The Second Department recently reversed a Suffolk County Supreme Court decision granting a use variance for a mother-daughter residence in the Village of Patchogue (the “Village”), in spite of statements made on the record by the Zoning Board of Appeals (“ZBA”) Chairman implying prior precedent approving such applications.

In June 2014, the petitioner applied to the Village seeking the conversion of her two-car garage into an apartment for her 81 year old mother of limited financial means.  Unfortunately, Patchogue’s zoning code does not define “mother-daughter” or permit an  “accessory apartment” in its single-family residential zone.  As a result, because such use is prohibited, the petitioner was required to appeal that decision to the ZBA for a use variance pursuant to Village Law 7-712-b(2).

At the public hearing before the ZBA, no one opposed the application, and one neighbor spoke in favor of it.  However, as an apparent precursor to denial, the Chairman stated on the record that “[n]ot many [such applications] have been granted at all.”  Not surprisingly, the ZBA denied petitioner’s application to convert her two-car garage into living space.

The petitioner subsequently commenced an Article 78 to annul the ZBA’s decision as arbitrary and capricious.  The Chairman’s statement later became the focal point for petitioner’s argument that prior alleged precedent effectively mandated the ZBA approve petitioner’s garage conversion.

Later that year, the Supreme Court annulled the ZBA’s denial as arbitrary and capricious for failing to follow its own precedent.  See Gray v Village of Patchogue Zoning Board of AppealsIn its decision, the Supreme Court incorrectly implemented the balancing test for an area variance instead of a use variance.  The court appeared to rest its decision heavily on an implied prior precedent based on the Chairman’s above quoted statement.  Based on that statement, the lower court constrained the ZBA to grant the garage conversion, holding that “administrative due process prohibits inconsistent treatment of similarly situated properties”.  Id.

In reversing the Supreme Court’s decision, the Second Department clarified that petitioner’s application was for a use variance.   See Gray v Village of Patchogue Zoning Board of Appeals, 164 AD3d 587 [2d Dept 2018].  The Appellate Division affirmed the ZBA’s denial because the petitioner had failed to satisfy the more onerous “unnecessary hardship” element required for a use variance.   More importantly, the Appellate Division determined that there was no evidence that the ZBA failed to adhere to prior precedent.  Contrary to the petitioner’s contention, the Board provided a rational explanation for reaching a different result.

Accordingly, this decision should serve as a cautionary tale for applicants and practitioners to not place too much stock on prior approvals by municipal boards.  Although precedent is important, each property is different and may yield a different result.

 

 

On October 17, 2018, the Supreme Court, Appellate Division, Second Department (“Second Department”) issued two (2) companion decisions arising out of three different attempts by Petitioners, Kleinknechts (“Petitioners”)  to construct a dock at their waterfront property.  Each of the attempts resulted in a Supreme Court litigation.  As we blog about these cases today, no dock has been constructed despite a directive in 2013 that a permit be issued upon submission of the proper application!

In the first matter, the Second Department upheld a decision of the Village of Lloyd Harbor’s Zoning Board of Appeals (“ZBA”) denying certain variances requested by Petitioners to construct a dock along their waterfront property finding that the ZBA properly applied the five-factor test set forth in Village Law 7-712-b(3).  Further,  Petitioners’ expert testified that he had prepared an alternative completely code compliant plan.  Since a code compliant dock plan provided a reasonable alternative for Petitioners to explore, the Second Department upheld the trial court’s dismissal of the underlying Article 78 proceeding stating that the “need” for the variances was self-created.  In light of the ZBA’s proper application of Village Law, the ZBA’s denial was not arbitrary or capricious.  See, Kleinknecht v. Brogan, 2018 WL 5020285 (Oct. 17, 2018)

In the second matter, and following denial of the above-mentioned variance application, the Appellate Division vacated a 2013 directive to the Building Inspector requiring the Building Inspector to issue a building permit to Petitioners for the alternative code compliant dock permit application.  The Second Department stated “[m]andamus . . . is an extraordinary remedy that, by definition, is available only in limited circumstances.”  “A party seeking mandamus must show a ‘clear legal right’ to [the] relief [requested]'”  Here, no clear legal right existed.  See, Kleinknecht v. Siino, 2018 WL 5020282 (2018).

Prior to 2013, Petitioners’ property was subject to an open space easement precluding construction of a dock at the property.  Petitioners commenced an action seeking to have the open space easement extinguished.  The trial court issued a judgment holding that the open space easement was no longer necessary and directed that the Building Inspector issue a building permit to Petitioners upon submission of the “required” application.  The Village did not appeal the judgment.

As such, upon submission of a code compliant building permit application (as noted above an application for variances was denied and upheld), Petitioners sought an approved building permit.  Although the Second Department held that the Building Inspector had no basis to deny issuing the permit based on the existence of the open space easement, the Second Department did vacate the 2013 trial court directive to issue a permit upon submission of the “required” application stating that the Village Code requires every Village building permit application be referred to the “Site and Building Permit Review Board” (“Review Board”).  Finding that the trial court’s directive to the Building Inspector bypassed a necessary referral step to the Review Board, the Second Department ordered the Building Inspector to refer Petitioners’ application to the Review Board.   The Second Department did not then direct the Building Inspector to issue a building permit to Petitioners if the Review Board approves that application..

Instead, the Second Department decision states “[t]he Building Inspector may issue a building permit only upon approval by the” Review Board.  As a litigation and land use attorney,  it has become painfully apparent that courts do not always weigh the import of the language used when crafting relief for the parties.   Maybe it is of little consequence that the Second Department said that the Building Inspector “may” approve the building permit if approved by the Review Board.  However, it would  provide the Petitioners, and their attorney(s), greater comfort and certainty if the chosen words were “must” approve the building permit, instead of “may” approve the building permit.

 

A use variance is arguably one of the most difficult zoning approvals to obtain and is rarely granted.  Petitioners in 54 Marion Ave., LLC v. City of Saratoga Springs, 2018 N.Y. Slip Op. 04611, 162 A.D.3d 1341 (3d Dep’t 2018),  commenced a hybrid proceeding/action to challenge and annul a determination of the Zoning Board of Appeals (“ZBA“) of City of Saratoga Spring (“City”) to deny  a use variance application to allow commercial use of residential property and for Section 1983 damages based upon the theory of regulatory taking. The Respondents moved to dismiss and the Supreme Court, Saratoga County (“Motion Court“), granted the motion. Petitioners appealed and the Appellate Division, Third Department (“Appeals Court“), reversed in part and affirmed in part, and found hardship which was not self-created.

Petitioner 54 Marion Avenue, LLC (“Owner“) owns a vacant parcel of real property situated in the City’s Urban Residential-2 District, where single-family residences are permitted as of right, where other uses are allowed with a special use permit and site plan review and where commercial uses are generally prohibited. Petitioner Maple Shade Corners, LLC (“Purchaser“) contracted to purchase the subject parcel contingent upon obtaining a use variance to allow a dental practice to operate thereon. An application was made to the ZBA for a use variance to allow the dental practice in Urban Residential-2 and the ZBA denied the application because the alleged hardship was not unique and was self-created. Petitioners brought this litigation to annul the ZBA’s decision denying the use variance and to seek damages for regulatory taking. Respondents moved to dismiss based upon Petitioners’ failure to state a cause of action, which the Motion Court granted.

In order to qualify for a use variance, an applicant must meet the very difficult task of demonstrating the following four elements: (i) it cannot realize a reasonable return if the property is used for a permitted purpose; (ii) the hardship results from unique characteristics of the property; (iii) the proposed use will not alter the essential character of the neighborhood; and (iv) the hardship has not been self-created. The ZBA found that the Petitioner met the first and third elements, but failed to meet the second and fourth elements – that the hardship was unique and was not self-created. On appeal, the Appeals Court reversed the Motion Court as to the hardship issues.

In its review of the ZBA’s determination, the Appeals Court noted that the subject property lies next to the intersection of a major thoroughfare and a side street. Petitioners substantiated their claim that this location imposes a unique financial hardship because of the commercial development and increasing traffic along the thoroughfare (occurring over the prior 30 years) with statements from prior owners and real estate professionals.  These statements recounted previous failed attempts to sell the subject parcel for permitted residential use and opined its location rendered it unmarketable for residential use, among other things. In light of this proof, the Appeals Court found that the need for a use variance was not self-created because it only arose after the property was acquired and due to the gradual shift in the character of the area, which rendered the residential use requirement onerous and obsolete. Moreover, the Appeals Court noted that even the ZBA agreed the location of the parcel on the corner might impact its value; the ZBA’s ultimate conclusion that the financial hardship was not unique was contrary to that observation. On a motion to dismiss, Courts must accept the allegations presented as true and, based upon the foregoing, the Appeals Court held that Petitioners set forth a viable challenge to the ZBA’s denial and reversed the Motion Court.

With respect to the regulatory taking claim, the Appellate Division affirmed dismissal. In order for a taking claim to be ripe, a claimant must demonstrate that it has received a final decision regarding the application of the challenged regulations to the subject property from the governing entity and that it has sought compensation through the appropriate state procedures. Although the ZBA’s denial of the use variance satisfied the final decision prong, the Appeals Court found that there is no indication the Petitioners sought compensation under State law.

The Breakers Motel has been a fixture in Montauk since the 1950’s. Situated at 769 Old Montauk Highway, Montauk New York, the motel has 26 units, a pool and restaurant and is located across the street from the ocean.

In 2015 a building permit was issued by the Town of East Hampton Building Department approving renovations to the existing restaurant inside the motel, including an updated dining area, adding a bar, improving the kitchen facilities and more. The neighboring property owner, a revocable trust, unsuccessfully appealed the Building Department’s determination to issue the April 27, 2015 building permit to the Town of East Hampton Zoning Board of Appeals.

In an Article 78 petition and plenary action entitled Jane H. Concannon Revocable Trust v. The Building Department of the Town of East Hampton, Town of East Hampton Zoning Board of Appels, and Breakers Motel, Inc., Index No. 4297/2016, dated February 5, 2018, the revocable trust (“Petitioner”) appealed the Zoning Board of Appeal’s determination to the Supreme Court.

At the Zoning Board of Appeals, Petitioner argued that because a restaurant had not operated on site since the 1970’s, an application for a special permit under the current Town Code was required before the building permit for renovations could have been issued. The Breakers Motel argued that the restaurant has always been a permitted use and was in place prior to the current Town Code provisions requiring special permits.

Breakers submitted that the restaurant fixtures had never been removed from the site, and a prior Certificate of Occupancy issued in 2005 and Site Plan approval issued in 2010 both referenced and approved the restaurant. All parties conceded that the restaurant was never pre-existing nonconforming and was, in fact, always permitted.

Prior to 1984, the subject property was zoned Multiple Residence District (“MD”), which permitted a restaurant as accessory to a motel. After 1984, the zoning was amended to Resort District (“RS”), which permitted restaurants pursuant to a special permit. The Zoning Board of Appeals denied petitioner’s appeal and declined to consider the merits of petitioner’s appeal, finding that the appeal was untimely pursuant to the 60 day statute of limitations set forth in NYS Town Law §267-a and East Hampton Town Code §255-8-35(A).

Petitioner brought the above referenced proceeding by order to show cause seeking a judgment annulling the Zoning Board of Appeals decision, revoking the building permit and imposing a permanent injunction enjoining further renovations to the restaurant without a special permit.

The Court held that a special permit was not required for the restaurant use, since the use had been in place prior to the 1984 adoption of the RS Zoning District. The Court stated,

“Simply stated, the concept of “use” in the context of zoning regulations is not the equivalent of “in use” or “used” as is made clear in the following definitions in the East Hampton Town Code sections 255-1-14(G) and (H)…” The Court further found that the East Hampton Town definitions of use were consistent with “what is generally accepted in New York zoning law,” stating,

“USE: The specific purpose for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained. The term “permitted use,” or its equivalent, shall not be deemed to include any nonconforming use. USE: The purposes for which a structure or premises, or part thereof is occupied, designed, arranged or intended,” citing, Salkin, N.Y. Zoning Law and Prac., 3d Edition §38:05, Sample definition.

The Court relied upon the fact that the restaurant configuration on site was never changed; and the kitchen fixtures and equipment had remained in place since the 1970’s, stating, “the area in question was designed, arranged and intended to be a restaurant; i.e., the use continued even though it was not “used” as a restaurant.”

The Court went on to distinguish the special permit restaurant use from pre-existing nonconforming uses that can be abandoned after time since the special permit use was not rendered illegal after the zone change to RS. Relying on Town Code §255-5-25, which states in relevant part that “special permit uses which either lawfully exist on the effective date of this article…shall, in all respects, constitute lawful and conforming uses under this chapter,” the Court held that the Breakers Motel restaurant use was legal, even under the new RS zoning, and did not require a special permit to be maintained or altered.

The Court denied the request for the permanent injunction and dismissed the proceeding. Petitioner submitted a Notice of Appeal to the Appellate Division, Second Department, while patrons of the Breakers Motel enjoyed the newly renovated restaurant and bar.

In opposing Crossroad Ventures, LLC’s (“Crossroad Ventures“) endeavor to construct a vacation resort partially within the Town of Shandaken, (“Town“), grassroots preservation organization Catskill Heritage Alliance, Inc. (“Alliance“) commenced two consecutive Article 78 proceedings challenging certain approvals.  The Court addressed multiple appeals from both proceedings in Catskill Heritage Alliance, Inc. v. Crossroads Ventures, LLC, et al., 161 A.D.3d 1413 (3d Dep’t 2018).  In its opinion, the Court reinforced the principle that a board of appeals is the sole interpreter of its ordinance and that interpretations by other boards or bodies may be fatal to municipal approvals and determinations.

In this case, the Town’s zoning ordinance allowed a resort with a special permit and site plan approval from the Town Planning Board (“Planning Board“).  However, the ordinance did not define “Vacation Resort.” In 2000, Crossroads Ventures requested an interpretation and definition of the term to determine what uses are allowed as part of a resort. The Town Zoning Board of Appeals (“Zoning Board“) responded to the request by analogizing a vacation resort to a hotel, motel or lodge development and determined the term included all uses integral to the hotel, motel or lodge development and clearly accessory to it, as well as other uses allowed in the area, either as of right or by permission. After receiving the interpretation, Crossroads Ventures undertook a prolonged environmental review and developed a plan for the resort: two hotels, a conference center, community centers and additional lodging scattered among several duplexes and multiple unit buildings.

In 2013, towards the end of its environmental review, Crossroads Ventures made an application to the Planning Board for a special permit and site plan approval. The Planning Board issued the special permit and conditionally approved the site plan. The Alliance commenced its first Article 78 proceeding challenging these determinations. The Supreme Court, Ulster County, issued a decision in October 2016 denying Crossroad Venture’s motion to dismiss and granting the Alliance’s petition, in part. The Court found that, although the Planning Board properly determined that non-habitational structures fell within the clear definition of permissible accessory uses to the resort, it improperly resolved an ambiguity in the ordinance as to whether detached duplexes and multiple unit buildings were permitted uses in the area. Accordingly, the Court annulled the determinations and remitted the matter to the Zoning Board to address the propriety of residential structures. The parties appealed the October 2016 decision.

On remittal, the Zoning Board interpreted the ordinance and clarified that detached residential units were permitted “lodges.” Thereafter, the Planning Board, again, granted Crossroads Ventures’ application, issued a special permit and conditionally approved the site plan. The Alliance commenced its second Article 78 proceeding challenging both the Zoning Board’s interpretation and the latest Planning Board approvals. The Supreme Court dismissed the petition by decision dated July 2017 and the Alliance appealed.

On appeal, the Appellate Division, Third Department, decided both appeals. With respect to the October 2016 decision, the appellate Court affirmed both the denial of the motion to dismiss and the granting of the petition, in part. The Court noted that zoning boards of appeals are the bodies with the authority to interpret ordinances – not planning boards. To the extent any ambiguities exist in the pertinent ordinance, a planning board must request an interpretation thereof from its board of appeals. In 2000, the Zoning Board interpreted the “Vacation Resort” term to include conference centers and community centers as integral, accessory uses, but it did not opine on detached duplexes and multiple-unit buildings. This was problematic because the latter structures are habitations and could be viewed either as permitted lodges or as new multifamily dwellings prohibited under the ordinance affecting the project area. The Planning Board should have requested another interpretation from the Zoning Board, rather than resolving the ambiguity itself. Therefore, the appeals Court affirmed the lower Court’s October 2016 decision to annul the Planning Board’s approvals for the resort and to remit the issue to the Zoning Board.

Next, the appeals Court reviewed the July 2017 decision. This later decision addressed both the Zoning Board’s interpretation of the duplexes and multiple-unit buildings and the Planning Board’s subsequent (second set of) approvals. The appeals Court found the Zoning Board’s interpretation deserved deference because it was not a purely legal interpretation – it was rendered upon the facts of Crossroads Ventures’ proposal. The Town ordinance defined “multiple dwellings” as structures within three or more dwelling units, but stated that rooms in a boardinghouse, dormitory, motel, inn or other similar building do not constitute dwelling units. Although the Town ordinance did not define the term “lodge,” the Zoning Board noted that a lodge is commonly defined as a transient residence, such as an inn or similar building having rooms that are excluded from the ordinance’s definition of dwelling unit. Ultimately, the permanence of residency was determinative.

The Zoning Board concluded that a lodge includes structures containing one or more units of lodging and sleeping accommodations for transient occupancy in connection with the special permitted use of a hotel, lodge development or vacation resort held under common ownership – so long as the users had primary residence elsewhere. And, the Zoning Board determined that the proposed structures at the resort were intended for transient occupancy, as rentals or timeshares; therefore, these were permitted lodges, as opposed to prohibited new multifamily dwellings. The Court found this interpretation to be rational. The Court also found that the Planning Board, relying upon the Zoning Board’s 2000 and 2017 valid interpretations, rationally determined to issue the special permit and conditional site plan approval for the resort. Therefore, the Court affirmed the July 2017 decision.

Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality.

Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the other district without needing to apply for a change  of zone.  Problems for applicants and practitioners arise when the proposed use on the property is prohibited on the other side of the  zoning boundary line.  Under those circumstances, applicants may face hostile boards or opponents claiming that because such use is prohibited in one of the districts, it requires a use variance.  As a use variance can often be an insurmountable hurdle, practitioners must carefully craft a record to support the proposed use for a split zoned parcel.

Recently, in  the City of Saratoga Springs, a neighboring restaurant owner sued to block a proposed pet kennel, claiming it required a use variance because kennels were prohibited in one of the two zones that split the property.  In other words, the restaurant owner was claiming that the prohibited tail was wagging the permitted dog.  Unfortunately, the restaurant owner was barking up the wrong tree, and in June of 2018, the Appellate Division affirmed the City of Saratoga Springs Zoning Board of Appeals (ZBA) determination that a use variance was not required for the proposed kennel project and granted the necessary area variances See, Wen Mei Lu v. City of Saratoga Springs—N.Y.S.33D —(3d Dept 2018).

In Wen Mei Lu, Pet Lodges Inc. submitted an application to the City’s Building Inspector in 2016, seeking approval of the proposed construction of a pet boarding facility.  The 6,000-square-foot kennel facility was planned for a 1.6 acre parcel of land that was split zoned Rural Residence and Tourist Related Business (TRB).  The smaller rear portion of the property, zoned Rural Residential, allows for animal kennels, but the TRB zone that comprises the larger portion of the property fronting on State Route 9, prohibits the use.

The application was denied by the City’s Building Department on the ground that the project required area variances for certain setback issues.  Pet Lodges Inc. then applied to the ZBA for area variance relief.  At the hearing, the restaurant owner’s attorney submitted letters and testimony claiming, among other things, that the kennel required a use variance, because it was a prohibited use in the TRB zone, and was fundamentally inconsistent with the permitted uses such as service establishments, eating and drinking establishments and bed and breakfasts.

The Appellate Division, in finding that the ZBA rationally determined a use variance was not required, noted that although kennels are prohibited in the TRB zone, under the City’s zoning ordinance, where a zoning district boundary line divides a lot or land, the district requirements on either side of the boundary may be construed, at the property owner’s option, as extending 100 feet into the remaining portions of the property.  Here, the applicant chose to extend the Rural Residential district where kennels are permitted into the TRB commercial zone where kennels are prohibited.

Finding that such an extension of a zoning boundary did not require a use variance, the Court went on to hold that the ZBA’s determination to grant the necessary area variances had a rational basis in the record.  The Court also determined that while a small portion of the facility’s parking area and driveway will lie within the TRB district, the ZBA rationally found that such accessory uses were not prohibited under the zoning ordinance.   The Court noted that ZBAs are “invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law.”

Given the potential complexities associated with split zoned properties, this decision provides some clarity as to what the courts and zoning boards are considering when faced with split zoned lots.

 

 

 

General Municipal Law §239-m requires that before taking action on a land use application, a municipal agency like a Zoning Board of Appeals or Planning Board must refer the application to a county or regional planning commission for its recommendation. This referral and receipt of comments and recommendations from the planning commission is no longer just a nicety. It is jurisdictional.

Any variance or site plan or other land use approval is null and void if the approving agency has not followed this referral procedure. e.g., Ernalex Constr. Realty Corp v. City of Glen Cove, 681 N.Y.S. 2d 296 [2d Dept.1998]; 24 Franklin Ave. R.E. Corp. v. Heaship, 30 N.Y.S.3d 695 [2d Dept. 2016].

Moreover, the statute of limitations does not even begin to run to challenge an agency action (the grant of a variance, for example) if the variance is jurisdictionally defective because the referral procedure was not followed. e.g., Hampshire Mgt. Co., No. 20, LLC v. Feiner, 860 N.Y.S.3d 714 [2d Dept. 2008].

Old news.

So, what happens if an agency grants a variance without following the referral procedure and then, perhaps realizing its mistake, grants an amended variance where it does make the proper referral to the planning commission?

In Fichera v. NYS Dept. of Environmental Conservation, 74 N.Y.S.3d 422 [4th Dept. 2018], the Fourth Department held that the original and the amended variances were both null and void. The applicant had received variances from the Town’s ZBA, and permits from the DEC needed to conduct mining. The ZBA and the applicant argued that the time to challenge the original variance had run and that the amended variance was perfectly fine because the referral process had been diligently followed.

The Appellate Division disagreed. First, the Court applied the “old news” rules above to find that the original variance was jurisdictionally defective because of the failure to follow the referral process. Then, they also held that the same jurisdictional defect tolled the statute of limitations so that the challenge to the original variance was timely. Therefore, the original variance was vacated as jurisdictionally defective.
What about the amended variance? Shouldn’t that be upheld because there was a proper referral and, therefore, no jurisdictional defect?

Not so fast, said the Court. The applicant’s problem was that the ZBA relied on the initial variance in granting the amended one: “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the ZBA’s approval of the amended variance is likewise null and void. . . .

One factor that appears to be important is that the planning commission had strongly recommended that the variance be denied. A zoning board can override the commission’s recommendation by a super-majority vote. Here, the ZBA had voted unanimously to override the commission’s recommendation to deny the amended variance. No good, said the Court: “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.”

The applicant’s and the ZBA’s problem, it appears, is that they took a short cut to rely on the original variance, at least in part, in deciding to approve the amended variance. In retrospect, they should have made a new determination. The Court agreed and remitted the matter back to the ZBA “for a new determination on petitioner’s application.”

Hindsight is always accurate, and the impetus to avoid re-hashing materials already reviewed is understandable. But the short cut here, especially in light of the opposition from the planning commission and organized concerned citizens, lead to a long road. A good lesson.

Recently Farrell Fritz, P.C. represented a family held limited liability company in connection with an application to a East End zoning board of appeals to maintain an eight (8) foot fence and six (6) foot driveway gates around its property in Sagaponack.   See, 79 Parsonage LLC v. Zoning Board of Appeals of the Incorporated Village of Sagaponack.  Both the fence and a portion of the applicant’s gates violated the Village of Sagaponack’s six (6) foot height limitation.

On behalf of the applicant, Farrell Fritz argued that a fence was necessary to exclude a family of deer that had taken up residence on the property.  Exclusion of the deer was necessary as one member of the household had suffered through two bouts of Lyme’s Disease. In addition, the fence was constructed among mature vegetation and was not visible from the street.

Despite those and additional arguments offered at the hearing, the Sagaponack Zoning Board denied the application.

On behalf of the property owner, Farrell Fritz commenced an Article 78 proceeding in the New York State Supreme Court, Suffolk County, appealing the Zoning Board’s Decision.

On December 15, 2017, Justice Gerard W. Asher, J.S.C. overturned the Zoning Board’s denial and directed the Board to issue the requested variances finding that the applicant overcame the presumption afforded to Zoning Boards in deciding zoning cases. Through the Article 78, Farrell Fritz demonstrated that no evidence existed to support the Zoning Board’s decision; and its findings were conclusory, and therefore irrational and arbitrary and capricious. Judge Asher agreed with the application that the fence was hidden, and a grant would benefit the applicant because one of the two members already suffered from Lyme’s Disease. After making the findings, Judge Asher vacated and annulled the ZBA determination.

What Judge Asher makes clear in his Decision, and should be considered by all practitioners, is that zoning boards must balance all of the relevant considerations in a rational way.

In Fichera, et al. v. New York State Dep’t of Envt’l Conserv., et al., decided last month, Petitioners commenced an Article 78 proceeding seeking to void actions taken and determinations made by the New York State Department of Environmental Conservation and the Zoning Board of Appeals of the Town of Sterling (“Sterling ZBA”) and to enjoin the advancement of a mine project (“Mine Project”). Below, the Supreme Court, County of Cayuga, denied the petition and granted various motions to dismiss. On appeal, the Appellate Division, Fourth Department, held that (1) the petition was timely and (2) the Supreme Court erred by dismissing the cause of action based upon a violation of  New York General Municipal Law section 239-m (“Section 239-m”) and by not granting the petition thereupon. The appeals court remitted the matter back to the Sterling ZBA.

As pertinent to the appeal, the Article 78 petition claimed that the Sterling ZBA violated Section 239-m when it granted the Mine Project owners’ original application for an area variance without referring the matter to the appropriate county planning agency or regional planning council. Therefore, petitioners argued, the Sterling ZBA’s action in granting the area variance application was deemed null and void. Petitioners further argued that the Sterling ZBA’s sua sponte decision to grant the Mine Project owners an amended area variance based upon its previous determination on the original application was also null and void.

In opposition to the petition, respondents argued that the challenge to the determination granting the initial area variance was time-barred because petitioners failed to commence their challenge within 30 days of the original determination, as required by New York Town Law section 267-c(1). In addition, respondents contended that the determination granting the subsequent amended area variance was made by the Sterling ZBA after it made the appropriate referrals required by Section 239-m.

The appeals court agreed with the petitioners and emphasized the jurisdictional importance of complying with Section 239-m in declaring the Sterling ZBA’s approvals null and void. In many instances, Section 239-m requires a municipal agency to refer an application to a county or regional planning board for its recommendation prior to the agency taking final action on an application for land use approval. The Sterling ZBA did not refer the initial application for an area variance to the Cayuga County Planning Board before taking final action with respect to that application. Failure to comply with Section 239-m is not a mere procedural irregularity; rather, it is a jurisdictional defect involving the validity of a legislative act. Accordingly, the Sterling ZBA’s failure to refer the initial application to the county planning board renders the approval null and void.

Moreover, the appeals court held that the Sterling ZBA’s determination in granting the subsequent amended area variance was also null and void. “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the [Sterling] ZBA’s approval of the amended area variance is likewise null and void.”

Notably, if the county or regional planning board recommends modifications or disapproves an application, then the referring body cannot act otherwise – except by a vote of majority plus one of all members. Here, the Sterling ZBA unanimously approved the grant of the amended area variance and the respondents argued that the unanimous approval of the amended area variance was sufficient to override any recommendation by Cayuga County Planning Board to disapprove or modify (had the Sterling ZBA referred in the first place). “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the [Sterling] ZBA relied in granting the amended area variance.”

Lastly, the appeals court found that the Article 78 petition was timely, despite having been brought well-after the Sterling ZBA’s determination respecting the initial area variance application. The filing of a jurisdictionally defective document does not commence the statute of limitations. Therefore, the statute of limitations never ran and the petition was timely.

The Appellate Division modified the Supreme Court’s judgment in conformance with its opinion (discussed above) and remitted the matter to the Sterling ZBA for a new determination on the area variance application.

In the Matter of 278, LLC v. Zoning Board of Appeals of the Town of East Hampton et al., dated March 21, 2018, the Appellate Division, Second Department upheld East Hampton Town Zoning Board of Appeal’s (“ZBA”) decision denying a natural resources special permit (“NRSP”) for two parallel 762 linear feet walls built without a permit by Ron Baron (hereinafter “Petitioner”) on his oceanfront property located at 278 Further Lane, East Hampton New York. Petitioner owns two additional, improved properties adjacent to 278 Further Lane, which is vacant. In September 2008, Petitioner built two parallel walls approximately four feet apart consisting of 762 linear feet along the southerly border of its property and continuing along a portion of the easterly border of 278 Further Lane. In response, in 2009 the Town of East Hampton issued citations alleging that the walls were constructed in violation of the Town Code because Petitioner failed to obtain an NRSP from the ZBA, a building permit and/or certificate of occupancy prior to constructing the walls. As part of a settlement agreement, Petitioner removed portions of the walls and submitted an application to the ZBA.

Petitioner made an application to the Chief Building Inspector in April 2010, questioning the limit of NRSP jurisdiction over the walls. By letter dated April 13, 2012, the Building Inspector determined that a “substantial portion of the wall was constructed in a location containing dune land/beach vegetation” and would require an NRSP prior to the issuance of a building permit. Petitioner appealed that determination to the ZBA, requested an NRSP and sought a variance for the accessory structures to remain on the property where there was no principal structure. The ZBA upheld the Building Inspector’s determination and found that an NRSP was required for the walls prior to the issuance of the Building Permit, denied Petitioner’s request for an NRSP, and held that since the NRSP was denied, the application for the variance for the accessory structure was rendered academic.

Petitioner commenced an Article 78 proceeding, seeking to annul the ZBA determination. The Supreme Court denied the petition and dismissed the proceeding, remanding the matter back to the ZBA for further proceedings to determine whether any variances were needed regarding the construction of the walls. Petitioner appealed; and the Appellate Division, Second Department held that the ZBA determination requiring an NRSP had a rational basis, was not arbitrary and capricious, and there was sufficient evidence in the record to support the determination. The Court stated, “petitioner failed to demonstrate that the retaining walls were erected in conformance with the conditions imposed (see Town Code §§255-4-40, 255-5-51).  Since the petitioner, which erected the retaining walls prior to obtaining any permits failed to request a lot inspection by the Town prior to construction and failed to sufficiently document preexisting conditions, the ZBA had to rely on expert testimony to ascertain the conditions in the area prior to construction Its decision to rely on the conclusions of its experts rather than the conflicting testimony of petitioner’s expert did not render its determination arbitrary, capricious, or lacking in a rational basis…” The Court overturned that portion of the Supreme Court decision, remitting the matter back to the ZBA.  The ZBA found the entire wall required an NRSP, confirming that the request for a variance for an accessory structure was academic.

Obtaining an NRSP in East Hampton Town is no small matter.   NRSP applications are regulated under four separate sections in the East Hampton Town Code:

  1. §255-1-11 “Purposes”- General Purposes for Zoning Code requires compliance with applicable sections A through M;
  2. §255-5-40 “General Standards”- General Standards for Special Permits requires compliance with sections A through M;
  3. §255-4-10 “Purposes of Article”- requires compliance with sections A through E, General Purposes for the Protection of Natural Resources; and
  4. §255-5-51 “Specific Standards”- requires compliance with sections A through K, Specific Standards and Safeguards for Natural Resources Special Permit.

Given the number of standards with which an applicant must comply to obtain this special permit, it is never surprising when an application for an NRSP is denied. It is even understandable that Petitioner constructed the walls (provided they were not greater than four feet) without permits, given an initial reading of Town Code §255-11-38 , Fences and Walls, which states, “the following regulations shall apply to all fences and walls in all districts unless otherwise indicated: A. Building permits. The erection, enlargement, alteration or removal of the following types of fences and walls shall require a building permit: (1) A fence or wall greater than four feet in height and located within the required front yard area of any lot; (2) A fence or wall over six feet in height, in any location; (3) Any fence or wall for which site plan approval is required.”  Considering the outcome of this case, however, Petitioner would have been better served making an application to the Town before constructing the walls.