New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Joseph Anayati v Board of Zoning Appeals of Town of North Hempstead

In this Article 78 case, petitioners sought to review a determination of the Board of Zoning Appeals (hereinafter BZA) of the Town of North Hempstead dismissing their application for area variances. In 2003, petitioners began building a home in North Hempstead. They received a building permit and a certificate of occupancy. Three years later, petitioners were given an appearance ticket from the Town’s Building Inspector alleging that their home violated two Town Code provisions. Petitioners then applied to the BZA for a determination that their building permit and certificate of occupancy were valid or alternately for area variances necessary to maintain the house.

The BZA dismissed petitioners’ application claiming that they lacked jurisdiction. Petitioners then commenced this Article 78 appeal to review the BZA’s determination. The Supreme Court denied the petition which resulted in another appeal to which the Court reversed the decision. The Court agreed with petitioners’ contention that the BZA has jurisdiction to review the Building Inspector’s determination that the house violated Town Code and the BZA has the ability to grant area variances.

Accordingly, the Supreme Court reversed the judgment, granted the petition, and annulled the determination remitting the matter to the ZBA to consider petitioners’ application on the merits.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Shelter Island Association v Zoning Board of Appeals of Town of Shelter Island

This Article 78 appeal was brought about to challenge the decision of the Zoning Board of Appeals of the Town of Shelter Island granting respondent John Meister’s application for an accessory apartment variance. Supreme Court denied petitioners’ motion for leave to amend the petition to add additional petitions and granted respondents’ motion to dismiss the proceeding. Petitioners then commenced this appeal.

The originally named petitioners include three individuals and a homeowner association. The Court feels that they lack standing to commence an instant proceeding because they were unable to establish that any of the individual petitioners or members of the association would suffer any environmental injury different from what would affect the public at large. The petitioners made a cross-motion to amend the petition and add petitioners who met the criteria for standing but the Court found that even with the added petitioners their allegations of increased traffic and the effect on the water table from additional tenants would be insufficient to establish such standing.

Accordingly, the Court affirmed the judgment, with costs.

Read the full article here.

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Matter of Tappan Cleaners v Zoning Board of Appeals of Village of Irvington

An Article 78 appeal was commenced to review a determination of the Zoning Board of Appeals of Irvington (ZBA) upholding the issuance of a building permit and granting application of 53 Main Realty, LLC a variance to use combustible solvents in its laundry business. The Supreme Court granted the petition and annulled the determination of the ZBA leading to this Article 78 appeal.

When reviewing the initial ruling of the Supreme Court, the Court found that they erroneously determined that the petitioner had standing to challenge the determination of the ZBA because the petition failed to allege any clear noneconomic concerns. Instead, petitioner’s challenge was hinged on a fear of increased business competition. This type of interest is not protected by relevant zoning regulations. Though Petitioner claimed the building permit and variance would cause potential safety issues and reduce neighboring property value, these claims were conclusory and speculative and not sufficient to establish standing.

Accordingly, the Court reversed the judgment, with one bill of costs, confirmed the determination, denied the petition, and dismissed the proceeding.

Matter of Tappan Cleaners v Zoning Bd. of Appeals of Vil. of Irvington (2008 NY Slip Op 09806)

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Matter of Kennedy v Zoning Board of Appeals of Village of Patchogue

Petitioner brought about this Article 78 to review the judgment of the Supreme Court denying petition to review a determination of the Zoning Board of Appeals of the Village of Patchogue (ZBA).

Respondent, Chris Peppard, was granted a frontage variance by the ZBA to construct a single-family dwelling. The variance required him to have “substantially commenced” the construction within one year after the variance was granted. Petitioner, Peppard’s neighbor, requested the ZBA to stay further issuance of permit renewal because the previously granted variance expired. The ZBA determined that Peppard had in fact complied with the zoning code provision because he obtained a building permit within one year after the variance was granted.

Petitioner then commenced an Article 78 proceeding to review the ZBA’s decision which the Supreme Court denied. Petitioner then appealed the Court’s ruling in this proceeding. The Court recognizes that a zoning ordinance allows for interpretation of its requirements by a board of appeals and that unless unreasonable or irrational, the ZBA has authority to interpret requirements as they see fit.

Accordingly, the Court affirmed the judgment, with costs.

Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Patchogue (2008 NY Slip Op 09601)

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A group of Wilmington residents are threatening a lawsuit if the proposed town house development is approved. The real estate company, First Columbia, applied to the zoning board of appeals for a density variance to build their proposed 10 acre, 36-unit development. The land-use code only allows a maximum of 20 units on 10 acres.

The owners of the adjacent property are strongly opposed to this project and have organized public hearings and sent letters to the town board. If the variance is granted, they plan on filing an Article 78 appeal. First Columbia has submitted revised plans reducing the number of units from 36 to 33. The unhappy residents are willing to accept the legally allowed 20 units but will file an appeal if the project is approved for a higher number.

Read article here.

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Matter of Bassano v Town of Carmel Zoning Board of Appeals

An Article 78 appeal was brought about by petitioner to review a determination by the Town of Carmel Zoning Board of Appeals denying petitioner’s application for an area variance. The Supreme Court granted the petition, annulling the determination and directing the variance and all necessary permits be granted for petitioner to construct a single-family dwelling on the premises. The Town then appealed the decision of the Supreme Court.

The original decision not to grant the variance sought by petitioner had no rational basis. The variance would not negatively alter the character of the neighborhood and the benefit sought was unachievable by any other means. Since there was no foreseeable adverse effect on the neighborhood, the Board’s decision to deny petitioner’s application was arbitrary and capricious and without a rational basis.

Accordingly, the Court granted the petition, annulled the determination by the Board of Appeals, and directed that the variance and all necessary permits to construct a single-family dwelling on the premises be granted.

Matter of Bassano v Town of Carmel Zoning Bd. of Appeals (2008 NY Slip Op 09074)

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Matter of Friends of Stanford Home v Town of Niskayuna

Article 78 appeal from a judgment which granted petitioner’s application to annul a determination of respondent Town Board of the Town of Niskayuna issuing a special use permit to respondent Highbridge Development BR, LLC.

Petitioners filed this Article 78 proceeding to annul the negative declaration and the special use permit for Standford Crossings, and to gain injunctive relief prohibiting approval or further development of the State Street site. Supreme Court granted the petition which led to Highbridge and respondent LJC Properties, LLC’s appeal.

Petitioners’ argument is that contingencies in the contract of sale for the State Street property establish a nexus between the two projects. Respondents contend that the State Street and Consaul Road projects are unrelated actions with independent utility and that the Town Board did not impermissibly segment review of the two projects.

The Court sides with respondents and feels that the contractual contingencies, standing alone, do not create a geographic or environmental interrelationship between the two projects and that the contractual link between the otherwise independent actions is not sufficient to establish that they are part of an overall plan of development requiring cumulative review.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and petition dismissed.

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