By letter dated November 24, 2009, the Town of Riverhead’s Building Department Administrator provided that the docks, bulkheaded structures, commercial oyster operation, and six summer rental cottages were legal pre-existing nonconforming uses of the property at 28 Whites Lane, on Reeves Creek, Aquebogue NY (“subject property”). The subject property is owned by John and Sandra Reeves, hereinafter the “Respondents”. The Petitioners, neighbors of the subject property, appealed this determination to the Zoning Board of Appeals (“ZBA”) which rendered a decision sustaining the November 24, 2009 letter. The Petitioners challenged the ZBA’s determination in an article 78 proceeding, Matter of Andes v. Zoning Board of Appeals of the Town of Riverhead, John Reeve et al. Supreme Court, Suffolk Co. Index No. 10-27305, April 8, 2013. The Supreme Court annulled the ZBA’s decision and remitted the matter back to the ZBA citing that the ZBA decision “contained no independent factual findings supporting this determination.”

The ZBA reheard the matter on June 23, 2016. By decision dated August 11, 2016, the ZBA again sustained the November 24, 2009 letter as to the pre-existing nonconforming uses on the property. This time, however, the ZBA’s record was replete with factual findings in support of its determination.

The Town of Riverhead first adopted its zoning code in 1959. Several zoning amendments were made throughout the years, rendering the different uses of the subject property nonconforming at different times. [1]    The ZBA considered testimony from numerous sources establishing the continuing pre-existing nonconforming uses and structures on the subject property. For example, with regard to the shellfish operation, Robert E. White, the son of Washington White, testified at the July 23, 2009 ZBA hearing that his family purchased the property in the 1930’s and that it was used for a shellfish operation which was continued by his brother Benjamin White. He further submitted that the “underwater property” was purchased by the Lessard family in the 1990’s who “continued the operation.” David Lessard testified that he continued the commercial shellfish operation to the present day.  The ZBA made further findings, sustained in part by similar testimonial evidence, supporting the pre-existing nonconforming summer cottages and marina uses.  Ultimately, the ZBA upheld the November 24, 2009 Building Department Administrator letter once again.

The neighbors challenged this ZBA determination in a second article 78 proceeding entitled Matter of Andes v. Zoning Board of Appeal of Town of Riverhead et al., Sup. Ct. Suffolk Co., Index No. 16-8742, December 15, 2017.

Petitioners argued that (i) the Respondents failed to provide business records to corroborate the continuance of the marina or commercial oyster operation, (ii) the commercial oyster operation was run without the proper shell-fishing permits, (iii) the marina structures were not completed until 2008, and (iv) the basin where the shellfish operation took place had non-functional bulkheading and required dredging to be operational during the time periods they were claimed to be in use, among others. Notably, Petitioners alleged that the majority of the evidence relied upon by the ZBA was based on the testimony of Respondents, the Reeves, and their primary witnesses who Petitioners argued were “town insiders” since they worked for the Town of Riverhead.

The Court reviewed the evidence considered and findings made by the ZBA in its decision and held that the ZBA decision was rational and not arbitrary and capricious. The Court set forth the standard of review for pre-existing nonconforming uses and restated the long-standing legal principle that a court cannot substitute its judgment for that of the board. Petitioners clearly wanted the Court to weigh the value of the evidence relied upon by the ZBA; however, the Court stated:

Here, it cannot be said that the Zoning Board’s decision lacks evidentiary support in the record; that the nature of the evidence relied on by the Zoning Board is almost entirely testimonial is of no consequence for purposes of this analysis (see Town of Ithaca v Hull, 174 AD2d 911,571 NYS2d 609 [1991]). Likewise, while the court is sensitive to the implication of the petitioners’ claim that the Zoning Board discredited their proof in favor of the affidavits and hearing testimony of “insiders,” i.e., the Reeves and “their friends,” it remains constrained by the limited scope of review afforded in article 78 proceedings, particularly absent proof of actual bias or favoritism. The court also rejects the petitioners’ implicit claim that judicial review of a zoning board’s determination requires some kind of comparative analysis of the quality and quantity of the evidence adduced in support of and in opposition to an application. A court may not weigh the evidence or reject the choice made by the board where the evidence is conflicting and room for choice exists (Matter of Toys “R” Us v Silva, supra). Even to the extent it has been held that a board’s determination must be supported by “substantial evidence,” a court need only decide whether the record contains sufficient evidence to support the rationality of the board’s determination (Matter of Sasso v Osgood, 86 NY2d 374,633 NYS2d 259 r1995J; Matter of Slonim v Town of E. Hampton Zoning Bd. of Appeals, 119 AD3d 699, 988 NYS2d 890 [2014]. lv denied 26 NY3d 915, 23 NYS3d 641 [2015]) (emphasis added).

 As to the petitioners’ claim that the Reeves failed to sustain their “high” burden of persuasion, the court notes that this standard applies only to a matter before a municipal officer or board and not to a judicial proceeding; it bears repeating that the scope of judicial review of a zoning board’s determination is limited to an examination of whether the determination has a rational basis, even when that determination involves an application to establish or certify a prior conforming use (e.g. Matter of Keller v Haller supra; Matter of Watral v Scheyer, 223 AD2d 711, 637 NYS2d 431 [1996]). Whether, as the petitioners further contend, the Reeves lacked the necessary permits, certificates, and approvals to operate a marina on the property until the new docks and bulkheading were constructed and completed in 2008, or whether the Lessards did not have shellfish diggers permits from 1994 through 1997 so they could not have lawfully been using the Reeves’ property for that purpose during that time, is largely irrelevant.

Ultimately, the Court upheld the ZBAs determination affirming the Building Department Administrator’s letter; the petition was denied and the proceeding dismissed. Given that the matter has been an issue before the Town of Riverhead since 2003 and the Court since 2010, it is not surprising that Petitioners filed a notice of appeal.

[1] In 1959 with the first enactment of zoning, Riverhead Town rendered the commercial oyster operation on the property a preexisting nonconforming use. The six cottages became pre-existing nonconforming in September 1970 when the Town of Riverhead amended the zoning code definition of Marina Resort to exclude summer cottages. In 2004, the Town re-zoned the property to RB-40, eliminating marinas as permitted uses rendering the marina use, docks and bulkheading on-site nonconforming. Additionally, Riverhead Town Code §301-222(C) provides that a nonconforming use may not be reestablished “where such nonconforming use has been discontinued for a period of one year.”

On January 18,  2018, the Appellate Division, Second Department, upheld a decision denying an application for a religious real property tax exemption on the grounds that the property owner’s use of the main structure as a dormitory and living quarters for 20 students ran contrary to the one family dwelling Certificate of Occupancy issued for the premises and thus violated the Town of Ramapo’s zoning laws.  See, Congregation Ateres Yisroel v Town of Ramapo, 2014-09194.  

In Congregation Ateres Yisroel, plaintiff claimed and received a religious real property tax exemption for the years 2008-2011.  In 2012, plaintiff sought to renew its religious tax exemption by submitting a renewal application stating that no changes had been made to the property’s ownership or use from 2011 to 2012.    The Town denied the request on the grounds that plaintiff erected two trailers on the premises without seeking permits or approvals and that plaintiff used the main structure to house 20 students in dormitory style living quarters all in contravention to a 1954 Certificate of Occupancy stating the premises is certified as a “one family dwelling.”

Without any discussion or analysis of whether the students being housed at the property were engaged in conduct of a religious nature, the Second Department, agreed with the trial court that use of the premises for dormitory style living contravenes the “one family dwelling” Certificate of Occupancy and as a result, denial of the religious real property tax exemption was upheld.

Now, this decision is not particularly shocking or even interesting for that matter.  However, this decision caught my attention because not long ago, we published a blog post entitled “Court Supports an Expansive View of What Constitutes a Religious Use.”  In that post, the Third Department reinstated a decision of the City of Albany’s Zoning Board holding that a church’s partnership with a not-for-profit entity to house 14 homeless individuals at the church parsonage was a permissible use for a house of worship.  The Court agreed that assisting the homeless is consistent with the mission and actions of a house of worship.   See, Matter of Sullivan v Board of Zoning Appeals of City of Albany.

Although Sullivan did not involve a real property tax exemption, it is quite likely that the house of worship in the Sullivan case continues to receive a religious real property tax exemption despite the fact that the church is housing 14 homeless people in a single family zoning district.  To the contrary, Congregation Ateres Yisroel’s lost its religious real property tax exemption based on its use of its premises to house 20 students.  Both religious uses are in single family zoning districts, and both religious uses are housing multiple people.

The question perhaps becomes – Why is sheltering the homeless more in line with a religious purpose than housing 20 students?  The facts in Congregation Ateres Yisroel are silent as to why the students were being housed at the property and whether their housing was in furtherance of a religious purpose.  If Congregation Ateres Yisroel could establish that the student housing had some connection to its religious purpose, perhaps the result of this case would be different.    At a minimum, we may have a possible split in the Departments as to what types of uses constitute “religious uses” and where and how do we draw the line?   Perhaps our next update on this topic will be the result of a decision by our State’s highest court.  Tune in each Monday for the latest news.

It is well established that zoning codes and regulations are in derogation of property owners’ rights in and to the use of their property. Zoning restricts the use of land which was otherwise free of restrictions.  An owner’s rights in use of land are among the oldest and enjoy the most protection under common law and state and federal constitutions. Therefore, the courts of New York have regularly and consistently held that (1) any such codes and regulations must be strictly construed and (2) any ambiguity must be construed against the municipality and in favor of the property owner:

“Since zoning regulations are in derogation of the common law, they must be strictly construed against the municipality which has enacted and seeks to enforce them. Any ambiguity in the language used in such regulations must be resolved in favor of the property owner.”

Because of the heightened scrutiny of zoning regulations for ambiguity, they are difficult to draft and often subject to litigation – which can get deep into the weeds of statutory construction and even grammar. For example, where a zoning code required site plan review for “any new construction or any addition thereto in excess of 2000 sq. ft.,” the Zoning Board found that the limitation of 2,000 sq. ft. applied only to “any addition” and not to “any new construction.” The Third Department reversed, in part because there was no comma between “thereto” and “in excess of.” Your high school English (or Latin) teacher would rejoice at the deconstructive analysis.

Other examples: Does prohibition of car storage prohibit a parking garage, where there is no definition of “storage” in the code? (Answer = No; parking garage is OK) Is a code validly applied which does not allow an owner to “store” a boat in the front yard, where there is, again, no definition of how long a boat must be in the front yard to be deemed to be “stored” there? (Answer = Code not valid because of ambiguity.) Can a code require building permits for all construction “other than ordinary repairs that are not structural?” (Answer = No; code invalidly applied because there was no definition of what constitutes “ordinary” or “not structural” repairs.) Is a helicopter pad an “airport” which is defined as a landing area that is used “regularly?” (Answer = Yes; it was used frequently enough to be deemed “regular.”)

A recent code amendment in an East End municipality requires that driveway gates must have a “setback to the street” of no less than 20 feet or 40 feet (depending on lot size). What is the “street?” The paved roadway? The lot line dividing the private property from the municipality’s right-of-way for the road? The difference could be 10 or 15 feet or more of unpaved verge or shoulder between the pavement and the lot line.

The difficulty in drafting is highlighted by these cases which pit the purportedly “obvious” reading of the code against the rule of strict construction – resolving any ambiguity in favor of the property owner. The burden on the municipality is especially acute where municipal officials come up with different interpretations. The statute is certainly vague and ambiguous when reasonable municipal minds differ – when “reasonable enforcement officers could come to different conclusions” – and they actually did.

Moreover, the New York courts have rejected the argument that Zoning Boards have the authority to remove the ambiguity by choosing the interpretation that the Board prefers. Rather, the courts recognize that while a board’s interpretation is entitled to deference in most situations, where the statute is ambiguous the question becomes a matter of law and the usual deference does not apply.

In a recent Zoning Board case, the same beneficial owners had a residence on one lot and a tennis court, without a home, on another immediately adjacent lot. There was no dispute that the tennis court was a valid subordinate use to the adjacent residence. However, the municipality would not approve a certificate of occupancy for the tennis court because there was no residence on the court property. There was no direct prohibition in the zoning code of an accessory use on a lot without a principal use. The municipality relied solely and entirely on the code’s definition of accessory use as:

“A subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure. The term . . .”accessory structure” may include a . . . tennis court. . . .” (Emphasis added)

The owners sought relief in two separate ways. First, they argued for an interpretation that the code did not require that the tennis court and the dwelling be on the same lot because the word “customarily” modified both “incidental to” and “located on the same lot.” Therefore, an accessory structure is defined as only customarily located on the same lot as the main use. “Customarily” does not mean “always” or “required.” At the very least, the code was ambiguous on this point and, they argued, could not be used by the municipality to deny the owners the right to maintain the tennis court on the lot by itself.

The owners also sought a variance to allow the stand-alone tennis court in the event that the Zoning Board rejected their ambiguity argument. The Zoning Board rejected the argument that the ambiguity of the code section made it unenforceable, finding that they had regularly interpreted the code against the owners’ position. However, the Zoning Board granted the variance allowing the tennis court to exist without a main use on the same lot. A court might have overturned the Board’s contention that it had the right to interpret the ambiguous language in favor of the municipality, since that issue is a matter of law and the interpretation must be in favor of the property owner. But the bottom line is that the applicants got their tennis court and probably don’t care that it was by variance and not by voiding or interpreting an ambiguous code provision – and an Article 78 was averted.

And therein lies the point of this blog: The “ambiguity” rule can be difficult for applicants because courts can, and do, find that the code is not so ambiguous after all. On the other hand, zoning and planning Boards – and, especially, their counsel – know that the “ambiguity” rule is deep-rooted in New York law and that the courts do not hesitate to apply the rule as a matter of law, without deference to the boards. The bottom line is that making a legitimate “ambiguity rule” argument at the municipal board level can be successful in itself, but it is perhaps most important as a prod to the board to grant a variance or site plan or other municipal approval.

A not-so-clear code provision can be very helpful in obtaining a municipal approval!





In the Village of Bayville, New York (“Village”), a landowner wished to enclose and protect private property (“Lot 18”) , including the roadway thereon, against trespassers and traffic.  The landowner sought to erect crash gates on both sides of its property and across the roadway to prevent public access.  The road upon Lot 18 forms a part of Shore Road (connecting the public part of the roadway north of Lot 18 with Godfrey Avenue farther to the south).  Notably, Lot 18 abuts Mill Neck Creek and preventing traffic and access across the portion of Shore Road located upon Lot 18 may provide unfettered access to the water.

In the summer of 2013, the landowner made applications to the building inspector for a fence permit to construct two twelve-foot wide crash gates across Shore Road at the north and south sides of Lot 18.  The building inspector denied the applications and the landowner appealed to the Zoning Board of Appeals (“Board”).  The Board denied the landowner’s appeal and the landowner commenced a hybrid Article 78 proceeding/action in the Supreme Court against the building inspector and the Board.

In addition to seeking a reversal of the denials and demanding issuance of the building permit for the fences, the landowner sought damages for inverse condemnation.  The landowner argued that the Village had exercised a taking by allowing public access through the private property and upon the private roadway (especially because the building inspector and the Board denied the landowner’s rights to prevent such access).

The trial court issued an initial decision of June 2014, inter alia,  (i) denying the landowner’s petition to reverse the denials and (ii) granting the building inspector’s and the Board’s motions to dismiss, including for failure to state a cause of action for inverse condemnation.  Afterwards, however, the trial court granted the landowner’s application for leave to reargue.  Upon reargument, the trial court’s later decision of December 2014, as clarified by its order of March 2015, affirmed its initial decision – except it denied the motion to dismiss the landowner’s claim for inverse condemnation.  The building inspector and the Board appealed the March 2015 clarification order.

Last month, the Appellate Division, Second Department, affirmed the trial court’s March 2015 clarification order.  The appeals court noted that “[t]he cause of action [for inverse condemnation] should not have been dismissed since [sic], inter alia, it stated a cause of action to recover for damages . . . .”  Accordingly, the landowner can pursue its cause of action for inverse condemnation against the Village where public access upon and across private property is sanctioned by denial of the ability to enclose and protect it.

Fire Island is a 32-mile long, slender barrier sand bar island located between the Atlantic Ocean and the South Shore of Long Island.  The island, which varies in width from as little as about 550 feet to not more than about 1,760 feet, divides the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean.  In a letter report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs, Fire Island was described as containing “an impressive array of seashore resources,” including beaches that are “wide, clean, and gently sloping” and dunes that are “imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some lowlying pitch pine.”  See, 1964 U.S.Code Cong. & Adm. News, p. 3714.  The report referred to the sunken forest in the western half of the island as “a gem of its kind,” dominated by several hundred year-old American holly trees.

In apparent concern for the potential destruction of Fire Island’s unique environmental resources, Congress passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq. (“Act”) on September 11, 1964, which established the “Fire Island National Seashore” (“Seashore”).  The stated purpose of the Act was to conserve and preserve the Seashore’s “relatively unspoiled and undeveloped beaches, dunes, and other natural features.”

To achieve this objective, Congress provided the Secretary of the Interior (“Secretary”) with broad authority to condemn unimproved, privately-owned properties, and in limited situations, private properties that are being used in a manner that is inconsistent with any applicable standard contained in regulations promulgated under the Act.  The regulations, codified at 36 CFR Part 28, also set forth Federal standards to which local zoning ordinances must conform, articulating limitations on use, location, and size of structures on public and private property within the boundaries of the Seashore in order to reconcile the population density of the Seashore with the protection of its natural resources.

The Federal standards divide the Seashore into three distinct land use districts – the Community Development District, the Seashore District and the Dune District.  The Community Development District generally permits construction or expansion of existing residential units, religious institutions, schools and commercial units in existence before 1964.  The Seashore District permits alterations of existing improved properties, but prohibits new construction.  The Dune District prohibits all construction after 1978, except for dune crossing structures deemed necessary for public access to the beach.

Despite the Federal oversight, the Act does not preempt the four municipalities within the Seashore – the towns of Brookhaven and Islip, and the villages of Ocean Beach and Saltaire – from enacting and enforcing their own zoning regulations or granting variances and other zoning approvals.  Instead, the Act directs the Secretary to establish guidelines for local zoning authorities to use in developing local zoning regulations that conform to the Federal standards, as well as a process by which the Superintendent of the Fire Island National Seashore (“Superintendent”) shall receive copies of all applications for variances, exceptions, special permits, and permits for commercial and industrial uses, notices of all public hearings concerning said applications, and notices of the final action taken on such applications from the local zoning authorities.

The Secretary is charged with reviewing local zoning regulations to ensure that they are consistent with the Act and its implementing regulations.  The Secretary must disapprove any zoning ordinance or amendment thereof that he considers adverse to the protection and development of the Seashore, or which fails to include requirements that the Secretary receive notice of certain land use approvals and permits granted by the local zoning authority.  Properties that are developed in accordance with an approved ordinance, or which are the subject of variances and other land use approvals that result in such property being used in a manner that conforms to the Federal standards are protected from condemnation under the Act.  By 1985, the Secretary had approved compliance with Federal standards for the four zoning jurisdictions within the Seashore.

As a result, applicants seeking to construct new or expanded structures within the Seashore must now comply with both the federal zoning standards and the applicable zoning regulations of the local zoning authority.  In recognition of the concurrent Federal jurisdiction within the Seashore, the codes of the towns of Brookhaven and Islip have regulations that specifically pertain to properties within the Seashore.  See, Brookhaven Town Code, Ch. 85, Art. XVIII; Islip Town Code, Ch. 68, Art. XXXVIII.  Similarly, the Village of Ocean Beach has adopted regulations that largely mirror the Federal regulations that require that the Superintendent be provided with notice of applications for building permits and certain zoning applications, as well as notice of final actions taken on said applications.  See, Ocean Beach Village Code § 164-4.

To protect their property from the risk of future condemnation, applicants seeking to construct, reconstruct or alter structures within the Seashore, and their consultants, should take the time to carefully review the Federal standards, as well as the local zoning regulations.  They should also closely monitor the processing of their application to ensure that the local zoning authority has properly referred the building permit or zoning application to the Superintendent of the Seashore.

Owners of property within the Seashore who have questions about the process should visit or contact the local National Park Service office at (631) 687-4750.

Last month, the Appellate Division, Second Department, issued two interesting opinions concerning parking. One involved a parking variance and the other involved a restrictive covenant.

Here are the details!

No Parking

In Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 N.Y. Slip Op. 006643 [2d Dept September 27, 2017], a restaurant leased property at 340 Sunrise Highway. It was going to demolish an existing structure and replace it with a 5,400 square foot restaurant. The Village Zoning Code required 54 off-street parking spaces for the proposed restaurant. It had none.

The same landlord owned the adjoining property, 330 Sunrise Highway. The restaurant tenant proposed a merger of the two lots in order to take advantage of an exception in the Village Zoning Code that essentially allowed a municipal lot to substitute for the off-street parking for “interior restaurants that abut municipal parking fields.” The 330 Sunrise Highway parcel abutted a municipal parking lot, 340 Sunrise Highway did not.

A building permit was issued for the restaurant based on the merger representation. Just as the construction was nearing completion, the Building Department learned the merger of the two parcels never occurred. The Building Department refused to issue a certificate of occupancy until the restaurant obtained a parking variance. The restaurant entered into a license agreement that gave it access to 40 exclusive parking spaces next door from 4 PM to 12:30 AM weekdays. The parking variance was granted by the zoning board but the board imposed restrictions on the restaurant’s operating hours, tying them to the hours in the license agreement. It also required mandatory valet parking. The restaurant was unhappy with these restrictions and sued.

Although the restaurant prevailed at the trial level, it lost at the appellate court, which found that limiting the hours of operations to coincide with its access to the 40 parking spaces was proper. The restriction was aimed at protecting surrounding businesses and the expected increase in traffic congestion and parking problems.


In Fleetwood Chateau Owners Corp., v Fleetwood Garage Corp., 2017 NY Slip Op. 06431 [2d Dept September 13, 2017], the owner of an apartment building sued a commercial parking garage located on an adjoining parcel to enforce a restrictive covenant contained in a 1924 deed. That restrictive covenant prohibited the construction of nonresidential structures including garages unless the garages were for the exclusive use of occupants of any building built on the property.

In 1929, an apartment building was built on one part of the property. In 1931, a private parking garage was built on another part of the property. The entire site was sold at least twice after that. When the entire site was sold in 1988, the deed failed to mention the 1924 restrictive covenant.

The next purchaser subdivided the property. In 1990, the apartment building portion of the property was sold to Fleetwood Chateau Owners Corp. In 1991, the parking garage portion of the property was sold to Fleetwood Garage Corp. which intended to use it as a commercial parking garage.  Neither of these deeds referenced the 1924 restrictive covenant. Neither Fleetwood entity was a party to the 1924 deed nor mentioned in it as a beneficiary.

The Court noted that restrictive covenants, which place restraints on servient properties in favor of dominant parcels, are strictly construed against parties seeking to enforce them as they encumber the use of real property. The Court further noted that since it was not a party to the 1924 deed and was not mentioned in the deed as a beneficiary, Fleetwood Chateau Owners Corp. had to demonstrate the existence of a common plan or scheme of building development in order to enforce the restrictive covenant.

The Court found that there was no common development plan created for the owners of the subdivided lots.   The Court found no evidence that in 1924, when the land was sold as one parcel, that there was any obligation to subdivide the site. As a result, the Court found that “the covenant cannot be said to have benefitted any part of the land burdened by it.” The Court reasoned that the common grantor to the Fleetwood entities had owned the entire site and was free to do whatever it chose with the property except as against the 1924 grantee who had placed the restriction in the 1924 deed or those that “stood in his shoes.” As the Fleetwood entities solely derived their interest from the 1990/1991 grantee, and their deeds did not contain any restrictive covenant, “the original covenant is not enforceable as between” them. As a result, Fleetwood Chateau Owners Corp. had no standing to enforce the covenant and the parking garage was able to continue operating.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.

Measuring the height of a structure may seem straightforward in the abstract, but sometimes in practice that is not the case. Take, for instance, a recent Southampton Town Zoning Board application – Matter of the Application of Hermann – where the height of a house was the subject of a challenge in front of the Zoning Board.

During construction of a residential dwelling, several stop work orders were issued and lifted based upon evidence submitted to the Building Inspector from different surveyors attempting to determine the height of the single family dwelling. Mostly the argument surrounded an interpretation of the term “average natural grade”, which is the point of measurement on the ground in Southampton. This case was complicated by two factors. First, the property was disturbed from the construction of a prior dwelling demolished to make way for the new dwelling. During the demolition the grade was lowered to accommodate a larger basement. Second, there was a ten foot change in slope from one side of the house to the other.


Southampton Town Zoning Code provides specific guidance for measuring the height of a structure in §330-5 “Definitions” which defines “Height of a Structure”. Section B of that definition states:

“In all other cases, the vertical distance measured from the average natural elevation of the existing natural grade (before any fill has been or is proposed to be placed thereon) as established on a plan prepared by a licensed professional surveyor, at and along the side of the building or structure fronting on the nearest street to the highest point of the highest roof or, in the case of a structure, to the highest point. On all flag lots and lots utilizing a right-of-way, the flagpole access or right-of-way shall be considered the street front.” (Emphasis added)

So, the challenge to the property owner was twofold:

  1. Determine a reasonable methodology to establish “average natural grade” on a previously disturbed lot; and
  2. Apply that methodology to a property that contained a significant slope.


Fortunately, the Zoning Board had decided two previous cases involving height variances that centered on determining average natural grade. In the Matter of the Application of Schwartz, the Board initially observed that determining the average natural grade of a parcel of property was an inexact science. Next, the Board determined that using spot elevation data and the Topographic Map of the Five Eastern Towns was a reasonable methodology in determining average natural grade. Finally, the Board determined that a single measurement or data point along a building line was insufficient and that at least two data points must be used to determine average natural grade which would then be the basis on which to measure height.

Approximately a year and a half later, the Zoning Board decided a similar application, the Matter of the Application of Rubin. In Rubin, the Board followed Schwartz by making these findings:

  • Measuring contours and topography is an inexact science.
  • Site specific topographical data is the most accurate piece of information necessary to determine average natural grade.
  • Interpolation of data derived from survey maps and site-specific topographical data is a reasonable way to determine grade issues.


Applying the findings in Schwartz and Rubin, site-specific elevation data combined with the most recent contour mapping available will allow a licensed surveyor to determine contour lines and use these contour lines to determine height.


The property owner in Hermann engaged a surveyor who used the following data to determine average natural grade:

  • 1956 Topographical Map prepared by the U.S. Coast Guard
  • 1973 Photographs of Original Foundation under Construction
  • 1974 Five Eastern Towns Topographical Map
  • Actual field data
  • 2007 LiDAR Contour Map
  • 2012 LiDAR Contour Map
  • Field Observation of Surrounding Topography of adjacent lot
  • 2015 Under Construction Photographs of the Current Foundation
  • Actual Height Measurement

Using that information, the surveyor made a determination that the house exceeded the permitted height, and the property owner had to obtain a variance. The request for relief was significantly less than that alleged by the neighbor, and the variance request was ultimately granted. In the Hermann decision, the Board found that the methodology used by the property owner’s surveyor to be the most meaningful and likely accurate because it incorporated the above data.


To determine the height of a building – at least in Southampton – a surveyor must consider all of the data available, especially when the property is already disturbed. It is also suggested that a property owner or surveyor provide the Building Inspector with the methodology used to determine average natural grade in advance of construction, so violations of height restriction are avoided.


Generally, when a majority of the members of a zoning board of appeals (ZBA) either votes in favor of or against an action, the board is considered to have acted.  What if a ZBA is unable to take any kind of majority action, ending up with a tie vote?  The result hinges on the dual jurisdictions many ZBAs enjoy.

All ZBAs are directly given appellate jurisdiction by state law; however, where a local law or ordinance grants a ZBA additional powers, the additional powers are referred to as “original jurisdiction.”  Examples of a ZBA’s original jurisdiction include the power to grant special use permits.

In Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86 [2001], the Court of Appels  determined the effect of repeated tie votes by the Town of Huntington ZBA for variances.  The court held that “when a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial.”

This conclusion led the Legislature, in 2002,  to codify an amendment to Town Law § 267-a that added a new subsection entitled “Voting requirements.”  In particular, Town Law 267-a(13)(b) states:

“Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied….” (emphasis added).

So, what happens when a ZBA casts a tie vote in an application for a special use permit?  Nothing, according to the Third Department’s recent decision in Matter of Alper Restaurant Inc. v. Town of Copake Zoning Board  Of Appeals, 2017 NY Slip Op 02871 [3d Dept 2017].  In Alper, the Court affirmed the Supreme Court’s decision that a 2-2 vote issued for a special use permit was a non-action, because there was no majority vote; and the ZBA was exerting its original jurisdiction over the applicant’s special use permit.  This enabled the ZBA to vote again on the same matter and grant it with a 3-2 vote.

Thus, an appeal or variance is considered to be denied by statute if a tie vote is cast when considering a variance. This is not so when the same board is voting on a special use permit.  A tie vote in connection with a special permit results in a non-action.  This begs the question of whether ZBA’s voting multiple times on special use permits is the desired result?

two housesOn April 5, 2017, in an Article 78 proceeding, Tavano v. Zoning Board of Appeals of the Town of Patterson, 2017 NY Slip Op 02661, the Second Department reversed a trial court decision and reinstated a decision of the Zoning Board of Appeals of the Town of Patterson.  The zoning board had granted petitioner Tavano’s application to establish a legal non-conforming use of a second building on his property, referred to as the “cottage.”

Tavano argued that the cottage located at his property was a leased residential dwelling and that its use preexisted the Town’s 1942 zoning ordinance, which provided that “a building, structure, or premises could be used as a rooming or boarding house so long as there were no more than three boarders or roomers.”  Id.

In reversing the trial court’s finding, the Appellate Division noted that petitioner owned property in Brewster that is improved with a single family dwelling constructed in 1947 and a cottage constructed in 1955.  Tavano lived in the single family dwelling and rented the cottage.

Although the Appellate Division did not affirmatively state that its decision rested on the fact that the cottage was constructed in 1955, well after the 1942 zoning ordinance was enacted, and thus, Tavano could not establish entitlement to a legal nonconforming use, the Court did state that “to establish a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming.”

Here, and without benefit of the trial court opinion, it appears that the relevant question was not only whether the cottage was constructed prior to enactment of the 1942 ordinance, but also whether Tavano’s use of the cottage constituted use as a rooming or boarding house.

In reinstating the zoning  board’s decision, the Appellate Division relied upon the long-standing legal principle that ‘[t]he determination of a zoning board regarding the continuation of a preexisting nonconfirming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result”

Consequently, and as all land use lawyers will attest, even if the trial court or reviewing court would have reached a different result than that zoning board, deference is to be afforded to the zoning board.  Finding that the “ZBA’s determination that the cottage did not constitute a rooming or boarding house under the 1942 zoning ordinance was not arbitrary or capricious”, the Appellate Division reversed the trial court and reinstated the zoning board’s decision.