Posted by: Patricia Salkin | October 21, 2015

NY Appellate Court Affirms the Annulment of Zoning Map Change that was Made in Error

In 2006, the petitioner purchased property located in Scarsdale, in the Town of Greenburgh, which was then zoned in a multi-family district. In 2007, the petitioner submitted a site plan application to build a multi-family development on the property. The Commissioner of Planning for the Town’s Department of Community Development and Conservation issued a memorandum directing the Town Engineer to alter the Official Zoning Map to reflect that the property was in a single-family district. The Commissioner advised the Town’s Zoning Board of Appeals that the property had been placed in a multi-family district in error, and the ZBA denied the petitioner’s appeal from the Commissioner’s determination, after which the petitioner commenced a proceeding pursuant to CPLR article 78 to review the ZBA’s determination. The Supreme Court granted the petition, determining that the Official Zoning Map had been amended without notice and a hearing as required under Town Law §§ 264(1) and 265(1) and that the ZBA’s finding that an error in an earlier zoning map had been carried forward to the current map was arbitrary and capricious and based on community pressure and bad faith.

Here, the instant proceeding concerned the Town’s amendment of the Official Zoning Map to correct an error and show that the property was properly zoned in a single-family district, the same issue that was decided in Proceeding I. Because the Town had a full and fair opportunity to litigate the issue in Proceeding I, the doctrine of collateral estoppel precluded the Town from relitigating the issue already raised and decided. The Supreme Court’s decision to grant the petitioner’s petition was therefore affirmed.

S & R Development Estates, LLC v Feiner, 2015 WL 5945114 (NYAD 2 Dept. 10/14/2015)

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