The Court of Appeals of New York held that when a rezoning of property occurs solely on the condition that there will not be any new construction of new structures without consent and this amendment fails to state that the consent may be unreasonably withheld the municipality or city in charge does not have to consent to the construction nor do they have to provide a valid reason as to why they are rejecting the request.
When a rezoning of property occurs solely on the condition that there will not be any new construction of new structures without consent, and this amendment fails to state that the consent may be unreasonably withheld, the municipality or city in charge does not have to consent to the construction nor do they have do provide a valid reason as to why they are rejecting the request.
Collard (Plaintiff) owns real property in the Village of Flower Hill (Defendant). Two years before acquiring the property in question, Plaintiff’s property’s previous owners asked the city to rezone their property so the property may be utilized for business purposes. The city would only agree on the basis of a condition that the property owners would not construct any new structures to which the landowners agreed. Two years later, Plaintiff acquires the property and seeks permission to erect a new building however the city rejected this request without a reason. Plaintiff brought suit seeking an order to comply. The trial court dismissed the order. Plaintiff appeals.
In the event that a property is rezoned and a covenant runs with the land which states that no new structure will be built without the consent of the city, and there is no provision within the covenant that states the consent may be unreasonably withheld, can the city be forced to allow the construction or be forced to show good cause?
No. This court recognizes the increasingly popular conditional zoning. Furthermore, the Court notes that the city may not be forced to show a good reason or be forced to allow the erection of a new structure. Also, the idea of conditional zoning allows benefits to neighboring properties. Trial Court is affirmed.
The court emphasizes since there is no specific language regarding the Plaintiff’s argument that the covenant fails to state the city may unreasonably withhold consent, the court will not read this language or any other language into the covenant.