Scenic View Ordinance Too Vague To Enforce

Wednesday, October 03, 2018 7:35 am
October 2018 - Volume 46 Number 10

A village building height ordinance was unconstitutionally vague because its ambiguity regarding the height baseline gave the village an unfettered ability to determine a building’s compliance.

Facts: Brendan Cunney sued the Board of Trustees of the Village of Grand View, New York, along with the village’s Zoning Board of Appeals (ZBA) and its building inspector, Joseph W. Knizeski. Cunney alleged that a village zoning ordinance was void for vagueness and that the defendants violated his substantive due process rights by denying his application for a certificate of occupancy.

Cunney had applied for permits to renovate his house in 2006. The house is on a half acre next to the Tappan Zee Bridge, and the property is bordered by the Hudson River to the east and River Road to the west. It slopes down from the road to the river, though there is a flat section where the house is located. Because of its riverside location, the property lies within “Zone B,” which is governed by Section E of the village’s zoning law.

Section E states, in relevant part, that no building in Zone B “shall rise more than two stories in height nor more than four and one-half (4 ½) feet above the easterly side of River Road.” The stated purpose of Section E is to “preserve as nearly as practicable the remaining views o[f] the Hudson River from RiverRoad[.]”

In 2006, the ZBA held a hearing to consider Cunney’s permit and variance requests. At the hearing, Cunney’s surveyor said that Section E was ambiguous as to which points on River Road he should use to measure the height of the house because River Road changes elevation.

The ZBA agreed that Section E was amb[..]