Planned Invs. Corp. v Incorporated Vil. of Massapequa Park
Annotate this CaseDecided on August 5, 2004
Supreme Court, Nassau County
PLANNED INVESTORS CORP., Plaintiff,
against
THE INCORPORATED VILLAGE OF MASSAPEQUA PARK, Defendant.
405/02
Zelda Jonas, J.
Motion by plaintiff for summary judgment in its favor against defendant and defendant's cross-motion for summary judgment dismissing the complaint are determined as hereinafter provided.
In this action, the plaintiff-owner of an unimproved parcel of real property, known as section 53, block 56, and lots 4669 and 4670 located on the northerly side of Jackson Avenue within the residence "A" zoning district of the Incorporated Village of Massapequa Park, seeks damages against the defendant on the grounds that defendant's denial of its application for a variance to construct a single-family dwelling on the subject lot having less than the required width of 60 feet effected a confiscatory taking of its property for which plaintiff must be justly compensated. In reaching its decision dated August 10, 1999, the Zoning Board of Appeals considered the following factors: 1. A detrimental change of increased population density would be produced in the character of the neighborhood by the construction of a dwelling on property smaller than those of other homeowners on Jackson Avenue. Furthermore, an undesirable change would be produced in the [*2]neighborhood by the potentially increased parking needs, its resulting congestion and potential safety hazards.2. Use of the property can be pursued for purposes other
than a single family dwelling. 3. The Code of the Village of Massapequa Park aims to restrict the construction of future single family dwellings to property that is at least 60 feet by 100 feet in residential districts to avoid over crowding and the over use of municipal facilities. The requested variance would result in a dwelling being constructed on 2/3 of the minimum building lot size specified in the Village Code. This variance would permit a substantial deviation from the Code requirements.4. There would be no adverse effect or impact on the physical or environmental conditions.5. Any alleged difficulty is self-created, as the owner had the opportunity to learn of the building restrictions of the Village before purchasing the property with the intent to construct a dwelling on it.
The Zoning Board's denial of the variance to construct a single-family dwelling on a substandard lot was affirmed by both the Supreme Court (March 16, 2000) and the Appellate Division, Second Department (May 21, 2001).
Plaintiff argues that it acquired the property in 1985 with the expectation that it would be allowed to build, regardless of the existing ordinance, based upon the "single and separate" ownership doctrine which, according to plaintiff, permits the owner of what was once a buildable lot to obtain a variance, as a matter of right, to use his property for residential purposes, notwithstanding contrary existing area restrictions.
As pointed out by the Court of Appeals in Khan v. Zoning Bd. of Appeals, 87 NY2d 344, 350 (1996) "[a] municipality may in the reasonable exercise of its police power change its zoning to control land use and development." It may provide for exemptions for property that is held in single and separate ownership through its ordinance. Where no such exemption is provided, the property owner can utilize the local provisions for obtaining a variance. If the variance is denied, an aggrieved owner can bring on a judicial proceeding alleging an unconstitutional taking. However, the Court of Appeals concluded that "there is no need for a common-law rule to protect landowners who possess parcels in 'single and separate ownership' situations" and declined to adopt such a rule (Khan v. Zoning Bd. of Appeals, supra at p. 350).
It is well settled that "zoning ordinances are 'invested with an exceedingly strong presumption of constitutionally' " (Matter of Kransteuber v. Scheyer,
80 NY2d 783, 786 [1992] quoting from Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 65 [1979]. The determination of whether a property interest sufficient to support a taking claim exists is generally a threshold inquiry (Soon Duck Kim v. City of NY, 90 NY2d 1, 6 [1997], cert. denied 522 U.S. 809). Although the purchase of property with knowledge of applicable zoning restrictions will not automatically foreclose a constitutional challenge (Matter of Sakrel, Ltd. v. Roth, 176 AD2d 732, 736-37 [2nd Dept . 1991]), "[a] [*3]landowner who challenges the constitutionality of a zoning ordinance as applied to a particular parcel of property bears a heavy burden of demonstrating beyond a reasonable doubt, with 'dollars and cents' proof, that 'under no use permitted by the [ordinance] * * * would the propert[y] be capable of producing a . . . return' " (Matter of Kransteuber v. Scheyer, supra quoting from de St. Aubin v. Flacke, 68 NY2d 66, 77 [1986]). Here, as in Kransteuber, plaintiff's expert has stated that plaintiff's property, which was purchased for $25,000 in 1985, is not without value as that the property has a value of $22,000 even without the requested variances (plaintiff's Affirmation in Opposition, p. 12, par. 57; defendant's Reply Affirmation, p. 4, par. 12). Moreover, plaintiff has failed to provide any evidence of the market value of the property at the time plaintiff acquired it (Matter of Licari v. Scheyer, 193 AD2d 604, 606 [2nd Dept. 1993]).
Review of the record establishes that plaintiff never had an absolute right to build a single-family home on the premises without a variance. As such, the complaint must be dismissed (Matter of Gazza v. DEC, 89 NY2d 603, 615-616 [1997], cert. denied 522 U.S. 813). It is undisputed that from the date of its enactment in 1972 until 1999, the date the section was amended, §345-28 of the Code of the Village of Massapequa Park prohibited the construction of buildings within the Residential "A" district on lots less than 6,000 square feet. Prior to 1972, §19-60 and §19-61of the previous Code also required that a lot be at least 6,000 square feet. In 1999, §345-28 was amended to require that a residential building lot be 8,000 square feet.
While plaintiff had a reasonable expectation that the Zoning Board of Appeals of the defendant Village would consider its request for an area variance in accordance with the standards and purposes of §7-712-b of the Village Law generally and as applied to other landowners, any claim that the denial of the requested variance constitutes to a taking must fail as plaintiff never owned an absolute right to build on the subject property without a variance (Matter of Gazza v. DEC, supra at p. 618). The fact that a landowner is denied "the ability to exploit a property interest that they heretofore had believed was available for development" (Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130 [1978]), does not equal a taking. Even if plaintiff has a cognizable property right, conclusory allegations that the property could not yield a reasonable return as it is presently zoned are insufficient to establish an unconstitutional taking (Spears v. Berle, 48 NY2d 254, 263-64 [1979]).
Having purchased a substandard lot, it cannot be said that plaintiff's "reasonable" expectations were affected when the property remained substandard i.e., restricted, or that the defendant's enforcement of the ordinance deprived plaintiff of any property interest for which it was entitled to just compensation (Matter of Anello v. Zoning Board of Appeals of the Village of Dobbs Ferry, 89 NY2d 535 [1997], cert. dismissed 521 U.S. 1132. Plaintiff's title was not redefined by the promulgation of a new regulation. As noted by the court in Anello, supra at p. 540-41, "if property owners were permitted to assert compensatory takings claims based on enforcement of preexisting regulations, the traditional takings analysis articulated in Penn Cent., and its inquiry into 'the extent to which the regulation has interfered with distinct investment-backed expectations,' would be rendered hopelessly circular." (See, Penn Cent. Transp. Co. v. New York City, supra at p.124.) There is no authority to support the proposition advanced by plaintiff that an owner of a substandard lot who could, but did not, apply for a variance pursuant to the single and separate doctrine at a time when it was a viable rule of law, is entitled to a variance pursuant [*4]to that doctrine after it has been abrogated.
Accordingly, plaintiff's motion for summary judgment against defendant is denied, and defendant's cross-motion for summary judgment dismissing the complaint is granted.
Dated:
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
