1133 Westchester Avenue, Suite N-202 Navigating the Land Use Regulatory Process David E. Venditti, Partner Gaines, Novick, Ponzini, Cossu & Venditti, LLP May 23, 2018 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

1133 Westchester Avenue, Suite N-202 Relevant Discussion Public and Private Benefits of Land Use Law Governmental Bodies with Power to Zone Understanding the Regulatory Process Seeking Zoning Variances or Rezoning Participation in Land Use Litigation 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Public and Private Benefits of Land Use Law Orderly development of Residential, Commercial and Municipal properties Conservation of natural resources Protection of Wetlands and other natural habitats Protection of unique views and vistas Establishing Conservation Easements in the Subdivision approval process Eminent Domain for legitimate public purposes 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Public and Private Benefits of Land Use Law Establishment of diversity of housing stock Creation of jobs Increased tax base (reduction of burden or residential tax payers) More vibrant and self-sustaining community Protection of historic and national landmarks to perpetuate places of our national heritage 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Governmental Bodies with Power to Zone/Regulate Land Use Federal Government State County New York’s Towns and Villages (and Cities, not discussed herein) 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Governmental Bodies with Power to Zone Authority to create and enforce zoning regulations, on the local level, comes from: Villages: Consolidated Laws of New York, Article 7, Building Zones, Section 7-700 Towns: Consolidated Laws of New York, Article 16, Zoning and Planning, Section 261 Cities (not discussed herein) 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

1133 Westchester Avenue, Suite N-202 Zoning: Objectives Principal means of implementing a Community’s Comprehensive Plan Policies should support the physical, historical, aesthetic and economic objectives of a community 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Zoning: Special Mechanisms Transfer of Development Rights Neighborhood Preservation Zoning Land Conservation Ordinances Special Districts Incentive Zoning Performance Zoning 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Understanding the Regulatory Process Local Zoning Laws and Land Use regulations adopted by the Village Board of Trustees or the Town Council Village and Town Boards hear Petitions for Rezoning and Special Use Permits Zoning Board of Appeals hears requests for “area” variances, “use” variances, and requests for zoning law “interpretations,” typically within 60 days of any adverse decision of an administrative official responsible for the enforcement of local law (for example, denial of a building permit by the building inspector, or issue of a violation, etc.) 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Seeking Zoning Variances The “use” variance: When the Zoning Board of Appeals (ZBA) authorizes use of land for a purpose not allowed, or expressly prohibited, and applicant proposes a change of use The “area” variance: When the ZBA authorizes use of land not otherwise dimensionally allowed by the physical requirements of the particular zoning district in which the parcel is located (i.e., by “Bulk Regulations”), although the use itself is allowable 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Seeking Zoning Variances - Use For a “use” variance, it must be shown: Unnecessary hardship, and that for each permitted use: A reasonable return cannot be obtained, as shown by competent financial evidence The hardship is unique The variance will not alter the character of the neighborhood, and The hardship is not self-created 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Seeking Zoning Variances - Area For an “area” variance, it must be shown: That the benefit of the variance outweighs any detriment to the health, safety and welfare of the neighborhood Whether an undesirable change in character or detriment to nearby properties will be created, or will create adverse physical or environmental effects Alternative means for applicant to seek desired benefit Whether variance is substantial (applicant is seeking the minimum variance required to achieve its objective), and Whether the hardship self-created, although, unlike a “use” variance, this factor does not necessarily preclude the granting of the variance 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Seeking Zoning Variances - Area The Attorney, along with the Engineer, Architect and/or surveyor is essential in area variances In many instances, it is the engineer or surveyor presenting on behalf of the client, in conjunction with, and sometimes rather than, the attorney The critical elements of an area variance are “dimensional,” which should be shown through certified engineering drawings, proposed plats, and surveys Employ the use of Engineers and Architects, who are sometimes even more important than the attorneys in this context, as they have the expertise to persuade the ZBA that the variance requested is the “minimum” needed under dimensional requirements 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

1133 Westchester Avenue, Suite N-202 Seeking Planning Board Subdivision Approval, (i.e., seeking to create additional lots from an original piece of property) Engineers, Architects, and/or surveyors are important players in a subdivision application, with important support from Legal Counsel Preparation and submission of a subdivision plat by Surveyor/Engineer Involvement in SEQRA (State Environmental and Quality Review Act) process and EIS/FEIS (Environmental Impact Statement/Final Environmental Impact Statement) Engineering mitigation of adverse impacts Traffic, noise, environmental, and required adverse impact mitigation studies 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com

Participation in Land Use Litigation Article 78 – Land Use Challenge Article 78 Appeals Nature of Proceeding: Under Civil Practice Law and Rules, a proceeding to challenge a final order of a governmental body or officer In land use context, to determine if the body or officer failed to perform a duty in accordance with lawful requirements; exceeded its statutory jurisdiction; acted and decided in an “arbitrary and capricious” manner, including an abuse of its lawful discretion; or, whether a decision made was “unsupported by substantial evidence” at a hearing 1133 Westchester Avenue, Suite N-202 White Plains, NY 10604 914-288-9595, direct 914-831-6249 dvenditti@gainesllp.com