Zoning issues are an often overlooked aspect of residential and commercial real estate transactions. While you may own a piece of property, you may not have the right to do whatever you wish with the land. Every municipality in New York enforces their own zoning regulations and failure to strictly comply with these rules can lead to lengthy and costly litigation.
Matter of Nemeth v. Village of Hancock Board of Zoning Appeals
Here is a recent example from a small village in upstate New York. The underlying dispute goes back more than 10 years. Two residential property owners in the Village of Hancock, New York, objected to a neighbor's manufacturing business. The homeowners claimed the manufacturing plant was a “private nuisance” that generated excessive noise and odors. Delaware County Supreme Court dismissed these claims, crediting the findings of village officials who found the plant's operations did not generate unreasonable noise or odors.
But in 2012, the Appellate Division, Third Department, reversed the Supreme Court's decision to dismiss a second claim that the manufacturer was in violation of Hancock village zoning regulations. The manufacturer's property was in an area zoned as residential by the village as of 1983. Since most of the manufacturing plant was built before then, it could continue in operation. This is known as a “nonconforming use” under the zoning laws.
The problem was that in 2001, the manufacturer built an addition to its existing building on the residential-zoned land. Although village officials granted a building permit for this extension, the Third Department held it still violate the zoning regulations, which prohibited any new construction for manufacturing purposes. The appeals court therefore issued an injunction prohibiting the manufacturer from using this addition.
The matter did not end there. The manufacturer asked the village's board of zoning appeals for a variance—an exemption from the residential-only zoning rule. The board granted the variance. The residential property owners sued again, this time arguing the variance was illegal.
Delaware County Supreme Court rejected this new lawsuit, but once again, the Third Department reversed in favor of the homeowners. The appeals court said under New York law, a variance may only be granted if the owner proves “the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned.” In other words, the manufacturer had to demonstrate there was no way to make money off the land if it were put to residential use. The Third Department said the manufacturer failed to make such a showing.
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A case like this demonstrates the heavy burden property owners face when attempting to conform with zoning laws, especially in the face of hostile neighbors willing to spent years in court to force compliance. That is why if you are involved in buying or modifying property, it is imperative you have an experienced New York real estate attorney on your side. Contact our office today if you need to speak with an attorney about any sort of real estate matter.