Posted by: Patricia Salkin | August 6, 2008

Zoning Board’s Interpretation of Ordinance Not Upheld Where it Was Contrary to Clear Wording

A 2003 amendment to the Village zoning ordinance rendered the petitioners’ four contiguous lots nonconforming since they could not meet the now required 60 foot minimum setback for road frontage in the residential district. The owners applied to the zoning board of appeals for an interpretation of a section of the Code adopted in 1954 which provided, among other things, “[n]otwithstanding the limitations imposed by any other provisions of this chapter, the Zoning Board of Appeals shall permit erection of a dwelling on any lot in a residential district separately owned or under contract of sale and containing, at the time of the passage of this chapter, an area or width smaller than that required for a one-family dwelling.”  The zoning board of appeals determined that the phrase “at the time of the passage of this chapter” applied to the 2003 amendment even though the language was adopted in 1954.  The trial court upheld the zoning board’s interpretation, but the appellate court reversed.

 

While a zoning board’s interpretation is entitled to deference with respect to specific application of a term of an ordinance to a particular property, when the question is one of pure legal interpretation, such as here, deference is not required. Further, where the zoning board’s determination is counter to the clear wording of the statutory provision, little weight is given to the interpretation.  In this case, the Court determined that the “clear wording” of the ordinance unambiguously refers to the time when the chapter was passed, which was 1954, not 2003. The Court noted that nothing in the plain language of the section indicated an intent to provide an exemption as of right from requirements imposed by future amendments to the law. Since each of the four lots conformed to the applicable zoning  until the 2003 amendment, the Board’s determination that the 1954 provision applied was contrary to the clear wording of the zoning law.

 

Conti v. Zoning Board of Appeals of Village of Ardsley, 2008 WL 2669624 (A.D. 2nd Dept. 7/8/2008 ).

 

The opinion can be accessed at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_06206.htm

 

 

 


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