The Role of “Substantial Evidence” in the Court’s Review of Zoning Board Determinations

Land Use

In Matter of Campbell v. Town of Mount Pleasant Zoning Bd. of Appeals, 2011 NY Slip Op 04459 (2d Dept. May 24, 2011), the Petitioner commenced a C.P.L.R. Article 78 Proceeding to challenge the determination of the Town of Mount Pleasant Zoning Board of Appeals (“ZBA”), which denied the Petitioner’s application for area variances.  The Westchester County Supreme Court denied the ZBA’s motion to dismiss the petition pursuant to CPLR 3211(a)(4) and 7804(f), and granted the petition, thereby, annulling the determination, and remitting the matter to the Town of Mount Pleasant Zoning Board of Appeals to grant the variances.  The ZBA appealed the decision, but the Appellate Division affirmed the lower Court, finding that “the Supreme Court correctly determined that the ZBA’s determination did not have a rational basis in the record, and that the determination was, therefore, arbitrary and capricious.” Id. at 2.

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Posted by John Christopher

Court finds a Detached Eight Car Garage is not an Accessory Structure under the Town of Yorktown Code

Land Use

Just because a structure like a garage is typically considered an “accessory” building in common word usage, that does not make it an “accessory structure” for zoning purposes.

Petitioner, a neighboring property owner, commenced an Article 78 Proceeding against the Zoning Board of Appeals of the Town of Yorktown (the “ZBA”), to challenge the ZBA’s determination that an applicant’s proposed detached garage, designed to accommodate eight or nine automobiles, that was nearly double the side of the applicant’s residence would be an accessory structure under the Town Code and would not require any area variances.  The Court found that the garage was not an accessory structure as defined under the code, as it was not “customarily incidental” to homes in the area.  Further, the Court found that area variances were required under the code due to the height of the garage.  Matter of Witkowich v Zoning Bd. of Appeals of Town of Yorktown, 2011 NY Slip Op 04261 (2d Dept. 2011). Read the rest of this entry »

Posted by John Christopher

The Role of the Land Use Attorney as Project Manager

Land Use

Over the years, as land use development projects have become more complex, the role of the land use attorney has evolved from strictly providing legal counsel and advice, to serving as the project manager.  This is true whether the attorney is representing a private development client or serving as the attorney for a municipality. Read the rest of this entry »

Posted by Michael Sahn

Planning Board’s Imposition of a Recreation Fee Found Invalid

Land Use

In Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd., 2011 NY Slip Op 03860 (2d Dept. May 3, 2011), the Court was asked to determine whether it was proper for the Planning Board to impose a recreation fee as a condition to granting site plan approval to an applicant’s proposed senior citizen housing development.  The Court found that the Planning Board failed to make any “individualized considerations” prior to imposing the fee and did not make specific findings as to the recreational needs created by the proposed development.  Based on the foregoing, the Court reversed and annulled the Planning Board’s determination, and remanded the matter back to the Planning Board for further proceedings.

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Posted by John Christopher