In Dodge v. Baker, Plaintiff and Defendants are neighboring property owners of two parcels of land located in the Village of Sodus (the “Village”), in Wayne County, New York (the “Parcels”).  Each parcel was created as the result of a subdivision by the original grantor, Sodus Bay Heights Land Co. (“Land Company”), at some point between 1924 and 1937.  In conjunction with that subdivision, Land Company created two restrictive covenants to which both Parcels are subject.  The first provides “[t]hat no line fence shall be erected on said lot without the written consent of the [Land Company], or its successors or assigns”, and the other provides “[t]hat no unnecessary trees or other obstructions shall be permitted on said lot which shall hide the view of other residents in Sodus Bay Heights.”

After purchasing their Parcel, Defendants applied for the necessary permits needed to put up a fence along their property line.  However, Plaintiff informed them that their proposed fence violated the restrictive covenants.  Nonetheless, the Village issued Defendants a permit and Defendants erected the fence.

Thereafter, Plaintiff commenced an action in the New York State Supreme Court, Wayne County, seeking a declaration confirming that the restrictive covenants remained valid and enforceable and that Defendants’ fence violated such covenants.  The Supreme Court denied Plaintiff’s motion for summary judgment with respect to both covenants.  On the first, it held that the Village was Land Company’s successor, and thus the Village’s written consent was sufficient to allow Defendants to construct the fence.  On the second, it determined that issues of fact existed with respect to whether the fence hides Plaintiff’s view.  Plaintiff appealed.

The Fourth Department effectively reversed.  Although it agreed that factual issues existed with respect to the second restrictive covenant concerning Plaintiff’s view, it found that the lower court erred with respect to the first restrictive covenant.  With respect to the phrase “line fence”, the Court found that no ambiguity exists and its meaning is clear.  Further, the fact that the Village issued Defendants a permit to construct the fence is of little significance, as the restrictive covenant prohibits the fence irrespective of whether the Village allows it.  Based on the plain language of the original deed, Land Company granted the Village only its property interests with respect to the Parcels, but “did not transfer its corporate identity.”  Accordingly, the Village was not Land Company’s corporate successor and thus lacked authority to permit Defendants’ construction of the fence.

The Court ultimately held that Plaintiff should have been granted summary judgment with respect to the first restrictive covenant, and it modified the order accordingly.  It also “remit[ted] the matter to the Supreme Court for further proceedings concerning any additional appropriate relief”—presumably, the issuance of an order requiring that the fence be removed.

The Public Trust Doctrine holds that when a municipality acquires land for an expressly public purpose, it cannot later sell or otherwise alienate the use of that land for private use without the State Legislature’s approval (see e.g. 10 E. Realty, LLC v Inc. Vill. of Valley Stream, 17 AD3d 474, 476 [2d Dept 2005]). The Doctrine is often raised in disputes over the sale or alienation of public parkland (see e.g. Glick v. Harvey, 25 NY3d 1175 [2015] [in which the petitioners claimed that certain lands in Greenwich Village, New York, were impliedly dedicated as public parkland); Friends of Van Cortlandt Park v City of New York, 95 NY2d 623 [2001] [involving the proposed construction of a wastewater treatment facility in a public park]). But is the Legislature’s approval required in every instance where land held in the public trust is conveyed to a private party? Not always.

In Peachin v City of Oneonta, the Third Department reaffirmed that a municipality may convey land held in the public trust to a private developer without the State Legislature’s approval where the land will continue to be dedicated to public use or public benefit. The Court’s decision is a valuable reminder for any municipality considering the development or revitalization of underutilized lands dedicated to the public trust.

In 1922, the City of Oneonta acquired 2.12 acres of land from an individual who gifted the property to the City through their last will and testament. The gift was made on the condition that the land be “limited … to City-Town-and-County Public Buildings and for Park and Municipal purposes only” (Peachin at p. 6). The City maintained the property as a public parking lot since 1933 (id. at 6-7).

Years later, the City implemented a downtown revitalization plan. Through that initiative, the City sold the property to a private party who proposed to redevelop it as a mixed-use building containing 64 affordable-housing apartments and an educational facility co-sponsored by a local college for research and development by local grain industry professionals (id. at p. 2).  A collection local business owners sued to stop the development claiming, in part, that the City violated the Public Trust Doctrine because it did not obtain the State Legislature’s approval to sell the project site to the developer (id. at pp. 3, 6).

Affirming the Supreme Court’s holding, the Appellate Division agreed that while the parking lot was held in the public trust, the City’s decision to sell the site without legislative approval did not violate the Public Trust Doctrine under the specific facts presented. The Court opined:

…[T]he parcel was conveyed for the purpose of constructing affordable workforce housing for artists and middle-income residents in connection with the City’s downtown revitalization initiative. The purchase and sale agreement included a warranty that Parkview [the developer] would construct the project in compliance with these City-approved plans and explicitly referenced low-income housing credits as part of the project financing. The residential portion of the building would “contain exhibition spaces for artists to showcase their work” and the Hartwick College Grain Innovation Center had the stated purpose of providing testing, product development and support resources for small-scale, local grain industry professionals. In other contexts, this Court has found the construction of certain affordable housing to be a “public use” (Matter of Keegan v City of Hudson, 23 AD3d 742, 743 [2005], lv denied 6 NY3d 705 [2006]; see Matter of Russin v Town of Union of Broome County, 133 AD2d 1014, 1015 [1987]), and, when considering the educational and revitalization components of the plan, we are persuaded that the project may be fairly characterized as such (Peachin at p. 7).

Thus, the Third Department held that the State Legislature’s approval was not a prerequisite to the sale of the City’s property (id.).

Again, the Court’s decision in Peachin is potentially valuable precedent for the development or redevelopment of lands held in the public trust. A question not addressed in Peachin, however, is what happens in the future when the property sold stops being used for its stated public purpose(s) and is redeveloped yet again, but for a strictly private purpose? Will the State Legislature’s approval be required then? A question for another time.

“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 respective county planning board may result in invalidating such actions, effectively “burning down” an intended zoning amendment.

Prior to adopting any new provisions or amendments to its zoning code, GML §239-m(3)(a)(ii), a municipal body must “refer” the “adoption or amendment of a zoning ordinance or local law” to the county planning board or agency or regional planning council for review and recommendations.  GML §239-m goes on to require such municipal to submit to the county planning agency a “full statement of such proposed action.”  A ““full statement of such proposed action,” is defined as “all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to [SEQRA]”.  However, if a regional planning board fails to act within 30 days, a referring entity may then take “final action” on the proposal without the planning board report.

Notably, the law is well settled that failure to comply with the referral requirements of GML §239-m is a jurisdictional defect rendering the enactment invalid.  Failure to comply with this provision can make the county referral process an Achilles heel of zoning amendments in New York. Caruso v. Oyster Bay 172 Misc. 2d 93, 97 [NY Sup Ct 1997], affirmed 250 AD2d 639 [2d Dept. 1997]. See generally, Favre v. Town of Highlands 185 AD 3.d 681 [2d Dept. 2020].

Finally, where the legal challenge seeks to declare a legislative action, like a zoning code amendment, invalid, the six-year statute of limitations is applicable.  Practitioners are also reminded that a declaratory judgment action, not an Article 78 proceeding, is the proper method to a potential GML §239-m violation.


Plaintiffs own property in the Village of Freeport on Randall Bay and granted a drainage easement to the Village in 1961. The easement, dated September 6, 1961, allowed the Village to “construct and maintain one underground storm water drain and one tide gate accessory thereto for drainage purposes.” The Village constructed a drain pipe which was encased in a wooden bulkhead, from the road over the easement premises to Randall Bay. The Village replaced the pipe and bulkhead in 1987 and it had since fallen into disrepair causing numerous sinkholes in the easement area. Plaintiffs requested that the Village repair the drain pipe and bulkhead and the Village refused causing the Plaintiffs to bring this action.

In Anson v. Inc. Village of Freeport, Supreme Court, Nassau County, Index No. 8735-2015, May 1, 2018, the court held for the Village stating, “the Village has shown that the bulkhead is not part of the drainage easement.” The Village of Freeport alleged that it was not required to maintain the bulkhead since it was not included in the obligations outlined in the easement. Reviewing the standards for summary judgment, the court found that the Village “established its prima facie entitlement to judgment as a matter of law” and held that the Village was not responsible for the “repair, maintenance or replacement of the wooden bulkhead.” The court granted the Village’s motion for summary judgment.

By decision dated, April 14, 2021,the Appellate Division, Second Department reversed the Supreme Court holding, in part. After finding that the plaintiff’s claim was not time barred, the Court held that the plaintiffs were entitled to judgment as a matter of law on two causes of action. The Court found that the plaintiffs established that the bulkhead was in fact an integral part of the storm water drainage system currently maintained in the easement area by the Village. The Court stated, “inasmuch as the easement agreement did not place affirmative responsibility for maintenance of those premises upon the owners of the servient estate, it was the Village’s obligation to maintain the bulkhead (see Tagle v. Jakob, 97 NY2d 165, 168; Raskin v. Crown-Kingston Realty Assoc., 254 AD2d 472, 473)…Accordingly, the plaintiffs were entitled to a judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition, and an injunction requiring the Village to do so.”

However, the Court denied the plaintiff’s claim which sought to enjoin the Village from removing the bulkhead or from configuring the storm water pipe and tide gate to allow water to drain on any portion of plaintiff’s property.   The Court found that plaintiffs failed to prove the standards required for the issuance of a preliminary injunction including, “a violation of a right presently occurring or threatened and imminent, that they had no adequate remedy at law, that serious and irreparable harm would result absent the injunction and that the balance of equities are in their favor.” Specifically, the Court held that there was no evidence “showing that the Village had undertaken any action toward, or even contemplated, removing the bulkhead or allowing water to drain on to their property.” Ultimately, the Court remanded the matter to the Supreme Court for further proceedings on the complaint and for the entry of judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition.

This month, in Gershow Recycling of Riverhead v Town of Riverhead, 2021 NY Slip Op 02156 [2d Dept 2021], the Appellate Division, Second Department, affirmed the motion court’s decision granting an Article 78 petition to annul the denial of a site plan amendment application. The motion court and the appeals court held the denial exceeded the scope of delegable power under the then-applicable Town Code and N.Y. Town Law Section 274-a, and remanded to the Planning Board for further consideration.

In November 20211, the petitioners-plaintiffs (“Petitioners”) purchased property upon which the prior owner operated an auto salvage facility. The auto salvage use constituted a pre-existing, non-conforming use (“PNCU”). In July 2012, Petitioners submitted a site plan to the Town of Riverhead (“Riverhead”) Planning Department and Building Department to perform regrading, drainage, paving and landscaping work, among other things. These departments jointly determined the site plan contained de minimus alterations, so the proposed work was exempt from site plan review pursuant to the Riverhead Town Code.

In November 2013, after Petitioner commenced operations at the premises. Riverhead identified certain improvements that did not appear on the original site plan, and requested Petitioners submit an amended site plan.  Petitioners submitted an amended site plan to the Riverhead Planning Department reflecting additional “as-built” improvements. The Riverhead Planning Department denied the application, and referred it to the Riverhead Planning Board for formal approval.

In early April 2014, the Riverhead Planning Board conducted a public hearing on the amended site plan. While Petitioners’ application was pending, in mid-April 2014, the Riverhead Town Board resolved to authorize the Riverhead Town Attorney to commence an action for declaratory, injunctive, and monetary relief against Petitioners on the basis that Petitioners’ use of the site violated the Riverhead Town Code. Riverhead determined the PNCU was an auto salvage yard, and Petitioners were operating a “recycling” or “scrap metal” and “other material unrelated to an auto salvage yard.” Thus, Petitioners illegally changed  the use or illegally expanded the PNCU.

In July 2014, Riverhead’s Building and Planning Administrator (“Administrator”) informed Petitioners that then-existing Riverhead Town Code Sections 26-18 and 26-20 gave him the authority to make, issue, and render determinations regarding compliance with provisions of the zoning ordinance for site plan applications. The Administrator concluded Petitioners’ proposed use of the site was “clearly not an allowed use in the zoning district,” and that Petitioners converted use of the site from the PNCU auto salvage yard into a recycling center. Based upon his conclusions, the Administrator denied the site plan amendment application, and advised Petitioners they could appeal to the Riverhead Zoning Board of Appeals (“Riverhead ZBA”), i.e. Petitioners’ administrative remedy.

Petitioners commenced this hybrid action-proceeding against Riverhead and the Administrator, et al. (collectively, Respondents”), to review and annul the Administrator’s determination. Respondents moved to dismiss. The Supreme Court, Suffolk County, denied Respondents’ motion to dismiss, granted Petitioners’ Article 78 petition, annulled the Administrator’s determination, and remitted the matter to the Riverhead Planning Board. Respondents appealed and the Second Department affirmed.

By Order dated June 12, 2017, the Suffolk County Supreme Court held the then-existing Riverhead Town Code did not authorize the Administrator to approve or deny applications; this authority is is vested in the Planning Board under the Riverhead Town Code and the N.Y. Town Law. More specifically, the Town Code at-the-time only authorized the Administrator to review, evaluate, judge, and advise on applications, and to make, issue, and render determinations regarding compliance. Nothing authorized the Administrator to deny an application submitted to the Riverhead Planning Board.

The Supreme Court also emphasized N.Y. Town Law Section 274-a, which governs site plan review, does not include “the issue of use of property” within its scope, and a use may not be disapproved “under the guise of denying site plan approval.” Accordingly, the Supreme Court annulled and vacated the Administrator’s denial, and remanded Petitioners’ application to the Planning Board.

On appeal, the Second Department agreed the Riverhead Town Code did not authorize the Administrator to act on a site plan application because it delegated this authority to the Planning Board:

“[F]ormer [Section] 108-129(A) stated . . . the Town Board hereby authorizes the Planning Board, pursuant to [Section] 274-a of the Town Law, to review and approve, approve with modifications, or disapprove site plans . . . Under the principles of statutory construction, whenever there is a general and a specific provision in the same statute, the general applies only where the particular enactment is inapplicable. Accordingly, the specific provisions of the Town Code that gave the Planning Board the authority to act on site plan applications must control here.”

The Second Department also noted the Administrator’s denial of the site plan application was an action wholly beyond his grant of power, and Petitioners were not required to exhaust administrative remedies by appealing to the Riverhead ZBA.

The Courts’ decisions remind applicants and municipalities that determinations regarding interpretations of the the zoning code, i.e. uses of a particular site, are outside the scope of site plan review. While N.Y. Town Law Section 274-a empowers the authorized board to impose reasonable conditions and restrictions directly related to or incidental to a site plan, determinations as to uses are reserved to building departments and zoning boards.

After several stalled attempts, New York State became the 16th state to legalize recreational cannabis (marijuana) use.  This occurred on March 31, 2021, when Governor Andrew Cuomo signed the “Marijuana Regulation and Taxation Act” (S.854-A/A.1248-A) that was passed by the legislature the night before.  The stated intent of the law is to regulate, control, and tax cannabis in order to generate significant new revenue, increase employment, create new industries and strengthen New York’s agriculture sector.  The legislation creates a Cannabis Control Board that will be responsible for regulating New York’s cannabis industry.

Under the new law, it is legal for individuals 21 and older to purchase and possess up to three ounces of cannabis.  When at their private residence, individuals are legally permitted to possess up to five pounds of the drug.  Among other things, the law requires a State-issued license for the cultivation, processing, distribution and delivery of cannabis, and the licensure of premises for retail sales or on-site consumption.  The law takes effect immediately, but certain portions of the law will not become effective until the Cannabis Control Board is created and promulgates regulations.

While local municipalities cannot ban possession of cannabis, the law allows them to prohibit retail sales and on-site consumption within their borders by opting out of the law on or before December 31, 2021.  Almost immediately after the law was enacted, a number of Long Island town supervisors and village mayors said they would ban retail sales and on-site consumption of marijuana, and in doing so would forego receiving a portion of the $350 million in annual revenue that State officials estimate will be generated by legalizing recreational cannabis use.  Cannabis sales will be taxed at about 13% and local municipalities stand to receive 3% of that revenue.

On the day after the Governor signed the law, ABC7NY reported that the mayors of the villages of Rockville Centre, Freeport, Atlantic Beach and Island Park will opt out.  Since then, other supervisors and mayors have said that their communities will also opt out.  The Town of Hempstead released a statement saying that “[t]he town board is united in its opposition to the sale of recreational marijuana and also stands firmly against ‘on premises’ consumption of marijuana at facilities within the Town of Hempstead.”  Babylon’s town supervisor, Rich Schaffer, originally called for all towns and villages on Long Island to opt out of the law and pass legislation banning the sale of marijuana.  However, his positioned softened when it became evident that some communities were unlikely to do so.  His efforts to achieve an Island-wide ban were also undermined by an announcement by the Shinnecock Indian Nation that they would be selling recreational marijuana in Southampton.

A municipality may exercise its right to opt of the portion of the legislation that permits retail sales and on-site consumption sites prior to December 31, 2021, by adopting a local law, subject to a permissive referendum, requesting the Cannabis Control Board prohibit the issuance of licenses for retail sales and on-site consumption within their jurisdictional boundaries.  Residents opposed to such law can request that the issue be placed on a ballot for a vote by the local electorate by collecting signatures from at least 5% of the total votes cast in the municipality for governor in the last election.  While municipalities have until December 31, 2021 to opt out, they may opt back in at any time.

Many people have strong opinions about recreational marijuana use.  And, the varied reactions by local elected officials are reflective of the differing societal views on this issue.  However, given the widespread budgetary concerns facing local governments today, and the law’s potential to create a windfall of new revenue from recreational marijuana sales, local officials would be wise to set aside their own personal views and instead gauge the sentiment of their constituents prior to opting out.

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 nonsectarian Jewish organization” that uses its property to operate a day school and camp.  Petitioner’s property is located in a district zoned predominately for single-family houses and “certain conditional uses.”

In 2014, Petitioner applied to the Zoning Board of Appeals of the Incorporated Village of Brookville (the “ZBA”) for a conditional use permit allowing certain proposed improvements on its property.  Over the next couple years, five public hearings on the application were held.  In January, 2017, the ZBA ultimately denied Petitioner’s application, but did not provide a basis for doing so.  It was not until after Petitioner commenced an Article 78 proceeding challenging the denial that the ZBA issued a decision explaining its reasoning.

In its decision, the ZBA explained that Petitioner’s use of the property as a day school and camp did not constitute a conditional use under the applicable zoning code, and further concluded that Petitioner’s proposal would negatively impact the surrounding neighborhood.  Petitioner subsequently amended its Article 78 Petition to address the ZBA’s decision, but the proceeding was dismissed nonetheless.  Petitioner appealed.

The Second Department ultimately affirmed that dismissal, concluding that there existed a rational basis to support the ZBA’s determination.  The use of Petitioner’s property as a day school and camp was not religious or educational in nature.  The mere fact that Petitioner is a religious organization does not change that conclusion.  “[T]he activities and programs offered at the Day School and Camp are standard recreational activities that are offered at any summer camp.”  Further, the activities offered by the camp “are predominately athletic and recreational,” rather than academic or religious, nor is the staff employed by the camp qualified to offer academic or educational instruction.  Accordingly, Petitioner’s proposed use was not entitled to deferential zoning treatment, and thus, the ZBA’s denial of Petitioner’s application was proper.

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 developer applies to their local zoning board for a variance following a ZEO’s determination that the applicant’s project does not conform to the local zoning code.

But what happens if a neighbor disagrees with the local ZEO’s assessment and believes that greater or different relief from the zoning code is required for the appellant’s project? Can the neighbor simply air their objections on the record at the zoning board’s hearing on the application? No, they must independently appeal the ZEO’s determination as a party “aggrieved” by the decision (id.). The danger of failing to do so is highlighted in the Second Department’s recent decision in Capetola v Town of Riverhead et al, — NYS3d —, 2021 WL 900930 (March 10, 2021).

In Capetola, Edward Hocker (“Hocker”), the owner of a vacant parcel of land in the Town of Riverhead, applied to the Town’s building department for a permit to construct a single-family residence on the site. The building inspector (i.e. ZEO) denied Hocker’s application on the grounds that the project did not conform to the applicable standards for impervious surface coverage, front yard setback, side yard setback, and combined side yard setbacks. Hocker appealed the building inspector’s determination by application to the Respondent Town of Riverhead Zoning Board of Appeals (ZBA) seeking four area variances, one for each of the standards identified in the building inspector’s denial.

At the public hearing on Hocker’s application, neighbors of the property appeared in opposition to the application arguing, among other things, that a lot size variance was needed because the lot did not meet the minimum dimensional requirements of the zoning code. The ZBA rejected the neighbor’s objections concerning the need for the lot size variance and granted Hocker’s application in its entirety. The neighbors sued arguing, among other things, that it was improper for the ZBA not to consider the need for the additional variance. The Supreme Court, and the Second Department on appeal, disagreed.

Unless otherwise provided for by local law or ordinance, a zoning board of appeals’ jurisdiction is appellate only, and in the absence of an administrative determination to review, a zoning board of appeals is without power to grant a variance or render a de novo determination with respect to an issue not determined by an administrative official. Here, the only issues to be decided by the ZBA were with respect to the four variances sought by Hocker in his application to the ZBA, upon his appeal from the determination of the building inspector identifying those four requirements of the relevant building code. There was no determination of an administrative official regarding the need for a lot size area variance for the ZBA to review, and there was no appeal by the petitioners to the ZBA. Since the ZBA was without jurisdiction to decide the need for a lot size variance, any error by the ZBA in determining that issue does not require remittal of this matter to the ZBA for a new determination (2021 WL 900930 at *2 [internal citations omitted] [emphasis added]).

Thus, having failed to challenge the underlying ZEO decision which led to Hocker’s application to the ZBA, his neighbors could not use the purported need for an additional variance as grounds for denial of Hocker’s application. Whether or not they were right is effectively irrelevant.

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 over stores has received little coverage, based in part by the Governor’s Executive Orders and emergency restrictions, which eliminated the normal public hearing processes.  In fact, as of this writing, there has been no press release or other public announcement of this code amendment, but for the mandatory public notice of the hearing.

Apartments over stores and businesses were an “as-of-right” right uses prior to this zoning code amendment.  The rationale for this extensive code amendment is not clear; however, statements made on the record by Town officials indicated a need to “assist” downtowns across Oyster Bay while at the same time balancing it with input from locally interested parties.

The intent of this local law creates more oversight of apartment applications over stores throughout the town.  Absent express permission from the Town Board, apartments over stores and business are no longer permitted under Oyster Bay’s Zoning Code.  More public participation both for and against apartments appears to be guaranteed in Oyster Bay.

As in much of Nassau County, rental apartments in Oyster Bay are in relative short supply compared to demand, yet mixed-use buildings in the right locations have generally been considered highly profitable.  This code amendment promises to affect many property owners in ways both large and small.  Unfortunately, the extent of these impacts will not be known for several years.

So if you didn’t know about the code change, now you know.

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 zoning district in the Village of East Hampton in 2004. The property was improved with a 6,600 square foot commercial building and a parking lot with 23 parking spaces. At the time the building was constructed in 1988, it complied with the parking requirements. In 1995 the Village increased the parking requirements affecting the property changing it from requiring 1 space per every 300 square foot of building floor space to 1 space for every 200 square foot of building floor space as well as 2 spaces for every unit within a building. If the use of a building was “intensified” pursuant to East Hampton Village Code §278-6(A), then the building had to be brought up to current parking standards under the code.

In 2016, the Village notified the property owner that it was in violation of the parking regulations since the building had six office units but was only permitted to have four according to the certificate of occupancy for the site. In response, petitioner applied to the Zoning Board of Appeals (“ZBA”) to retain the additional two offices without having to increase its parking. The Zoning Board of Appeals determined that the creation of additional office units constituted an intensification of its use, and concluded that the property owner needed an additional 20 parking spaces in order to comply with the current code. As a result, the ZBA found that the requested variance was substantial and further found that the building experienced parking shortages (along with the zoning district having parking shortages), had no access to public parking and the parking shortage created a detriment to neighborhood. Based on the foregoing, the ZBA denied the application.

The applicant brought an Article 78 Petition against the Zoning Board of Appeals and the Supreme Court, noting the broad discretion that local zoning boards enjoy, denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Courts determination to the Appellate Division, Second Department.

The Appellate Division noted that a “zoning board’s interpretation of its zoning ordinance is entitled to great deference and will not be overturned be the courts unless unreasonable and irrational.” The Court found that the ZBA’s interpretation of the code that the addition of two office uses to the building constituted an intensification and as such the building had to comply with the updated parking requirements was reasonable. The Court also found that the ZBA property rejected petitioner’s argument that it was only required to comply with the code section adding two additional parking spaces per unit. Ultimately the ZBA correctly found that the building required 43 parking spaces and thus the variance sought to waive 20 parking spaces was substantial. Moreover the Court held that the ZBA’s conclusion that the variance would add to parking problems at the building was legitimate and had a rational basis. Finally, the Court noted that petitioner was presumed to have known about the applicable zoning regulations when it purchased the property rendering any hardship self-created.

Accordingly, the Court held the Supreme Court properly denied the petition and dismissed the proceeding.