Development

Subdivision Denial Upheld

Matter of Ostojic v. Gee

NYLJ 7/24/15, p. 26, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's denial of a subdivision application, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the planning board had a rational basis for its denial.

Landowner's 2.52-acre parcel, improved by a single-family house, currently has access to a road through a covenanted right-of-way over a neighbor's driveway. Landowner sought to subdivide the parcel into two, and to provide access to both parcels by means of a different road that currently ends in a cul-de-sac 200 feet short of landowner's property line. Landowner proposed to build a driveway from his parcel to the cul-de-sac. The planning board denied the subdivision application, concluding that an alternative design would be less destructive to the environment and would permit the owners of an adjacent parcel also to subdivide their parcel. Landowner then brought this article 78 proceeding challenging the denial.

In affirming Supreme Court's denial of the petition, the Appellate Division noted that the planning board had relied on extensive testimony of the town's director of planning with respect to the amount of disruption and regarding that would be required to build the proposed driveway to the cul-de-sac. The court also noted that the board had conducted two visits to the site, and was in a better position than the court to evaluate the effect of the proposed subdivision and to weigh the alternatives.

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Denial of Area Variance Upheld

Matter of Patrick v. Zoning Board of Appeals

NYLJ 7/10/15, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's judgment denying the petition and dismissing the proceeding. The Appellate Division affirmed, holding that the zoning board's determination had a rational basis and was supported by evidence in the record.

In 2011, landowner purchased three adjacent lots, one improved by a single-family home, and the other two of which were vacant. The lots were non-conforming at the time of purchase, and landowner sought a variance to permit construction on the vacant lots. The zoning board denied the variance. Supreme Court upheld the denial.

In affirming, the Appellate Division first upheld the zoning board's determination that the three lots had merged because they had been used in conjunction with one another since at least 1948. The court then held that the determination to deny a variance was rational because the variances were substantial, the neighborhood was unique, and the hardship was self-created.

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Claim That Zoning Ordinance Violates Fair Housing Act

Rehabilitation Support Services, Inc. v. City of Albany

NYLJ 7/9/15, p. 21, col. 2

U.S. Dist Ct., N.D.N.Y.

(Kahn, J.)

In an action challenging the City of Albany's zoning ordinance as violative of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), the City moved to dismiss. The court denied the motion, holding that plaintiff, an entity seeking to establish a residence for recovering alcoholics and substance abusers, had adequately pleaded that Albany's zoning ordinance discriminates, on its face, against persons with disabilities.

Plaintiff sought to establish the proposed residence for 24 people in an Albany zoning district permitting single and two family residences and houses of worship. Landowner sought a use variance to permit the proposed residence but the Board of Zoning Appeals denied the variance. Landowner brought a state court article 78 proceeding challenging the denial, and simultaneously brought this action challenging the validity of the Albany zoning ordinance. Although the ordinance permits certain categories of multi-unit residences ' dormitories and nursing homes ' to operate in residential districts upon obtaining a special use permit, the ordinance does not provide for special use permits for community residences for individuals with disabilities. Instead, applicants for such residences must obtain use variances, which require proof of hardship. Plaintiff contended that this discrimination constitutes a violation of the FHA and ADA.

In denying the city's motion to dismiss, the court emphasized that plaintiff's claim in this case is not a reasonable accommodation claim, so the city's purported willingness to make provision for community residences for the disabled would not be a defense. Instead, the claim is that the ordinance discriminates on its face, and, taking the allegations of the complaint as true, plaintiff has set forth a claim that survives a motion to dismiss.

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Subdivision Denial Upheld

Matter of Ostojic v. Gee

NYLJ 7/24/15, p. 26, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the planning board's denial of a subdivision application, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the planning board had a rational basis for its denial.

Landowner's 2.52-acre parcel, improved by a single-family house, currently has access to a road through a covenanted right-of-way over a neighbor's driveway. Landowner sought to subdivide the parcel into two, and to provide access to both parcels by means of a different road that currently ends in a cul-de-sac 200 feet short of landowner's property line. Landowner proposed to build a driveway from his parcel to the cul-de-sac. The planning board denied the subdivision application, concluding that an alternative design would be less destructive to the environment and would permit the owners of an adjacent parcel also to subdivide their parcel. Landowner then brought this article 78 proceeding challenging the denial.

In affirming Supreme Court's denial of the petition, the Appellate Division noted that the planning board had relied on extensive testimony of the town's director of planning with respect to the amount of disruption and regarding that would be required to build the proposed driveway to the cul-de-sac. The court also noted that the board had conducted two visits to the site, and was in a better position than the court to evaluate the effect of the proposed subdivision and to weigh the alternatives.

'

Denial of Area Variance Upheld

Matter of Patrick v. Zoning Board of Appeals

NYLJ 7/10/15, p. 27, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's judgment denying the petition and dismissing the proceeding. The Appellate Division affirmed, holding that the zoning board's determination had a rational basis and was supported by evidence in the record.

In 2011, landowner purchased three adjacent lots, one improved by a single-family home, and the other two of which were vacant. The lots were non-conforming at the time of purchase, and landowner sought a variance to permit construction on the vacant lots. The zoning board denied the variance. Supreme Court upheld the denial.

In affirming, the Appellate Division first upheld the zoning board's determination that the three lots had merged because they had been used in conjunction with one another since at least 1948. The court then held that the determination to deny a variance was rational because the variances were substantial, the neighborhood was unique, and the hardship was self-created.

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Claim That Zoning Ordinance Violates Fair Housing Act

Rehabilitation Support Services, Inc. v. City of Albany

NYLJ 7/9/15, p. 21, col. 2

U.S. Dist Ct., N.D.N.Y.

(Kahn, J.)

In an action challenging the City of Albany's zoning ordinance as violative of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), the City moved to dismiss. The court denied the motion, holding that plaintiff, an entity seeking to establish a residence for recovering alcoholics and substance abusers, had adequately pleaded that Albany's zoning ordinance discriminates, on its face, against persons with disabilities.

Plaintiff sought to establish the proposed residence for 24 people in an Albany zoning district permitting single and two family residences and houses of worship. Landowner sought a use variance to permit the proposed residence but the Board of Zoning Appeals denied the variance. Landowner brought a state court article 78 proceeding challenging the denial, and simultaneously brought this action challenging the validity of the Albany zoning ordinance. Although the ordinance permits certain categories of multi-unit residences ' dormitories and nursing homes ' to operate in residential districts upon obtaining a special use permit, the ordinance does not provide for special use permits for community residences for individuals with disabilities. Instead, applicants for such residences must obtain use variances, which require proof of hardship. Plaintiff contended that this discrimination constitutes a violation of the FHA and ADA.

In denying the city's motion to dismiss, the court emphasized that plaintiff's claim in this case is not a reasonable accommodation claim, so the city's purported willingness to make provision for community residences for the disabled would not be a defense. Instead, the claim is that the ordinance discriminates on its face, and, taking the allegations of the complaint as true, plaintiff has set forth a claim that survives a motion to dismiss.

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