Posted by: Patricia Salkin | December 28, 2013

NY Appellate Court Finds Town Improperly Altered Official Zoning Map

Petitioner purchased property in an unincorporated area of the Town which, at the time, according to the official zoning map of the Town, was located in the CA-I district where multi-family residential complexes were permitted. Subsequent to the purchase, the petitioner submitted an application for site plan approval and received a letter back stating that “following a review of the ‘initial zoning history’ of the subject property, it had ‘come to [the] attention’ of the Department that the subject property was actually situated in an R–20 district, in which only one-family residences could be developed.” The petitioner alleged that the Town engineer altered the map at the direction of the Commissioner of the Department of Community Development “with the stroke of a pen,” and he appealed the determination to the zoning board of appeals (ZBA) who denied the appeal, concluding that the property was located in the R-20 district. Petitioner commenced this proceeding to review the ZBA’s determination.

The trial court granted the petition. The appellate court affirmed, agreeing that the ZBA’s determination was arbitrary and capricious. The Court held that the actions of the engineer violated the Town Code in effect at the time which provided that the official zoning map of the Town “shall be the final authority as to the current zoning classification of any land within the boundaries of” the Town. Further the Court det4ermined that Town Law Sections 264 and 265 were not satisfied if in fact the zoning district boundaries had been changed. The Court said that “the record is devoid of evidence to support the ZBA’s finding that the subject property was depicted in the CA–I district as a result of a scrivener’s error,” and following a FOIL request the Town failed to any official zoning map for the time period sought, nor any map relating to the alleged scrivener’s error.

S & R Development Estates, LLC v Feiner, 2013 WL 6801043 (NYAD 2 Dept. 12/26/2013)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D40212.pdf


Responses

  1. Was anyone associated with the town’s administration (i.e., the Town Engineer or CDC Commissioner) sanctioned for their actions in this matter as a consequence of either the District or Appellate court decisions? Is the town appealing to the state Supreme Court, or have they chosen to accept the decision with no further contest?

    • The reported decision did not say, but perhaps one of the attorneys familiar with the facts will offer more insight.


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