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Monday, September 13, 2010
by Lee Seham
My dad had an abiding faith in the common sense of the American judiciary. In approaching legal research, he once said to me: “If it feels wrong, there’s probably a case that says it’s wrong.”
Like others, I too was taken aback when I read Town Attorney Clinton Smith’s remarks at the Town Board meeting on August 10, 2010, suggesting that there might be a significant constitutional impediment to New Castle’s enforcement of existing zoning law at the Reader’s Digest property because a person’s right to do “what he will” with his property cannot be “arbitrarily withheld.” (See “Town board’s counsel explains town’s obligations and developer’s rights to board of ed members,” NewCastleNOW.org, August 13, 2010.)
That felt wrong to me. My wife Olga agreed.
So we hopped on my Lexis account and spent forty-five minutes entering some common sense word searches, the result of which seemed to confirm my dad’s advice.
In Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 (1971), New York’s highest court stated that, once a “legitimate purpose” for a zoning restriction is established, enforcement of the restriction will be deemed “arbitrary” only if it “deprives the property owner of any use of the property to which it is reasonably adapted….” In Overhill, the purpose sought to be achieved by continued enforcement of the zoning restriction was public safety in the form of alleviated traffic congestion. In the court’s view: “That this is a legitimate purpose for a zoning ordinance is a matter which is beyond question.”
More recent cases support the proposition that, when a buyer purchases property that is already subject to zoning requirements, any hardship from the zoning is considered to be self-created. See Miller Family Ltd. Partnership v. Trotta, 23 App. Div. 3d 389, 806 N.Y.S.2d 74 (2d Dept 2005); Friends of Lake Mahopac v. Zoning Bd. of Appeals of Town of Carmel, 15 App. Div. 3d 401, 790 N.Y.S.2d 470 (2d Dept 2005); Diana v. City of Amsterdam Zoning Bd. of Appeals, 243 App. Div. 2d 939, 664 N.Y.S.2d 634 (3d Dept 1997); Aiello v. Saladino, 132 App. Div. 2d 1002, 518 N.Y.S.2d 287 (4th Dept 1987); Mt. Lyell Enter., Inc. v. DeRooy, 159 App. Div. 2d 1015, 552 N.Y.S.2d 728 (4th Dept 1990).
And where hardship is self-created, the courts “should not be placed in the position of having to guarantee the investments of careless land buyers.” Matter of Barby Land Corp. v. Ziegner, 65 App. Div. 2d, 410 N.Y.S.2d 312 (1978), aff’d, 49 N.Y.2d 729 (1980). Indeed, as the court observed in that case, granting relief from existing zoning restrictions could result in an inappropriate “windfall” for the owner well above the zoning-based purchase price.
Now for the “gee whiz” part.
Shucks, I’m just a labor and immigration attorney. I could be way off base. Indeed, life frequently confirms the truth of the adage that “a little bit of knowledge is a dangerous thing.” I concede, without hesitation, that there could be subtle issues here that are only readily discernible to the seasoned real estate litigator.
But, if we are wrong – we who believe that a real estate developer’s self-created hardship cannot conceivably be the basis for subverting zoning restrictions that serve a manifestly legitimate purpose – then it must be explained to us in detail.
A passing reference to general Fifth Amendment principles will not suffice.
Otherwise, there is every appearance that we are merely subordinating our law to the economic interests of a developer – a result to be resisted as a matter of interest and principle.
To see NCNOW.org’s collected articles and letters to the editor on the subject of Reader’s Digest-Chappaqua Crossing, click HERE.