1. 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
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2. 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
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3. 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
, direct

4. 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
, direct

5. 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
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6. 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
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7. 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
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8. 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
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9. 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
, direct

10. 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
, direct

11. 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
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12. 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
, direct

13. 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
, direct

14. 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
, direct

15. 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
, direct