Ellington Construction Corp. v. Zoning Board of Appeals of Inc. Village of New Hempstead

566 N.E.2d 128, 77 N.Y.2d 114, 564 N.Y.S.2d 1001, 1990 N.Y. LEXIS 4421
CourtNew York Court of Appeals
DecidedDecember 20, 1990
StatusPublished
Cited by60 cases

This text of 566 N.E.2d 128 (Ellington Construction Corp. v. Zoning Board of Appeals of Inc. Village of New Hempstead) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellington Construction Corp. v. Zoning Board of Appeals of Inc. Village of New Hempstead, 566 N.E.2d 128, 77 N.Y.2d 114, 564 N.Y.S.2d 1001, 1990 N.Y. LEXIS 4421 (N.Y. 1990).

Opinion

OPINION OF THE COURT

Hancock, Jr., J.

For a village having both a Planning Board and a [118]*118Zoning Board of Appeals, Village Law § 7-708 (2)1 establishes an exemption period of three years after the filing of a subdivision plat during which an amendment increasing lot area or dimension requirements shall not “be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat” (§ 7-708 [2] [a]). Prior to an increase in the applicable area and dimension requirements, the owner of an approved subdivision failed to complete it or to apply for building permits on all of the proposed lots. It did, however, take sufficient steps toward completion of the proposed subdivision before the exemption period expired to acquire common-law vested rights. The question presented by the appeal of respondent Zoning Board is whether the petitioner owner, by virtue of these vested rights, is exempt from compliance with the new, more stringent area and dimension requirements when it applies for building permits for its remaining lots. Supreme Court and the Appellate Division both held that the owner is protected under the exemption in Village Law [119]*119§ 7-708 (2) (b), and we agree. There should, accordingly, be an affirmance.

I

On April 29, 1975, the Town of Ramapo Planning Board accepted for filing petitioner’s "average density” subdivision plat (see, Town Law § 281). As a condition of its "average density” approval, the town required that 12.105 acres of the 33.522 acres in the subdivision be irrevocably dedicated to it for parkland purposes. The subdivision was approved for development in two sections, the first to consist of 9 lots and the second of 22 lots.

On July 3, 1975, petitioner’s predecessor dedicated the parkland and thereafter, on September 24, 1975, the subdivision plat was filed. On June 29, 1982, the town approved a revised subdivision plat. This plat, filed on October 14, 1982, did not in any way modify the original layout of the lots, streets and other improvements.2

Between 1980 and early 1984, petitioner built seven homes on section one of the subdivision. No homes were constructed in section two which had been laid out for lots having widths of between 108 and 120 feet and areas complying with the 22,500 square-foot minimum requirement of the Town of Ramapo ordinance.

In 1984, when the Village of New Hempstead was incorporated, the territory of the town which encompassed petitioner’s subdivision became part of the Village. On January 2, 1986, the Village amended the applicable zoning ordinance to increase the minimum area requirement for average density lots to 35,000 square feet and the minimum width requirement for such lots to 150 feet. Prior to this time, petitioner had installed various improvements on the subdivision including, on section two, drainage facilities, water and sewer lines, fire hydrants, curbs and curb cuts, and underground telephone and electric service. After the amendment to the ordinance— and with the Village’s knowledge — petitioner installed a paved road on section two.

In June 1986, petitioner applied for a building permit to construct a house on lot D-10 in section two. The Village building inspector denied the permit because petitioner failed [120]*120to make certain public improvements to a county road adjoining the subdivision, and because the lot did not meet the amended, more restrictive Village zoning requirements.3 With respect to this second reason, the inspector ruled that the exemption in Village Law § 7-708 did not apply inasmuch as petitioner had not sought a building permit during the three-year exemption period. Petitioner then commenced its first article 78 proceeding to review the denial of its permit. Supreme Court dismissed this proceeding for petitioner’s failure to exhaust administrative remedies since it had not sought relief in an appeal to the Zoning Board of Appeals. Accordingly, petitioner appealed the building inspector’s denial to the Zoning Board of Appeals and, as alternative relief, requested a variance.

When respondent Zoning Board of Appeals denied petitioner’s application in all respects, it commenced the present article 78 proceeding. Supreme Court annulled respondent’s determination and directed the Village inspector to issue the building permit for lot D-10 and the other lots in the subdivision "if, as, and when petitioner makes an application for same”. The Appellate Division agreed with Supreme Court’s conclusion that petitioner had acquired vested rights to complete the subdivision under the originally applicable area and dimension requirements, but modified by requiring petitioner to fulfill certain conditions in order to obtain the building permit.4

II

This appeal turns on a question of statutory interpretation: the intended effect of the language in Village Law § 7-708 (2) creating the exemption. Respondent Zoning Board of Appeals contends that the statute affords protection only for those lots in a filed subdivision which an owner has completed or for which it has actually obtained a building permit during the exemption period. Petitioner argues that the statute protects subdivision lots in which an owner has acquired common-law [121]*121vested rights during the period. In construing section 7-708 (2), as with any legislation, we first "look to the particular words for their meaning, both as they are used in the section and in their context as part of the entire statute.” (Price v Price, 69 NY2d 8, 13.) For if the statute is unambiguous and its meaning evident from the language, as respondent contends, we need look no further (see, Sega v State of New York, 60 NY2d 183,190-191).

From the language of section 7-708 (2), as it applies to the Village of New Hempstead, there is no question: (1) that its purpose is to create an exemption from the operation of amendments imposing stricter area and dimension requirements; and (2) that the period of the exemption is three years commencing on the date of the filing of the subdivision plat. But the statute contains no language which prescribes the conditions which must be satisfied for an owner to receive the benefit of the exemption. It does not specify whether as a prerequisite for claiming the exemption for a particular lot, the owner must, during the exemption period, have completed construction on the lot or obtained a building permit for such construction — or whether it is sufficient if the owner has taken sufficient steps toward completion of the subdivision under the existing, more liberal zoning requirements to have acquired vested rights in the remaining undeveloped lots. The only statutory mandate is that the stricter requirements of the amended ordinance "shall not * * * be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat” (Village Law § 7-708 [2] [a] [emphasis added]). Exactly what the lots are protected from — i.e., what is meant by the phrases "be applicable to” and "in any way affect” — is not clear. It is necessary, therefore, to look beyond the words of the statute at the circumstances surrounding its adoption and to consider the policy reasons for enacting legislation in an area where common-law rules have long controlled (see, Price v Price, supra, at 13-14), being mindful, of course, that the " 'legislative intent is the great and controlling principle’ ” (id., at 14;

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Bluebook (online)
566 N.E.2d 128, 77 N.Y.2d 114, 564 N.Y.S.2d 1001, 1990 N.Y. LEXIS 4421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellington-construction-corp-v-zoning-board-of-appeals-of-inc-village-of-ny-1990.