Gibbons Law Alert

Gibbons Law Alert

Tagged: Board of Zoning Appeals

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

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Posted in Development/Redevelopment

On March 23, 2020

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the Board, acting on its own, voted to grant the variances with a reduction from 17...

New York Appeals Court Decision Highlights the Risks of Not Filing Decisions and Not Holding Duly Noticed Public Hearings

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Posted in Development/Redevelopment

On April 4, 2019

A recent decision by New York’s Appellate Division, Second Department, serves as a reminder of the importance of promptly filing administrative determinations, holding required duly noticed public hearings, and the consequences of failing to do so. In Corrales v. Zoning Board of Appeals of the Village of Dobbs Ferry, Livingston Development Group in November 2012 submitted an application for the development of twelve condominiums. The Building Department forwarded the application to the Planning Board, which conducted a public hearing after which it recommended approval subject to certain conditions. The Village Board of Trustees, which retained site plan approval authority, granted site plan approval conditioned on, among other things, the applicant obtaining approval from the Architectural and Historic Review Board (the “AHRB”). Thereafter, the applicant applied to the AHRB, which denied its application. The applicant appealed the denial to the Zoning Board of Appeals (“ZBA”). While that appeal was pending, neighbors – one of whom did not receive notice of the Planning Board’s earlier public hearing – asserted that the proposed condominium use was not permitted in the zoning district. The neighbors’ attorney also raised this issue at a subsequent meeting of the AHRB, during which the assistant building inspector gave the opinion that the proposed use complied with applicable zoning regulations. The neighbors, viewing the...

Nonconforming Use Determination Places Connecticut Liquor Permit at Risk

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Posted in Development/Redevelopment

On June 4, 2012

In a recent decision of the Superior Court of Connecticut, Fairfield Judicial District, captioned Urban Girls, Inc. v. Zoning Board of Appeals of Bridgeport, the Court was confronted with an interesting set of issues involving the intersection of the alleged lapse of a nonconforming use and the resulting loss of the right to utilize a liquor permit. The Court found that the Zoning Board of Appeals applied the incorrect standard by following the Bridgeport zoning regulations, which had not been amended to reflect amendments to the State’s zoning laws. Thus, the matter was remanded to the Zoning Board of Appeals to make a determination on whether there was an intent to abandon the nonconforming use, which would be determinative on the status of the liquor permit.

Ye Shall Have No Wine Before It’s Time – New York Federal District Court Dismisses Winery’s Claims on Ripeness Grounds for Failure to Obtain a Variance Decision or Provide Sufficient Proof That Efforts to Obtain a Variance Would Be Futile

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Posted in Development/Redevelopment

On August 18, 2010

Despite potential substantive merit to Plaintiffs’ federal and state constitutional claims, the Federal District Court of the Northern District of New York in Rivendell Winery LLC v. Town of New Paltz dismissed Plaintiffs’ complaint for lack of subject matter jurisdiction on ripeness grounds as a result of the Plaintiffs’ failure to either obtain a final variance decision or to satisfy the relatively high burden for showing that an application for a variance from the Zoning Board of Appeals would have been futile. The crux of the decision lies in the Court’s reiteration of an important principle that although the success of a land use application may seem doubtful, doubt alone is insufficient to establish that the decision maker has dug in its heels and made certain that the application will be denied.

New York Land Use Litigants Beware Injunctive Relief Must Be Sought to Preserve the Status Quo While an Appeal is Pending

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Posted in Development/Redevelopment

On July 30, 2010

In Matter of John G. Molloy, et al, the New York Appellate Division, Second Department reminds us that it is critical to preserve the status quo during the pendency of an appeal by moving for a preliminary injunction. Failure to do so resulted in the dismissal of an Article 78 proceeding challenging the grant of a use variance by the Town of Carmel Zoning Board of Appeals to the Putnam Arts Council, a not-for-profit organization, permitting it to operate in a residential zone. Appellants’ failure to preserve their rights during appellate review allowed construction of the new arts center to be completed and a certificate of occupancy to be issued thereby resulting in dismissal of the appeal as academic when it was eventually heard by the Appellate Division.

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