facial attack on the ordinance rather than an as applied challenge. The court then relied on the strong presumption of constitutionality attached to local laws, and observed that the local law was reasonably related to the purpose of preserving larger corner lots on larger boulevard-style streets, and was enacted after a study by an expert who offered alternative approaches for dealing with the perceived problem. Finally, the court noted that landowner was not singled out for unfavorable treatment because the local law affected at least 20 corner lots.

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Offical Zoning Map Is Final Authority on Zoning Classification

Matter of S & R Development Estates, LLC v. Feiner

NYLJ 12/31/13, p. 26, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the ZBA's determination that its parcel is zoned R-20, permitting only residential use, the town appealed from Supreme Court's order granting the petition and annulling the determination. The Appellate Division affirmed, holding that the official zoning map was the final authority on zoning classifications within the town.

Landowner bought the subject 2.26-acre parcel in the Town of Greenburgh in 2006. The town's zoning map depicted the parcel as located in a CA-1 district, which permits multi-family housing. Before purchasing the parcel, landowner examined not only the current map, but past zoning maps, all of which indicated that the parcel was located in a CA-1 district. In February 2007, landowner applied for site plan approval to the town's Department of Community Development and Conservation. The Department's commissioner indicated that his review of the zoning history revealed that the parcel was actually located in an R-20 district, and therefore not eligible for multi-family development. When landowner appealed to the zoning board of appeals (ZBA), that board denied his appeal. The ZBA concluded that when the CA-1 district was adopted, landowner's parcel was never rezoned from R-20 to CA-1. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition.

In affirming, the Appellate Division emphasized the town code, which, until a 2012 amendment, provided that the zoning map “shall be the final authority as to the current zoning classification of any land” within the town's boundary. The court also found no evidence in the record to support the ZBA's finding that the zoning map's depiction of the parcel in a CA-1 district was the result of scrivener's error. As a result, the court held that the ZBA's determination was arbitrary and capricious.

Neighbors Lack Standing to Challenge Site Plan Approval

Matter of Riverhead Neighborhood Preservation Coalition, Inc. v. Town of Riverhead

NYLJ 12/31/13, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors challenging the grant of site plan approval for a shopping mall, neighbors appealed from Supreme Court's order dismissing the proceeding for lack of standing. The Appellate Division affirmed, holding that neighbors did not live in sufficiently close proximity to have standing to challenge the determination.

The Riverhead Town Planning Board approved the site plan for a shopping mall to be located at the intersection of Route 25A and Sound Avenue in Wading River. Neighbors, and a neighborhood group of which the neighbors are members, brought this article 78 proceeding challenging the approval, alleging that the project will harm them because the road that provides access to their community is located directly across from the main entrance to the proposed mall.

In affirming Supreme Court's determination that the neighbors lacked standing, the court noted that neighbors' parcels were located from 1300 to 2000 feet away from the proposed mall, and that none of them alleged that the mall is visible from their homes. The court concluded that the neighbors do not live close enough that their proximity alone creates a presumption of injury, and held that the allegations of traffic did not cause an injury different from those of the public at large, many of whom used the same access road to obtain access to a golf course. As a result, neighbors lacked standing, and because of this, the community group also lacked standing.

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ZBA Made Inadequate Effort to Accommodate Religious Ues

Matter of Gospel Faith Mission International, Inc. v. Weiss

NYLJ 12/20/13, p. 31, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging denial of a special permit and parking variance, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town's zoning board of appeals (ZBA) had made inadequate efforts to accommodate landowner's religious needs.

Landowner's parcel is located in a residential district in the Town of North Hempstead. Landowner sought a special exception permit to hold religious services on the parcel, a special use permit to build a parking lot, and area variances waiving off-site parking requirements. Landowner agreed to condition the permit on a maximum of 90 people in the sanctuary, and agreed to provide church vans to transport many parishioners to the site. Nevertheless, the ZBA denied the application in its entirety, prompting landowner to bring this article 78 proceeding. Supreme Court granted the petition and the town appealed.

In affirming, the Appellate Division emphasized that zoning boards must exhibit greater flexibility in evaluating religious use applications than other applications. In particular, a board is required to suggest measures to accommodate the proposed religious use. Here, because the ZBA denied landowner's application without making any effort to accommodate the religious use, the board did not meet its obligation. As a result, Supreme Court properly remanded to the board with instructions to grant the applications on such reasonable conditions that would mitigate any adverse effects to the remainder of the community.

COMMENT

No New York court has permitted a zoning board to unconditionally deny a special use permit or variance for a proposed religious use in a residential district. Courts presume most negative impacts such as traffic or parking shortages can be circumscribed, and therefore routinely reject denials where a zoning board fails to make efforts to accommodate a religious use. Thus, in Tabernacle of Victory Pentecostal Church v. Weiss, 101 A.D.3d 738, the court overturned the denial of a special use permit to conduct religious services and an area variance for waiver of off-street parking requirements where the zoning board ignored applicant's proposed occupancy and parking restrictions and failed to suggest its own accommodating limitations. Also, the zoning board neglected to substantiate its concerns with any compelling reports or testimony. Id. at 740. Although courts have refused to hold that traffic concerns can never be compelling, ( see Westchester Day School v. Village of Mamaroneck, 3 86 F.3d 183 (declining to rule on the matter)) , New York's long time policy favoring religious uses in residential areas all but forecloses the possibility. Even in Pine Knolls v. Zoning Bd./Town of Moreau, 5 N.Y.3d 407, in which the court upheld the complete denial of a church's application to build a secondary driveway on its property, the court explained that the board's decision was the “functional equivalent of [an approval with] mitigating conditions.” In refusing to permit the second driveway, the zoning board had suggested that enlarging an existing driveway posed fewer negative externalities and was a viable alternative to accommodate applicant's expansion of religious activities. Id. at 414.'

Two cases suggest that municipalities have a broader right to prohibit religious uses in non-residential areas. In Western NY Dist., Inc. v. Village of Lancaster, 17 Misc.3d 798, the court upheld the zoning board's unconditional denial of applicant's special use permit to build a church on land in an industrial park. The town had specifically created the park with public funds as part of a comprehensive zoning plan to promote manufacturing and industrial uses, create jobs and increase the tax base. Id. at 813. Similarly, in Wesleyan Methodist Church of Canisteo v. Village of Canisteo, 792 F.Supp.2d 667, the district court upheld the zoning board's absolute and final denial of a rezoning/special use permit to construct a church in a light industrial zone. In evaluating applicant's RLUIPA claim, the court found no substantial burden on applicant's religious practice, explaining that the church was already operating on other property in town and could expand its operations there without seeking a variance. Id. at 674. Whether the industrial nature of the property was the determinative factor in these cases is unclear. In both Lancaster and Canisteo, neither applicant owned the land for which it sought board approval; instead applicants merely had the property under contract subject to obtaining a special use permit, and were free to build or expand elsewhere in town. 17 Misc.3d at 799; 792 F.Supp at 674.'

'

Increase In Minimum Lot Size Upheld

Nicholson v. Incorporated Village Of Garden City

NYLJ 12/31/13, p. 25, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding for a judgment declaring unconstitutional a local law increasing the minimum size of corner lots, the village appealed from Supreme Court's judgment declaring the law unconstitutional. The Appellate Division reversed and remitted for entry of a judgment declaring that the local law is not unconstitutional.

In light of concerns about subdivision of corner lots on large boulevard-style streets, the village amended its zoning ordinance to prohibit subdivision of corner lots on four avenues in the village unless the resulting corner lot has a minimum lot size of 40,000 square feet. Previously, the minimum lot size was 20,000 square feet. Landowner owns a corner lot on one of those avenues with a square footage of 62,500, and brought this action to declare the ordinance unconstitutional. Supreme Court granted the requested declaration, and the village appealed.

In reversing, the Appellate Division first held that landowner's claim was ripe for review because landowner had mounted a facial attack on the ordinance rather than an as applied challenge. The court then relied on the strong presumption of constitutionality attached to local laws, and observed that the local law was reasonably related to the purpose of preserving larger corner lots on larger boulevard-style streets, and was enacted after a study by an expert who offered alternative approaches for dealing with the perceived problem. Finally, the court noted that landowner was not singled out for unfavorable treatment because the local law affected at least 20 corner lots.

'

Offical Zoning Map Is Final Authority on Zoning Classification

Matter of S & R Development Estates, LLC v. Feiner

NYLJ 12/31/13, p. 26, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the ZBA's determination that its parcel is zoned R-20, permitting only residential use, the town appealed from Supreme Court's order granting the petition and annulling the determination. The Appellate Division affirmed, holding that the official zoning map was the final authority on zoning classifications within the town.

Landowner bought the subject 2.26-acre parcel in the Town of Greenburgh in 2006. The town's zoning map depicted the parcel as located in a CA-1 district, which permits multi-family housing. Before purchasing the parcel, landowner examined not only the current map, but past zoning maps, all of which indicated that the parcel was located in a CA-1 district. In February 2007, landowner applied for site plan approval to the town's Department of Community Development and Conservation. The Department's commissioner indicated that his review of the zoning history revealed that the parcel was actually located in an R-20 district, and therefore not eligible for multi-family development. When landowner appealed to the zoning board of appeals (ZBA), that board denied his appeal. The ZBA concluded that when the CA-1 district was adopted, landowner's parcel was never rezoned from R-20 to CA-1. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition.

In affirming, the Appellate Division emphasized the town code, which, until a 2012 amendment, provided that the zoning map “shall be the final authority as to the current zoning classification of any land” within the town's boundary. The court also found no evidence in the record to support the ZBA's finding that the zoning map's depiction of the parcel in a CA-1 district was the result of scrivener's error. As a result, the court held that the ZBA's determination was arbitrary and capricious.

Neighbors Lack Standing to Challenge Site Plan Approval

Matter of Riverhead Neighborhood Preservation Coalition, Inc. v. Town of Riverhead

NYLJ 12/31/13, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by neighbors challenging the grant of site plan approval for a shopping mall, neighbors appealed from Supreme Court's order dismissing the proceeding for lack of standing. The Appellate Division affirmed, holding that neighbors did not live in sufficiently close proximity to have standing to challenge the determination.

The Riverhead Town Planning Board approved the site plan for a shopping mall to be located at the intersection of Route 25A and Sound Avenue in Wading River. Neighbors, and a neighborhood group of which the neighbors are members, brought this article 78 proceeding challenging the approval, alleging that the project will harm them because the road that provides access to their community is located directly across from the main entrance to the proposed mall.

In affirming Supreme Court's determination that the neighbors lacked standing, the court noted that neighbors' parcels were located from 1300 to 2000 feet away from the proposed mall, and that none of them alleged that the mall is visible from their homes. The court concluded that the neighbors do not live close enough that their proximity alone creates a presumption of injury, and held that the allegations of traffic did not cause an injury different from those of the public at large, many of whom used the same access road to obtain access to a golf course. As a result, neighbors lacked standing, and because of this, the community group also lacked standing.

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