HomeMy WebLinkAboutZoning & Land Use ZONING AND LAND USE
One of the most significant issues regarding a county referral concerns the courts' treatment of such a
referral as a jurisdictional prerequisite for approval of the subject application. Historically, the prevail-
i11g view has been that failure to satisfy the procedural requirements of§ 239-m would result in the sub-
sequent vote of the referring body being deemed a nullity. The holding in Stankavich v. Duanesburg
Planning Board,634 however, seemingly suggests otherwise. In Stankavich, the petitioners alleged that
a town failed to comply with the procedural requirements of § 239-m in approving construction of a
wireless telecommunications facility. By the time the initial proceeding was brought, the facility had
been constructed. The court ruled that while a failure to comply with § 239-m was indeed a jurisdic-
tional defect, a statute of limitations defense could he imposed to defeat such a claim.635 This holding
raises questions regarding the interplay of jurisdictional defects and statute of limitations defenses.
Indeed, many cases had previously found that a statute of limitations defense could not be used in
defense of a claim of jurisdictional defect.636 Given that the law appears somewhat unsettled on this
point,131 the practitioner is best advised to ensure that a municipality complies with General Munici-
pal Law § 239--m.638
XVII. LIMITATIONS ON ZONING POWER
A. Takings
One of the major limitations on the zoning power of a municipality is the constitutional provision
prohibiting the taking of real property without just compensation. Although the imposition of zoning
regulations is not a taking in the traditional sense of the word (i.e., one that involves a condemnation
proceeding), it nonetheless is cause for concern when the level of local regulation is so stringent as to
prevent a landowner from putting that property to any economically viable use.6-39
The N.Y. Court of Appeals has previously held that a landowner who purchases property already
encumbered by a regulation that substantially impacts the use of the property may not raise a success
ful takings claim since the landowner has constructive notice of such limitation.(4() Under this analy-
634 246 A.D.2d 891,667 N.YS.2d 997(3d Dep't 1998).
635 See id. ("[i]t does not necessarily follow.as petitioners contend,that the Statute of Limitations defense is negated in light of this
apparent jurisdictional defect.")
63b See,e.g.,Kuhn s. Town of Johnstown.248 A.D.2d 828,669 N.Y.S.2d 757(Id Dep't 1998)(where a town board did not follow its
notice procedures in enacting a new zoning law,the statute of limitations did not bar an article 78 proceeding to annul the board's
actions);Horne Depat USA,Inc. tc Bawn,226 A.D.2d 725,726,641 N.Y.S.2d 707(2d Dep't 1996)(.where the town board did not
obtain the requisite majority vote in adopting a zoning ordinance.the"Statute of Limitations would not preclude a challenge to the
Board's jurisdiction");S. Slume Audubon Soc'y v.Bel. gfZoningAppeols, 185 A.D.2d 984.587 N.Y.S.2d 29(2d Dep't 1992)"The
Statute of Limitations does not preclude a challenge to the Board's jurisdiction to act:'Id. at 985(citations omitted).
637 See, e.g.,Ernalee Con.str:Realty Corp, v Ciry of'Glen Cove,256 A.D.2d 336,681 N.YS.2d 296(2d Dep't 1999)(failure to comply
with General Municipal Law referral requirement,not a mere procedure irregularity,but rather ajurisdictional defect involving the
validity of the decision appealed from).
638 Gen. Mun. Law §239-m imposes very similar requirements on applicants seeking 5nbdiVlsion approval.while§ 239-n contains
the statutory framework for referral and imposes the majority-plus-one voting requirement for contrary actions, a practitioner
seeking a subdivision approval should review the statute for the sake of completeness.
639 See Manocherian a Lenav Hill Hosp.,84 N.Y,2d 385,618 N.YS.2d 957(1994).cert.denied,514 U.S. 1 109(1995);Seawall Assocs.
r, City of New York,74 N.Y.2d 92,544 N.Y.S.2d 542,cert. denied,493 U.S.976(1999).
640 Anello v.Zoning Bd.of Appeals,89 N.Y.2d 535,656 N.Y.S.2d 184,cent.dismissed,521 U.S. 1132(1997);see Gaza v.N.Y, State
Dept of Gnvd.Consen ation,89 N.Y.2d 603,657 N.Y.S.2d 555.cent.denied,522 U.S.813(1997).
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sis, a takings claim may arise only when regulations are enacted after` a landowner has purchased
property but before he or she sells it to a third party. This approach severely restricts the timing of
potentially successful takings claims based upon overreaching zoning regulations.
However,. the U.S. Supreme Court case of Pala ,olo r: Rhode Island,641 decided on June 28, 2001,
rejected the Court of Appeals' approach, holding that the purchaser of realty that is already subject to
a particular regulation is plot foreclosed from constitutionally challenging that regulation is an imper-
missible taking.642 The Supreme Court stated:
When title was transferred to petitioner by operation of law, the wetlands regulations
were in force. The state court held the postregulation acquisition of title was fatal to
the [petitioner's] claim . . . [stating] [a] purchaser or a successive title holder like peti-
tioner is deemed to have notice of an earlier enacted restriction and is barred from
claiming that it effects a taking.
Were we to accept the State's rule, the postenactment transfer of title would absolve
the State of its obligation to defend any action restricting land use, no matter how
extreme or unreasonable. A State would be allowed, in effect, to put an expiration date
on the Takings Clause. This ought not to be the rule. Future generations, too, have a
right to challenge unreasonable limitations on the use and value of land.64 3
As reflected above, the law of takings is constantly evolving and involves special consideration of
both state and federal decisional law.644
. Authority to Impose Conditions
The single most important power of both ZBAs and planning boards is the authority to attach con-
ditions to zoning approvals.These conditions assure that site-specific concerns are addressed in a way
that best protects the legitimate interests of local governments. Moreover, in the SEQRA context,
imposing conditions is how such boards can ensure that potential adverse environmental impacts are
mitigated to the greatest extent practicable.
The vast majority of conditions imposed by boards address obvious concerns and are noncontrover-
sial. Examples include requirements that certain landscaping be planted and maintained, that appro-
priate infrastructure be constructed to ensure the health and safety of surrounding property owners,
that buffer space or drainage control measures be implemented, that noise be limited and so on.
Applicants typically accept such conditions so long as they are not unduly burdensome.
641 533 U.S.606 (200I).
642 Id,
643 Id. at 626-27.
644 For example,in City of Monterey v.Del Monte Dunes,526 U.S.697(1999).the U.S.Supreme Court held that a series of repeated
rejections, each time followed by requests for scaled-dawn development imposing more rigorous demands on the developer.
amounted to a temporary regulatory taking for which substantial damages were recoverable.
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In some instances, however, boards may seek to impose conditions that are outside their authority,
as, for example, when a board feels constrained to approve a project under applicable review stan-
dards but otherwise opposes the project as a whole. When facing such burdensome conditions, the
practitioner should be mindful of the limitations discussed below.
1. Constitutional Requirements
As noted above, governmental units may not take property without providing just compensation to
the owner. A related concept is the "unconstitutional conditions" doctrine. Under this doctrine, gov-
ernments may not "require a person to give up a constitutional right"—such as "the right to receive
just compensation when property is taken for public use--in exchange for a discretionary benefit con-
ferred by the government where the benefit sought has little or no relationship to the property"645
This doctrine stems from the due process clauses contained in the Fifth and Fourteenth Amendments
to the United States Constitution.
The United States Supreme Court, in Nvllan a California Coastal Comni ssiott,6aa' crafted a two-
pron4ed test to determine whether a particular condition is unconstitutional. First, there must be an
"essential nexus" between the "legitimate state interest" sought to be promoted and the condition at
issue.647 Second, there must be a "rough proportionality" between the condition imposed and the
identifiable impacts of the development in question.1411 Thus, if the "essential nexus" and "rough pro-
portionality" are lacking, the condition will be deemed unconstitutional. Conversely, where a condi-
tion genuinely advances the planning concerns sought to be promoted, it will be upheld.
In Nollan, a property owner sought to demolish a dilapidated beachfront bungalow and replace it
with a three-bedroom house. However, a regulatory body refused to grant the property owner's build-
` ing permit application unless the property owner granted the public an easement to walk along the
property owner's beach, The condition was invalidated because there was no connection between the
regulatory body's development ban and the easement that the regulatory body compelled the property
owner to urant.64`)
The Nollcan Court held that, if the regulatory body had instead "attached to the permit some condi-
tion that would have protected the public's ability to see the beach notwithstanding construction of the
new house—for example, a height limitation, a width restriction, or a ban on fences," the condition
would have had the requisite "essential nexus" with the development limitation purpose and would be
upheld.('SQ
In Dolan v Cite af'Tigcard,651 the property owner proposed to redevelop an existing retail store to
nearly double its size. The city granted the property owner's application for a building permit but con-
645 Doian v. Ciry Uf 7£oai<l,512 U.S.374,387(t 994),
646 483 U.S.825(1987).
647 id.at 838.
648 Dolan,512 U.S.at 392.
649 Nolian,483 U.S.at 838.
650 fei.at 836.
651 512 U.S. 374(1994).
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ditioned the grant on the owner's dedicating a suitable amount of land for construction of a pedes-
trian/bicycle pathway. The Court held that this condition failed the "rough proportionality" prong and
was therefore an unconstitutional condition.652
The Dolan Court went on to elucidate the showing required to meet the "rough proportionality'
prong. For example, the city could have required this condition on a showing "that the additional
number of vehicle and bicycle trips generated by petitioner's development reasonably relate to the
city's requirement for a dedication of the pedestrian/bicycle pathway easement"653 Instead, the "city
simply found that the creation of the pathway `could offset some of the traffic demand . . . and lessen
the increase in traffic congestion."'654 Thus, if the city had found, based upon hard empirical evi-
dence, that the development would have increased traffic congestion, the condition would be permis-
sible. However, because the city merely speculated that the development could increase congestion,
without any specific data to support this conclusion, the Court concluded that the city imposed an
unconstitutional condition since the required. "rough proportionality"between the city s condition and
the proposed development of the property was lacking.055
PRACTICE GUIDE
The unconstitutional condition test is similar to the requirement of New York law
that a zoning determination be based upon"substantial evidence"
2. Variance Conditions
In approving variance applications, the ZBA is authorized to impose "such reasonable conditions
and restrictions as are directly related to and incidental to the proposed use of the property.11656 Vari-
ance conditions are subject to the additional requirements that they be "consistent with the spirit and
intent of the zoning ordinance or local law" and "imposed for the purpose of minimizing any adverse
impact such variance may have on the neighborhood or community."657
The origin of this legislation can be traced to the landmark decision of the New York Court of
Appeals in St. Onge a Donovan.658 St. Onge stands for the proposition that a ZBA "may, where
appropriate, impose `reasonable conditions and restrictions as are directly related to and incidental to
the proposed use of the property,' and aimed at minimizing the adverse impact to an area that might
result from the grant of a variance or special permit.116-99 Specifically, the Court stated:
652 Id.at 396.
653 Id.at 395.
654 Id.
655 Id.at 391:cf. Smith a Town of Mendon.4 A.D.3d 859,771 N.YS?d 781 (4th Dep't),(if
'tf,4 N.Y3d 1,789 N.Y.S?d 696(2004)
(holding that requiring landowner to place limits of alienability on property in the form of conservation easements as condition of
approval is not an exaction or a taking).
656 Town Law§ 267-b(4);Village Law§ 7-712-b(4):GCL§81-b(5).
657 Town Law § 267-b(4):accord Village Law §7-712-b(4):GCL§81-h(5);see 1833 Nostrand Ave. Corp. v. Clain.302 A.D.2d 460.
754 N.Y.S.2d 581 (2d Dep't 2003)(Board of Standards and Appeals for City of New York properly limited the hours of operation
of a store that had been granted a use variance);Rockland Veterans A9em'l Dr,LLC v,Zoning Bd.of Appeals,303 A.D.2d 591,756
N.Y.S.2d 483 (2d Dep't 2003)(proposed assisted living facility required to be used for ten years as condition of area variance).
658 71 N.Y.2d 507,527 N.Y5.2d 721 (1988).
659 Id.at 516(quoting Pearson.v Shoemaker,25 Misc.2d 591.592,202 N.Y.S.2d 779(Sup.Ct.,Rockland Co. 1960)).
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ZONING AND LAND USE
Such conditions might properly relate "to fences, safety devices, landscaping, screen-
ing and access roads relating to period of use. screening, outdoor lighting and noises,
and enclosure of buildings and relating to emission of odors, dust, smoke, refuse mat-
ter, vibration noise and other factors incidental to comfort,peace, enjoyment, health or
safety of the surrounding area"66()
The Court reasoned that conditions of this nature are appropriate because they seek to protect
neighboring properties from potential adverse effects of the land use in question. It concluded that
these types of conditions are "consistent with the purposes of zoning, which seeks to harmonize the
various land uses within a community,-661
On the other hand, the Court of Appeals made it clear that a ZBA has no power to impose condi-
tions that are unrelated to the legitimate purposes of zoning.662 The line here may not always be clear.
In St. Onge, the Court upheld a�limitation on the number of cars that could be stored outside an auto
body shop because an accumulation of vehicles could adversely affect the character of the surround-
ing neighborhood.663 In that same case, however, the Court struck down a condition requiring the
applicant to phase out auto repair operations at a second site, located in another area of the town_ In
striking the latter condition, the Court noted that a ZBA may not impose a condition that seeks to reg-
ulate the details of a business's operation, rather than the use of the land on which the enterprise is
located.
Likewise, the Court noted that a ZBA lacks the authority to condition a variance for one piece of
property upon the landowner's agreement to dedicate land that is not the subject of the variance appli-
cation to some desirable use.664 The Court of Appeals analogized the "phase out" condition imposed
on the landowner in St. Onge to these types of impermissible conditions and concluded that "[sluch
conditions are invalid because they do not seek to ameliorate the effects of the land use at issue, and
are thus unrelated to the legitimate purposes of zoning.'=665
The St. Onge Court also recognized that zoning deals with the use of land and not the person using
it. Therefore, a condition may not be imposed restricting the variance to a particular applicant.666
Based upon this principle, the Court invalidated a condition requiring termination of a variance for a
real estate office in a residential area upon transfer of the property.667 Because the condition focused
on the persons occupying the property rather than the use of the land, the Court held that the condition
bore no relation to the legitimate purposes of zoning and was therefore improper.
660 Id.
661 Id.
662 U
663 Id,at 518,
664 .St. Onge.71 N.Y.2d 507.
665 Id.at 517.
666 Id.at 515(citing Dexter A� Town Bd..36 N.Y.2d 102,365 N.Y.S.2d 506(1975);?.
667 Id.at 517.
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Moreover, it is clear that a variance runs with the land and, absent a specific time limitation, contin-
ues until properly revoked.ht's Appropriate time limitations might include provisions in a local zoning
law or ordinance requiring that the land use authorized by the variance be developed within a certain
time period (for example, where the variance is invalid if the applicant does not obtain a building per-
mit within one year of ZBA approval). However, even where a local zoning law contains an appropri-
ate time limitation, a ZBA may not deny a reapplication for the same variance upon the expiration of
the time limit unless the denial is "premised on a [material] change in the relevant conditions sur-
rounding the application."669 Absent a material change in circumstances, the ZBA is bound by its
prior decision.670
The 1993 enabling legislation removed the ZBA's authority to impose conditions or restrictions
pertaining to "the period of time such variance shall be in effect""' Consequently, conditions speci-
fying an outright limitation on the duration of a validly utilized variance likely are invalid on the
grounds that they violate the state enabling legislation.
Lastly, the Court of Appeals in St. Onge clearly reiterated that in order for a zoning decision to be
valid, it must be made in accordance with the comprehensive plan of the community, and not in
response to "the whims of either an articulate minority or even majority of the community."672
PRACTICE GUIDE
A zoning variance applicant faced with the pending lapse of a variance time limi-
tation is well advised to apply to the ZBA for renewal prior to the expiration of
the time limit. Courts have ruled that a ZBA has discretion to refuse to hear an
extension application made after the expiration of the time limit, without preju-
dice to the filing of a new variance application.673 A ZBA may process an exten-
sion application under provisions of local zoning laws authorizing waiver of
zoning circumstances, which the practitioner may be able to take advantage of as
a less expensive and burdensome process. In any event, even if a ZBA requires a
new variance application, the ZBA may not deny the application absent a mate-
rial change in the relevant facts and circumstances.
3. Special Use Permit and Site Plan Conditions
The language in the enabling legislation authorizing conditions on site plan review and special use
permit applications largely tracks the enabling legislation for variance conditions. Therefore, the con-
siderations identified in the discussion of St. (Inge above also apply to the conditions imposed on
applications for site plan review or special use permit approval.
668 Id.at 520,
669 Am. Red Cross v. Bel. gfZoning Appeals.161 A.D.2d 878.879.555 N.Y.S.2d 923(3d Dep't 1990).
670 Id.
671 1993 N.Y.Laws ch.208,§ 9(4)(eti.July 6, 1993).
672 St.Onge,71 N.Y.2d at 518(1988)(quoting Udell v.Haas,21 N.Y.2d 463,288 N.Y.S.2d 988(1968)).
673 Gina Petroleum v.Zoning Bd.ofAppeols, 127 A.D,2d 560,511 N.Y.S.2d 363(2d Dep't 1987).See also the practice commentaries
to the state enabling legislation.
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