In a Decision and Order dated June 17, 2008, the Second Department confirmed that an area variance can not be limited to the term of the applicant's ownership of the premises. (Fowlkes v. Board of Zoning Appeals of Town of North Hemptstead, 2008 N.Y.Slip Op. 05696).
The applicant owns property improved by a house. Although the certificate of occupancy authorizes use of the premises as a single-family home, the premises has been used as a two-family house since 1967.
The applicant sought a building permit authorizing continued use of the existing structure as a two-family house. The building permit was denied because the structure did not meet the minimum requirements for a two-family house under the Town Code. The applicant's subsequent application for an area variance from these minimum requirements was denied by the ZBA.
Although the Second Department criticized the ZBA's finding that the variance would adversely impact the character of the neighborhood as "conclusory", the Second Department ultimately concluded that the ZBA had appropriately considered the other statutory factors laid out in Town Law section 267-b in determining that the detriment the variance would cause the neighborhood outweighed the benefit that it would provide to the applicant.
The Second Department also rejected the applicant's contention that the statutory factors should have been balanced in her favor because she was only seeking a variance for the term of her ownership of the premises. In rejecting this argument, the Second Department confirmed that "the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it."
Wednesday, June 25, 2008
New Rochelle adopts affordable senior housing zoning change
On June 17, the City Council passed zoning changes authorizing a 5-story, 40-unit affordable senior housing development on Kress Avenue in the City of New Rochelle.
This project has been proposed by the Shiloh Community Development Corporation in partnership with Westhab, Inc., and is funded through the United States Department of Housing and Urban Development. Shiloh Community Development Corporation is affiliated with Shiloh Baptist Church.
The zoning change was passed by a 5-2 vote. The Glenwood Lake Neighborhood Association and residents of the area opposed the zoning change, citing concerns regarding the project's impact on traffic, infrastructure, and the character of the existing community, and criticizing the proposal as being inconsistent with the City's recent efforts to preserve open space and the residential character of the area. However, the City's Department of Development and the City's Planning Board both supported the proposed zoning change based on the City's need for affordable senior housing.
A second proposed zoning change that would authorize construction of a 10-story, 93-unit workforce housing condominum development at Lincoln Avenue and Brook Street was tabled at the June 17 meeting to allow representatives of the City and the residents of the area to further discuss that proposal. This workforce housing development has been proposed by Bethesda Baptist Church to create housing for middle-income workers.
(The information contained in this post was obtained from newspaper articles written by Gerald McKinstry that appeared in The Journal News on June 14 and June 19).
This project has been proposed by the Shiloh Community Development Corporation in partnership with Westhab, Inc., and is funded through the United States Department of Housing and Urban Development. Shiloh Community Development Corporation is affiliated with Shiloh Baptist Church.
The zoning change was passed by a 5-2 vote. The Glenwood Lake Neighborhood Association and residents of the area opposed the zoning change, citing concerns regarding the project's impact on traffic, infrastructure, and the character of the existing community, and criticizing the proposal as being inconsistent with the City's recent efforts to preserve open space and the residential character of the area. However, the City's Department of Development and the City's Planning Board both supported the proposed zoning change based on the City's need for affordable senior housing.
A second proposed zoning change that would authorize construction of a 10-story, 93-unit workforce housing condominum development at Lincoln Avenue and Brook Street was tabled at the June 17 meeting to allow representatives of the City and the residents of the area to further discuss that proposal. This workforce housing development has been proposed by Bethesda Baptist Church to create housing for middle-income workers.
(The information contained in this post was obtained from newspaper articles written by Gerald McKinstry that appeared in The Journal News on June 14 and June 19).
Sunday, June 15, 2008
Challenge to Certificate of Occupancy Barred by Laches
Although timely under the applicable statute of limitations, the Third Department has concluded that a neighbor's challenge to the issuance of a certificate of occupancy for a new house constructed on abutting property is barred by the doctrine of laches. (Clarke v. Town of Sand Lake Zoning Board of Appeals, 2008 N.Y. Slip. Op. 05420, June 12, 2008).
The Town of Sandlake zoning law requires new construction to be set back at least 100 feet from the shoreline of the lake. This zoning law also gives the Planning Board the authority to waive these restrictions under appropriate circumstances for properties located in the scenic preservation area.
On June 8, 2006, a property owner obtained permission from the Planning Board to construct a modular house 28 feet from the shoreline on one side, and 35 feet from the shoreline on the other side. This permission was obtained in return for the property owner's removal of 5 existing, dilapidated trailers from the property, some of which were as close as five feet to the shoreline and/or had inadequate septic systems.
On June 9, 2006, the Town building inspector issued a building permit authorizing the construction of the house in the location approved by the Planning Board. Excavation began on July 14, 2006, and a certificate of occupancy was issued for the house on October 20, 2006.
In late October, shortly after the c.o. was issued, an abutting property owner appealed the issuance of the building permit and the c.o. to the ZBA. The ZBA concluded that the challenge to the building permit was not timely because it had not been filed within the 60-day statute of limitations established by Town Law 267-a(5)(b). Although the ZBA determined that the challenge to the c.o. was timely under this 60-day statute of limitations, the ZBA concluded that the c.o. was properly issued because the house was constructed in compliance with the Town zoning law and the relevant permits.
The Third Department agreed that the abutting neighbor's challenge to the building permit was barred by the 60-day statute of limitations. Although there was no evidence that the neighbor had notice that the building permit was issued on June 9, the Third Department concluded that the neighbor was aware that construction was taking place on the property no later that the commencement of excavation on July 14. Accordingly, the Third Department concluded that the neighbor's appeal to the ZBA more than 60 days after the commencement of excavation was untimely under the relevant statute of limitations.
While the neighbor's challenge to the c.o. was timely under the relevant 60-day statute of limitations, the Third Department concluded that this challenge was nonetheless barred by the doctrine of laches. Specifically, the Third Department noted that the neighbor had been advised of the property owner's plans in May, that the neighbor had observed the commencement of excavation in July, and that the neighbor had observed the construction of the new house through October.
Accordingly, concluding that the neighbor had delayed in acting to protect her interests, and that she had failed to offer any explanation for her failure to act sooner, the Third Department held that the neighbor's challenge to the c.o. in late October - while timely under the relevant statute of limitations - was barred by the doctrine of laches.
The Town of Sandlake zoning law requires new construction to be set back at least 100 feet from the shoreline of the lake. This zoning law also gives the Planning Board the authority to waive these restrictions under appropriate circumstances for properties located in the scenic preservation area.
On June 8, 2006, a property owner obtained permission from the Planning Board to construct a modular house 28 feet from the shoreline on one side, and 35 feet from the shoreline on the other side. This permission was obtained in return for the property owner's removal of 5 existing, dilapidated trailers from the property, some of which were as close as five feet to the shoreline and/or had inadequate septic systems.
On June 9, 2006, the Town building inspector issued a building permit authorizing the construction of the house in the location approved by the Planning Board. Excavation began on July 14, 2006, and a certificate of occupancy was issued for the house on October 20, 2006.
In late October, shortly after the c.o. was issued, an abutting property owner appealed the issuance of the building permit and the c.o. to the ZBA. The ZBA concluded that the challenge to the building permit was not timely because it had not been filed within the 60-day statute of limitations established by Town Law 267-a(5)(b). Although the ZBA determined that the challenge to the c.o. was timely under this 60-day statute of limitations, the ZBA concluded that the c.o. was properly issued because the house was constructed in compliance with the Town zoning law and the relevant permits.
The Third Department agreed that the abutting neighbor's challenge to the building permit was barred by the 60-day statute of limitations. Although there was no evidence that the neighbor had notice that the building permit was issued on June 9, the Third Department concluded that the neighbor was aware that construction was taking place on the property no later that the commencement of excavation on July 14. Accordingly, the Third Department concluded that the neighbor's appeal to the ZBA more than 60 days after the commencement of excavation was untimely under the relevant statute of limitations.
While the neighbor's challenge to the c.o. was timely under the relevant 60-day statute of limitations, the Third Department concluded that this challenge was nonetheless barred by the doctrine of laches. Specifically, the Third Department noted that the neighbor had been advised of the property owner's plans in May, that the neighbor had observed the commencement of excavation in July, and that the neighbor had observed the construction of the new house through October.
Accordingly, concluding that the neighbor had delayed in acting to protect her interests, and that she had failed to offer any explanation for her failure to act sooner, the Third Department held that the neighbor's challenge to the c.o. in late October - while timely under the relevant statute of limitations - was barred by the doctrine of laches.
Village of Fishkill Comprehensive Plan Update - Public Workshop on Wednesday June 18
The Village of Fishkill Comprehensive Plan Review Committee will be conducting a public workshop on Wednesday June 18 at 7 pm at the Fishkill Elementary School.
The Village is in the process of reviewing its comprehensive plan for the first time since its adoption in 1974. The purpose of the meeting will to present the Committee's phase one findings to the public, and to receive comments and suggestions from the public on those preliminary findings.
The Village is in the process of reviewing its comprehensive plan for the first time since its adoption in 1974. The purpose of the meeting will to present the Committee's phase one findings to the public, and to receive comments and suggestions from the public on those preliminary findings.
Tuesday, June 10, 2008
Town of Wappinger Adopts Residential Development Moratorium
On June 9, 2008, the Town Board for the Town of Wappinger adopted a moratorium on residential development. The Town Board has adopted this moratorium while it updates the Town's comprehensive plan, which was last updated 20 years ago.
The moratorium only applies to "residential development", which includes subdivisions, site plans, special use permits, and use variances for residential uses. The moratorium will not apply to commercial development, residential subdivisions of less than 5 lots, and residential subdivisions of more than 5 lots that have already received preliminary subdivision approval.
The initial term of this moratorium is 6 months, but that term is eligible to be extended by the Town Board. If past experiences in other municipalities are any guide, developers in the Town can expect one or more extensions of this initial 6-month term.
The moratorium only applies to "residential development", which includes subdivisions, site plans, special use permits, and use variances for residential uses. The moratorium will not apply to commercial development, residential subdivisions of less than 5 lots, and residential subdivisions of more than 5 lots that have already received preliminary subdivision approval.
The initial term of this moratorium is 6 months, but that term is eligible to be extended by the Town Board. If past experiences in other municipalities are any guide, developers in the Town can expect one or more extensions of this initial 6-month term.
Monday, June 9, 2008
Village Law Regulating Use of Liquid Manure is an "Unreasonable Restriction" on Farm Operations
Under New York's Right-to-Farm laws, towns and villages are prohibited from adopting local laws that unreasonably restrict farm operations located in a County-certified agricultural district.
In a decision dated May 22, 2008, the Third Department upheld a Department of Agriculture determination that a village law regulating field applications of fertilizers and manure over the Village's water supply aquifer was "unreasonably restrictive" as applied to farm operations located in an agricultural district. (Village of Lacona v. New York State Department of Agriculture, 2008 N.Y. Slip. Op. 04597).
In 2000, the Village of Lacona (located in Oswego County) adopted a local law prohibiting the use of liquefied manure anywhere in the village, including on farms. After the Department of Agriculture issued a determination that this outright ban was unreasonably restrictive as applied to farm operations, the Village repealed the law and began drafting a new version.
The Village adopted a new local law in 2002. Although the Village had received input from the Department of Agriculture, the DEC, and the Department of Health expressing concerns about aspects of this local law during the drafting process, the law ultimately adopted by the Village did not contain any significant revisions responsive to those concerns.
The new law regulated field application of fertilizers and manure over the Village's water supply aquifer. It also required farmers to submit a plan to the Village for approval addressing farm operations such as housing and feeding of animals, storage of crops and feed, storage and handling of fertilizer and manure, and storage and handling of pesticides. The new law also required farmers to pay a $250 application fee to defray the Village's review costs.
The Department of Agriculture reviewed the new local law, and issued an Order directing the Village to abstain from applying the new law to farm operations in agricultural districts based upon the Department's determination that it was unreasonably restrictive. The Village commenced an Article 78 and declaratory judgment proceeding challenging this decision.
The Third Department noted that the Village's expert had conceded that "the practice of manure application has been safely employed in the past without significant environmental detriment." Although the Village's expert expressed concern that manure usage in watershed areas could endanger public drinking water supplies, the Third Department credited the New York State Department of Health's assessment that the continued application of liquid manure on farms within the Village would not pose any public health risk, and that the existing regulations already in place provided adequate protection.
Accordingly, deferring to the Department of Agriculture's interpretation and application of Agriculture and Markets Law section 305-a, the Third Department upheld the Department's Order barring the Village from applying this law to farm operations in agricultural districts.
The Third Department also concluded that the pesticide regulations contained in the local law were preempted by Article 33 of the Environmental Conservation Law.
In a decision dated May 22, 2008, the Third Department upheld a Department of Agriculture determination that a village law regulating field applications of fertilizers and manure over the Village's water supply aquifer was "unreasonably restrictive" as applied to farm operations located in an agricultural district. (Village of Lacona v. New York State Department of Agriculture, 2008 N.Y. Slip. Op. 04597).
In 2000, the Village of Lacona (located in Oswego County) adopted a local law prohibiting the use of liquefied manure anywhere in the village, including on farms. After the Department of Agriculture issued a determination that this outright ban was unreasonably restrictive as applied to farm operations, the Village repealed the law and began drafting a new version.
The Village adopted a new local law in 2002. Although the Village had received input from the Department of Agriculture, the DEC, and the Department of Health expressing concerns about aspects of this local law during the drafting process, the law ultimately adopted by the Village did not contain any significant revisions responsive to those concerns.
The new law regulated field application of fertilizers and manure over the Village's water supply aquifer. It also required farmers to submit a plan to the Village for approval addressing farm operations such as housing and feeding of animals, storage of crops and feed, storage and handling of fertilizer and manure, and storage and handling of pesticides. The new law also required farmers to pay a $250 application fee to defray the Village's review costs.
The Department of Agriculture reviewed the new local law, and issued an Order directing the Village to abstain from applying the new law to farm operations in agricultural districts based upon the Department's determination that it was unreasonably restrictive. The Village commenced an Article 78 and declaratory judgment proceeding challenging this decision.
The Third Department noted that the Village's expert had conceded that "the practice of manure application has been safely employed in the past without significant environmental detriment." Although the Village's expert expressed concern that manure usage in watershed areas could endanger public drinking water supplies, the Third Department credited the New York State Department of Health's assessment that the continued application of liquid manure on farms within the Village would not pose any public health risk, and that the existing regulations already in place provided adequate protection.
Accordingly, deferring to the Department of Agriculture's interpretation and application of Agriculture and Markets Law section 305-a, the Third Department upheld the Department's Order barring the Village from applying this law to farm operations in agricultural districts.
The Third Department also concluded that the pesticide regulations contained in the local law were preempted by Article 33 of the Environmental Conservation Law.
Phase 2 of Affordable Senior Housing Project on Brownfields Site Completed
Phase 2 of the Red Hook Commons affordable senior housing project has been completed in the Town of Red Hook.
This project is being developed on the site of a former pie and frozen food manufacturing plant located in the Town of Red Hook. The project is being built on property known as the Perx site, which was seized by Dutchess County in 1996 for unpaid taxes, and which suffered from contamination that was ultimately cleaned up with the financial assistance of the DEC provided through the federal Clean Water Bond Act.
The housing complex on this former brownfields site now provides 96 affordable one-bedroom housing units for seniors who meet the project's income qualifications. A third phase with commercial space and market-place apartments is also planned.
(The information from this post was obtained from a June 4, 2008 Poughkeepsie Journal article written by Rasheed Oluwa)
This project is being developed on the site of a former pie and frozen food manufacturing plant located in the Town of Red Hook. The project is being built on property known as the Perx site, which was seized by Dutchess County in 1996 for unpaid taxes, and which suffered from contamination that was ultimately cleaned up with the financial assistance of the DEC provided through the federal Clean Water Bond Act.
The housing complex on this former brownfields site now provides 96 affordable one-bedroom housing units for seniors who meet the project's income qualifications. A third phase with commercial space and market-place apartments is also planned.
(The information from this post was obtained from a June 4, 2008 Poughkeepsie Journal article written by Rasheed Oluwa)
Sunday, June 8, 2008
Second Department denies spot zoning challenge
In a case decided on June 3, 2008, the Second Department rejected a spot-zoning challenge to two local laws adopted by the Town of Babylon Town Board adding "hot-mix asphalt facilities" to the list of specially permitted uses in the Town's industrial districts. (Little Joseph Realty, Inc. v. Town Board of the Town of Babylon, 2008 N.Y. Slip Op. 05051)
In reaching this conclusion, the Second Department observed that "spot zoning is the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners... a municipality that engages in spot zoning fails to satisfy the statutory requirement, since it is not acting in accordance with a comprehensive plan."
The Second Department concluded that the challenged zoning amendments "did not allow for a use that was different from that allowed in the surrounding area and was in conformity with the comprehensive plan calculated to serve the general welfare of the community." Rather, the Second Department stated that the "Town Board engaged in an extensive review of the zoning amendments prior to their enactment, giving sufficient forethought to the community's land use problems" and that the "Town Board did not enact the zoning amendments for the benefit of a single owner for a specific purpose only."
Accordingly, the Second Department ruled that the trial court had properly entered a judgment rejecting the spot-zoning challenge and declaring that the zoning laws were valid.
In reaching this conclusion, the Second Department observed that "spot zoning is the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners... a municipality that engages in spot zoning fails to satisfy the statutory requirement, since it is not acting in accordance with a comprehensive plan."
The Second Department concluded that the challenged zoning amendments "did not allow for a use that was different from that allowed in the surrounding area and was in conformity with the comprehensive plan calculated to serve the general welfare of the community." Rather, the Second Department stated that the "Town Board engaged in an extensive review of the zoning amendments prior to their enactment, giving sufficient forethought to the community's land use problems" and that the "Town Board did not enact the zoning amendments for the benefit of a single owner for a specific purpose only."
Accordingly, the Second Department ruled that the trial court had properly entered a judgment rejecting the spot-zoning challenge and declaring that the zoning laws were valid.
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We welcome your suggestions regarding topics and projects to be included in this blog, as well as suggestions regarding improvements that can be made to the organization and format of this blog.
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