Posted by: Patricia Salkin | May 2, 2016

NY Appellate Court Finds No as of Right to Develop Lot That Lacked Necessary Street Frontage

Petitioners/plaintiffs, Soldatenko, et al., are the owners of property in the Village of Scarsdale. In May 2012, the plaintiffs made a “Request for Interpretation” to the Village Building Inspector, seeking a ruling that the lots were buildable as of right. The plaintiffs referred to the lots collectively as “Lot 117,” a designation from a 1926 subdivision map that was filed with the Village. The plaintiffs acknowledged that the lot was nonconforming under the current Zoning Law of the Village because it lacked the required street frontage, but they argued that the lot qualified as a buildable lot under the criteria of certain grandfathering provisions of the Zoning Law. The Village Building Inspector held that the subject lot was an existing nonconforming unimproved lot that lacked the necessary frontage required. The plaintiffs appealed his determination to the Village Board of Appeals. The Village Board of Appeals affirmed relying on Village Law § 7–736, which provided that “no permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan.” The plaintiffs thereafter commenced a proceeding to annul the determination. The plaintiffs acknowledged that a 1966 amendment to the official Village map resulted in “a complete loss of street frontage” for the subject lot, rendering it a nonconforming lot. But, they maintained that the lot could be developed as of right pursuant to the grandfathering provisions. The lower court agreed to annul because the Village Board’s interpretation of Village Law § 7–736 was “unreasonable.” Although the statute created “a potential obstacle to the issuance of a building permit,” it also provided for the possibility of an exception or a variance.

The appellate court stated that contrary to the determination of the lower court, the Village Board’s interpretation of Village Law § 7–736 was not unreasonable. Although an applicant can seek a variance from the statute’s requirements, the issue before the Village Board was whether the plaintiffs were entitled to develop the property as of right. The Village Board properly concluded that they could not because the lot failed to meet the access requirements of Village Law § 7–736. Consequently, the court should have confirmed the Village Board’s determination.

Soldatenko v Village of Scarsdale Zoning Bd. of Appeals, 2016 WL 1576925 (NYAD 2 Dept. 4/20/2016)


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