Harras Bloom & Archer LLP Blog

Wednesday, January 22, 2014

Let Us Help You Avoid Zoning Drama

Edited By: Janice Whelan Shea, Esq.

You have finally zeroed in on the perfect parcel of property to expand your business in the right location, at the right price, after a long, painful search. Is your work ended?  NO, because your perfect property is not zoned to accommodate your business.  A problem only if you do not have the right legal team of zoning professionals to assess your options.  Seasoned, zoning counsel at Harras Bloom & Archer will assemble the right team of legal, design and engineering professionals to work to obtain approvals, permits, variances and special exceptions to achieve your desired goals.  We at HBA manage land use cases from rough sketches to public hearing through final “Cos” or certification.

We at HBA ground our service in keeping abreast of legal trends and zoning standards relevant to each type of zoning approval.  We work up each case knowing the property’s zoning history, the neighboring uses, and the municipal board’s precedents and particular concerns. We analyze the character of a neighborhood.  Where appropriate, we meet with neighbors to work through possible opposition and engage the services of real estate, financial and traffic experts to assist in technical aspects of land use advocacy.

On occasion, we caution clients against proceeding with a purchase or lease depending upon the facts, circumstances and equities involved.  We often see that dodging a zoning bullet will later result in finding another site better suited to a client’s long-term needs.

While some believe that land development starts with the filing of a building permit application, we widen the lens to start the approval process way before we file a permit application.  We meet with municipal planners and analyze relevant code provisions before contract or lease signing to ensure that we and you, our client, know precisely how a building inspector, who stands in review of plans, will view an application and chart the approval process.

Once we, you, the client, and the respective municipal planners are on the same page regarding the approval process, we meet with your design and engineering professionals to understand your building and technical needs.  Every project requires a unique set of approvals: if traffic and access is a concern on a County Road, we meet with County representatives to obtain a full understanding of their requirements.  If drainage is a concern, we assess potential infrastructure expenditures; sanitary considerations require review of existing conditions and potential upgrades and cost.  We see time and time again, that knowing more, up front, will conserve a client’s resources in the long term.

Once your design and engineering team members finalize site and building plans, we file for permits at the local level.  Plans that meet the relevant zoning code may be tracked for approval.  Plans that exceed, or in some cases fail to meet, minimum zoning standards may be slated for zoning disapproval and appeal to the respective Zoning Board of Appeals (“ZBA”) .

Under New York State Law, a municipality’s ZBA wields Appellate Review over zoning denials to act as a “safety valve” for the otherwise strict enforcement of a zoning ordinance.  Relaxations of zoning codes in both residential and commercial projects take the form of “area” or “use” variances.  Area variances relate to relaxation of dimensional standards such as set backs, floor area and parking.  Far less frequent “use” variances seek permission to maintain or establish a use not authorized or specifically prohibited by the relevant zoning code, such as seeking permission to establish a prohibited auto body use in a business district. 

Area variances require a showing that benefits of the requested variance outweigh any possible detriment to the health, safety and welfare of the neighborhood, whether the benefit sought can be achieved by alternate means, environmental conditions and the substantiality of the request.  Use variances require meeting a heightened standard of convincing a board that the applicable zoning regulation prevents the owner from realizing a reasonable return on the property.  

A municipality’s ZBA may also have the power of “original jurisdiction” to issue special permits, specific to each Town or Village’s zoning code which may cover a variety of residential and commercial uses.  Such permits may include home occupations (the use of a residence, or part thereof, for a business), mother- daughter residences, public assembly and outdoor storage.

We at HBA assist individual, local, religious and national clients to achieve their land development goals and code enforcement defense in matters of zoning, site plans, subdivisions, special permits and pre-existing, legal nonconforming uses.  We welcome the opportunity to discuss your proposal.

Harras Bloom & Archer LLP is known for providing sophisticated legal representation to sophisticated clients serving Nassau County, Suffolk County, Queens County, New York City and surrounding areas.

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