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A special proceeding pursuant to New York Civil Practice Law and Rules (“CPLR”) Article 78, specifically Section 7803(3), is the vehicle for challenging determinations of a body or officer. Section 7803(3) sets forth the all-too-familiar question raised: whether the determination was arbitrary and capricious, an abuse of discretion, or contrary to law. In the land use context, these challenges are commonly brought against municipal zoning board and planning board determinations. The record created during proceedings before the board, and produced to the Court, is critical for how the determination will be reviewed.…

Continue Reading Adduced! Ensuring the Record in CPLR Article 78 Proceedings

Uses and structures that do not conform to a zoning ordinance are deemed “nonconforming uses” and “nonconforming structures,” respectively. Uses relate to the utilization of land (e.g. type of activity/operation), whereas structures are dimensional in nature (e.g. square footage, height, setbacks, etc.). But, what is the proper classification of a nonconforming structure that contains a…

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…

Before adjudication, a court must determine whether a plaintiff has standing. Standing means that the party has a right to access the courts for a particular dispute. A petitioner bears the burden to show an actual injury and that the violated statute was meant to prevent this type of injury. In land use matters specifically,…

In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016,…

In 2017, 8 Bayberry Rd, LLC submitted an application to the Zoning Board of Appeals of the Village of Bellport (“ZBA”) seeking several variances to convert an existing three-car garage into a squash court and work out area resulting in a new 23 foot high building in the front yard, ten feet from the side…

In Matter of Sid Jacobson Jewish Community Ctr., Inc. v. Zoning Bd. of Appeals of the Inc. Vil. of Brookville, the Second Department reviewed a local zoning board’s denial of an applicant’s request to expand and improve the facilities on its property.  The applicant/petitioner, Sid Jacobson Jewish Community Center, Inc. (“Petitioner”), is a “nonprofit…

Absent local legislation to the contrary, town and village zoning boards act solely as appellate bodies authorized to hear and decide appeals taken from decisions by local zoning enforcement officials (ZEOs) (see Town Law § 267-A[4] [McKinney’s]; Village Law § 7-712-A[4] [McKinney’s]). The most common example of such appeals occurs when an applicant property-owner or…

In the Matter of Parsome, LLC v. Zoning Board of Appeals of the Village of East Hampton, decided February 10, 2021, the petitioner appealed the denial of an Article 78 Petition by the Supreme Court, Suffolk County. The Appellate Division, Second Department, upheld the Supreme Court’s determination. Specifically, petitioner purchased property in the manufacturing…

In Matter of Bernstein v Putnam Val. Zoning Bd. of Appeals, property owners sought to construct a hot tub on their residential property, located in a protected area known as a wetland buffer.  The Wetlands Inspector for the Town of Putnam Valley (the “Town”) granted the owners a permit waiver, and shortly thereafter, the…