A recent decision from the Supreme Court of Warren County, John Carr v. Village of Lake George Village Board, demonstrates how a simple omission on a site plan approval application can upend an approved project, even though the municipality wants the project and enacted a local law to smooth the pathway for its approval.

James Quirk (Quirk) owns property in the Village of Lake George (Village). In February 2018, Quirk applied to the Village Zoning Board of Appeals (ZBA) for variances to construct a 12,000 square foot boat storage facility. Quirk also owns an adjacent parcel, on which there is a laundromat and for which he previously received approval from the ZBA for outdoor boat storage. Petitioner John Carr (Petitioner) owns two parcels that are adjacent to the parcel where Quirk wants to construct the boat storage facility.

Quirk requests an area variance from the rear set-back requirement for the 12,000 square foot facility and variances from the Village’s mandatory Architectural Standards and Guidelines (Architectural Guidelines) regarding roof pitch and building materials. The ZBA granted these variances in April 2018.

Petitioner then sued to annul the ZBA determination, which proceeding was resolved by Stipulation and Order dated June 18, 2018, whereby the ZBA determination was without prejudice to the filing of future applications for the variances.

On July 16, 2018, the Village Board adopted Local Law No. 8 of 2018, which permits waiver of the mandatory Architectural Guidelines by the Village Planning Board (Planning Board) during Site Plan Review, provided it is proven there will be no adverse impact on the ‘architectural character’ of the neighborhood. Local Law No. 8 provides that the criteria for assessing a waiver are the same as those used for area variance reviews.

In August 2018, Quirk again applied to the ZBA for the 9-foot area variance from the rear set back requirement of 15 feet. He also applied to the Planning Board for site plan approval for the boat storage facility, including a request under Local Law No. 8 for waivers from the Architectural Guidelines relating to (1) a 14-foot ceiling height restriction so that he can build a one-story 40-foot tall building, (2) a requirement that metal siding cannot be used on any portion of a building so that he can use metal siding for the entire building, (3) a requirement for a gabled roof so that he can construct a flat-roof structure, and (4) an 18-inch width eave requirement so that he can have eaves that are 7.25 inches wide.

The ZBA granted the rear set-back area variance at its meeting on September 5, 2018 , but at its meeting on November 7, 2018 , the ZBA announced that its September 5th determination was a nullity because it did not have the Warren County Planning Board’s report as required by § 220-82 of the Village Code at the time it approved the variance. That report was issued before the November 7th meeting and it indicates the application would have no county-wide impact. As a result, at the November 7th meeting, the ZBA issued a new decision granting the rear set-back area variance.

At its meeting on January 16, 2019 , the Planning Board granted the requested waivers under Local Law No. 8 and approved the site plan.

The Lawsuits

Petitioner brought two separate lawsuits. The first proceeding was commenced on October 2, 2018, and seeks to annul, vacate and set aside Local Law No. 8, enjoin the Planning Board from granting any waivers pursuant to Local Law No. 8 and set aside the area variance issued by the ZBA. The second proceeding was commenced on February 15, 2019, and seeks to annul, vacate and set aside the waivers and the site plan approval issued by the Planning Board. Both matters are handled together in one decision, order and judgment issued May 29, 2019, and entered June 28, 2019.

The First Proceeding

As to the first proceeding, the trial court began by noting in its opinion that:

  • Village Law § 7-712-b(3)(a) gives the ZBA the power to grant area variances
  • Village Law § 7-712-b(3)(b) sets out the specific factors the ZBA can consider in making variance determinations
  • Village Law § 7-712-b(3)(c) specifies that the ZBA shall grant the minimum variance it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and health, safety and welfare of the community.

The trial court then cited to Matter of Cohen v Board of Appeals of the Vil. Of Saddle Rock, 100 NY2d 395, 401-402 [2003], which determined that Village Law § 7-712-b preempts municipalities from enacting area variances criteria different that those contained in the Village Law. Turning to the Village’s Architectural Guidelines, contained in § 220-42 of the Village Code, the trial court noted they set forth dimensional and physical requirements related to building orientation, setbacks, and relationship to street level, building proportion and size, building materials and colors, and roof design. Relying on Matter of Lockport Smart Growth, Inc. v Town of Lockport, 63 AD3d 1549 [4th Dept 2009], lv denied 14 NY3d 704 [2010], which discussed the relationship between Town Law provisions that are similar to Village Law §§ 7-725-a(3) and (5), the trial court found Local Law No. 8 to be permissible under Village Law § 7-725-a(5).

The trial court then reviewed the challenge to the enactment of Local Law No. 8. It rejected Petitioner’s claim that the enactment violates SEQRA, finding that the Village Board properly classified the enactment as an unlisted action and completed a short form environmental assessment form (EAF) that properly determined that Local Law No. 8 will not result in any significant adverse environmental impacts.

The trial court also rejected Petitioner’s claim about the ZBA failing to comply with SEQRA when it approved the area variance. The trial court noted that the application for an individual set back variance was properly classified as a Type II action, and thus, did not require any further SEQRA review.

The trial court then rejected Petitioner’s claims that the ZBA did not apply the statutory criteria applicable to area variances. These five criteria, found in Village Law § 7-712-b(3)(b), include

  • Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting the area variance;
  • Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
  • Whether the requested area variance is substantial;
  • Whether the proposed variance will have an adverse effect of impact on the physical or environmental conditions in the neighborhood or district; and
  • Whether the alleged difficulty was self-created.

The trial court noted that the ZBA addressed four of the five criteria in its written decision and discussed the fifth criteria at its November 2018 hearing. Petitioner appeared at both the September and November 2018 hearings and presented documentary evidence and arguments that he claimed showed that the proposed boat storage facility was a substantial project. The trial court rejected Petitioner’s claims, noting that the ZBA appropriately considered the required criteria and that its decision was neither arbitrary, irrational or an abuse of discretion.

The trial court also ruled that Petitioner had standing because his properties are affected by Local Law No. 8 and rejected Respondents’ lack of ripeness argument, noting that the adoption of Local Law No. 8 is a definitive position which inflicted an actual, concrete injury to Petitioner and other similarly situated landowners in the Village. And, no further administrative action is available to address the claimed harm. The trial court also rejected Petitioner’s claim that the variance must be annulled because of Quirk’s failure to pay the application fee, noting that the Village Zoning Code does not even suggest that as a basis to deny an application.

The Second Proceeding

As to its ruling on the second proceeding, the trial court rejected Petitioner’s claim that the enactment of Local Law No. 8 violates Village Law §7-712-b, citing to its analysis in the first proceeding. As to the claim that the Planning Board failed to comply with SEQRA in granting the waivers, the trial court rejected Petitioner’s assertion that a separate SEQRA review is needed for each of the individual waivers sought, noting that would be unnecessarily burdensome and the waiver requests are arguably Type II actions that do not require SEQRA review.

The trial court then evaluated Petitioner’s claim that the Planning Board improperly segmented its SEQRA review. The trial court found that the Planning Board declared the site plan approval application as an unlisted action, completed a full EAF, and issued a negative declaration for the full project, including in its review both the boat storage facility lot and the outdoor boat storage lot. However, crucial to the court’s analysis is the fact that the site plan application for the storage facility did not include any information about the plans for the laundromat lot. That omitted information caused the trial court to remand the matter to the Planning Board for further SEQRA review of the whole project.

As to the remaining causes of action, the trial court rejected Petitioner’s claims that the waivers violated Local Law No. 8 or that the proposed project does not meet the site plan review criteria found in the Village Zoning Ordinance, noting it is not the role of the court to second-guess a reasoned administrative agency’s determination that is otherwise supported in the record. As to the last cause of action, that the square footage of the proposed facility violates the square footage limitation of an accessory structure, the trial court rejected this as well, noting that the Planning Board made no such determination, and Petitioner did not request any determination by the ZBA or Planning Board about this supposed zoning violation. Thus, the court noted this issue is not properly before it.

The Bottom Line

Unfortunately for Quirk, while he prevailed on every claim asserted by Petitioner against the ZBA, and on every claim except one asserted against the Planning Board, the one claim that slipped him up was something in his control – the contents of his site plan application. As a result, he is now facing a remand of his application and will need to go through the process yet again.