Absent a Zoning Provision to the Contrary, Underwater Land may be used to Satisfy Bulk Area Requirements.

Land Use

Case-law from the Second Department is clear that underwater land may be used to satisfy bulk area zoning requirements when a municipality’s Zoning Code is silent on the issue. Pagnozzi v. Planning Board of Village of Piermont, 292 A.D.2d 613 (2nd Dept 2002); Vezza v. Bauman, 192 A.D.2d 712 (2nd Dept 1993). Courts that have addressed this issue have stated that “it is well settled that zoning laws are by their very nature in derogation of common-law property rights and thus are subject to the long-standing rule requiring their strict construction.” Id.; see also FGL & L Prop. Corp. v. City of Rye, 66 N.Y.2d 11; 495 N.Y.S.2d 321; Moriarty v. Planning Board of Village of Sloatsburg, 119 A.D.2d 188, 506 N.Y.S.2d 184.

In Pagnozzi, the Second Department reversed the decision of Supreme Court, Orange County which denied relief to petitioners in an Article 78 proceeding seeking a determination that the denial of the Planning Board of the Village of Piermont (the “Board”) to grant petitioners two-lot subdivision was arbitrary and capricious. 292 A.D.2d 613. The Court ruled that the Board’s denial was arbitrary and capricious because the primary basis for the denial was that the lots were substandard but for taking into account the underwater land on the lots. Furthermore, the fact that the Board failed to provide any additional evidence to support its determination, such as an adverse impact on the character of the community rendered their decision arbitrary and capricious. Id.

Similarly in Vezza, the Second Department affirmed the Supreme Court of Westchester County’s decision finding the grant of a special permit to Petitioners by the Zoning Board of Appeals of the Town of Eastchester (the “ZBA”) to be valid even though a portion of the lot used to satisfy calculations of minimum lot size to be underwater.

The author acknowledges Nicholas J. Cappadora, J.D. for his contribution to this article.


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