Following the purchase of a 32,000 square foot parcel of property, the petitioner sought and obtained a variance from the zoning board of appeals to subdivide the parcel into two 16,000 square foot lots since the zoning required a 20,000 square foot minimum lot size. The zoning board approved the variance and two weeks later the applicable zoning ordinance was amended to require a minimum lot area of 40,000 square feet. Ten months later, the zoning board of appeals granted the petitioner’s request to extend the previously granted area variance for another year. The petitioner timely submitted an application to the planning board for subdivision approval, which was denied on the ground that the zoning ordinance now required a 40,000 square foot minimum lot size.

The Appellate Court upheld the decision below overturning the planning board and directing that board to approve the subdivision. The Court noted that the planning board may not “overrule” a decision of the zoning board of appeals, and that the zoning board was presumably aware of the amendment to the zoning ordinance when they granted the petitioner a one year extension on the variance, which was still in effect when the petitioner applied for the subdivision. Therefore, the Court concluded that the planning board illegally usurped the power of the zoning board of appeals and such determination was not within the jurisdiction of the planning board to make.

Ashley Homes of L.I., Inc. v. O’Dea, 2008 WL 2132305 (N.Y.A.D. 2 Dept. 5/20/2008).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D18479.pdf