zoning violation in New York

2015The Court of Appeals has held, in the context of a zoning challenge, the fact that a person is entitled to receive mandatory notice of an administrative hearing because he or she owns adjacent or nearby property gives rise to a presumption to standing (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413-414 [1987] [“The fact that a person received, or would be entitled to receive, mandatory notice of an administrative hearing because it owns property adjacent or very close to the property in issue gives rise to a presumption of standing in a z

2005In other words, when the premises that are the subject of the zoning violation are in close proximity to a party’s property, a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the party need not allege specific injury (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 409-410; Golden v Steam Heat, 216 AD2d 440 [1995]; Matter of Prudco Realty Corp. v Palermo, 93 AD2d 837 [1983], affd on other grounds 60 NY2d 656 [1983]).

2005Accordingly, the plaintiffs failed to allege sufficient facts to support a cause of action for special damages in order to maintain their proposed amendment for a private action to enjoin a zoning violation (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Allen Avionics v Universal Broadcasting Corp., 118 AD2d 527 [1986], affd 69 NY2d 406 [1987]; Guzzardi v Perry’s Boats, 92 AD2d 250, 253 [1983]).

1996We agree with the court that petitioner is not entitled to an injunction preventing continued violation of the conditions of the 1992 site plan approval. "[I]n order to maintain a private action to enjoin a zoning violation, [petitioner] must establish that [he has] the standing to do so by demonstrating that [he has] sustained special damages by virtue of [respondents’] activities” (Guzzardi v Perry’s Boats, 92 AD2d 250, 253 ; see, Little Joseph Realty v Town of Babylon, 41 NY2d 738 , 741-742).

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2013If ambiguity or uncertainty occurs, all doubt must be resolved against the exemption’ ” (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y., 16 NY2d 222, 230 [1965]; see People v Brooklyn Garden Apts., 283 NY 373, 380 [1940]).

2013If ambiguity or uncertainty occurs, all doubt must be resolved against the exemption’ ” (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y., 16 NY2d 222, 230 [1965]; see People v Brooklyn Garden Apts., 283 NY 373, 380 [1940]).

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2014Even assuming, arguendo, that petitioner has standing to allege alienation of parkland (see generally Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26, 31-32 [1999]), as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents Parks and NYPA were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park.

2014Even assuming, arguendo, that petitioner has standing to allege alienation of parkland (see generally Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26, 31-32 [1999]), as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents Parks and NYPA were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park.

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2014Although a property owner may have standing to seek judicial review of an alleged zoning violation without pleading and proving special damages because adverse effect can be inferred from proximity (see Matter of Stumpo v DeMartino, 283 AD2d 954, 954 [2001]), here, petitioner failed to allege that it, or any of its members, owns property in proximity to the site (cf. Clean Water Advocates of N.Y., Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-1274 [2012]; Zupa, 22 AD3d at 843-844 ).

2013If ambiguity or uncertainty occurs, all doubt must be resolved against the exemption’ ” (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y., 16 NY2d 222, 230 [1965]; see People v Brooklyn Garden Apts., 283 NY 373, 380 [1940]).

2013If ambiguity or uncertainty occurs, all doubt must be resolved against the exemption’ ” (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y., 16 NY2d 222, 230 [1965]; see People v Brooklyn Garden Apts., 283 NY 373, 380 [1940]).

2024As such, specifically based on Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating ( 99 AD3d at 1159 ) — a case which I think is dispositive in this matter for many reasons — the burden to prove compliance with the zoning laws as part of a challenge to an exemption denial is on petitioner, and stays with petitioner; such burden does not shift to respondents to prove as an affirmative defense. [FN4] But even assuming that respondents had the burden of proving a zoning violation at trial, I believe that the record is sufficient to establish that they did.

2024Such interpretation is consistent with the first point of respondents' posttrial brief, [FN5] which contended that petitioner's use of the property as a "retreat center" constituted a zoning violation, citing for this proposition the cases of Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating ( 99 AD3d at 1157-1158 ) and Oorah, Inc. v Town of Jefferson ( 119 AD3d at 1182 ).

2024Hosp. v Assessor of Town of Geneva , 108 AD3d 1043 , 1045 [4th Dept 2013]; see Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating , 99 AD3d at 1158-1159 ; see also Community Humanitarian Assn., Inc. v Town of Ramapo , 137 AD3d 736, 738 [2d Dept 2016] [noting that, where "the applicable zoning regulation is incompatible with the occupant's tax-exempt use . . . , the rationale for denying the tax exemption is simple and clear , as compliance with both the tax-exempt use and the zoning regulation is impossible" (emphasis added)]).

2024Hosp. v Assessor of Town of Geneva , 108 AD3d 1043 , 1045 [4th Dept 2013]; see Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating , 99 AD3d at 1158-1159 ; see also Community Humanitarian Assn., Inc. v Town of Ramapo , 137 AD3d 736, 738 [2d Dept 2016] [noting that, where "the applicable zoning regulation is incompatible with the occupant's tax-exempt use . . . , the rationale for denying the tax exemption is simple and clear , as compliance with both the tax-exempt use and the zoning regulation is impossible" (emphasis added)]).

2024Based on this, since the "taxpayer seeking a real property tax exemption bears the burden of proof as tax exemption statutes are strictly construed against the property owner" ( Matter of Maetreum of Cybele, Magna Mater, Inc. v McCoy , 111 AD3d 1098 , 1100 [3d Dept 2013] [internal quotation marks, brackets and citations omitted], affd 24 NY3d 1023 [2014]), I believe the petitions should have been denied because it is uncontested in the record that a retreat center is not permitted in the rural zoning district without approval as a conditional use. [FN3] The majority arrives at the alternate co

2024Based on this, since the "taxpayer seeking a real property tax exemption bears the burden of proof as tax exemption statutes are strictly construed against the property owner" ( Matter of Maetreum of Cybele, Magna Mater, Inc. v McCoy , 111 AD3d 1098 , 1100 [3d Dept 2013] [internal quotation marks, brackets and citations omitted], affd 24 NY3d 1023 [2014]), I believe the petitions should have been denied because it is uncontested in the record that a retreat center is not permitted in the rural zoning district without approval as a conditional use. [FN3] The majority arrives at the alternate co

2024The burden of establishing the zoning violation at trial rests with the municipality asserting it ( see Matter of Oxford Group-Moral Re-Armament, MRA, Inc. v Allen , 309 NY 744, 746 [1955]; cf. Matter of Eternal Flame of Hope Ministries, Inc. v King , 16 NY3d 778, 779 [2011]).

2024The burden of establishing the zoning violation at trial rests with the municipality asserting it ( see Matter of Oxford Group-Moral Re-Armament, MRA, Inc. v Allen , 309 NY 744, 746 [1955]; cf. Matter of Eternal Flame of Hope Ministries, Inc. v King , 16 NY3d 778, 779 [2011]).

2024The burden of establishing the zoning violation at trial rests with the municipality asserting it ( see Matter of Oxford Group-Moral Re-Armament, MRA, Inc. v Allen , 309 NY 744, 746 [1955]; cf. Matter of Eternal Flame of Hope Ministries, Inc. v King , 16 NY3d 778, 779 [2011]).

2024The burden of establishing the zoning violation at trial rests with the municipality asserting it ( see Matter of Oxford Group-Moral Re-Armament, MRA, Inc. v Allen , 309 NY 744, 746 [1955]; cf. Matter of Eternal Flame of Hope Ministries, Inc. v King , 16 NY3d 778, 779 [2011]).

2021This Court has held that a split lot is treated as a single lot when assessing compliance with a zoning requirement that applies equally to both zoning districts of the split lot and that the split-lot provision is applied on a "regulation-by-regulation basis" ( see Matter of Beekman Hill Assn. v Chin , 274 AD2d 161, 174-178 [1st Dept 2000], lv denied 95 NY2d 767 [2000]).

2021This Court has held that a split lot is treated as a single lot when assessing compliance with a zoning requirement that applies equally to both zoning districts of the split lot and that the split-lot provision is applied on a "regulation-by-regulation basis" ( see Matter of Beekman Hill Assn. v Chin , 274 AD2d 161, 174-178 [1st Dept 2000], lv denied 95 NY2d 767 [2000]).

2017With respect to Claudia Dowling’s contention that her motion to dismiss the accusatory instrument against her should have been granted since there was no basis upon which to prosecute her individually, we find that the accusatory instrument properly and sufficiently charged her with a zoning violation, in that it alleged that she had operated and promoted a commercial venture in a residential district (see generally CPL 100.40 [1]; People v Kalin, 12 NY3d 225, 228 [2009]).

2017With respect to Claudia Dowling's contention that her motion to dismiss the accusatory instrument against her should have been granted since there was no basis upon which to prosecute her individually, we find that the accusatory instrument properly and sufficiently charged her with a zoning violation, in that it alleged that she had operated and promoted a commercial venture in a residential district ( see generally CPL 100.40 [1]; People v Kalin , 12 NY3d 225, 228 [2009]).

1991Further, in view of the owner’s neglect of the property over a period of years, the practical difficulty could be reasonably found to be self-created (see, Matter of National Merritt v Weist, 41 NY2d 438 , 442; Conley v Town of Brookhaven Zoning Bd. of Appeals, supra, at 315).

1977(Matter of National Merritt v Weist, 41 NY2d 438 , 442, 445; see Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309 .) The petitioner’s only proof on the question of financial hardship was to the effect that if the variance was granted the real property for building purposes would be worth approximately $7,500, whereas the real property was worth only approximately $1,000 without the variance.

2024Such interpretation is consistent with the first point of respondents' posttrial brief, [FN5] which contended that petitioner's use of the property as a "retreat center" constituted a zoning violation, citing for this proposition the cases of Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating ( 99 AD3d at 1157-1158 ) and Oorah, Inc. v Town of Jefferson ( 119 AD3d at 1182 ).

2024Such interpretation is consistent with the first point of respondents' posttrial brief, [FN5] which contended that petitioner's use of the property as a "retreat center" constituted a zoning violation, citing for this proposition the cases of Matter of Ahavas Chaverim Gemilas Chesed, Inc. v Town of Mamakating ( 99 AD3d at 1157-1158 ) and Oorah, Inc. v Town of Jefferson ( 119 AD3d at 1182 ).