October 1, 2015

Court Vacates SEQRA Findings Statement For Lack Of Support In The Record

The Appellate Division upheld a lower court decision vacating findings issued pursuant to the State Environmental Quality Review Act ( SEQRA). In Matter of Falcon Group LTD. Liab. Co. v. Town/Village of Harrison Planning Board, the Court found that the Planning Board had failed to adopt findings based upon the full record produced in the Draft Environmental Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS).

Initially, the Court noted that judicial review of lead agency SEQRA findings is limited, but the findings must still be based upon the facts.

"While an agency's ultimate conclusion is within the discretion of the agency, it must be based upon factual evidence in the record and not generalized, speculative community objections (see Matter of WEOK Broadcasting Corp. v Planning Bd. of Town Lloyd, 79 NY2d at 384-385)."

The Court found that the Planning Board failed to carry out its mandate in several respects.

"The Board's conclusions in the findings statement were based, at least in part, on factual findings which were contradicted by the scientific and technical analyses included in the FEIS and not otherwise supported by empirical evidence in the record ...While the findings statement discussed the alternatives that involved clustering the development into a smaller area, it did not address the reduced-density alternative set forth in the FEIS, which was not a cluster alternative and which reduced many of the environmental impacts of the original plan. "

As a result, the Court annulled the findings statement and remitted the matter for the Planning Board to issue findings "consistent with the FEIS."

-Steven Silverberg

September 26, 2015

Zoning Board Need Not Support Every Finding With Evidence If Determination Has A Rational Basis

The Appellate Division reversed the Supreme Court and reinstated the determination by a Zoning Board of Appeals (ZBA) to deny area variances for an accessory structure in a front yard. In Matter of Kramer v. Zoning Board of Appeals of the Town of Southampton, the Court upheld the denial of area variances sought by the Petitioners, after they had completed construction.

Petitioners had constructed a barbecue, sink, cabinets, counter top and refrigerator in their front yard. When they subsequently applied for a building permit they were told they needed variances to permit what was essentially an accessory kitchen in the front yard. The ZBA denied the application finding: "...granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b[3][b])."

In reversing the lower court and upholding the decision of the ZBA the Court noted:

"In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Town Law § 267-b[3][b]; .... The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational...."

Petitioners also argued that three prior variances issued to other applicants create a binding precedent that mandated the issuance of the variance to Petitioners. The Court disagreed finding: "...petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application...."

-Steven Silverberg

August 24, 2015

Supreme Court Sign Decision Widens the Limitations on Government Regulation

The decision in Reed v. Town of Gilbert, in which the Supreme Court applied a strict scrutiny test to local sign laws, initially drew little notice but it is already having far reaching implications. Sandwiched between high profile decisions on gay marriage and Obamacare in late June, in the case of Reed v. Town of Gilbert the Supreme Court found a local sign law setting different standards for different types of signs was subject to strict scrutiny, could not be justified and therefore the particular ordinance was unconstitutional. The Court held:

"…the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech…."

In the two months since that decision, it has already spawned several cases that have expanded its application to other areas of regulation.

In Cahaly v. LaRosa, the 4th Circuit Court of Appeals, citing Reed, found that a law regulating political robocalls was unconstitutional. Noting the holding in Reed “abrogates” that Circuit’s prior holdings as to content neutrality, the Court went on to state:

"Applying Reed’s first step, we find that South Carolina’s anti-robocall statute is content based because it makes content distinctions on its face. Reed instructs that ‘[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.’ 135 S.Ct. at 2227. Here, the anti-robocall statute applies to calls with a consumer or political message but does not reach calls made for any other purpose…. The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. Assuming that interest is compelling, we hold that the government has failed to prove that the anti-robocall statute is narrowly tailored to serve it. Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists."

The 7th Circuit, in Norton v. City of Springfield, Illinois, on rehearing, reversed its prior holding that an anti-panhandling law was constitutional. The law in question drew a distinction between soliciting for funds where the request was for immediate payment and oral or written solicitation for funds at a later date. The Court had originally justified the law as being less of an imposition on people when the request was for a “deferred” payment. In granting a rehearing, in light of the decision in Reed. the Court reversed its prior decision, finding the law unconstitutional and stating:

"The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient… Our observation, 768 F.3d at 717, that Springfield has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer."

In addition, at least one Federal District Court has applied Reed in order to hold another law unconstitutional. In Rideout v. Gardner, the Federal District Court of New Hampshire found a law prohibiting digital or photographic copying and disclosure of a completed ballot was unconstitutional. There the Plaintiff took a picture of his completed ballot and posted it on Twitter. The Court noted that the same test as was applied in Reed would apply in this case.

"In the present case, as in Reed, the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred by RSA 659:35, I are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone. In short, the law is plainly a content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter. Accordingly, like the sign code at issue in Reed, the law under review here is subject to strict scrutiny even though it does not discriminate based on viewpoint and regardless of whether the legislature acted with good intentions when it adopted the law."

The Court held that the law failed the strict scrutiny test as “neither the legislative history nor the evidentiary record compiled by the Secretary in defense of this action provide any support for the view that the state has an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion.”

In her concurring opinion in Reed, Justice Kagan took exception to the potential broad application of the opinion of Justice Thomas, noting in part that it would likely result in the Court ultimately becoming the “Supreme Board of Sign Review”. It appears she may have underestimated the breath of the application that will be made of the strict scrutiny interpretation applied by the Court.

-Steven Silverberg

July 31, 2015

U.S. Supreme Court Ruling on Local Sign Laws

At the end of June, lost among the headlines about other rulings, the U.S. Supreme Court held that a local sign law was unconstitutional. In Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) the Court broke new ground in interpreting permissible sign regulations.

In our article, published in the August 2015 edition of the New York Real Estate Law Reporter, we discuss the decision;and some of its implications.

-Steven Silverberg

June 30, 2015

City Did Not Impliedly Dedicate Land as Parkland

The New York Court of Appeals held that the use of certain lands for park purposes under a memorandum of agreement or license/lease was not an implied permanent dedication for park purposes. In Matter of Glick v. Harvey the Court rejected the challenge to the City's granting permission to utilize portions of certain playgrounds for other than park purposes, finding that there was no implied dedication of those spaces as parkland.

The Court noted that each of the spaces at issue was operated by the Department of Parks and Recreation (DPR) pursuant to a reservation of ownership/control by other City departments.

"In support of their appeal, petitioners again advance their argument that the City's actions manifest its intent to impliedly dedicate the parcels as parkland. Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the Legislature .... A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that: (1) '[t]he acts and declarations by the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication' and (2) that the public has accepted the land as dedicated to a public use (Niagara Falls Suspension Bridge Co. v Bachman, 66 NY 261, 269 [1876]; see also Holdane v Trustees of Vil. of Cold Spring, 21 NY 474, 477 [1860]['The owner's acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use']; Flack v Village of Green Island, 122 NY 107, 113 [1890]; Powell v City of New York, 85 AD3d 429, 431 [1st Dept 2011]).

It remains an open question whether the second prong of the implied dedication doctrine applies to a municipal land owner, but we need not and do not resolve that issue on this appeal because we conclude that the City's acts are not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland. ..."

The Court referencing the Appellate Division decision, noted:

"The permit, memorandum of understanding and lease/license relating to Mercer Playground, LaGuardia Park and LaGuardia Corners Gardens, respectively, show that 'any management of the parcels by the [DPR] was understood to be temporary and provisional' ....Thus, those documents' restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property."

-Steven Silverberg

May 31, 2015

Town Violated SEQRA by Segmenting Review of Drainage From Larger Project

The Appellate Division granted a petition challenging condemnation of property on the grounds that the Town segmented the review of the project in violation of the State Environmental Quality Review Act (SEQRA). In Matter of J. Owens Building Co., Inc. V. Town of Clarkstown the Court held the proposed condemnation of a parcel, to be used in order to aid drainage for a larger project, improperly failed to consider the environmental impacts of the entire project before making environmental findings.

Noting that the overall project was not hypothetical or speculative the Court stated:

"The respondents sought to acquire the petitioners' property for the purpose of, among other things, drainage and storm water management improvements (hereinafter the drainage plan) in connection with a larger project known as the West Nyack Downtown Revitalization Project. The record reflects that the drainage plan 'is a key component to the overall revitalization plans for the Hamlet' of West Nyack. Even though the drainage plan was part of the larger revitalization project, the Town Board, acting as the lead agency, studied only the potential impact of the drainage plan during its SEQRA review. However, under SEQRA, the Town Board was obligated to consider the environmental concerns raised by the entire project...".

The Court remitted the matter for the Town to either review the entire project or to make findings pursuant to 6 NYCRR 617.3(g)(1) that such a review is not necessary to be fully protective of the environment.

-Steven Silverberg

May 27, 2015

Court Finds Zoning Board Interpretation a Reasonable Exercise of Discretion

In a case primarily dealing with the authority of a Zoning Board of Appeals (ZBA) to interpret a zoning provision, the Court also addressed the issue of late filing of the ZBA decision. In the Matter of Stone Industries, Inc. v. Zoning Board of appeals of the Town of Ramapo, the Appellate Division held that the ZBA properly interpreted the ordinance as prohibiting the production of asphalt from recycled material where the language of the ordinance prohibited "the primary production of asphalt from raw materials."

The Court noted:

"As a general rule, zoning ordinances are in derogation of the common law and must be strictly construed against the municipality....This rule is subject to the limitation that where, as here, it would be difficult or impractical for a legislative body to promulgate an ordinance which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the ordinance may be delegated to an administrative body or official....The interpretation of the zoning board of appeals or the official governs unless such interpretation is unreasonable or irrational...."

While it appears that the argument here was that recycled material is not raw material, apparently the Court believed that the intent was to prohibit all asphalt production. "Based on the record evidence, it was neither unreasonable nor irrational for the Board to conclude that the processing of recycled asphalt was not a permitted use under the subject sections of the zoning law."

Another aspect of the decision dealt with the provision in New York Town Law § 267-a[9] that requires the filing of a ZBA decision in the office of the Town Clerk, within five business days of being rendered. The Court found that the ZBA's failure to comply with this rule was not fatal to the ZBA's determination.

"Town Law § 267-a(9) does not specify a sanction for the failure to comply with the five-day filing requirement (see generally Nyack Hosp. v Village of Nyack Planning Bd., 231 AD2d 617, 618). While the Board offered no explanation for its delay, the petitioner was unable to demonstrate that it was prejudiced by the late filing."

-Steven Silverberg


May 16, 2015

One Legal Nonconforming Use Does Not Permit Another Nonconforming Use

The Appellate Division upheld a zoning board determination that the existence of a legal nonconforming use did not give the property owner the right to maintain a different nonconforming use. In Bradhurst Site Construction Corp. v Zoning Board of Appeals of the Town of Mount Pleasant, the Court found the Zoning Board of Appeals properly upheld the determination of the Code Enforcement Officer who had found that the use of the property for a maintenance garage and truck storage was not a permitted use.

"The Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, i.e., a sand and gravel operation, which use was discontinued in or around 1950, and that the petitioner's subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. The ZBA's determination was not irrational and is supported by evidence in the record.... Furthermore, the petitioner's contention that the respondents/defendants (hereinafter the respondents) are equitably estopped from prohibiting it from operating a maintenance garage and truck storage facility on the subject lot is without merit, as the evidence submitted by the petitioner did not establish that there were "exceptional circumstances" here involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision...."

In addition, the Petitioner had argued that the Town violated the Freedom of Information Law (FOIL) in failing to respond to a FOIL request for additional information concerning the property. The Court ruled the Petitioner failed to produce proof that it had followed the administrative appeal procedure and had made a timely written appeal of the denial of its FOIL request. Therefore, Petitioner had failed to exhaust its administrative remedies and was precluded from appealing to the courts.

-Steven Silverberg

April 30, 2015

Court Reverses Denial of Special Permit

The denial of a special permit was found to be arbitrary when unsupported by empirical evidence. In Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola, the Appellate Division reversed the Village Board and the lower court and remanded the matter for the Board of Trustees to issue a special permit.

The Court noted that during the hearing process neighbors and some board members expressed concerns over traffic and the clientele of the 7-Eleven. However, as part of its application process 7-Eleven submitted expert reports that there would be no adverse impacts upon traffic and offered to set conditions regarding the timing of deliveries and size of trucks used for deliveries.

Noting that there was no contrary expert evidence produced by either the Village or the opponents of the proposal, the Court outlined the criteria that should be applied in considering a special permit application.

""A special exception, commonly known as a special use permit, 'gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right'... By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. 'The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood'...Here, the Board's conclusion that the proposed convenience store would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioners' application, was arbitrary and capricious. The claims of Board members and nearby property owners that the granting of the special use permit application would, among other things, exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners..."

-Steven Silverberg

April 24, 2015

Uncertified Zoning Board Record is Not Fatal to Defense of Article 78 Proceeding

The Appellate Division overturned the lower court reversal of a zoning board of appeals (ZBA) decision for failure to certify the record filed in response to an Article 78 proceeding. In Matter of Robert E. Haveli Revocable Trust v.Zoning Board of Appeals of the Village of Monroe, the Appellate Division found that the lower court was in error by reversing the ZBA merely because the record of proceedings filed with the court was not certified.

"Since there was no allegation or indication that a substantial right of the petitioner was prejudiced by the lack of a certification, the Supreme Court should have disregarded the defect, and decided the matter on the merits (see CPLR 2001..."

The Court then went on to decide the merits of the case which involved a question of whether the use proposed by the petitioner was a permitted use or, as determined by the ZBA, a conditional use. The Petitioner proposed to operate a business offering tire sales and service. The schedule of uses listed retail sales and automotive repairs as a permitted use but sale and service of tires as a conditional (special permit) use. The Court noted the ordinance provides that in case of a conflict the more restrictive provisions govern and held:

"'A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance'.... Construing the Zoning Code with its schedules as a whole, it provides that tire sales and related services are conditional uses."

-Steven Silverberg

April 11, 2015

Grant of Use Variance Reversed

The difficulty of meeting the burden of proof for a use variance was demonstrated again this week. In Matter of Nemeth v. Village of Hancock Zoning Board of Appeals, the Appellate Division reversed the lower court and the Zoning Board of Appeals (ZBA), holding that a use variance to expand a nonconforming manufacturing use in a residential district should not have been granted. In previous litigation it was determined that the facility had been illegally expanded in 2001, through an addition that expanded the manufacturing facility. Thereafter, the owner applied for and obtained a use variance. A neighboring property owner brought this Article 78 proceeding but lost in State Supreme Court.

The Appellate Divison found that both the ZBA and lower court erred. The property at issue had been used as a manufacturing facility prior to a zoning amendment in 1983, that rezoned the property to residential use. While the existing facility could continue as a legal nonconforming use, the Court found that the owner had failed to demonstrate by the required "dollars and cents proof" that the property could not provide a "reasonable return" either as a manufacturing facility, without the addition or be converted to a permitted residential use.

The Court found:
"the evidence presented at the hearing established that the addition is used to house older equipment that has been replaced by more advanced, efficient equipment. While the record is unclear as to whether the older machinery stored in the addition is still being put to productive use and contributing to the manufacturing process, no financial evidence was presented as to the profitability, if any, generated from those machines in relation to the business as a whole. Perry Kuehn's bare conclusory statements that an additional '10 to 20 percent' of revenue would be needed to find a similarly sized location to house the older manufacturing equipment, and that 'we [would] go out of business' without the addition, are simply insufficient to constitute the requisite "dollars and cents" proof necessary to demonstrate an inability to realize a reasonable return..."

The Court went on the address the fact that the record was inadequate to determine if the property could be converted to a permitted residential use. The Court further noted that the question of conversion to a residential use related to the entire property, not just the addition.

" no evidence was presented as to the financial implications of converting the entire property to residential use, which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use...The fact that respondents' application for a use variance was limited to the addition is of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner's property rights subject to a regulatory regime..."

-Steven Silverberg

March 24, 2015

Denial of Area Variances Upheld

The Appellate Division reversed the lower court and upheld the denial of an application for area variances to construct an apartment building in a neighborhood largely consisting of single family homes. In the Matter of People, Inc. V. City of Tonawanda Zoning Board of Appeals, the Court held that the lower court was in error in granting the petition

The Court restated the standard applicable to reviewing determinations of a zoning board of appeals noting the limitation placed upon a court to determine if there was a rational basis for the challenged decision.

", when reviewing the denial of an application for an area variance, 'review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion'..."

In examining the standards (General City Law section 81-b) for determining whether to grant an area variance, the Court found that constructing an apartment building in a single family neighborhood would cause an undesirable change in the character of the neighborhood. In addition the Court held:

"that the variances necessary to accommodate an apartment building would be substantial ...and that the petitioners' difficulty was self-created because they were aware of the property's zoning classification when they purchased the property..."

As a result, the Court found that, in denying the application, the Zoning Board properly weighed the benefits to the Petitioner as against the detriment to the neighborhood.

-Steven Silverberg