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Real Estate & Property Law

New York Zoning and Municipal Law Blog

Articles on recent New York cases and statutes related to zoning, land use, SEQRA, RLUIPA, eminent domain, regulatory takings and other municipal law topics.
By Steven Silverberg and Katherine Zalantis

Post Frequency: 0.4/day

Last Entry: April 03, 2013 at 21:10:59

Racing Pigeons Are Not Customary Household Pets

Posted on April 03, 2013
The Appellate Division ruled that a zoning board correctly interpreted the zoning code when it held that keeping 40 racing pigeons was not what was intended in a zoning code that permits "customary household pets" as accessory to a residence. In Matter of LaRusso v...

Court of Appeals Reaffirms Zoning Relates to Use Not the User

Posted on February 20, 2013
The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land "not the identity of the user." In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town's zoning code that prohibited check cashing establishments were invalid...

Court Finds Improper Segmentation of SEQRA Review

Posted on February 07, 2013
The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site...

Court Holds Nearby Business Lacks Standing to Challenge Zone Change

Posted on December 31, 2012
The Appellate Division held that an assisted care facility did not have standing to challenge a change in definition under local zoning that permitted a competitor to open a facility nearby. In Matter of VTR FV, LLC v Town of Guilderland, the Court held the: "allegations distill to a claim of 'the threat of increased business competition, which is not an interest protected by the zoning law[]' (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N...

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Supreme Court Rules Temporary Flooding by Government May Be a Taking

Posted on December 06, 2012
This week, the U.S. Supreme Court reversed the Federal Circuit decision finding that temporary flooding of property instituted by the government could not be a taking and remanded the matter for further findings.In Arkansas Fish and Game Commission v United States (11-597), the Court reversed the Circuit's conclusion that there can only be a taking if the flooding were permanent or inevitably reoccurring...

Interpretation of Ambiguous Language in Zoning Ordinance a Question of Fact

Posted on October 25, 2012
The Appellate Division affirmed the denial of summary judgment in an action by a town, seeking to enjoin the use of a property as being in violation of the local zoning ordinance. In Matter of Town of Huntington v. Braun, the court explained the zoning ordinance permits florist shops and nurseries with accessory greenhouses that are defined "as '[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit...

Challenge to Special Permit Barred By Laches

Posted on September 03, 2012
The Appellate Division dismissed a challenge to a special permit, when the petitioner delayed bringing an Article 78 proceeding while the recipient of the special permit continued with construction. in Matter of Miner v. Town of Duanesburg Planning Board, The Court held: "Petitioners were present and spoke at the March 2011 Planning Board meeting at which Long Energy's application was considered and the special use permit was granted...

Neighbors Have Standing to Challenge SEQRA Determination

Posted on August 26, 2012
The Appellate Division reversed a lower court holding that neighbors of the controversial Patrick Farm development in the Town of Ramapo lacked standing to challenge the approval of changes to the Town's comprehensive plan and zoning ordinance. In Matter of Shapiro v...

Rezoning Consistent With Comprehensive Plan But Failed to Comply With SEQRA

Posted on July 22, 2012
A Court found that the rezoning of a single parcel, although different from the designation in the comprehensive plan, was still consistent with that plan. However, the Court held the town board did not fully comply with SEQRA. In Matter of Bergami v...

Court of Appeals Upholds SEQRA Negative Declaration for Rezoning

Posted on June 28, 2012
The New York Court of Appeals upheld the determination by the New York City Department of City Planning to issue a negative declaration under the State Environmental Quality Review Act (SEQRA) for a rezoning of a portion of Brooklyn. In Matter of Chinese Staff and Workers Association v...

Second Circuit Finds Town Prayer Practice Violates Establishment Clause

Posted on May 28, 2012
The Second Ciircuit Court of Appeals found that a town's practice of conducting prayers at the begining of town board meetings, as a result of the totality of the manner in which the prayer leaders were selected and the prayers were conducted, violated the Establishment Clause of the United States Constitution...

Court Reverses Dismissal of SEQRA Challenge By Adjoining Municipality

Posted on April 26, 2012
The dismissal of a challenge, by an adjoining Village, to a Town's rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law � 239-m to proceed. In Village of Pomona v...

Appellate Division Reverses Grant of Use Variance

Posted on April 22, 2012
The Appellate Division reversed the Supreme Court's decision to uphold the granting of a use variance and related area variances to permit expansion of a non-confirming adult entertainment night club. In Matter of Edwards v. Davison, the Mount Vernon City Council, in light of legislation adopted several years ago to ban such uses from the City's downtown business district, took the unusual step of suing the Zoning Board of Appeals to challenge the approval of the variances, which allowed the expansion of the non-conforming club...

Congress Limits Municipal Authority To Deny Modification of Telecommunications Facilities

Posted on February 28, 2012
Last week President Obama signed the ??Middle Class Tax Relief and Job Creation Act of 2012?? which included provisions limiting municipal authority over modification of existing telecommunications facilities. The new provisions read as follows: SEC...

Court Reverses Denial of Special Permit

Posted on February 04, 2012
The Appellate Division Fourth Department reversed the denial of a special permit when it found the denial to be based upon "generalized community objections." In Matter of Young Development, Inc. v. Town of West Senaca, the Court held: "Contrary to respondents' contention, petitioners established that the sewer system of respondent Town of West Seneca would have sufficient capacity to support the project and, in any event, petitioners agreed to engage in remediation efforts recommended by the [*2]New York State Department of Environmental Conservation...

Law Requiring Inspection Of Residential Units Held Unconstitutional

Posted on January 14, 2012
A Local village's law requiring occupancy applications and inspection of rental units, before permiting occupancy, was held to be unconstitutional by the Appellate Division this week. In

Court Dismisses Civil Rights Claim

Posted on December 31, 2011
The Appellate Division affirmed dismissal of a claim under 42 U.S.C. �1983 for violation of civil rights, based upon a claim of improper delay in issuing a certificate of occupancy for a house. In Matter of Zarabi v. Incorporated Village of Roslyn Harbor, the Court found that the existence of unapproved changes in the construction served as a legitimate basis for the delay in issuing the certificate of occupancy...

Court Holds Change of Comprehensive Plan to Permit Rezoning of One Parcel Was Not Spot Zoning

Posted on December 28, 2011
The Appellate Division held that despite the fact that a parcel had been zoned for industrial use for fifty years, and that the Town's comprehensive plan designated the parcel for industrial use, a rezoning and change of the comprehensive plan to residential use of the parcel was a proper exercise of discretion...

Failure to Challenge Zoning Board Action Within Thirty Days of Filing Minutes Ruled Fatal

Posted on December 16, 2011
The Appellate Division held that the filing of a zoning board's minutes, rather than the subsequent filing of the zoning board's formal decision, commenced the running of thirty day statue of limitations for challenging that decision. In Matter of 92 MM Motel, Inc...

Town May Not Reject Low Bidder Based Upon Criteria Not Specified In Bid Documents

Posted on July 31, 2011
The N.Y. Court of Appeals found a Town Board was arbitrary in rejecting a low bid based upon criteria not specified in the bid documents. In AAA Carting & Rubbish Removal, Inc. v. Town of Southeast, the Court reversed the Appellate Division and held "accepting a higher bid based on subjective assessment of criteria not specified in the bid request gives rise to speculation that favoritism, improvidence, extravagance, fraud or corruption may have played a role in the decision...

No Vested Rights In Non-Conforming Townhouse Subdivision

Posted on June 02, 2011
The Appellate Division upheld a zoning board determination that a property owner had not acquired vested rights in the portion of a subdivision, which would have allowed a now non-conforming townhouse development. In the Matter of Mar-Vera Corporation v Zoning Board of Appeals of the Village of Irvington, the petitioner challenged the denial of a building permit to complete the townhouse portion of a subdivision that had been approved for 27 single family homes and 14 attached townhouses in 1979...

Eight Car Garage Not Customary Accessory Use

Posted on May 31, 2011
The Appellate Division overturned the decision of a zoning board which upheld the granting of a building permit to construct an eight car garage on the same property as a single family home. The court in Matter of Witkowich v. Zoning Board of Appeals of the Town of Yorktown found that the proposed eight to nine car garage, which was approximately twice the size of the house on the same lot, was not, as the zoning ordinance provided, a "subordinate building ...

Court Overturns Recreation Fee For Senior Housing

Posted on May 09, 2011
The Appellate Division overturned the requirement that a recreation fee be paid as a condition of site plan approval for a senior housing community. In Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd. the court held that the planning board failed to make the requisite findings to justify imposing a recreation fee and remitted the matter to the planning board for further consideration...

Court Upholds Zoning Board Interpretation of Permitted Accessory Use

Posted on May 01, 2011
The Appellate Division upheld a zoning board's determination that recreation facilities open to the public is a permitted accessory use for a school. In the

Town May Not Use Zoning To Mandate Construction of Specific Use

Posted on April 02, 2011
The Appellate Division upheld dismissal of an action by a Town seeking to mandate construction of a pool as part of a private community recreation facility. In Matter of Town of Huntington v. Beechwoord Carmen Bidg. Corp,the Court reviewed the history of the development, which included a zoning amendment to permit construction of a senior residential community and a number of single family homes...

Notation On Subdivision Map Inadequate To Preclude Development of Lots

Posted on March 14, 2011
The Appellate Division concluded that a notation on a subdivision map "not approved for building lots" was inadequate to place a purchaser on notice that there was an intention to maintain the two lots in question as undeveloped space. In Matter of Fuentes v...

Challenge To Planning Board Rendered Academic When No Injunction Is Sought To Preserve Status Quo

Posted on March 12, 2011
The Appellate Division held this week that by failing to obtain a preliminary injunction the challenge to a preliminary subdivision approval was ultimately rendered academic. In Matter of Sherman v.Planning Board of Village of Scarsdale, the Court found that while the challenge to a preliminary subdivision was pending the property owner obtained final approval and proceeded with substantial work...

Planning Board Must Make Individualized Analysis Before Imposing Recreation Fee

Posted on February 27, 2011
The Appellate Division held that a planning erred in imposing a recreation fee without first doing an analysis of the recreation needs created by approving a site plan. In Matter of Dobbs Ferry Development Associates v. Bd. of Trustees of the Village of Dobbs Ferry, the court found that in granting site plan approval for development of a single family home on a vacant lot, the planning board failed to undertake "individualized consideration" by making findings as to the recreational needs created by development of the lot...

Court Upholds Planning Board On Location Of Property Access

Posted on February 19, 2011
The Appellate Division upheld a local planning board on a challenge to the location of access for a retirement community. In Matter of Fairway Manor, Inc. v. Bertinelli, an adjacent retirement community challenged the site plan approval based upon the proximity of the new access for the proposed development to the access for petitioner's property...

Local Law Adopted in Violation of SEQRA

Posted on December 15, 2010
The Appellate Division found that a local law amending certain land use regulations was void as it was adopted without taking the required ?hard Look? under the State environmental Quality Review Act SEQRA. In Matter of Prand Corp v. Town Board of the Town of East Hampton, the court found that, in this case, the issuance of a negative declaration after review of only a short form EAF did not constitute a ?hard look? and affirmed the lower court?s voiding of the local law for failure to comply with SEQRA...

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