Posted by: Patricia Salkin | January 1, 2013

New York Appellate Court Finds No Standing to Challenge Zoning Amendment and Regardless Such Amendment Did Not Constitute Spot Zoning Nor a Taking

Petitioners are owners of an assisted care facility challenge an amendment to a local zoning ordinance that expanded the definition of a “nursing home” which would in effect allow for a second assisted care facility nearby that would be competition.  The petitioners alleged that in reliance on the zoning at the time which meant that they would be only assisted living facility in the particular PUD, they invested resources to purchase and make extensive renovations to an existing facility.  The appellate court held, that notwithstanding the proximity of the petitioner’s property to the location where another assisted care facility may now be built, a claim that resembles a threat of increased business competition does not confer standing since that is not an interest zoning protects.  Further, the court noted that the petitioners have not alleged any specific noneconomic  environmental harm that might confer standing.

The appellate court also concluded that the zoning amendment did not constitute illegal spot zoning finding that the petitioners did not establish that the amendment was not part of a “well-considered and comprehensive plan calculated to serve the general welfare of the community.”  The court noted that while the original intent of the local law called for a skilled nursing facility on the site and not another assisted car facility, a central concern for the original enactment was “to encourage the creation of affordable housing opportunities for retirement aged persons and to further encourage the creation of mixed-use neighborhoods.”  The Court said that after seventeen years with no plans for a nursing home on the site, an expansion of the definition took into account changing conditions and furthered the purpose of the original law.  Further, the Court determined that the amendment did not permit for a totally different use from the surrounding area.

Lastly, the court said that the amendment did not constitute a regulatory taking without just compensation. The Court first noted that the amendment did not deprive the petitioners of all economically viable use of their property.  Second, the court said that the petitioners did not establish that the amendment interfered with their investment-backed expectations, especially since there had been no plans to build a nursing home on the site for the last seventeen years. No evidence was submitted to prove that the changes brought about by the amendment interfered in any way with the investments the petitioners made in purchasing and renovating the property.

VTR FV, LLC v Town of Guilderland, 2012 WL 6698903 (N.Y.A.D. 3 Dept. 12/27/2012).

The opinion can be accessed at:

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