Plaintiff owned approximately 68.4 acres in the Village of Chester.  Plaintiff consulted with Town and Village officials about developing the Property, and the Village asked Plaintiff petition to annex the Town portions of the Property into the Village. However, this would have precluded development pursuant to the Village's multi-residential zoning district (“RM zoning”) absent variances or zoning amendments, and so the Village asked Plaintiff to draft a new zoning provision, “Residential Multifamily-Neighborhood” (“RM-N”) that would be specific to this project. Plaintiff then petitioned for annexation of the Town part of the Property into the Village, which required approval under the State Environmental Quality Review Act (“SEQRA”).  The Village approved the annexation, development plan, and RM-N proposal, but the Town Board issued its own SEQRA findings and denied the petition.

Plaintiff and the Village Board commenced, as co-petitioners, an Article 78 proceeding against the Town, seeking to annul the Town's SEQRA findings. The parties reached a settlement that, among other things, stated development of the project site would proceed upon Plaintiff’s “receipt of final, unconditional and unappealable approvals for its proposed project.” The Village Board began processing the RM-N zoning proposal and sent it to the Village Planning Board for review.  However, the Planning Board opposed the RM-N zoning and suggested that the project “could be built as planned under the existing RM multi-residential zoning.” Plaintiff claims “none of the zoning amendments proposed by the Planning Board” would have allowed the project to proceed in accordance with the FEIS and the SEQRA findings, as required by the settlement. Thus, as the Village Board did not affirmatively enact any zoning, Plaintiff argued the Property was left with “no zoning at all.” Plaintiff subsequently filed a breach of contract claim and § 1983 claim alleging violations of the Fifth and Fourteenth Amendments in NY Supreme Court, which was later removed to the federal District Court for the Southern District of New York.

There, Plaintiff claimed that absent any zoning for the newly annexed portion of the Property, it could not demonstrate that its proposal conforms to the applicable zoning regulations.  Therefore, Plaintiff was “precluded from submitting applications for any use or occupancy.” The Court found, however, that Plaintiff could have “elicited from the Planning Board the applicable requirements of site plan approval.” The Court also rejected the claim that Plaintiff’s annexation petition was a land use application for purposes of the Williamson County analysis (a test for ripeness of Fifth Amendment takings claims). Even if Plaintiff submitted a development plan that the Planning Board rejected, or if the annexation petition was a viable substitute, there was no evidence Plaintiff requested any variance or use approvals from the Zoning Board of Appeals. Finally, absent evidence that Defendants used “repetitive and unfair procedures” or “engaged in a war of attrition” against Plaintiff to avoid issuing a final decision, the Court declined to invoke the futility exception required for Plaintiff's claim to be deemed ripe for adjudication. 

The Court then granted Defendants motion to dismiss the federal claims, and remanded the state law claims to the NY Supreme Court.  Please note that this decision is currently under appeal.

The case was BT Holdings, LLC. v. Village of Chester, 2016 WL 796866 (S.D.N.Y.  February 23, 2016).

Petitioners/Plaintiffs acquired property that included Lots 217 and 217A on the Village of Scarsdale tax map. These lots did not have street frontage, and Lot 215A, owned by the Village, sat between Plaintiffs’ lots and Farragut Road.  Plaintiffs applied to the Zoning Board of Appeals (ZBA) for a variance from the frontage requirements to build a single-family residence. The ZBA granted the variance subject to Plaintiffs obtaining an access easement to cross Lot 215A. Plaintiffs maintained that despite the official Village map, Farragut Road was paved and extended further than depicted, providing more than 20 feet of actual street access to Lot 217. The ZBA took the position that the area was part of Tax Lot 215A, and thus an easement would be required. Plaintiffs commenced an Article 78 proceeding, and the Supreme Court found that Plaintiffs had established that the strip of land was a public street by prescription, and included the public right-of-way that ran with Farragut Road. Respondents/Defendants appealed.

The Appellate Division, Second Department affirmed, holding that Plaintiffs had established that the strip of land was a public street pursuant to Village Law § 6–626, which provides that “all lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” The Court went on to note that “[n]aked use by the public is not enough, and plaintiffs must further demonstrate that the village has continuously maintained and repaired the alleged street and, thus, assumed control thereof during the period of time in question.”

Here, the land at issue was visibly indistinguishable from Farragut Road, and only by referencing survey maps could it be seen as part of Lot 215A. It was also undisputed that the lot was paved by the Village with Farragut Road more than 10 years prior, and the public used it in a manner indistinguishable from the surrounding roadway.  Defendants argued Plaintiffs needed evidence that the Village had made recent repairs to the paved area, but the Court disagreed that such proof was required, noting while there was visible wear-and-tear, the surrounding roadway was in the same condition. As the record was clear that the Village maintained the area in the same manner as the remainder of Farragut Road, the Court held the area was a public street.

The Court concluded by affirming that the prescriptive portion of Farragut Road included the public right-of-way that runs with the remainder of the road, as Village Law directs that prescriptive lands “shall be a street with the same force and effect as if it had been duly laid out and recorded as such,” i.e. it “carries with it the usual width of the street in the locality or such width as is reasonably necessary for the safety and convenience of the traveling public and for ordinary repairs and improvements.”

The case is Soldatenko v Vil. of Scarsdale Zoning Bd. of Appeals, 138 A.D.3d 1003 (2d Dep’t 2016).

In 2007, Miller Beach Surf Club, Inc. (“Club”), applied to the Board of Zoning Appeals of the Town of Brookhaven (“BZA”) for certificates of an existing use and for an extension of a nonconforming use, which the BZA granted. In 2008, Petitioner Martinos (“Petitioner”) commenced an Article 78 proceeding to annul the BZA's determination. The Supreme Court granted the petition, annulled the determination, and remitted the matter to the BZA for a new determination. Following remittal, the BZA granted the Club's applications again. Petitioner commenced a second Article 78 proceeding alleging that the BZA's determination was arbitrary and capricious. The Supreme Court denied the parts of the petition to annul the BZA's determination to grant the applications for a certificate of existing use and an extension of nonconforming use. Petitioner appealed.

The Appellate Division, Second Department began by noting that zoning boards determinations are entitled to great deference, and such determinations will only be set aside where “illegal, arbitrary and capricious, or irrational.” The Court also noted that “… nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance.” Accordingly, the owner bears the burden of establishing that the pre-existing use was legal prior to the enactment of the prohibitive zoning ordinance.

Here, the Surf Club established that its existing use of the clubhouse, office building, and one-family dwelling were legal prior to the enactment of the zoning ordinance, and was thus a legal nonconforming use. However, the Surf Club's erection of the decks, the awning, the gazebo, and the detached shed and the completion of certain alterations to its clubhouse constituted an impermissible extension of the nonconforming use, as opposed to a mere increase in volume or intensity of the same nonconforming use that previously existed. Therefore, the BZA's decision to grant the Surf Club's application violated the Code of Town of Brookhaven § 85–883(A)(2), prohibiting the extension of nonconforming uses. Accordingly, the Court held that the portion of the BZA's determination which granted the Surf Club's application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the court below.  The remaining contentions in the petition were dismissed.

The case was Martinos v Bd. of Zoning Appeals of Town of Brookhaven, 138 A.D.3d 859 (2d Dep’t 2016).

Petitioners, who have owned property adjoining the North Pole Campground (“the Camp”) since the 1990s, wrote a series of letters to the Town of Wilmington Zoning Board of Appeals (“ZBA”) claiming the Camp has failed comply with the Town’s zoning ordinances.  Petitioners claimed that (1) tents and recreational vehicles at the Camp are not properly screened from the public's view and are eyesores, (2) noise from the camp is disturbing, and (3) the Camp has failed to comply with setback, screening, and minimum square footage requirements for individual campsites. 

In response, the Code Enforcement Officer informed Petitioners the Camp was a nonconforming use and that he did not intend to take any action against it.  Petitioners filed an appeal with the ZBA, which was denied after a hearing in June 2013.  Petitioners then commenced a CPLR Article 78 proceeding, claiming the ZBA failed to give the public adequate notice of the June 2013 hearing.  The trial court agreed and remitted the matter to the ZBA for a new public hearing without addressing the merits, and on a properly noticed rehearing the ZBA once again denied the Petitioner’s appeal.  Petitioners appealed the ZBA’s decision to the Supreme Court, which dismissed the petition.  Petitioners then appealed the matter to the appellate division.

On appeal, the Appellate Division, Third Department first noted that to the extent Petitioners sought to compel the code enforcement office to enforce the Town's ordinances, “it is in essence a request for relief in the form of mandamus (see CPLR 7803[1]),” a form of relief “which does not lie to compel the performance of such a discretionary function.”  Turning to the merits, the Court found that the record shows that the Camp has been functioning since the 1960s, predating the enactment of the zoning ordinances in question.  Accordingly, the operation of the Camp a permissible nonconforming use. 

Furthermore, the Court found that the Camp had complied with the Town’s zoning ordinances, notwithstanding that it was not required to do so. The code enforcement officer had measured the campsites and found they all met the minimum area and screening requirements.  He also found that the RVs complained of were owned by the campsite owner and that the ordinance permitted the storage of personal RVs for up to 15 consecutive months.  Finally, the code enforcement officer found that because the tent campsites used by RVs had water and electricity access, the use by RVs was permitted. The Court therefore concluded that the ZBA's determination had a rational basis and affirmed the Supreme Court’s dismissal of the appeal.

The case was Cooney v. Town of Wilmington Zoning Bd. of Appeals, 140 A.D.2d 1350 (3d Dep’t 2016).

Petitioner owned Public School 22 and an adjacent parcel in Albany.  The two properties were zoned for single and two-family detached dwellings and houses of worship. In October 2013, Petitioner applied for a use variance to raze the school and house on the adjacent lot to build an alcohol and substance abuse rehabilitation facility. Petitioner noted the school’s prior owner had been granted a use variance for a similar purpose, but failed to move forward with the project. Following a public hearing, City of Albany Zoning Board of Appeals (“Respondent”) denied the application. Petitioner brought an Article 78 proceeding asserting Respondent’s action was arbitrary as Petitioner had satisfied the criteria for a use variance and that a use variance had been granted to the prior owner. The lower court dismissed the petition, and Petitioner appealed.

On appeal, the Appellate Division, Third Department found that Respondent addressed each of the relevant factors for a use variance, and its determination that Petitioner failed to establish those factors had a rational basis and was supported by substantial evidence. Respondent noted that once the school was demolished, as called for by Petitioner’s proposal, the site could be used for a conforming use. Furthermore, razing the single-family residence on the adjoining property would result in a nonconforming use replacing a conforming use.

In addition, the Court found that even though Respondent had determined in 2008 that a community rehabilitation residence would not alter the essential character of the neighborhood, Respondent sufficiently distinguished that finding from the current application. Since the prior application, other similar residences had been approved resulting in a saturation of such uses. Moreover, the current application called for removal of a historical school building whereas the earlier application would refurbish the structure. Finally, as Petitioner was aware at the time of acquisition that its project would be a nonconforming use for those properties, Petitioner's hardship was self-created.

The case was Rehabilitation Support Services, Inc. v City of Albany Zoning Board of Appeals, 140 A.D.3d 1424 (3 Dep’t 2016).

Petitioner sought review of a Board of Standards and Appeals of the City of New York (BSA) decision upholding the New York City Department of Buildings (DOB) revocation of Petitioner's permit for an outdoor advertising sign. 

Petitioner had a large illuminated advertising sign on its building pursuant to a DOB permit from 1980. After the zoning regulations were amended, Petitioner’s sign was grandfathered in as a legal, nonconforming use.  In 2002, the BSA approved Petitioner’s variance request to develop a mixed-use building and move the sign with modifications, but construction never started and in 2008 the building and sign were demolished. Petitioner later sought new DOB permits for a structure and sign. DOB allowed the structure, but objected to the proposed sign as being doubled sided, in a different location, and 25 feet lower relative to the original. Petitioner applied for reconsideration, and the borough building inspector overruled the DOB and approved the sign permit. In early 2010, after the sign had been installed, a DOB audit found that the sign had not been lawfully approved. The BSA agreed that the sign violated the zoning resolution and that nonconforming use status had been lost during the 2 years of non-use following demolition. In addition, the BSA noted that “Petitioner’s good faith reliance on the approval did not estop the agency from enforcing its ordinances.” Petitioner commenced an Article 78 proceeding and the Supreme Court dismissed the petition. The Appellate Division reversed, and both parties were later granted leave to appeal to the Court of Appeals.

The Court of Appeals held Petitioner did not acquire a vested right to maintain the sign and that “the proper procedure to resolve the issue of its asserted good faith reliance on the erroneously issued permit is an application for a zoning variance.”  The Court noted that:

"an owner of real property can acquire a common-law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a legally issued permit, the landowner effect[s] substantial changes and incur[s] substantial expenses to further the development and [t]he landowner's actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless" (internal quotes and citations omitted).

Nonetheless, the Court held that “vested rights cannot be acquired, however, where there is reliance on an invalid permit,” as “when a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error.”  Since the 2008 permit was unlawfully issued, Petitioner could not rely on it to acquire vested rights. The Court also noted that the petitioner never sought a variance.

The case was Matter of Perlbinder Holdings, LLC v Srinivasan, 27 N.Y.3d 1 (2016).

In 2009, Petitioners purchased property in the Town of Southampton. Petitioners built a house on the lot, with a pool, deck, and trellis in the front yard, and an accessory structure with a barbecue, sink, cabinets, countertop, and refrigerator under the trellis. In December 2012, Petitioners' application for a building permit was denied as the accessory structure, deemed a kitchen, was not permitted in the front yard. Petitioners then filed an application with the Zoning Board of Appeals (“ZBA”) seeking a setback and area variances for the accessory structure. After a hearing, the ZBA denied the application. Petitioners then commenced instant Article 78 proceeding to review the ZBA's determination. The Supreme Court determined that the ZBA's decision lacked a rational basis and was arbitrary and capricious, granted the petition, and remitted the matter to the ZBA to grant the requested variances.

On appeal, the Appellate Division noted that the ZBA was not required to justify its decision with supporting evidence for each of the five statutory factors, so long as its determination balancing the relevant considerations was rational. Here, the evidence in the record supported the ZBA's findings that the variances were substantial, would produce an undesirable change in the character of the neighborhood, that the petitioners could use a portable unit as an alternative, and that any hardship was self-created. The Court also found that the three prior ZBA determinations Petitioners submitted in support of their application did not constitute precedent from which the ZBA was required to explain a departure, as Petitioners failed to establish that those applications bore sufficient factual similarity to their own. Accordingly, the Supreme Court’s decision to annul the ZBA's determination was reversed.

The case was Kramer v Zoning Board of Appeals of Southampton, 131 A.D. 3d 1170 (2d Dep’t 2015).

The Town of Huntington Zoning Board of Appeals denied the site plan application of Petitioner 7–Eleven, Inc., which sought to demolish an existing restaurant and construct a convenience store on the property.  Petitioners contended that the Supreme Court improperly upheld the ZBA's decision to deny 7–Eleven approval for a “change of use” under section 198–104 of the Code of the Town of Huntington.

Town Code § 198–104 provides that “a nonconforming use may be changed to ... any use which the ZBA shall find to be less intensive and more in character with the uses permitted in the district in which the nonconforming use is located.” Petitioners asserted that since the site currently did not conform to various dimensional zoning regulations, the restaurant was a “nonconforming use” under the Town Code.  However, the ZBA determined that since a restaurant was a permitted use under the zoning regulations, 7–Eleven could not rely on Town Code § 198–104 to change the purpose for which the property was being utilized to a free-standing convenience store, which was a prohibited use of the property under the zoning regulations of the district in which it is located.

On appeal, the Appellate Division, Second Department held that the Town Code did not apply to uses that already conformed with the applicable zoning regulations. The Court noted that if, Town Code § 198–104 were read to apply to uses already in conformity, it could be used for the purpose of changing conforming uses so that they are in violation of applicable zoning regulations.  Accordingly, the Supreme Court’s decision to uphold the denial of the “change of use” was affirmed.

The case was 7-Eleven, Inc. v Town of Huntington, 140 A.D.3d 889 (2d Dep’t 2016).

Petitioners-plaintiffs leased property in the Town of Cortlandt (“Town”).  In 2008, they applied to the Town’s Zoning Board of Appeals (“ZBA”) for a ruling that they were “specialty trade contractors” under the zoning ordinance, and thus permitted to engage in concrete aggregate recycling activities. However, the Town Board imposed a one-year moratorium on processing applications for site plan approval related to certain uses, including specialty trade contractors. On July 20, 2010, the Town Board lifted the moratorium and adopted Local Law 12, amending the zoning and planning ordinance to require that specialty trade contractors obtain a special use permit.  Petitioners reiterated that they had no plans to engage in activity requiring the processing of raw materials, and disputed that they ever intended to process raw materials on-site.  Even so, the ZBA denied Petitioners' application and concluded that since they intended to process raw materials at the site they were not “specialty trade contractors.” The ZBA thus found Petitioners were ineligible for the special permit now required. Petitioners brought an Article 78 proceeding, and the Supreme Court granted the petition to annul the ZBA's determination.

On appeal, the Appellate Division found that the ZBA properly determined that Labor Law 12 required a specialty trade contractor to apply for a special use permit to engage in certain activities on sites zoned for Highway Commercial uses.  This included concrete aggregate recycling activities, which previously did not require a special use permit. However, the Court found the record was full of instances where Petitioners disputed the claim that they intended to engage in activities other than concrete aggregate recycling on the site as nothing more than baseless rumor and suspicion. In addition, there was no evidence for the ZBA's conclusion that Petitioners would engage in activities other than those explicitly approved or permitted as of right under ordinance in force prior to July 20, 2010, or subject to the issuance of a special use permit under Labor Law 12.  Accordingly, the Court held that the Supreme Court had properly concluded that the ZBA's determination was irrational and granted the petition to annul the ZBA's determination.

The case was Green Materials of Westchester v. Town of Cortlandt, 132 A.D.3d 868 (2d Dep’t 2015).

Jason Bonsignore submitted an application to Planning Board of the Town of Dix (“Planning Board”) for site plan approval to reopen and expand the “Seneca Grand Prix Family Fun Park,” including miniature golf, bumper boats and a go-cart track. The Planning Board approved the site plan, finding the project qualified as a nonconforming use under the zoning code. Petitioners, adjacent property owners, commenced an Article 78 proceeding to annul the Planning Board's approval, contending that the property did not qualify as a nonconforming use, a requirement as an amusement park was no longer principally permitted. The Planning Board determined “that there was no discontinuance of the nonconforming use for any period of 18 months” after the zoning code went into effect.  In a letter dated March 1, 2013, respondents' counsel forwarded this determination to Supreme Court and moved to dismiss, which the court granted.  The court further denied petitioners' motion for reconsideration.

On appeal, the Appellate Division noted that CPLR 7804(f) allows objections in point of law but not dismissal on the merits.  It further found that whether the amusement park qualified as a nonconforming use went to the merits of the petition, and the facts were disputed. Accordingly, the Court held that a formal motion for summary judgment by respondents was required and the absence of same deprived petitioners of an opportunity to be heard on the merits.

The Court also interpreted the Zoning Code as providing for an abandonment whenever “any part or portion” of the nonconforming use has been discontinued for the 18-month lapse period. As neither the Planning Board nor Supreme Court has addressed whether the nonconforming use was in existence at the time the Zoning Code was enacted, nor have they addressed whether the proposed expansion to add a motorcycle track qualifies as a nonconforming use, the Court remitted the case to the trial court for further proceedings.

The case was Laughlin v. Pierce, 121 A.D.3d 1249 (3d Dep’t 2014).