Zoning Compliance Errors and the Cost to Residents

by Meg Yergin -

Our local zoning laws are passed by the Board of Trustees to regulate how land in the Village can be used and ensure that development aligns with the Village’s Comprehensive Plan.  See HERE. These laws (the Code) are intended to protect the environment, the character of our neighborhoods and prevent development from adversely impacting neighboring properties.

The Code also provides a framework for residents and property owners to appeal Building Department decisions they think are wrong and could negatively impact them.  Legal challenges to zoning issues can result in costly litigation for the Village, as well as for neighbors who have to spend significant amounts of their own time and money on appeals.  For example, neighbors’ appeal of Ralph Ices’ building permit at its original location on Keeler Avenue in 2016.  That appeal to the ZBA dragged on for over a year, followed by litigation in which the Village successfully defended the ZBA’s decision in favor of the neighbors.

Considering the cost to residents, it’s worth looking at where gaps exist in the review process that may lead to zoning code compliance errors.  This is especially true in light of the current, contentious challenges to the site plan proposed for 1011 Greacen Point Road.

Building Department Zoning Determination

The first stop for a proposed project is the Building Department.  In the Village, it’s the job of the Building Inspector (BI) to determine what’s required to bring the project into compliance with the Village Zoning Code.  This includes determining if any land use board approvals are required, including site plan approval by the Planning Board. 

GAP #1: When making a zoning compliance determination, the BI must rely on the accuracy of the information provided by the applicant.  The applicant provides the site plan, engineering drawings and all zoning calculations.  Although a licensed architect and/or engineer must certify that the information is correct, the potential for errors and elements obscured on the plans exist. 

Case in point, neighbors of 1011 Greacen Point Road brought the omission of the details of a 6-foot retaining wall in a side yard on the applicant’s site plan that had been approved by the Planning Board to the attention of the Building Department after it had already issued a building permit for the project.  In response, the Building Department issued a stop work order and sent the application back to the Planning Board for an amended site plan review which is currently ongoing.  Neighbors are now spending additional time and money to bring an appeal to the Zoning Board of Appeals (ZBA) challenging additional zoning calculations.  This appeal is on the ZBA’s agenda for September 4, 2025.

GAP #2: Each municipality’s zoning code is unique in NYS, created by the passage of laws by its local administration.  This means that an official new to the Village charged with zoning enforcement cannot rely on past experience with other municipalities’ codes to be certain compliance evaluations are correct.  Frequent changes in code-enforcement staffing, such as the Village has experienced over the past year, can result in a lack of comprehensive knowledge of the Village code within the Building Department leading to a risk that compliance requirements are overlooked.

Role of Land Use Boards

If the BI determines that the plan for the project does not align with the area requirements of the Code, for example if the intended building is larger than the Code permits, the applicant is required to obtain an area variance from the ZBA.  If the project’s exterior costs are estimated to be $40,000 or more, the Code requires the applicant to obtain approval from the Board of Architectural Review (BAR).  And under certain conditions, the project must also be reviewed by the Harbor Coastal Zone Management Council (HCZMC) for consistency with the Village’s Local Waterfront Revitalization Program (LWRP) as well as the Planning Board.  

The Planning Board (PB) has the responsibility of approving the site plan if one is required.  See Code Section 342-75.  If a site plan is required, the PB must consider the following criteria:

·      Does the project result in minimal adverse impact on critical areas such as wetlands, mature stands of vegetation and extraordinary wildlife, and does it preserve the landscape in its natural state and minimize tree and soil removal?

·      Will trees that are planned to be removed be replaced in accordance with the Village’s tree law?

·      Are the proposed structures located to minimize adverse impact upon the surrounding area, particularly upon nearby residences?

·      Does the project include proper surface water management that protects other properties and existing features from adverse effects of flooding and erosion, and is the design of those facilities based on a 100-year storm event?

See HERE for a complete list of criteria that the PB must consider.

In response to comments from the PB and the other land use boards, the applicant often makes amendments to the original site plan.

GAP #3: Just like the Building Department, the land use boards rely upon the applicant’s information which may be inaccurate or incomplete. In addition, if the applicant makes amendments to the original site plan in response to comments from a particular land use board, any boards that previously reviewed the plan are generally not given a chance to re-review it, leaving open the possibility for zoning non-compliance issues.  For example, a revision requested by HCZMC or the Planning Board could result in the need for an additional area variance, but the site plan has already passed its review by the ZBA.  Or a revision made to a stormwater management system or relocation of structures during the PB’s review doesn’t make it back to HCMZC to consider if those changes impact the project’s consistency with the LWRP.

Site Plan and Building Permit Approval

When approving a site plan, the PB votes on a resolution prepared by the board’s attorney.  This resolution usually contains a list of conditions which spell out next steps for the applicant.  These conditions are often not documented on the site plan or engineering drawings at the time the PB approves the application and are only recorded in the resolution. 

The applicant returns to the BI for a building permit to start construction after obtaining all required approvals from the land use boards, including site plan approval.

Gap #5: The BI relies on the applicant to provide a final, accurate site plan containing all changes that land use boards have required as part of the building permit application.  Usually, the changes called for in the conditions listed on the PB’s resolution are not reflected on the site plan at the time the final plat is stamped for the building permit.  These gaps become problematic when a project is completed according to an earlier version of the site plan which does not incorporate all required changes, or when what is built doesn’t follow all conditions in the PB’s resolution.

Case in point, at 1017 Grove Street, the neighbors appealed building permits issued for three new homes in 2017.  The neighbors argued that the developer did not follow all conditions of the PB’s site plan approval resolution during construction.  The ZBA agreed with many of the points that the neighbors made and directed the developer to make changes to the already developed properties.  Litigation brought by the developer against the Village in response to the ZBA’s determination is still ongoing.  See HERE.

Why Adherence to the Zoning Code Matters

Non-adherence to the Zoning Code can result in an unpredictable investment environment for property owners as clear development expectations for a neighborhood are lost.  Non-adherence also presents risk to the preservation of natural resources and flood risk mitigation.

Although the Code provides a defined process for addressing conflicts over zoning compliance between neighbors and the Building Department, these processes can be expensive, both for property owners and the Village.  Accurate tracking of all zoning compliance requirements by the Building Department during the site plan review process and construction of the project is necessary to minimize costly appeals and litigation.