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October/1/2012

Land Use Case Law Update – Spring 2012

Robert H. Feller, Esq.
Bond, Schoeneck & King, PLLC
rfeller@bsk.com

(From the October 2012 Newsletter) 

This column summarizes holdings in recent land use cases and provides commentary on the impact of these cases.   The three cases reviewed in this issue consider (1) the limits of judicial deference to decisions of local land use boards; (2) the rules for standing of a municipality regarding a land use decision in a neighboring community; and (3) the applicability of local land use requirements to structures located over bodies of water.

Deference Only Goes So Far

The general rule of administrative law requires courts to defer to decisions made by local zoning boards unless found to be irrational.   However, practitioners should be aware that this rule may not apply to interpretations the board makes of the zoning law itself.

In Atkinson v. ZBA Town of Arietta (94 A.D.3d 1218), the issue was whether a use was properly classified as a “tourist accommodation” or as a “single-family residence” under the definitions in the zoning code.  The property was a second home but was also sometimes rented out.  

The Court found that the interpretation of the code definitions was purely a matter of law requiring no deference to the ruling of the Zoning Board of Appeals.   It held that advertising the property for rent did not compel using the “tourist accommodation” designation.  Moreover, any ambiguity in the definitions had to be decided in favor of the property owner as zoning laws are in derogation of the common law and so must be strictly construed.   Since there was nothing in the definition of “single-family residence” that precluded occasional rentals, the Court sided with the owner.

In light of this decision and others with similar holdings, municipalities would be well advised to review their codes periodically to clarify ambiguities and inconsistencies.  Such problems may arise from the accumulation of code amendments over time or simply from the popularization of new uses of property.

Municipalities Can Challenge SEQRA Compliance For Neighbor’s Land Use Decision

In Village of Pomona v. Town of Ramapo (94 A.D.3d 1103), the Appellate Division reiterated the standing rules applicable to one municipality challenging land use decisions made in an adjacent municipality.   In doing so, it suggested that these rules should be applied generously.

The dispute focused on an area in the Town immediately adjacent to the Village.  A town rezone of that area would permit higher density development.  When the Village brought a judicial challenge alleging non-compliance with the State Environmental Quality Review Act (“SEQRA”), the Town contested the Village’s standing.

The Court held that the standing of an adjacent municipality to challenge compliance with SEQRA is demonstrated in the same manner as would be done by a private litigant, i.e. by showing an environmental injury protected by SEQRA that differs from any injury suffered by the public at large.  Although a municipality is not injured in the same way a natural person is by air and water pollution, it can adequately demonstrate an injury based on a threat to the character of a community within its borders.  Such an injury is different from any suffered by the public at large because a municipality has the unique prerogative to define community character acting in its governmental capacity (e.g. by adopting a comprehensive plan).   

The Court instructed that the standing inquiry was not a mechanical one and cited the preference for resolving disputes on their merits.  Based on the Village’s showing of a threat to community character of the adjacent areas in the Village, the Court found standing to sue.  

This result is not assured in all inter-municipal disputes.   While a municipality can determine the community character it seeks to promote, there needs to be some objective evidence to support it.  If a local government wants a voice in land use decisions in adjacent municipalities, it is advisable to adopt a plan or local law that can be cited as evidence of the characteristics it seeks to maintain or promote for a community in the border area.

Exercising Local Land Use Controls For Structures Over Bodies of Water

Many municipalities have water bodies within their boundaries.   To what extent can the traditional land use powers be exercised with respect to the construction of structures over these water bodies?   This question was addressed by the Appellate Division in Town of North Elba v. Grimditch (2012 Slip Op 05215).

The case concerned the construction of two boathouses on Lake Placid.   The local zoning code required boathouses to be ancillary to a primary structure and also contained a setback requirement from neighboring property.   The structures in controversy did not meet either requirement.

The landowner maintained that the Town’s authority was preempted by Section 30 of the Navigation Law.  The Navigation Law applies to bodies of water that are not privately owned which are navigable in fact (Nav Law §2(4)).   While the Court agreed that Lake Placid was subject to the Navigation Law, it held that the Navigation Law does affect a general preemption of local land use authority.  It concluded that section 30 of that law is only intended to give the State authority to ensure that the navigability of the waters is not obstructed.  In this case, navigability was not an issue.

The Court also held that preemption of local land use jurisdiction does arise where the State owns the body of water in its sovereign capacity.  In such a case, the State’s authority is exclusive and extends to all matters, not just those related to navigation.   The only exception is where the State legislature has delegated some of that authority to local government.  An example of such a delegation is under Navigation Law §46 which permits local government to set speed limits or prohibit personal watercraft. 

The Court went on to conclude that the State does not own Lake Placid in its sovereign capacity and hence local land use requirements that did not impair navigability were valid.   If a local government is unsure of whether the State claims sovereign ownership over a body of water, the State Office of General Services (“OGS”) publishes a Guide to Underwater Lands which lists coastal waters, major lakes and rivers that OGS maintains fall in that category.

In summary, this decision clarifies that, with the exception of those bodies of water owned by the State in its sovereign capacity, local government can exercise traditional land use jurisdiction over the construction of structures in the water body providing the regulation does not impair the navigability.  With respect to those owned by the State in its sovereign capacity, it may only exercise those powers explicitly delegated.






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