Development

Neighboring Developer Has Standing to Challegne Applicant's Site Plan Approval

Beekman Delameter Properties v. Village of Rhinebeck Zoning Board of Appeals

NYLJ 9/30/14, p. 17, col. 2

Supreme Ct., Dutchess Cty.

(Pagones, J.)

Neighboring developer brought an article 78 proceeding challenging site plan approval of applicant's project. The court granted the petition, holding both that neighbor had standing and that the planning board had failed to comply with SEQRA.

In or around 2009, the zoning board of appeals had approved a variance and the planning board had approved a site plan for applicant's condominium development. Applicant did not go forward with the project, but sought extensions of the area variance, which the zoning board of appeals granted for a one-year period in 2012. After the period expired, applicant sought another extension of the variance, which the zoning board of appeals granted. Landowner also applied for approval of a new site plan, which included a spa and commercial space in addition to residential units. The planning board approved the site plan and a special permit, relying on the consistency determination it had made in 2009 rather than making a new determination of significance under SEQRA.

Neighboring developer then brought this article 78 proceeding to challenge the approvals. In light of neighbor's challenge, applicant applied for an entirely new variance, which the zoning board of appeals granted. Neighboring developer contended that the zoning board was not entitled to extend a variance that had already expired, and that the planning board's determination of consistency, without new environmental review, violated SEQRA.

In granting the petition, the court first held that neighboring landowner had standing to bring the proceeding, even though neighbor's primary motivation was to disadvantage a competitor. The court noted that because the neighbor raised environmental concerns ' including potential traffic congestion ' neighbor had the requisite standing. Turning to the merits, the court first upheld the zoning board of appeals' grant of the new variance, holding that it was not tainted by the erroneous extension of the old variance. But the court annulled the planning board's grant of site plan approval, holding that the differences between the old project and the new one mandate a SEQRA determination about environmental significance.

COMMENT

An immediate neighbor who challenges a zoning-related determination lacks standing if the only harm the neighbor alleges involves business competition. In Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, the owner of a car wash brought an article 78 proceeding to annul a zoning board determination allowing a gas station on a nearby lot to build a car wash. The Court of Appeals dismissed the petition for lack of standing, because business competition is not within the zone of interest to be protected by a zoning ordinance.

The presence of an economic motive will not, by itself, preclude standing if the immediate neighbor also alleges concerns that are within the zone of interest to be protected. In John John, LLC v. Planning Bd. of Town of Brookhaven, 15 A.D.3d 486, the court reinstated a neighbor's article 78 proceeding because the neighbor had alleged traffic and environmental concerns about the planning board ' s site plan approval for the development of a hotel and a height variance on an adjacent property. Holding that these concerns were enough to make a prima facie showing of standing, the court did not consider applicant's allegations that the neighbor's only real concerns were related to a potential loss of business.

If, after fact-finding, the neighbor's allegations of non-economic harm prove to be baseless, the court may dismiss neighbor's proceeding for lack of standing, rather than addressing the claim on the merits. For example, in Allen Avionics, Inc. v. Universal Broad. Corp., 118 A.D.2d 527, the Appellate Division affirmed Supreme Court's dismissal, for lack of standing, of neighbor's action seeking to to enjoin construction of a radio tower on a nearby lot. Supreme Court had held a trial, and had concluded that there was no basis in fact for neighbor's contention that construction of the tower posed an imminent threat of irreparable harm due to the possibility of the tower collapsing. The Appellate Division held that Supreme Court had properly dismissed for lack of standing, rather than addressing neighbor's challenge on the merits.

ZBA's Construction of Lot Line Requirements Invalidated

Matter of Ogden Land Development, LLC v. Zoning Board of Appeals

NYLJ 10/3/14, p. 30, col. 3

App/Div, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination that a proposed subdivision was not zoning compliant, the village appealed from Supreme Court's grant of the petition. The Appellate Division modified to remit the matter to the zoning board of appeals (ZBA), but otherwise affirmed, holding that the ZBA's determination was irrational.

Landowner owns a triangular Scarsdale parcel with a total area of 21,683 square feet in a district with a minimum lot size of 10,000 square feet. Landowner proposed to subdivide the parcel into two lots, each with more than the required minimum area and street frontage. The building inspector, however, determined that the lots did not conform to the zoning ordinance because each would have only one “side” lot line, which would make it impossible for the lots to conform to the ordinance's definition for depth of lot, because the ordinance requires that depth be measured “in the general direction of [the lot's] side lot lines.” The ZBA affirmed the building inspector's determination, concluding that the subdivided parcels would not conform to the ordinance's width and depth of lot requirements, and that the lots would not meet the intent of the code to create lots in accordance with neighborhood character. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition and remitted to the planning board for consideration of the subdivision.

In modifying, the Appellate Division agreed with Supreme Court that the ZBA's determination was irrational. The court noted that landowner had computed both lot depth and lot width using a lot line in the shape of a flattened curve, and emphasized that the code defined Side Lot Line as “any boundary line which is not a front lot line or a rear lot line.” Landowner's proposed lots had side lot lines that satisfied the definition, and computed width and depth by reference to those lines. The court held, however, that Supreme Court should have remitted to the ZBA for issuance of a determination that the proposed subdivision conforms to the village code.

COMMENT

New York courts do not defer to zoning board determinations on compliance with building or lot size requirements when the dispute turns on a pure legal interpretation of the applicable zoning ordinance In Raritan Development Corp. v. Silva, 91 N.Y.2d 98 the Court of Appeals annulled a determination of the Board of Standards and Appeals revoking developer's building permit because, in the court's view, the Board had misinterpreted the city's zoning ordinance. The Board had determined that the building exceeded the ordinance's permitted FAR, because the developer, who planned to use the cellar as an apartment, had failed to include the cellar space in its FAR calculation. However, the court examined the local zoning ordinance and concluded that the ordinance “could not be clearer” that cellars, regardless of their use, are to be excluded from the FAR calculations. Similarly, in Lucas v. Board of Appeals of Village of Mamaroneck, 109 A.D. 3d 925 the court, in upholding, in part, a board's interpretation of the zoning ordinance, did so by applying ordinary principles of statutory construction rather than by deferring to the board. The board had issued the building permit after it determined that a proposed corner lot conformed to the zoning ordinance provision giving the owner the privilege “of electing any street lot line as the front lot line.” The court applied the rules of statutory construction when it rejected the contention of petitioning neighbors that the ordinance required both front yards of a corner lot to conform to the front yard requirements of the ordinance. The court held that the neighbors' construction would render pointless the ordinance's provision which allows the owner of a corner lot to choose which front yard will be in compliance.

However, when the board's determination is not a purely legal one, but is based instead on an interpretation of the zoning ordinance as it applies to specific lot, then the court will usually defer to the board's assessment of the lot's configuration. In Mullens v. Town of Hempstead, 41 A.D. 2d 967, the town's building commissioner determined that the landowner's proposed subdivision of a single lot into two lots created one corner lot and one interior lot, obviating the need for the corner lot to conform to the ordinance's rear lot set-back requirements. The court upheld the administrative interpretation of the ordinance because it had a rational basis.

ZBA's Denial of Lot Depth Variance Invalidated

Matter of Quintana v. Board of Zoning Appeals

NYLJ 9/12/14, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a lot-depth variance, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the determination of the zoning board of appeals (ZBA) was arbitrary and capricious.

Landowner sought a variance from the ordinance's lot-depth requirement. The ZBA denied the variance, emphasizing that the landowner's difficulty was self-created and that the variance was substantial. Landowner brought this proceeding, and Supreme Court granted the petition.

In affirming, the Appellate Division noted the absence of evidence that the variance would produce an undesirable change in neighborhood character, have an adverse impact on physical or environmental factors, or result in a detriment to health, safety and welfare. The court also found the ZBA's determination irrational because it rested largely on community opposition. As a result, Supreme Court properly annulled the ZBA's determination.

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Neighboring Developer Has Standing to Challegne Applicant's Site Plan Approval

Beekman Delameter Properties v. Village of Rhinebeck Zoning Board of Appeals

NYLJ 9/30/14, p. 17, col. 2

Supreme Ct., Dutchess Cty.

(Pagones, J.)

Neighboring developer brought an article 78 proceeding challenging site plan approval of applicant's project. The court granted the petition, holding both that neighbor had standing and that the planning board had failed to comply with SEQRA.

In or around 2009, the zoning board of appeals had approved a variance and the planning board had approved a site plan for applicant's condominium development. Applicant did not go forward with the project, but sought extensions of the area variance, which the zoning board of appeals granted for a one-year period in 2012. After the period expired, applicant sought another extension of the variance, which the zoning board of appeals granted. Landowner also applied for approval of a new site plan, which included a spa and commercial space in addition to residential units. The planning board approved the site plan and a special permit, relying on the consistency determination it had made in 2009 rather than making a new determination of significance under SEQRA.

Neighboring developer then brought this article 78 proceeding to challenge the approvals. In light of neighbor's challenge, applicant applied for an entirely new variance, which the zoning board of appeals granted. Neighboring developer contended that the zoning board was not entitled to extend a variance that had already expired, and that the planning board's determination of consistency, without new environmental review, violated SEQRA.

In granting the petition, the court first held that neighboring landowner had standing to bring the proceeding, even though neighbor's primary motivation was to disadvantage a competitor. The court noted that because the neighbor raised environmental concerns ' including potential traffic congestion ' neighbor had the requisite standing. Turning to the merits, the court first upheld the zoning board of appeals' grant of the new variance, holding that it was not tainted by the erroneous extension of the old variance. But the court annulled the planning board's grant of site plan approval, holding that the differences between the old project and the new one mandate a SEQRA determination about environmental significance.

COMMENT

An immediate neighbor who challenges a zoning-related determination lacks standing if the only harm the neighbor alleges involves business competition. In Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, the owner of a car wash brought an article 78 proceeding to annul a zoning board determination allowing a gas station on a nearby lot to build a car wash. The Court of Appeals dismissed the petition for lack of standing, because business competition is not within the zone of interest to be protected by a zoning ordinance.

The presence of an economic motive will not, by itself, preclude standing if the immediate neighbor also alleges concerns that are within the zone of interest to be protected. In John John, LLC v. Planning Bd. of Town of Brookhaven, 15 A.D.3d 486, the court reinstated a neighbor's article 78 proceeding because the neighbor had alleged traffic and environmental concerns about the planning board ' s site plan approval for the development of a hotel and a height variance on an adjacent property. Holding that these concerns were enough to make a prima facie showing of standing, the court did not consider applicant's allegations that the neighbor's only real concerns were related to a potential loss of business.

If, after fact-finding, the neighbor's allegations of non-economic harm prove to be baseless, the court may dismiss neighbor's proceeding for lack of standing, rather than addressing the claim on the merits. For example, in Allen Avionics, Inc. v. Universal Broad. Corp., 118 A.D.2d 527, the Appellate Division affirmed Supreme Court's dismissal, for lack of standing, of neighbor's action seeking to to enjoin construction of a radio tower on a nearby lot. Supreme Court had held a trial, and had concluded that there was no basis in fact for neighbor's contention that construction of the tower posed an imminent threat of irreparable harm due to the possibility of the tower collapsing. The Appellate Division held that Supreme Court had properly dismissed for lack of standing, rather than addressing neighbor's challenge on the merits.

ZBA's Construction of Lot Line Requirements Invalidated

Matter of Ogden Land Development, LLC v. Zoning Board of Appeals

NYLJ 10/3/14, p. 30, col. 3

App/Div, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination that a proposed subdivision was not zoning compliant, the village appealed from Supreme Court's grant of the petition. The Appellate Division modified to remit the matter to the zoning board of appeals (ZBA), but otherwise affirmed, holding that the ZBA's determination was irrational.

Landowner owns a triangular Scarsdale parcel with a total area of 21,683 square feet in a district with a minimum lot size of 10,000 square feet. Landowner proposed to subdivide the parcel into two lots, each with more than the required minimum area and street frontage. The building inspector, however, determined that the lots did not conform to the zoning ordinance because each would have only one “side” lot line, which would make it impossible for the lots to conform to the ordinance's definition for depth of lot, because the ordinance requires that depth be measured “in the general direction of [the lot's] side lot lines.” The ZBA affirmed the building inspector's determination, concluding that the subdivided parcels would not conform to the ordinance's width and depth of lot requirements, and that the lots would not meet the intent of the code to create lots in accordance with neighborhood character. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition and remitted to the planning board for consideration of the subdivision.

In modifying, the Appellate Division agreed with Supreme Court that the ZBA's determination was irrational. The court noted that landowner had computed both lot depth and lot width using a lot line in the shape of a flattened curve, and emphasized that the code defined Side Lot Line as “any boundary line which is not a front lot line or a rear lot line.” Landowner's proposed lots had side lot lines that satisfied the definition, and computed width and depth by reference to those lines. The court held, however, that Supreme Court should have remitted to the ZBA for issuance of a determination that the proposed subdivision conforms to the village code.

COMMENT

New York courts do not defer to zoning board determinations on compliance with building or lot size requirements when the dispute turns on a pure legal interpretation of the applicable zoning ordinance In Raritan Development Corp. v. Silva, 91 N.Y.2d 98 the Court of Appeals annulled a determination of the Board of Standards and Appeals revoking developer's building permit because, in the court's view, the Board had misinterpreted the city's zoning ordinance. The Board had determined that the building exceeded the ordinance's permitted FAR, because the developer, who planned to use the cellar as an apartment, had failed to include the cellar space in its FAR calculation. However, the court examined the local zoning ordinance and concluded that the ordinance “could not be clearer” that cellars, regardless of their use, are to be excluded from the FAR calculations. Similarly, in Lucas v. Board of Appeals of Village of Mamaroneck, 109 A.D. 3d 925 the court, in upholding, in part, a board's interpretation of the zoning ordinance, did so by applying ordinary principles of statutory construction rather than by deferring to the board. The board had issued the building permit after it determined that a proposed corner lot conformed to the zoning ordinance provision giving the owner the privilege “of electing any street lot line as the front lot line.” The court applied the rules of statutory construction when it rejected the contention of petitioning neighbors that the ordinance required both front yards of a corner lot to conform to the front yard requirements of the ordinance. The court held that the neighbors' construction would render pointless the ordinance's provision which allows the owner of a corner lot to choose which front yard will be in compliance.

However, when the board's determination is not a purely legal one, but is based instead on an interpretation of the zoning ordinance as it applies to specific lot, then the court will usually defer to the board's assessment of the lot's configuration. In Mullens v. Town of Hempstead, 41 A.D. 2d 967, the town's building commissioner determined that the landowner's proposed subdivision of a single lot into two lots created one corner lot and one interior lot, obviating the need for the corner lot to conform to the ordinance's rear lot set-back requirements. The court upheld the administrative interpretation of the ordinance because it had a rational basis.

ZBA's Denial of Lot Depth Variance Invalidated

Matter of Quintana v. Board of Zoning Appeals

NYLJ 9/12/14, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a lot-depth variance, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the determination of the zoning board of appeals (ZBA) was arbitrary and capricious.

Landowner sought a variance from the ordinance's lot-depth requirement. The ZBA denied the variance, emphasizing that the landowner's difficulty was self-created and that the variance was substantial. Landowner brought this proceeding, and Supreme Court granted the petition.

In affirming, the Appellate Division noted the absence of evidence that the variance would produce an undesirable change in neighborhood character, have an adverse impact on physical or environmental factors, or result in a detriment to health, safety and welfare. The court also found the ZBA's determination irrational because it rested largely on community opposition. As a result, Supreme Court properly annulled the ZBA's determination.

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