Development

Area Variance Denial Was Conclusory and Lacked Factual Basis

Matter of Marinas Edge Owners Corp. v. City of New Rochelle Zoning Board of Appeals

NYLJ 6/12/15, p. 30, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the determination by the zoning board of appeals (ZBA) was conclusory and lacked factual basis.

Landowner is a cooperative corporation that owns a 211-unit building in New Rochelle. Adjacent to a building is a vacant lot, located in a two-family residential zoning district. The zoning ordinance permits a maximum of four off-street parking spaces on the lot, and the lot is currently used for that purpose. Landowner, who currently provides 160 on-site parking spaces for its residents, sought a variance to permit construction of a 28-space parking lot on the vacant parcel, which is currently surrounded by an eight-foot fence that blocks ground-level views of Long Island Sound. The ZBA denied the variance, emphasizing the substantiality of the requested variance. When Supreme Court dismissed landowner's article 78 proceeding, landowner appealed.

In reversing, the Appellate Division emphasized the requirement that the ZBA weigh all of the statutory factors in evaluating an application for an area variance. In this case, the court emphasized that there was no evidence that health, safety, and welfare of the neighborhood would be detrimentally affected by granting of the requested variance, nor did the ZBA provide evidence to establish that landowner had a feasible alternative to the variance. As a result, the court concluded that the ZBA's determination was irrational and arbitrary.

Village Immune from Liability for Building Permit Denial

Sharp v. Incorporated Village of Farmingdale

NYLJ 6/12/15, p. 30, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowners' action against the village and a private entity serving as building inspector for the village, landowners appealed from Supreme Court's dismissal of the complaint seeking damages for delays in obtaining a building permit. The Appellate Division affirmed, holding that the village was immune from liability for its discretionary determination.

In 2010, the village entered into a contract with a private consulting company to serve as the village's building inspector. Landowners then submitted an application for a building permit to renovate their property. The consulting company's agent denied the application, contending that it failed to comply with the New York State Building Code. Landowners then had to modify their plans, increasing costs and causing delays. Landowners brought this action against the village and the consulting company, seeking to recover for their damages. Supreme Court dismissed the complaint for failure to state a cause of action.

In affirming, the Appellate Division emphasized that the decision whether to issue a building permit is a discretionary determination, and government entities are immune from liability for the consequences of those discretionary determinations. The court then extended that immunity to the private consulting firm, holding that the firm was acting within the scope of its authority as the village's building inspector.

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Area Variance Denial Was Conclusory and Lacked Factual Basis

Matter of Marinas Edge Owners Corp. v. City of New Rochelle Zoning Board of Appeals

NYLJ 6/12/15, p. 30, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the determination by the zoning board of appeals (ZBA) was conclusory and lacked factual basis.

Landowner is a cooperative corporation that owns a 211-unit building in New Rochelle. Adjacent to a building is a vacant lot, located in a two-family residential zoning district. The zoning ordinance permits a maximum of four off-street parking spaces on the lot, and the lot is currently used for that purpose. Landowner, who currently provides 160 on-site parking spaces for its residents, sought a variance to permit construction of a 28-space parking lot on the vacant parcel, which is currently surrounded by an eight-foot fence that blocks ground-level views of Long Island Sound. The ZBA denied the variance, emphasizing the substantiality of the requested variance. When Supreme Court dismissed landowner's article 78 proceeding, landowner appealed.

In reversing, the Appellate Division emphasized the requirement that the ZBA weigh all of the statutory factors in evaluating an application for an area variance. In this case, the court emphasized that there was no evidence that health, safety, and welfare of the neighborhood would be detrimentally affected by granting of the requested variance, nor did the ZBA provide evidence to establish that landowner had a feasible alternative to the variance. As a result, the court concluded that the ZBA's determination was irrational and arbitrary.

Village Immune from Liability for Building Permit Denial

Sharp v. Incorporated Village of Farmingdale

NYLJ 6/12/15, p. 30, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowners' action against the village and a private entity serving as building inspector for the village, landowners appealed from Supreme Court's dismissal of the complaint seeking damages for delays in obtaining a building permit. The Appellate Division affirmed, holding that the village was immune from liability for its discretionary determination.

In 2010, the village entered into a contract with a private consulting company to serve as the village's building inspector. Landowners then submitted an application for a building permit to renovate their property. The consulting company's agent denied the application, contending that it failed to comply with the New York State Building Code. Landowners then had to modify their plans, increasing costs and causing delays. Landowners brought this action against the village and the consulting company, seeking to recover for their damages. Supreme Court dismissed the complaint for failure to state a cause of action.

In affirming, the Appellate Division emphasized that the decision whether to issue a building permit is a discretionary determination, and government entities are immune from liability for the consequences of those discretionary determinations. The court then extended that immunity to the private consulting firm, holding that the firm was acting within the scope of its authority as the village's building inspector.

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