Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets).  Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings.  This can be a particularly useful
Continue Reading Stopping A Zoning Enforcement Action In Court

In The Committee for Environmentally Sound Development v. Amsterdam Avenue Development Associates, LLC, 2019 WL 1206357, 2019 N.Y. Slip Op. 30621(U), Index No. 153819 (Sup. Ct. New York Co., March 14, 2019), the Supreme Court, New York County, granted a petition to annul a resolution upholding the issuance of a building permit (“Permit”) for the construction
Continue Reading The Effect or Interpretation of an Ordinance at the Time of Review Applies, Despite Long-Standing Historical Views

In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance.  In finding that the house was a “legal nonconforming” 2-family residence, the Appellate
Continue Reading Appellate Division Reverses North Hempstead Denial of Pre-Existing Nonconforming Two-Family Home In Business District

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who
Continue Reading Remediation of Petroleum Spills Amount to Continuation of Nonconforming Use

In Peyton v. New York City Bd. of Standards and Appeals, (2018 N.Y. 06870, 166 A.D.3d 120 (1st Dept 2018), Petitioners-community residents (“Petitioners”) commenced a proceeding to challenge the City of New York (“City”) Board of Standards and Appeals’s (“Board”) resolution upholding the City Department of Buildings’s (“DOB”) decision
Continue Reading Getting Lost in the “Open Space” of New York City’s Superblocks

In a decision dated October 30, 2018, Supreme Court Judge Joseph Pastoressa remanded a decision made by the Southampton Village Architectural and Historic Board (BARHP) for further consideration. Manger et al. v. Board of Architectural Review and Historic Review of the Village of Southampton.

 The property owner in Manger applied to the BARHP for a certificate of appropriateness
Continue Reading Potential Conflicts and Interplay between the Village of Southampton Board of Architectural and Historic Preservation and the Village of Southampton Zoning Code

Local zoning ordinances throughout New York State incorporate the flexible “accessory use” component so as not to unnecessarily restrict one’s use of property.  Accessory uses are incidental and customary to the principal use of property. Determining whether a use is actually “accessory,” however, is often debated – especially where the use is not specifically enumerated as such or where the
Continue Reading Third Department Says “Yes” and Upholds Wedding Venue as Custom and Incidental Accessory Use

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 

Continue Reading Use Variance Denied By Second Department Regardless Of Alleged Prior Precedent: Village of Patchogue

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
Continue Reading Second Department Reverses Mandamus Requiring Building Inspector to Issue a Permit to Construct a Dock

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
Continue Reading Commercial Development around a Residential Parcel Supports Hardship Element for Use Variance