Development

Board of Appeals May Consider Credibility of Applicant

Matter of M & V 99 Franklin Realty Corp. v. Weiss

NYLJ 1/21/15, p. 29, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of special exceptions and a variance, Supreme Court confirmed the variance denial and transferred the remainder of the proceeding to the Appellate Division. The latter, while concluding that the transfer was in error, upheld denial of the special exceptions and variance, holding that the board of appeals was not limited to consideration of the site plan submitted by landowner.

Landowner operates a used car business on the premises, and its tenant operates a car repair business. Neither use was permitted as a matter of right on the premises. Landowner applied to the board of appeals for special exceptions permitting display and sale of used cars, and permitting parking in the setbacks. Landowner also sought a variance from off-street parking variances. The board of appeals denied the applications, prompting this article 78 proceeding.

The Appellate Division first held that Supreme Court had erred in transferring the proceeding to the Appellate Division, noting that the determinations were not made after a trial-type hearing. In the interest of judicial economy, however, the court considered the applications and confirmed the determinations of the board of appeals. The court acknowledged that the burden of proof on an applicant for a special exception permit is lighter than the burden on an applicant for a variance. In this case, however, the court concluded that the board's determination was supported by evidence in the record, and was not arbitrary. In particular, the court noted that the board was entitled to discredit landowner's contention that it would limit the number of cars stored on the premises to 20 and would cease parking cars on adjacent residential streets. The court emphasized that issues of credibility were within the board's purview, and that the board was confronted with eyewitness testimony that the premises were overcrowded with vehicles, and that the vehicles spilled over onto adjacent streets. With respect to the variance, the court found that the denial was based on a proper consideration of the requisite factors.

COMMENT

A zoning board may deny a special permit application based on the applicant landowner's character and credibility. In Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236, the Court of Appeals upheld a board's refusal to renew a special use permit for operation of a solid waste transfer facility when the board relied on the applicant's intentional violations of the first permit as well as numerous accounts of deceit in making representations. While the violations may not have caused significant harm at the time, the court indicated that the Board was entitled to draw the conclusion that such behavior creates, “an unacceptable threat of future injury,” worthy of denial. The court further noted that to deny a special use application based on candor and credibility alone (without the introduction of expert testimony) a landowner's violations and deceit must be of particular “quantity and character.”

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No Deference to Board Interpretation on Pure Issue of Law

Matter of Boni Enterprises, LLC v. Zoning Board of Appeals

NYLJ 2/5/15, p. 21, col. 2

AppDiv, Third Dept.

(Opinion by McCarthy, J.)

In landowners' article 78 proceeding challenging a zoning board of appeals (ZBA) interpretation of the zoning ordinance, landowners appealed from Supreme Court's denial of the petition. The Appellate Division reversed and granted the petition, holding that the applicable ordinance permitted landowners to build 74 single-family residences on a single undivided lot.

In 1991, the town rezoned the subject parcels from a planned development district to a business district. The ordinance permitted 18 listed uses in the district, including one and two-family dwellings. The ordinance also provided that no single building would be larger than 4,800 square feet in size, and that “[m]ultiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded.” Subsequently, landowners, who own two adjacent parcels, together submitted a site plan application for construction of 74 one-family dwellings on one landowner's parcel and 15 commercial buildings on the adjacent parcel. When the town's zoning officer concluded that the plan did not comply with the zoning ordinance, landowners appealed to the ZBA, which concluded that multiple one-family dwellings could not be built on a single parcel. Supreme Court then dismissed landowners' article 78 proceeding challenging the interpretation, and landowners appealed.

In reversing, the Appellate Division acknowledged that courts generally defer to zoning boards, but emphasized that no deference is required on issues of pure legal interpretation of a zoning ordinance. The court went on to hold that ambiguity must be resolved in favor of property owners. The court conceded that the town did not intend for 74 one-family dwellings to be built on a single parcel, but nevertheless concluded that “the plain language of the Town Code” must be interpreted as permitting one-family dwellings on a single lot so long as they do not exceed the ordinance's density limitations. As a result, the court annulled the ZBA's determination.

COMMENT

When interpretation of a zoning ordinance requires a determination of factual questions within the expertise of the zoning board, the board's interpretation is entitled to deference. In New York Botanical Garden v. Bd. of Standards & Appeals of City of New York, 91 N.Y.2d 413, the Court of Appeals deferred to the judgment of the zoning board that a radio antenna was an accessory use to the permitted principal use of land as a university. The ordinance defined an accessory use as “a use clearly incidental to, and customarily found in connection with, such principal use,” and the court concluded that this definition raised a fact question about whether a radio antenna of the proposed size was customarily found in connection with a university. The court rejected the neighbor's argument that the determination was a purely legal matter

If the issue is nothing other than interpreting the meaning of a word or phrase in a zoning ordinance, which does not require factual inquiry, courts treat the issue as a pure legal matter, on which the zoning board is not entitled to deference. In Albany Basketball & Sports Corp. v. City of Albany, 116 A.D.3d 1135, the court declined to defer and reversed the findings of the zoning board that the word “ auditorium “ excluded use as a nightclub. The zoning board of appeals prohibited the property's owner from maintaining the property for musical events throughout which the crowd would be standing, despite the fact that the ordinance permitted use as an “auditorium.” The zoning board had adopted a definition of “auditorium” requiring that the audience sit during performances. While the court noted this was a reasonable definition consistent with various dictionaries, the court found that there were other, equally tenable definitions of “auditorium” that include event spaces with standing audiences. Since zoning ordinances are strictly construed against the drafting party, the court found that the building owner's proposed definition was controlling and the nightclub use was permitted.

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Board of Appeals May Consider Credibility of Applicant

Matter of M & V 99 Franklin Realty Corp. v. Weiss

NYLJ 1/21/15, p. 29, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of special exceptions and a variance, Supreme Court confirmed the variance denial and transferred the remainder of the proceeding to the Appellate Division. The latter, while concluding that the transfer was in error, upheld denial of the special exceptions and variance, holding that the board of appeals was not limited to consideration of the site plan submitted by landowner.

Landowner operates a used car business on the premises, and its tenant operates a car repair business. Neither use was permitted as a matter of right on the premises. Landowner applied to the board of appeals for special exceptions permitting display and sale of used cars, and permitting parking in the setbacks. Landowner also sought a variance from off-street parking variances. The board of appeals denied the applications, prompting this article 78 proceeding.

The Appellate Division first held that Supreme Court had erred in transferring the proceeding to the Appellate Division, noting that the determinations were not made after a trial-type hearing. In the interest of judicial economy, however, the court considered the applications and confirmed the determinations of the board of appeals. The court acknowledged that the burden of proof on an applicant for a special exception permit is lighter than the burden on an applicant for a variance. In this case, however, the court concluded that the board's determination was supported by evidence in the record, and was not arbitrary. In particular, the court noted that the board was entitled to discredit landowner's contention that it would limit the number of cars stored on the premises to 20 and would cease parking cars on adjacent residential streets. The court emphasized that issues of credibility were within the board's purview, and that the board was confronted with eyewitness testimony that the premises were overcrowded with vehicles, and that the vehicles spilled over onto adjacent streets. With respect to the variance, the court found that the denial was based on a proper consideration of the requisite factors.

COMMENT

A zoning board may deny a special permit application based on the applicant landowner's character and credibility. In Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236, the Court of Appeals upheld a board's refusal to renew a special use permit for operation of a solid waste transfer facility when the board relied on the applicant's intentional violations of the first permit as well as numerous accounts of deceit in making representations. While the violations may not have caused significant harm at the time, the court indicated that the Board was entitled to draw the conclusion that such behavior creates, “an unacceptable threat of future injury,” worthy of denial. The court further noted that to deny a special use application based on candor and credibility alone (without the introduction of expert testimony) a landowner's violations and deceit must be of particular “quantity and character.”

'

No Deference to Board Interpretation on Pure Issue of Law

Matter of Boni Enterprises, LLC v. Zoning Board of Appeals

NYLJ 2/5/15, p. 21, col. 2

AppDiv, Third Dept.

(Opinion by McCarthy, J.)

In landowners' article 78 proceeding challenging a zoning board of appeals (ZBA) interpretation of the zoning ordinance, landowners appealed from Supreme Court's denial of the petition. The Appellate Division reversed and granted the petition, holding that the applicable ordinance permitted landowners to build 74 single-family residences on a single undivided lot.

In 1991, the town rezoned the subject parcels from a planned development district to a business district. The ordinance permitted 18 listed uses in the district, including one and two-family dwellings. The ordinance also provided that no single building would be larger than 4,800 square feet in size, and that “[m]ultiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded.” Subsequently, landowners, who own two adjacent parcels, together submitted a site plan application for construction of 74 one-family dwellings on one landowner's parcel and 15 commercial buildings on the adjacent parcel. When the town's zoning officer concluded that the plan did not comply with the zoning ordinance, landowners appealed to the ZBA, which concluded that multiple one-family dwellings could not be built on a single parcel. Supreme Court then dismissed landowners' article 78 proceeding challenging the interpretation, and landowners appealed.

In reversing, the Appellate Division acknowledged that courts generally defer to zoning boards, but emphasized that no deference is required on issues of pure legal interpretation of a zoning ordinance. The court went on to hold that ambiguity must be resolved in favor of property owners. The court conceded that the town did not intend for 74 one-family dwellings to be built on a single parcel, but nevertheless concluded that “the plain language of the Town Code” must be interpreted as permitting one-family dwellings on a single lot so long as they do not exceed the ordinance's density limitations. As a result, the court annulled the ZBA's determination.

COMMENT

When interpretation of a zoning ordinance requires a determination of factual questions within the expertise of the zoning board, the board's interpretation is entitled to deference. In New York Botanical Garden v. Bd. of Standards & Appeals of City of New York, 91 N.Y.2d 413, the Court of Appeals deferred to the judgment of the zoning board that a radio antenna was an accessory use to the permitted principal use of land as a university. The ordinance defined an accessory use as “a use clearly incidental to, and customarily found in connection with, such principal use,” and the court concluded that this definition raised a fact question about whether a radio antenna of the proposed size was customarily found in connection with a university. The court rejected the neighbor's argument that the determination was a purely legal matter

If the issue is nothing other than interpreting the meaning of a word or phrase in a zoning ordinance, which does not require factual inquiry, courts treat the issue as a pure legal matter, on which the zoning board is not entitled to deference. In Albany Basketball & Sports Corp. v. City of Albany, 116 A.D.3d 1135, the court declined to defer and reversed the findings of the zoning board that the word “ auditorium “ excluded use as a nightclub. The zoning board of appeals prohibited the property's owner from maintaining the property for musical events throughout which the crowd would be standing, despite the fact that the ordinance permitted use as an “auditorium.” The zoning board had adopted a definition of “auditorium” requiring that the audience sit during performances. While the court noted this was a reasonable definition consistent with various dictionaries, the court found that there were other, equally tenable definitions of “auditorium” that include event spaces with standing audiences. Since zoning ordinances are strictly construed against the drafting party, the court found that the building owner's proposed definition was controlling and the nightclub use was permitted.

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