Second Department Holds Zoning Board Lacked Authority to Impose Durational Limits on Permit

Petitioners own property in a split-zone lot in the Town of North Hempstead.  The property had a restaurant within the Town's business district, and an adjoining parking lot that extends into the Town's residential district. The Zoning Board of Appeals (“ZBA”) granted Petitioners a permit pursuant to the Code of the Town of North Hempstead (“Town Code”) § 70–225(E) to continue use of the parking lot in the residence district for a period of five years. Petitioners commenced an Article 78 proceeding to annul the five-year durational limit. The Supreme Court denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Appellate Division, Second Department reversed, finding that the Board lacked the authority to impose a durational limit on a permit granted pursuant to Town Code § 70–225(E). Noting that conditions imposed by a zoning board of appealed must be authorized by the zoning ordinance, the Court held that as the Town Code did not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section, it was improper for the Board to include a five-year durational limit. Thus, the Court annulled the condition.

The case was Citrin v Board of Zoning Appeals of the Town of North Hempstead, 143 A.D.3d 893 (2d Dep’t 2016).

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