Court Annuls Planning Board’s Denial Of Special Use Permit, Finding The Board’s Determination Was Not Based On Substantial Evidence, When The Board Disregarded Its Own Expert Study And Negative Declaration Under SEQRA

Land Use

In Kinderhook Development, LLC v. City of Gloversville Planning Board, case no. 511289 (3d Dept. October 27, 2011), the Appellate Division, Third Department, affirmed the Schenectady County Supreme Court’s granting of the Article 78 Petition of Kinderhook Development, LLC (“Petitioner”) to reverse and annul the decision of City of Gloversville Planning Board (the “Board”), which denied the Petitioner’s application for a special use permit for a proposed multifamily housing project.  The Court found that the Board could not base its denial on the issue of storm water runoff, when the Board’s own expert study found that storm water runoff would not create a negative impact on the surrounding area, and the Board issued a negative declaration under SEQRA on that issue.

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Posted by John Christopher

New York City Bar releases discussion paper entitled, “Further Utilizing the Zoning Resolution to Create a More Sustainable New York City, Better Prepared to Adapt to Climate Change”

Land Use

Last month the Land Use Planning and Zoning Committee of the New  York City Bar released a discussion paper entitled, “Further Utilizing the Zoning Resolution to Create a More Sustainable New York City, Better Prepared to Adapt to Climate Change.”  This discussion paper was “designed to advance the dialogue of how the Zoning Resolution can be amended to shape a more sustainable New York City, better prepared to adapt to climate change.” Read the rest of this entry »

Posted by Daniel Braff

Even Substantial Area Variances Are Warranted Under The Statutory Balancing Test When There Is No Detriment To The Surrounding Community

Land Use

More often than not, the Judiciary in New York has taken a “hands off” approach in proceedings commenced under CPLR Article 78 to challenge a zoning board’s determination.  In many cases, this has been the court’s position even when it appears that the zoning board’s determination is incorrect.  Recently, however, the Appellate Division, Second Department, overturned a zoning board’s denial of six area variances required for a property owner to maintain its two-family home, finding that the board’s determination was irrational based on the record before it.  See Matter of Cacsire v. City of White Plains Zoning Bd. of Appeals, 2011 NY Slip Op 06838 (2d Dept. 2011).  Could this be a step by the Judiciary towards providing greater protections to New York property owners?

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Posted by John Christopher