The petitioner simultaneously applied to the local legislative body for a rezoning of a portion of its property from residential to business and for a special use permit to allow for the construction of 16 individual units of housing for seniors since, pursuant to the applicable zoning, senior citizen housing was only permitted on property zoned for business and not for property zoned residential. Following the public hearing where concerns were raised about the number of units, the petitioner sent a letter to the Board indicating it was willing to reduce the number of units to 14 to address concerns, and that with this reduction, it believed that a rezoning was no longer required. The petitioner never submitted a site plan for 14 units. The Board denied the application for the rezoning, and therefore did not address the special use permit application, considering it academic. The petitioner then brought an action in court alleging that the denial of the special use permit was arbitrary and capricious. The Board moved to dismiss on the grounds that the petitioner failed to state a claim upon which relief could be granted and failed to exhaust administrative remedies. The trial court denied both motions and remitted the matter to the Board to set forth factual finding pursuant to state statute (citing to Village Law §7-712-b(3)).
The Appellate Court determined that the trial court erred since findings required pursuant to Village Law §7-712-b(3) apply only to the zoning board of appeals and to area variances, and here the application was for a special use permit and it was to the legislative body, not to the zoning board. Further, special use permits are controlled by Village Law §7-725-b which does not require the board to make factual findings. The Trial Court, therefore, should not have remitted the matter requiring such findings be made.
Lastly, the Appellate Court said that the Trial Court erred in denying the Board’s motion to dismiss, because the petitioner did need a rezoning of the property to construct even the 14 units of senior housing, unless they were to submit an application for a special use permit to construct the 14 units on the portion of its property where it would be permitted to do so without the rezoning.
Nationwide Protection, Ltd. V. Ruzicka, 2008 WL 2132135 (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/D19309.pdf
