Land Use & Zoning Litigation

Real estate development and zoning can be a complex process in New York as it involves several regulatory land-use permits.

Some of the required approved applications include:

• Subdivision and site plan approvals from the town planning boards
•  Architectural approvals
• Water and sanitary applications to the county’s health department
•  Environmental review under the State Environmental Quality Review Act (SEQRA)
• Zoning Boards of Appeal (ZBA)

The law firm of Kenneth Allen Brown represents landowners and municipalities involved in commercial and residential land use and zoning. From the planning stages through the application process, Kenneth provides clients with expert zoning and land use advice, which are key considerations in any real estate transaction, whether purchase/sale, development, or lease. He brings expert zoning analyses so that his clients have a clear understanding of how a given property may be used or developed “as-of-right.” Kenneth has successfully obtained land use approvals for his clients, such as special permits and variances from the Department of City Planning, Board of Standards and Appeals, and Landmarks Preservation Commission.

The use of “air rights” has become an increasingly important element of real estate development in New York City. Kenneth is also adept at obtaining zoning determinations from the Department of Buildings and has successfully represented both purchasers and sellers of air rights by negotiating and preparing zoning lot merger, development rights transfer, and air easement agreements and declarations.

Throughout his many years practicing law, Kenneth has maintained a great rapport with New York City agencies, local community planning boards, and elected officials to diligently guide clients through the processes required for land use and zoning approvals. If a governmental permit is challenged, Kenneth will appear before the presiding boards and agencies to represent applicants and municipalities in CPLR Article 78 Proceedings & Appeals.

What is Article 78?

Article 78 is the article of the Civil Practice Law and Rules (CPLR) which establishes the procedure for challenging the determinations of administrative agencies, including courts, boards, and corporations. A proceeding brought under Article 78 is a special proceeding. The parties to such proceedings are referred to as “petitioners” and “respondents.”

Article 78 provides the procedure in New York State for obtaining the relief previously obtained by writs of certiorari to review. One argument that can be raised in an Article 78 proceeding is that the agency didn’t follow its own rules when it made the decision. The court can also consider whether the decision was “arbitrary and capricious” or not supported by “substantial evidence.” “Arbitrary and capricious” means the decision is not reasonably related to the facts of the case. “Substantial evidence” is evidence that a person would accept as enough to support the agency’s decision.

REPRESENTATIVE CASES

•  McLean-Katter, LLC v. Keegan, 2006 WL 3050878 (E.D.N.Y. Oct. 20, 2006) (denying defendants’ motion to stay federal action pending conclusion of related state court CPLR Article 78 special proceedings);
• Fair Housing in Huntington Committee Inc. v Town of Huntington, 316 F.3d 357 (2d Cir. 2003)(affirming district court’s denial of motion for a preliminary injunction against defendants under the Fair Housing Act and other federal statutes);
• Applebaum v. Village of Great Neck Bd. of Appeals, 138 A.D.3d 830, 28 N.Y.S.3d 459 (2d Dep’t 2016) (dismissing CPLR Article 78 special proceeding challenging site plan approval and variances granted by zoning board);
• Arrandale Civic Ass’n v. Zoning Bd. of Appeals of Village of Great Neck, 27 A.D.3d 732, 812 N.Y.S.2d 133 (2d Dep’t 2006)(affirming dismissal of CPLR Article 78 special proceeding challenging variances); and
• Cortland, LLC v. Zoning Bd. of Appeals of Village of Roslyn Estates, 21 A.D.3d 371, 800 N.Y.S.2d 35 (2d Dep’t 2005) (affirming dismissal of CPLR Article 78 special proceeding seeking to overturn denial of variances).