Development

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the zoning board of appeals (ZBA)'s interpretation of the town's zoning ordinance, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that nothing in the record before the ZBA supported the ZBA's determination that landowner planned to use the property for purposes not permitted by the ordinance.

Landowners, who lease a 3.7-acre parcel in the town, applied in 2008 for an interpretation that they qualified as “specialty trade contractors” under the zoning ordinance, and were therefore permitted to engage in concrete aggregate recycling on the parcel. The ZBA gave landowner the interpretation they sought, and landowners then applied to the Planning Board for site plan approval. One week after the Planning Board held a public hearing on the application, the Town Board imposed a one-year moratorium on processing of site plan applications for yards operate by specialty trade contractors. The town subsequently lifted the moratorium, but redefined specialty trade contractors to exclude manufacturing operations that require the processing of raw materials. The town also required special permits for specialty contractor uses. When landowner next appeared before the planning board on the site plan application, the board directed landowner to seek an interpretation of the new ordinance from the ZBA. The ZBA then concluded that landowners were not specialty trade contractors within the meaning of the new ordinance because they intended to process raw materials on the site. Landowners then brought this article 78 proceeding challenging that determination. Supreme Court granted the petition, and the town appealed.

In affirming, the Appellate Division emphasized that the record before the ZBA included no evidence that landowners intended to process raw materials on the site, and noted that landowners had consistently disputed the claim that they intended to use the parcel for anything other than concrete aggregate recycling. In light of the absence of evidence in the record, the court concluded that the ZBA's determination was irrational.

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Impermissible Accessory Building

Matter of Witkowich v. Zoning Board of Appeals

NYLJ 11/16/15, p. 20, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding to annul a determination by the zoning board of appeals that landowner's addition to his house was not an impermissible accessory structure, landowner appealed from Supreme Court's grant of the petition. The Appellate Division reversed and reinstated the ZBA's determination, concluding that it was neither unreasonable nor irrational.

In 2012, landowner obtained a building permit to construct a den and garage attached to his residence. His neighbor then brought a proceeding before the ZBA challenging issuance of the permit, contending that the construction was not an addition to the house, but an impermissibly large accessory building. The ZBA upheld the building permit based upon its interpretation of the ordinance. Neighbor then brought this article 78 proceeding, and Supreme Court granted the petition and annulled the ZBA's determination. Landowner appealed.

In reversing, the Appellate Division started with the definition of accessory building in the zoning ordinance: “a subordinate building, whether or not attached to the main building via or breezeway or connecting corridor, the use of which is customarily incidental to that of a main building on the same lot.” In this case, the ZBA determined that the addition was not connected to the main building by either a breezeway or by a connecting corridor, and therefore did not constitute an accessory building. The Appellate Division concluded that this interpretation was reasonable, and should not have been upset by Supreme Court.

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Record Did Not Support ZBA's Determination

Matter of Green Materials of Westchester v. Town of Cortlandt

NYLJ 10/23/15, p. 29, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the zoning board of appeals (ZBA)'s interpretation of the town's zoning ordinance, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that nothing in the record before the ZBA supported the ZBA's determination that landowner planned to use the property for purposes not permitted by the ordinance.

Landowners, who lease a 3.7-acre parcel in the town, applied in 2008 for an interpretation that they qualified as “specialty trade contractors” under the zoning ordinance, and were therefore permitted to engage in concrete aggregate recycling on the parcel. The ZBA gave landowner the interpretation they sought, and landowners then applied to the Planning Board for site plan approval. One week after the Planning Board held a public hearing on the application, the Town Board imposed a one-year moratorium on processing of site plan applications for yards operate by specialty trade contractors. The town subsequently lifted the moratorium, but redefined specialty trade contractors to exclude manufacturing operations that require the processing of raw materials. The town also required special permits for specialty contractor uses. When landowner next appeared before the planning board on the site plan application, the board directed landowner to seek an interpretation of the new ordinance from the ZBA. The ZBA then concluded that landowners were not specialty trade contractors within the meaning of the new ordinance because they intended to process raw materials on the site. Landowners then brought this article 78 proceeding challenging that determination. Supreme Court granted the petition, and the town appealed.

In affirming, the Appellate Division emphasized that the record before the ZBA included no evidence that landowners intended to process raw materials on the site, and noted that landowners had consistently disputed the claim that they intended to use the parcel for anything other than concrete aggregate recycling. In light of the absence of evidence in the record, the court concluded that the ZBA's determination was irrational.

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Impermissible Accessory Building

Matter of Witkowich v. Zoning Board of Appeals

NYLJ 11/16/15, p. 20, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding to annul a determination by the zoning board of appeals that landowner's addition to his house was not an impermissible accessory structure, landowner appealed from Supreme Court's grant of the petition. The Appellate Division reversed and reinstated the ZBA's determination, concluding that it was neither unreasonable nor irrational.

In 2012, landowner obtained a building permit to construct a den and garage attached to his residence. His neighbor then brought a proceeding before the ZBA challenging issuance of the permit, contending that the construction was not an addition to the house, but an impermissibly large accessory building. The ZBA upheld the building permit based upon its interpretation of the ordinance. Neighbor then brought this article 78 proceeding, and Supreme Court granted the petition and annulled the ZBA's determination. Landowner appealed.

In reversing, the Appellate Division started with the definition of accessory building in the zoning ordinance: “a subordinate building, whether or not attached to the main building via or breezeway or connecting corridor, the use of which is customarily incidental to that of a main building on the same lot.” In this case, the ZBA determined that the addition was not connected to the main building by either a breezeway or by a connecting corridor, and therefore did not constitute an accessory building. The Appellate Division concluded that this interpretation was reasonable, and should not have been upset by Supreme Court.

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