NY Appellate Court Holds Petitioners Had Standing to Challenge Zoning Board’s Determination Regarding Nonconforming Use and Variance Determination

This post was authored by Sebastian Perez of Touro Law Center

A concrete plant operated on commercial property which was situated within a zoning district that prohibited the manufacturing of products unless fewer than five employees were engaged. The Zoning Board of Appeal (ZBA) previously issued a variance permitting the then-owner of the property to employ more than five people in operating a concrete manufacturing plant on the property. Under the current property owner, a Building Inspector for the Town noted that the use of the property was a preexisting non-conforming use and issued findings that the property could no longer be used for concrete manufacturing due to an extended discontinuance of that use.

An appeal of the Building Inspector’s findings was made to the ZBA. Following a public hearing, the ZBA granted the appeal and vacated the determination because the variance was a use variance that ran with the land to the benefit of the current owner which empowered the Building Inspector to reissue a building permit for the premises. Adjacent property owners commenced an Article 78 proceeding to review the ZBA’s determination in Supreme Court. This appeal followed.

The Appellate Division limited the scope of its judicial review to the facts and record before the ZBA and found that the lower court properly denied the motion to effectively enlarge the record by including materials concerning applications for variances by prior property owners not originally presented to the ZBA on the matter. On the issue of standing, the Court used a two-prong analysis; a petitioner must show that it will suffer an injury-in-fact and that the alleged injury falls within the zone of interest sought to be protected by the statute. The Court also highlighted that in land use matters, the alleged harm must be an injury that is in some way different from that of the public at large.

The Court concluded that the lower court improperly determined there was no standing to challenge the ZBA’s determination because the environmental injuries were properly alleged where the adjacent property owners also owned a private lake situated directly across from the subject property and enjoyment of said lake was interfered by an increase in noise, truck traffic, dust, and pollutants from the concrete manufacturing use. The Court held the alleged injuries were different from those suffered by the public at large and fell within the zone of interests protected by the Town’s zoning laws and remitted the case to the Supreme Court.

Veteri v Zoning Board of Appeals of the Town of Kent, 2022 WL 468445 (NYAD 2 Dept. 2/16/2022)