Cooperatives & Condominiums

AppDiv, Second Dept. (memorandum opinion)

In landowner's hybrid article 78 proceeding/declaratory judgment action challenging denial of a site plan application, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that landowner's prior use was a conforming use, landowner was not entitled to convert the property to a non-conforming use.

Landowner sought to demolish an existing restaurant and to build a convenience store on the premises. The town's zoning code authorizes a landowner to change an existing nonconforming use to a use that the zoning board of appeals (ZBA) determines is less intensive and more in character with uses permitted in the district. Landowner invoked that provision to seek approval for its site plan because the existing restaurant did not conform to various dimensional zoning regulations in the district. The ZBA, however, contended that the code provision was inapplicable because restaurant use was permitted in the district, and therefore the restaurant use was not a nonconforming use within the meaning of the code. Supreme Court agreed.

In affirming, the Appellate Division emphasized that landowner's proposed construction of the code provision was inconsistent with the aim of restricting and eventually eliminating nonconforming uses. The court emphasized that landowner's construction would permit conversion of conforming uses into nonconforming uses, which would appear to generate unreasonable or absurd consequences.

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Commercial Campground Conformed to Zoning Ordinance

'Cooney v. Town of Wilmington

2016 WL 3190065, 6/9/16

AppDiv, Third Dept.

(Opinion by Aarons, J.)

In neighbors' article 78 proceeding to review a determination by the zoning board of appeals (ZBA) that landowner was not in violation of the zoning code, neighbors appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner's use was a valid nonconforming use and that, in any event, landowner had complied with the zoning code.

Landowner, who happens to be a member of the local ZBA, operates a commercial campground that has been in existence since the 1970s. Neighbors contend that RVs and other vehicles are not properly screened from the public's view, and asked the town's code enforcement officer to enforce setback, screening, and minimum square footage requirements in the zoning ordinance. The code enforcement officer informed neighbors that he would not take action, and neighbors then appealed for the ZBA, which denied neighbors' appeal. Neighbors then brought an article 78 proceeding challenging the ZBA's determination, and Supreme Court dismissed the proceeding.

In affirming, the Appellate Division first noted that the camp's operation predated enactment of the local zoning ordinances and was therefore permissible as a nonconforming use. The court then noted, however, that the code enforcement officer had measured the square footage of individual campsites and had determined that they met the minimum area requirements. The officer also found no violation of screening requirements. He determined that RVs, which allegedly violated setback requirements, were actually the property of the campground's owner, who was entitled to store them on the premises. Based on these findings, the Appellate Division concluded that landowner had complied with the ordinance. Finally, the court rejected neighbors' argument that they had not received a fair hearing, noting that landowner had not participated on neighbors' appeal.

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Variance Denial Not Arbitrary or Capricious

Matter of Latuga v. Giannadeo

NYLJ 6/3/16, p. 30, col. 3

AppDiv, Second Dept.

(memorandum opinion).

In landowner's article 78 proceeding challenging denial of area variances, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the decision by the zoning board of appeals (ZBA) was not arbitrary or capricious.

Landowner sought several area variances, including one for an increase in square footage of an existing barn, one to reduce the minimum side yard setback to accommodate another barn, and a third to reduce the paddock setbacks in their side yards from 16 feet to two feet on one side and 16 feet to five feet on the other side. The ZBA granted the variance to increase the size of the existing barn, so long as it was moved away from the rear property line, and so long as landowner placed a vegetative buffer between the barn and the rear property line. The board denied the setback variance for the other barn, and granted paddock setback variances to 10 feet rather than the two and five feet landowner had requested. Landowner brought this article 78 proceeding, and Supreme Court denied the petition.

In affirming, the Appellate Division rejected landowner's claim that the variance determinations with respect to the barns were based on generalized community opposition. The court also rejected the claim that the ZBA was bound by its own prior determination s with respect to other cases, concluding that landowner had failed to establish that the other cases were sufficiently similar to landowner's application. Finally, with respect to the paddock variances, the court concluded that the landowner's difficulty was self-created because landowner had built the structures without first obtaining building permits.

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Zoning Ordinance Did Not Authorize Special Exception Permit

Matter of Lazarus v. Board of Trustees

NYLJ 6/3/16, p. 31, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging certain aspects of her application for a special exception permit, the village appealed from Supreme Court's grant of the petition. The Appellate Division reversed, denied the petition and dismissed the proceeding, holding that the zoning ordinance did not authorize a special exception permit for a portion of landowner's application.

Landowner owns a house in a single-family zoning district and sought a special exception permit to approve mother-daughter occupancy status for the house, together with maintenance of a second-story deck with an exterior staircase from the deck to the street. The village board of trustees approved the mother-daughter status, but in a separate determination, denied the application for the deck and exterior staircase. Landowner then brought this article 78 proceeding, and Supreme Court granted the petition, annulling the board's determination.

In reversing, the Appellate Division started by acknowledging that a landowner seeking a special permit exception bears a lighter burden than a landowner seeking a variance. The court then turned to the village ordinance, which provides that no decks shall be built above the first-floor grade without a special exception permit. The court noted that the ordinance nowhere authorizes the creation of a second-story entrance, even with a special exception permit. As a result, the court concluded that the board of trustees had acted rationally in denying the permit. The court emphasized the board's conclusion that the proposed entrance was more reflective of a two-family home, which is not permitted in the zoning district. In light of the board's knowledge of the character of the community, the court held that the board's determination was rational and should not have been disturbed.

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Local Law 44 Upheld

New York State Association for Affordable Housing v. Council of the City of New York

NYLJ 6/3/16, p. 25, col. 3

AppDiv, First Dept.

(3-1 decision; majority opinion by Andrias, J; dissenting opinion by Saxe, J.)

In an action to invalidate a local law passed by the City Council over Mayor Bloomberg's veto, plaintiffs, a trade association for the affordable housing industry and contractors and subcontractors who have worked on affordable housing projects, and defendants, the City of New York and its Department of Housing Preservation and Development (HPD), appealed from Supreme Court's order upholding the local law. A divided Appellate Division affirmed, rejecting arguments based on preemption, due process, and equal protection.

In 2013, the New York City Council enacted Local Law #44, which imposed a variety of disclosure requirements on HPD. Local Law #44 required HPD to post on its website the criteria it used to determine whether an entity qualifies for a pre-qualified list, the name and identify of all entities on a disqualified list, information about each HPD affordable housing project, including how the developer was selected. The local law also requires HPD to update the list every six months. At the same time, Local Law #44 requires contractors and subcontractors with over $2.5 million in gross revenues to provide quarterly wage reports, and provides that any contractor who fails to comply or who has a history of constructive conditions, as determined by HPD, shall be ineligible to be included on a pre-qualified list. The trade association brought this action to invalidate the Local Law, but Supreme Court granted the Council's motion to dismiss.

In affirming, the Appellate Division majority rejected the argument that state law conferring authority on HPD pre-empted Local Law #44.

Justice Andrias' opinion for majority noted that compliance with the local law was not a condition for access to housing finance funding, so the local law did not interfere with HPD's financing, loan, and land disposition processes for affordable housing development and did not interfere with HPD's ability to partner with any developer on an affordable housing project. Justice Andrias also emphasized that the statute did not require contractors to pay any particular wage rate. Moreover, the court was unanimous in rejecting the trade association's constitutional claims.

Justice Saxe, dissenting, contended that Local Law #44 conflicts with the state's general grant to HPD of broad supervisory authority over the construction of affordable housing in New York City. He argued that the local law contravenes that broad authority “by imposing additional terms and conditions on the means by which HPD goes about accomplishing its task.”

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