Ellington Const. Corp. v. Zoning Bd. of Appeals of Incorporated Village of New Hempstead

• Decision Date: 13 December 1989
• Citation: 549 N.Y.S.2d 405,152 A.D.2d 365
• Parties: In the Matter of ELLINGTON CONSTRUCTION CORP., Respondent, v. The ZONING BOARD OF APPEALS OF the INCORPORATED VILLAGE OF NEW HEMPSTEAD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 405

549 N.Y.S.2d 405

152 A.D.2d 365

In the Matter of ELLINGTON CONSTRUCTION CORP., Respondent, v. The ZONING BOARD OF APPEALS OF the INCORPORATED VILLAGE OF

NEW HEMPSTEAD, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 13, 1989.

Doris F. Ulman, Village Atty., New City (Frank I. Brown, of counsel), for appellant.

Tracy, Bertolino & Edwards, New City (John S. Edwards, of counsel), for respondent.

Before SPATT, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

BALLETTA, Justice.

Town Law § 265-a and Village Law § 7-708 both provide, in identical language, that in a municipality with both a zoning board and a planning board authorized to approve subdivisions, where an amendment to a zoning ordinance increases required lot areas or lot dimensions to amounts in excess of those delineated on an approved and filed subdivision plat showing residential lots and one or more new streets, the provisions of that amendment "shall not * * * be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat * * * for a period

                of three years after the filing of the subdivision plat or first section thereof".   An identical provision is contained in General City Law § 83-a.   The question presented by this appeal is whether the foregoing provision found in the several statutes, acts to cut off vested rights acquired prior to or during the three-year exemption period.   The Supreme Court, Rockland County (Rosato, J.), concluded that they did not, and we affirm
                

THE FACTS

In January 1975, Manny Apfelbaum, the predecessor in interest of Ellington Construction Corporation (hereinafter Ellington), applied to the Town of Ramapo (hereinafter the Town) for subdivision approval of a tract which encompassed some 33.522 acres. The subdivision application was for average density zoning pursuant to Town Law § 281, which, at that time, permitted the construction of 31 single family residences on lots having a minimum area of 22,500 square feet. In consideration thereof, Apfelbaum offered to dedicate to the Town 12.105 acres (a little over 1/3 of the total area) to be used as park land. On April 29, 1975, the Planning Board of the Town of Ramapo (hereinafter the Planning Board) approved the subdivision as a single plat on condition that it be constructed in two sections, with Section One comprising 9 lots, and Section Two comprising 22 lots. Less than a month later, on May 16, 1975, Apfelbaum applied for and obtained a permit from the Rockland County Highway Department for a subdivision street connection to a County road denominated New Hempstead Road. Thereafter, on July 3, 1975, Apfelbaum made an irrevocable offer of dedication of the park land to the Town and the approved subdivision plat was filed on September 24, 1975. The irrevocable offer of dedication of park land was recorded in the Rockland County Clerk's Office in October 1975.

On June 29, 1982, the Town approved a revised subdivision plat which was filed in the Rockland County Clerk's Office on October 14, 1982. It is conceded that the revised plat did not in any way modify the original layout of the lots, streets and other improvements.

The revised subdivision plat lists several conditions imposed by the Town in granting approval. Particularly, Map Note 23 requires that:

"Not more than two building permits for model homes only will be issued until all public improvements except road wearing course and sidewalks are installed, improved and paid for. No building permit shall be issued for the final ten percent (10%) of lots in a subdivision, or, if ten percent (10%) be less than two (2), for the final two (2) lots of a subdivision, until all the public improvements required by the Planning Board for the Plat have been fully completed and dedicated to the Town".

Map Note 29 of the revised subdivision plat further stipulates: "no building permits for section two until section one is complete". Finally, the revised plat contains a drawing depicting existing and proposed pavement widths of a "Typical Section on New Hempstead Road", which, as noted earlier, is concededly a County road. When the revised subdivision plat is reviewed in conjunction with the 1975 resolution of the Planning Board approving the original subdivision plat, a 1975 "C.D.R.C. report", and a letter of the Rockland County Planning Board dated August 16, 1983, it is clear that the Planning Board conditioned its original 1975 subdivision approval on the installation of curbs, road widening, and catchbasins along New Hempstead Road.

On or about March 1, 1984, the Village of New Hempstead (hereinafter the Village) was incorporated and the petitioner's property was included within its boundaries. Some two years later, on January 2, 1986, the Village amended its zoning ordinance to increase the area requirements for average density zoning applicable to the petitioner's property, from 22,500 square feet to 35,000 square feet. Within six months of the amendment, Ellington applied for a building permit for lot D-10, which is within Section Two of the subdivision, to permit the construction of a single-family house. On June 11, 1986, the Village Building Inspector Ellington commenced a CPLR article 78 proceeding in the nature of mandamus, to compel the Building Inspector to issue a building permit, on the grounds that (1) it had acquired a vested right to continue building, (2) road improvements on New Hempstead Road, which is a County road, were not within the purview of the Building Inspector to mandate, and had not been required by the Planning Board, and (3) it would pay the required inspection fee as a condition to the issuance of a permit, reserving the right to challenge the fee as duplicative and excessive. However, on October 28, 1986, the Supreme Court, Rockland County dismissed the proceeding for failure to exhaust administrative remedies reasoning that the petitioner was required to appeal the denial of the building permit to the Zoning Board of Appeals of the Incorporated Village of New Hempstead (hereinafter the Zoning Board). By order dated February 17, 1987, the court granted the petitioner's motion for reargument and upon reargument, adhered to its original determination.

denied the application based upon (1) Ellington's failure to complete certain public improvements, including the widening of New Hempstead Road, (2) Ellington's failure to pay the inspection fee, and (3) the expiration of the three-year period provided for by Town Law § 265-a exempting previously approved and filed subdivision plats from zoning changes. ^*

Thereafter, the petitioner filed an appeal with the Zoning Board, and public hearings were held on August 12, 1987, September 17, 1987, and October 5, 1987.

At the hearings before the respondent Zoning Board, Ellington established that between 1980 and late 1983 or early 1984, seven houses were constructed in Section One of the subdivision pursuant to validly issued building permits, and all of these homes were issued Certificates of Occupancy. Furthermore, those improvements at the subdivision site which were constructed pursuant to the original average density subdivision plat approved by the Town in 1975, included a paved road and curbs, drainage culverts, catch basins, sanitary sewers, water mains, hydrants, and underground electric and telephone facilities. In addition to the public portions of those utilities, service lines were constructed to service each and every lot in the approved subdivision, and curb cuts were created for proposed driveways. The subdivision road was constructed in Section Two after the passage of the 1986 zoning amendment, with the Village's knowledge. Ellington also established that if the subdivision were redesigned so as to comply with the Village's 35,000 square foot minimum lot area requirement, the total lot yield in Section Two would be only 14 lots instead of the 22 shown on the approved subdivision plat. Moreover, the improvements that had been made in conformance with the approved subdivision plat would then be in the wrong locations due to the increased size of the lots. Therefore, compliance with the requirements of the Village's amended zoning ordinance would necessitate new curb cuts for driveways and the relocation of utility crossings such as water and sewer laterals, electric service lines, utility transformers, hand-hold boxes and sight poles. As a result, the total cost of the changes needed to make the subdivision conform to the amended zoning ordinance was projected to be in excess of $2,200,000.

The Village's position at the hearing was essentially that, if the park land was returned to the petitioner, application of the amended zoning ordinance would only result in the loss of one or two lots.

On or about October 29, 1987, the Zoning Board adopted a resolution confirming the Building Inspector's denial of the petitioner's application for a building permit and denied a variance for lot D-10. With respect to the denial of the permit, the Zoning Board reasoned that it could not be issued until all the public improvements in Section Two, other than the final road The Zoning Board further decided that the three-year exemption from zoning law amendments provided by Town Law § 265-a, Village Law § 7-708, and Village of New Hempstead Zoning Law § 4.4.5, expired on October 14, 1985. Since construction of the public improvements was not complete by that date, and the application for the building permit was not filed before the expiration of the statutory exemption period or the adoption of the amendment to the Village's zoning ordinance, Ellington had no vested rights to the issuance of a building permit for the subject lot.

                wearing course and sidewalks, had been completed;  at the time of the adoption of the resolution, the installation of the required improvements to New Hempstead Road had not even been commenced.   The Zoning Board also noted that a building

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