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From YouTube: Beacon Zoning Board Training 3-15-22
Description
City of Beacon Zoning Board training session on Case Law continued.
A
No
no
worries
you
missed
it.
The
PowerPoint
copy
of
the
PowerPoint
is
in
front
of
you,
so
today's
training
session
is
just
a
quick
case.
Law
update
I
have
about
seven
new
cases.
I
thought
were
interesting
enough
to
present
them
to
you.
I,
don't
know
if
it'll
take
the
full
30
minutes,
but
we'll
see
how
it
goes.
A
So
the
first
case
I
wanted
to
bring
up
is
Greenville
Fire
District
versus
zoning
board
of
appeals
of
the
town
of
Greenberg.
This
case
was
decided
in
2022
funny
enough.
My
firm
represented
the
Greenville
Fire
District
in
this
case,
so
I
want
you
to
pay
attention
to
the
facts
that
you
have
on
your
slide.
A
I'm
just
gonna
go
through
them.
This
this
case
is
about
the
statute
of
limitations
and
whether
the
petition
was
filed
on
time.
So
I
lay
out
a
couple
key
facts:
first,
the
board:
the
Zoning
Board
of
the
town
of
Greenberg
granted
the
application
of
formation,
Shelbourne
Senior,
Living
Services
for
certain
area,
variances
related
to
the
proposed
construction
of
an
assisted
living
facility.
So
here's
the
timeline
on
April
20th
2017,
the
zba
as
lead
agency,
voted
to
adopt
a
conditional
negative
declaration
pursuant
to
Seeker.
A
That
decision
was
filed
with
the
town
clerk
on
April
24th
at
a
meeting
held
on
June
22
2017,
the
zba
voted
to
conditionally
Grant
the
requested
area
variances
from
the
former
town
from
from
the
town
of
Greenberg
code,
which
authorized
construction
of
the
project
on
a
site
which
was
less
than
four
acres
in
size
and
more
than
200
feet
from
a
state
or
County
right-of-way
on
June
27th.
The
results
of
the
June
22nd
meeting
were
filed
with
the
town
clerk
on
July
13th.
The
zba
filed
a
certification
of
decision
which
set
forth
the
zba's
findings.
C
B
A
Is
so
article
78
challenging
a
zoning
board's
determination
based
on
alleged
violations
of
Seeker
is
to
be
commenced
within
the
applicable
30-day
statute
of
limitations
period
following
a
decision
that
renders
the
final
consideration
of
secret
issues.
B
E
A
Yeah,
okay,
Elaine!
Yes,
it
was
timely.
Okay,
so
we're
a
little
split
here.
So
the
answer
is
no.
The
petition
was
not
filed
on
time.
The
Supreme
Court
determined
that
the
petitioner's
challenge
to
the
zba's
adoption
of
the
conditioned
negative
declaration
became
ripe
for
review
and
the
limitations
period
began
to
run
at
the
time
the
zba
granted
the
requested
area
variances.
Any
such
challenge
had
to
be
instituted
within
30
days
after
the
zba's
determination
was
filed
with
the
office
of
the
town
clerk.
A
So
here
that
period
began
to
run
on
June
27th
upon
the
filing
of
the
zba's
meeting
results
which
memorialized
the
zba's
determination
and
recorded
the
vote
of
each
of
its
members.
Since
this
proceeding
was
commenced
more
than
30
days
later
on,
August
11th
dismissal
of
the
proceeding
was
proper,
so
we
lost
that
case
because
we
were
trying
to
argue
that
it
started
with
the
certification
of
the
decision
and
the
court
said
no.
It
was
memorialized
in
the
minutes
and
that's
when
it
started
so.
B
D
A
A
A
I'm,
sorry,
all
right
this
case
is
about
special
use.
Permit
standards.
Now
this
board
doesn't
approve
special
use
permits,
but
I
think
it's
a
good
thing
to
know,
and
we've
talked
about
this
in
some
of
our
other
training
sessions.
So
this
case
is
Manchurian
versus
zoning
board
of
appeals
of
the
town
of
Newcastle.
It
was
also
decided
in
2022.
In
this
case
my
firm
represented
the
town
of
Newcastle.
A
So
here
the
owners
of
properties
that
neighbored
a
rehabilitation
facility
for
disabled
and
chronically
sick
children
brought
proceedings
under
article
78,
challenging
the
town.
Zoning
board
of
appeals
determination
granting
the
facility's
application
for
an
amended
special
use
permit
to
expand
the
facility
and
they
granted
area
variances
from
the
requirement
that
nursing
homes
had
to
front
a
state
or
County
Road.
So
in
this
case
the
nursing
home
did
not
front
a
state
or
County
Road,
the
zba
granted
a
area
variance
from
that
requirement.
A
E
A
B
A
A
So
yes,
the
court
said
that
the
zba,
properly
granted
sunshine
and
area
variants
from
the
nursing
home
special
use
permit
Frontage
access
requirement.
The
zba
has
the
authority
under
Town
law
to
Grant
area
variants
from
any
requirement
in
the
zoning
regulation,
including
those
for
special
use
permits.
So
some
people
argue-
and
this
is
what
the
manchurians
were
arguing-
is
that
it's
actually
a
use
variance.
A
If
you
don't
meet
the
special
permit
requirements,
you
need
a
use
variance
to
allow
that
use,
and
here
the
court
was
saying
no,
you
can
get
an
area
of
variance
for
relief
from
that
specific
special
use.
Permit
requirement.
In
this
case
it
was
about
the
frontage
and
they
said
that
is,
is
a
reasonable
area
variance.
F
E
A
Like
in
this
case,
let's
say,
the
planning
board
was
the
one
approving
the
rehabilitation
facility
if
they
needed
the
area
variance
from
the
Frontage
requirement.
That
would
be
an
application
to
the
zba,
in
which
case
you'd
review
it
in
terms
of
the
five
factors
that
makes
it
answer
your
question
yeah.
A
So
it
wouldn't
be
a
use
variance.
As
long
as
that
requirement
is
in
the
zoning
code,
you
have
the
authority
to
Grant
an
area
variance
from
that
requirement.
If
it's
any
requirement
any
other
requirements
say
it's
like
a
requirement
in
the
noise
ordinance,
but
you
cannot
get
granted
a
variance
from
a
noise
ordinance
requirement.
Does
that
make
sense?
Because
it's
not
a
zoning
code?
Your
jurisdiction
only
pertains
to
the
zoning
code.
D
A
A
E
D
D
Because
it's
a
balancing
test,
so
it
wouldn't
have
mattered,
but
I
feel
dirty
saying
that
out
loud.
But
that's.
That
is
what
I
think
the
law
is
David.
B
A
E
A
F
A
Great
everyone
great
points
and
the
court
said
that
the
fifth
Factor
shall
be
relevant
to
the
decision
of
the
zoning
board
of
appeals.
It
shall
not
necessarily
preclude
the
granting
of
the
area
variants
in
determining
whether
to
Grant
area
variants.
A
zba
is
required
to
weigh
the
benefit
to
the
applicants
of
granting
the
area
variants
against
any
detriment
to
the
health,
safety
and
Welfare
of
the
neighborhood
or
Community
affected,
thereby
taking
into
account
the
five
factors.
A
A
zba
is
not
required
to
justify
its
determination
with
supporting
evidence
with
respect
to
each
of
the
five
factors
so
long
as
its
ultimate
determination
balances
the
relevant
considerations
and
was
rational.
Whether
a
hardship
is
self-created
does
not
preclude
the
granting
of
an
area.
Variance
and
a
zba
does
not
need
to
justify
its
determination
with
supporting
evidence
for
each
of
these
facts.
A
The
fourth
Department
further
held
that
the
zba
rendered
its
determination,
after
considering
the
appropriate
factors
and
properly
weighing
the
benefit
to
the
applicants,
against
the
detriment
to
the
health,
safety
and
Welfare
of
the
neighborhood.
If
the
variance
was
granted
just
like
they're
required
to
do
under
statute,
the
court
further
concluded
that
the
record
establishes
that
the
zba's
determination
had
the
requis
requisite
rationale.
It
was
therefore
an
error
for
the
lower
court
to
substitute
its
judgment
for
that
of
the
zba.
A
Even
if
such
contrary
determination
is
itself
supported
by
the
record,
so
I
think
this
court
raised
some
really
good
points,
even
if
there's
another
way
to
go.
If
the
zba's
decision
is
supported,
then
the
court
must
uphold
that
decision.
It
goes
back
to
what
we
always
talk
about
is
building
a
good,
thorough
record,
because
that's
what's
going
to
be
the
basis
for
your
determination,
I
think.
The
second
thing
that
really
kind
of
blew
me
away
with
this
is
that
the
fourth
Department
was
like
self-created
doesn't
matter.
A
A
B
Let
me
throw
it
at
you
this
way,
because
you've
read
the
decision
and
we
haven't.
If
what
was
in
the
record
was
a
substantial
amount
of
discussion
and
conflicting
evidence
about
whether
and
to
what
extent,
probably
to
what
extent
Federal
consideration.
This
was
self-created
and
the
zoning
board
simply
granted
the
variance
totally
ignoring
that
factor.
That
might
look
a
little
bit
different
in
front
of
a
revealing
Court
yeah.
A
I
think
so
I
think
it
just
is
going
to
depend
on
what's
in
the
record
and
whether
the
decision
was
supported
in
this
case,
the
court
just
emphasized
how
they
went
through
the
balancing
test
and
how
their
ultimate
decision
was
justified.
But,
interestingly
enough
I
mean
it
had
to
get
to
the
fourth
Department,
which
means
in
the
lower
courts.
It
went
the
other
way.
A
So
it's
you
know
I
just
we
always
want
to
emphasize
the
importance
of
building
the
record
and
balancing
I
in
your.
You
know
it's
always
better
to
balance
all
five
factors
and
we
do
a
very
good
job
of
touching
upon
each
of
them,
but.
A
A
Again,
I
think
they'd
emphasize
the
balancing
test.
It
was
very
interesting
that
it
happened
to
be
the
self-created,
the
one
that
we
always
are
just
like.
This
is
not
determinative,
and
that's
you
know
what
the
court
kept
saying
is
like
this.
Factor
doesn't
really
matter
and
I
don't
know
if
it
was
one
of
the
other
factors.
A
D
Be
interesting
to
see
what
a
use
variants
a
peel
would
look
like
same
well.
A
D
A
Mean
maybe
I
just
wasn't
looking
hard
enough.
I
did
a
very
broad
zoning
board,
search
and
I.
Think
if
you're
going
to
go
back
and
read
the
decision
because
I
can
picture
you,
maybe
not
sleeping
one
night
and
wanting
to
read
it.
I'd
recommend
reading
the
fourth
Department
decision
and
also
the
lower
Court's
decision,
there's
a
lower
court
decision.
While
it
goes
the
other
way
and
gives
a
little
more
detail
and
a
little
more
background
information
and
then
the
fourth
Department
was
like
they
were
wrong
like
this.
Doesn't
they
met
the
criteria?
A
A
So
on
June
6,
2017
and
July
12
2017,
the
Yonkers
Department
of
Housing
and
buildings
issued
temporary
certificates
of
occupancy
to
Lowe's
Home
Center
authorizing
limited
use
of
a
substantially
completed
Improvement
located
in
the
city
of
Yonkers,
specifically
in
Ridge
Hill
I.
Don't
know
if
anyone
hangs
out
in
Ridge
Hill,
where
my
doctor's
offices
are
anyway.
E
A
A
The
petitioner,
a
union
representing
active
firefighters
of
the
City's
Fire
Department
argued
that
the
mitigation
measures
identified
during
the
ridge,
Hills
environmental
review,
included
the
construction
of
a
new
Firehouse.
The
patient
petitioner
appealed
both
temporary
certificates
of
occupancy
to
the
city's
EBA,
arguing
that
they
were
not
validly
issued.
Given
the
absence
of
any
firm
plans
to
construct
the
new
Firehouse
on
October
17th,
the
zba
dismissed
the
petitioner's
appeal
for
lack
of
jurisdiction.
A
A
So
I'll
move
this
one's
hard,
I
think
it'll
it'll
make
more
sense
when
I,
of
course,
after
I
explain
it
so
we'll.
Let
me
jump
right
into
it
in
a
proceeding
to
review
a
determination
of
a
zba
zoning
board's
interpretation
of
its
zoning
ordinance
is
entitled
to
Great
deference
and
judicial
review
is
generally
limited
to
ascertaining
whether
the
action
was
illegal,
arbitrary
and
capricious
or
an
abusive
discretion.
A
However,
there
is
a
narrow,
but
well
recognized
exception
to
the
rule
that
zoning
board's
interpretation
of
a
zoning
ordinance
is
entitled
to
Great
deference
that
exists
where
the
question
is
one
of
pure
legal
interpretation
of
statutory
terms,
in
which
case
Steph
reference
to
a
zoning
board
is
not
required
here.
In
this
case,
the
basis
for
the
petitioner's
appeal
of
the
city
of
Yonkers,
Department
of
Housing
and
building's
issuance
of
a
temporary
certificate
to
the
Lowe's
was
not
grounded
in
the
enforcement
of
any
use
or
dimensional
requirement
set
forth
in
the
Yonkers
zoning
ordinance.
A
The
petitioner
instead
alleged
non-compliance
with
certain
reported
mitigation
requirements
imposed
during
the
Seeker
process.
So
what
the
court
was
saying
is
that
the
union
of
firefighters
could
not
appeal
to
the
zda,
because
they
weren't
appealing
any
aspect
of
the
zoning
code.
They
were
arguing
that
hey.
You
can't
issue
this
temporary
certificate
to
the
Lowe's,
because
we
were
supposed
to
get
a
firehouse
instead,
and
so
the
court
said
going
to
the
zba
was
not
appropriate.
A
A
So
once
you
once
you
once
I
explain
it
like
you're
like
oh
okay,
that
makes
sense
and
again
if
everyone
was
reading
the
case,
I'm
sure
you
know
you'd
see
it.
Although
it
took
me
a
slow,
read
to
figure
out
what
was
going
on,
but
I
think
I
have
some
other
cases,
but
I
don't
really
want
to
rush
through
because
I
I
think
they're
pretty
good.
So
David.
If
you
don't
mind,
maybe
we
can
continue
this
training
session
next
month.