Posted by: Patricia Salkin | January 17, 2019

NY Appellate Court Holds that Zoning board did not “Usurp” Planning Board in Condominium Development Case

This post was authored by Amy Lavine, Esq. 

A recent New York appellate court decision affirmed the denial of a condominium development. Although the application had been approved by the planning board, the court concluded that the architectural review board and the zoning board of appeals had independent authority to consider criteria such as impacts on surrounding property and the character of the neighborhood.


Livingston Development Group wanted to construct two condominium buildings in the Village of Dobbs Ferry on property overlooking the Hudson River. Following a viewshed analysis conducted by the planning board, the village board of trustees granted the developer’s application for site plan review, subject to a requirement that the developer obtain approval from the village Architectural and Historic Review Board. The review board then denied the developer’s application, based on its finding that the condominiums would be excessively out of character with the surrounding area. The zoning board of appeals affirmed the denial, but the trial court ruled in the developer’s favor and annulled the review board’s determination.


The appellate court held that the review board’s denial was appropriate and that the trial court should have affirmed its determination. The trial court’s decision was based on its belief that site planning issues were delegated to the jurisdiction of the planning board only and could not be considered by the review board or the zoning board of appeals. But as the court explained on appeal, the review board and the zoning board of appeals did not rely on the site plan viewshed requirements and so their denial of the condominium application did not actually “usurp” the planning board’s authority. Rather, the denial was premised on a finding that the buildings would be “so detrimental to the desirability… of the surrounding area… as to provoke such harmful effects by excessive dissimilarity,” and this finding was both reasonable and within the authority delegated to the review board and to the zoning board of appeals.



Livingston Development Group, LLC v Zoning Board of Appeals of the Village of Dobbs Ferry, 2019 WL 209016 (NYAD 2 Dept. 1/16/2019).

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