Zoning Ordinance Appeals

Generally, the court will not hear an action for a declaratory judgment that a zoning regulation is unconstitutional until the property owner has exhausted his administrative remedies.  Where the operation of a zoning ordinance effects an unconstitutional present invasion of a landowner’s property rights, however, there is no need to exhaust administrative remedies before commencing an action for a declaratory judgment.  [1]

In Polak v. Kavanah, 48 A.D.2d 840, 368 N.Y.S.2d 563 (2d Dept. 1975), for example, the plaintiff owned 24.5 acres of residentially-zoned land.  He was issued an excavation permit under a prior ordinance, and in reliance on said permit entered into a contract with excavators to remove sand and gravel from the subject premises.  The town then enacted the zoning ordinance in question, which provided that previously issued permits for excavation in residential districts would either terminate one year from the date of issuance or six months after the effective date of the ordinance.  Further, only permit holders could reapply for permits, but the Zoning Board of Appeals could deny an application for such a renewal on land within a residential district.  The court found that while the challenged regulation did not prohibit the use which the plaintiff proposed and only required a special permit, the requirement that the plaintiff exhaust all administrative remedies prior to bringing suit could not apply.  This was so because the requirement of exhaustion of administrative remedies assumes that adequate relief may be obtained under the ordinance, but in this case the ordinance is confiscatory and unconstitutional because it compels a reapplication for a vested right wrongfully terminated, and therefore no useful purpose could have been served by requiring the plaintiff to observe it.

For the most part, zoning ordinances are presumed valid, and the petitioner challenging the ordinance must demonstrate that he is somehow being divested of the right to the use of his property by the ordinance.  A zoning ordinance must provide a properly balanced and well-ordered plan for the community and it must adequately consider the needs and requirements of the region it intends to control. A zoning ordinance carries with it the presumption of constitutionality attached to any legislative act, and it will be sustained unless the challenging party succeeds in proving beyond a reasonable doubt that it is not designed to accomplish a legitimate purpose.  [2]    The property owner has the burden of establishing that his property is not reasonably adaptable to any use for which it is zoned.  A contention that one’s property would be worth more if it was differently zoned is insufficient to overcome the presumption that a zoning ordinance is valid.  [3]


[1] Matter of Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 366, 334 N.Y.S.2d 138, 142, 285 N.E.2d 291, 294; Scarsdale Supply Co. v. Village of Scarsdale, 8 N.Y.2d 325, 206 N.Y.S.2d 773, 170 N.E.2d 198; Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427; Ulmer Park Realty Co. v. City of New York, 267 App.Div. 291, 45 N.Y.S.2d 527

[2] Robert E. Kurzius, Inc. v. Incorporated Vil. of Upper Brookville, 51 N.Y.2d 338, 434 N.Y.S.2d 180 (1980)

[3] Schwartz v. Lee, 28 A.D.2d 921, 282 N.Y.S.2d 141(2 Dept. 1967)

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