Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets).  Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings.  This can be a particularly useful tool, when a property owner or developer is cited for zoning code violations that may shut down activities and force a timely and…

In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance.  In finding that the house was a “legal nonconforming” 2-family residence, the Appellate Division ordered the Town to issue the requested  use variance. A legal nonconforming use, commonly referred to as “grandfathered”, is a use of…

The Second Department recently reversed a Suffolk County Supreme Court decision granting a use variance for a mother-daughter residence in the Village of Patchogue (the “Village”), in spite of statements made on the record by the Zoning Board of Appeals (“ZBA”) Chairman implying prior precedent approving such applications. In June 2014, the petitioner applied to the Village seeking the conversion of her two-car garage into an apartment for her 81 year old mother of limited financial means.  Unfortunately, Patchogue’s zoning code does not define “mother-daughter” or permit an  “accessory apartment” in…

Earlier this year, the Third Department handed down a surprising upset in the eminent domain arena.  See, Matter of Adirondack Historical Association v Village of Lake Placid, 161 A.D.3d 1256 [3d Dept 2018].  The Appellate Division nullified the condemnation because the Village of Lake Placid failed to consider the environmental impact of its use of eminent domain to acquire two vacant parcels of land for the purpose of constructing a parking garage.  The Village’s achilles heel was…

Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality. Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the…

A few days ago, the Town Supervisor of the Town of Southampton and the Town Trustee President sent a letter to the State Comptroller and State Park Commissioner requesting an opinion as to whether Town Trustee property, known as Hayground Cove or the Rose Hill Drive Boat Ramp, a small waterfront area with a boat launch, is parkland.  If so, it would be regulated by New  York State’s strict interpretation of the public trust doctrine. At issue is a private homeowner’s 15-year lease with the Trustees, which would…

Long Island’s ever-evolving agricultural industry won a major battle in the Appellate Division this month when the court overturned Supreme Court Justice Whelan’s decision, which invalidated two local laws of the Suffolk County Legislature.   See, Long Island Pine Barrens Society, Inc. v. Suffolk County Legislature, 2018 NY Slip Op. 01598 (March 14, 2018). The Appellate Division voted 3-1 to overturn the decision, holding that 2010 and 2013 local law amendments to Suffolk County’s farmland preservation program allowing…