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Typically, zoning variances “run with the land”, and absent a specific time limitation, they continue until properly revoked. See, St. Onge v. Donovan, 71 NY2d 507, [1988]. As a result, variances cannot be made to apply only to the current owner. But under the Fair Housing Act (FHA), reasonable accommodations can be made that are essentially personal variances

Continue Reading Zoning – Reasonable Accommodations Under the Fair Housing Act

Zoning codes are constantly evolving in response to perceived or real threats of overdevelopment.  Generally, a municipality may in the reasonable exercise of its police power, amend its zoning code to be more restrictive in the bulk area requirements required for development of a parcel.  Known as a “merger provision” when a landowner purchases an adjacent substandard parcel of land,
Continue Reading Single and Separate Exemptions For Substandard Lots

Last week, in The Seaview at Amagansett, Ltd. v. Town of East Hampton Justice Paul J. Baisely, Jr. found the Town of East Hampton and several of its officials in civil and criminal contempt of the Appellate Division, Second Department’s 2021 decision that restricted access to a 4,000-foot long area of oceanfront property commonly known as “Truck Beach”  in Napeague,
Continue Reading Town Of East Hampton Runs Aground At Truck Beach

The “Special Use Permit” is a zoning term and process used by a municipality to encourage, but still regulate, land use in a zoning district by making it subject to a special review and criteria detailed in the zoning ordinance.  See, Town Law Section 274-b, Village Law Section 7-725-b and City Law Section 27-b.

The “Special Use Permit” also
Continue Reading What’s So Special About Special Use Permits?

In a unanimous decision, the Court of Appeals upheld the Second Department’s decision in Hunters For Deer v Town of Smithtown that the Town may not regulate discharge setbacks for bow and arrow in a manner inconsistent with State law.  In that decision, the Second Department held that long bows could not be defined as firearms and that the
Continue Reading Court of Appeals Affirms Appellate Division Decision Invalidating Town’s Discharge Ordinance

On January 4, 2022, the New York Court of Appeals heard oral argument in the case of Hunters For Deer, Inc. v Town of Smithtown, where conflicting provisions of a Town of Smithtown firearm ordinance and the Environmental Conservation Law (ECL) both vie for authority.

This appeal presents questions of preemption and statutory interpretation: whether the State Legislature, in
Continue Reading Slings and Arrows At The Court Of Appeals

Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.”  That is not entirely true.  An exception to the single and separate doctrine is the doctrine of merger.  Undersized lots that share a common boundary and are owned by the same person or entity
Continue Reading Single and Separate and the Doctrine of Merger

Determining the width of a right-of-way may be more difficult than you think, even when the dimensions are specifically defined.  New York courts take the approach that elevates the right of passage over full use an easement described by deed.

Recently, in Grosbard v Willow Lane, LLC 192 AD3d 773 [2d Dept. 2021], the Second Department confirmed that a right-of-way
Continue Reading Right-Of-Way Width – Not Set In Stone

“An ounce of prevention is worth a pound of cure.” -Benjamin Franklin.  This pithy logic from Benjamin Franklin to prevent fires in colonial Philadelphia should serve as a reminder to municipal boards of the strict compliance required by New York’s General Municipal Law (GML) §239-m mandated by the courts.  In New York, the failure to refer certain actions to the
Continue Reading New York’s General Municipal Law §239-m “An Ounce of Prevention Is Worth A Pound of Cure”

Surprise! During the summer of Covid-19, the Town Board of Oyster Bay passed Local Law 4 of 2020, amending Chapter 246, the Town’s zoning code, to eliminate apartments over stores or offices as a permitted principal use in the Nonresidence District designated as Neighborhood Business (“NB”), Central Business (“CB”), and General Business (“GB”).

This town-wide code amendment prohibiting apartments
Continue Reading Apartments Over Stores Are No More – In Oyster Bay