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Development
Landonwner Entitled to Nonconforming Use Status
Matter of Nowak v. Town of Southampton NYLJ 8/2/19, p. 24, col. 6 AppDiv, Second Dept. (memorandum opinion)
In neighbor's article 78 proceeding challenging grant of a variance, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner's parcels qualified as pre-existing non-conforming parcels.
Contract vendee sought a variance to enable it to merge two adjoining non-conforming parcels, and to build a single-family residence on the merged parcel. Current zoning requires a minimum lot size of 200,000 square feet and a minimum lot width of 200 square feet. Zoning also required 40 feet of frontage on a road. Neither contract vendee's two parcels individually, nor the merged parcel, meets any of those requirements. The merged parcel would be 66,537 square feet, and would have access to a road through a right of way adjacent to one of the parcels. Contract vendee sought a variance to permit construction because both parcels had been held in single and separate ownership since before the current zoning was enacted. Neighbor objected, citing the negative impact the construction would have on her use and enjoyment of her parcel. The zoning board of appeals nevertheless granted the variances, and neighbor brought this article 78 proceeding. Supreme Court denied the petition.
In affirming, the Appellate Division first concluded that the merged lot would enjoy nonconforming status as to lot width and lot area. The court then held that the zoning board of appeals had properly weighed statutory factors in granting contract vendee a variance with respect to the road frontage requirement.
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|Public Trust Claim Reinstated
Matter of Clover/Allen's Creek Neighborhood Association LLC v. M&F, LLC 173 A.D.3d 1828 AppDiv, Fourth Dept. (memorandum opinion)
In a hybrid declaratory judgment action/article 78 proceeding, neighborhood association appealed from Supreme Court's determination dismissing their claims that the town's conveyance violated the public trust doctrine, and that the town violated the open meetings law. The Appellate Division modified to reinstate the public trust claim, holding that questions of fact remained about whether a town easement had been dedicated to park or public use.
Developer proposed to build a 93,000 square feet commercial plaza that would allegedly encroach upon a 10-foot wide strip of land over which the town has a non-exclusive easement to maintain a pedestrian pathway for public use. In this action, neighborhood association sought a declaration that the public trust doctrine prevents the town from conveying easements to developer without the approval of the state legislature. The association also sought to invalidate actions of the town board taken in alleged violation of the Open Meetings Law. Supreme Court dismissed the Open Meetings claim and issued a declaration in favor of the town on the public trust claim.
In modifying, the Appellate Division cited to the conveyances creating the town easements which provided that the easements were to be used as a pedestrian pathway for public use, and which required the town to restore the easement property to a park like condition after constructing the pathway. The court held that these conveyances raised questions of fact about whether there had been an express or implied dedication of the property to public use. The court, however, held that Supreme Court had properly dismissed the open meetings claim, noting that the town had posted the relevant documents on the town website more than seven hours before the town board meeting, and emphasizing that the open meetings law does not include a specified time period before the meeting during which documents must be posted.
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