New York Zoning and Municipal Law Blog

The New York Court of Appeals declared a law adopted by the City of Rochester fixing a curfew on minors unconstitutional. In Jiovon Anonymous v. City of Rochester the Court held "we conclude that the crime statistics produced by defendants do not support the objectives of Rochester's nocturnal curfew."

After engaging in an analysis of the different levels of scrutiny that may be utilized in evaluating such regulations, as well as appropriate limitations upon the rights of minors, as opposed to those of adults, the court concluded "minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that no effort . . . [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized."

In addition to violating the rights of minors, the Court found the law violated the substantive due process rights of parents noting "an exception allowing for parental consent to the activities of minors during curfew hours is of paramount importance to the due process rights of parents." While the law allowed parents to permit their minor children to be out after curfew, it also required that the parent accompany the minor child.The Court stated that if "a parental consent exception were included in this curfew, it would be a closer case — courts have upheld curfews having, among other things, such an exception as only minimally intrusive upon the parent's due process rights". Yet, the Court found that parental consent which also requires parental custody is more of an intrusion upon parental rights than is permissible.

In another in a long line of cases, last week the Appellate Division again deferred to the decision of a zoning board which had denied an area variance. In DiPaolo v Zoning Board of Appeals of the Town//Village of Harrison, the court found the zoning board had engaged in the required balancing test and therefore had acted appropriately in denying a request for a rear yard setback variance.

The court held the findings of the zoning board that the "requested variance was substantial and would produce an undesirable change in the character of the neighborhood, and that the hardship to the petitioner was self-created, were supported by testimony of several local residents and objective and factual documentary evidence. Moreover, evidence was adduced that construction on the subject property might adversely affect protected wetlands and cause drainage problems. Contrary to the petitioner's contentions, the Board's determination was not illegal, had a rational basis, and was not arbitrary or capricious."

In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval. In Matter of Residents Against Wal-Mart v. Planning Board of Town of Greece, the court found that the granting of site plan approval by the planning board was not arbitrary and capricious.

The decision lacks a great deal of detail but in a series of findings the court held: (1) the failure of the planning board to complete parts 2 and 3 of the SEQRA EAF was not fatal, because the planning board discussed “the factors set forth in parts 2 and 3 of the full EAF;” (2) the planning board complied with the referral requirements of General Municipal Law sections 239-m and 239-n, because there was no “substantial difference” between the materials submitted to the county department of planning and those used by the planning board for “final action on the application;” and (3) there was no error in issuing a conditional negative declaration for a Type I action under SEQRA, as “the conditions were not imposed in an attempt to avoid a determination that the project has a significant adverse environmental impact” and it was used only to address “aesthetic aspects of the project.”

Interestingly, the court made these findings after determining that the lower court was correct in holding that the owners of the property at issue were necessary parties and that the lower court was in error in dismissing the matter “without summoning those property owners.”

A court reversed the denial of a wetlands permit based upon the conclusion that the Town Board “succumbed to community pressure.” In Matter of Moy v. Board of Trustees of Town of Southhold, the Appellate Division, Second Department, found the Town Board relied upon various reports and recommendations which were by parties either unqualified to render such reports or who failed to address the criteria required by the Town’s code in determining whether to grant a permit.

The court found that the Town Board “properly noted that when conflicting expert reports are submitted ‘deference must be given to the discretion and commonsense judgments of the board.’” Yet, the court noted that the Town’s outside consultant did not render an opinion about the impacts of the proposed activities but instead stated “it did not know what the impact would be.” The court held that this and other reports and recommendations either not addressing the impacts of the proposal or expressing “concerns” about the proposal were “devoid of scientific data or analysis” and were therefore “insufficient to counter petitioners’ expert’s report and testimony…”

The court did uphold the right of the town to retain an outside consultant and charge the consultant’s fees to the applicant, where the need for the consultant met the criteria of the town’s code for “independent technical professional assistance.”

The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a “hospice” for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v. Town of Smithtown, the court reversed the Supreme Court’s granting of the petition finding that the lower court had improperly “substituted its judgment for that of the Zoning Board.”

The local zoning code specifically states that animal hospitals are not permitted in residential districts and that any use not specifically listed as a permitted use is not permitted. The court held that nonconforming uses “may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance” and therefore “the Zoning Board was not estopped from enforcing the zoning code…by the Town’s apparent acquiescence over a period of approximately 13 years.” In addition, the court noted that comments made at a Town Board meeting by the supervisor and town attorney concerning the operation (apparently supporting the petitioner’s contentions) were outside the record of the zoning board and therefore those comments could neither be considered nor used to prevent the Zoning Board from enforcing the code.

In Matter of Potter v. Town Board of Aurora, the Appellate Division Fourth Department upheld a resolution by the Town Board, after completing a SEQRA negative declaration, to purchase and renovate a building for a new town hall. The court found that the claim that the town violated State Constitution Article VII section 2, because it was entering into indebtedness for purposes which did not carry out town purposes, due to the fact that building is larger than what is currently required for town purposes, was without merit. The court noted: the town may “erect a public building having in view future necessities, and exceeding the demands of present use” (Matter of the Mayor of the City of N. Y., 90 NY 569,591)”

In Matter of O’Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses.

The court held that the owner had proven hardship in “dollars and cents form” by demonstrating that the “property had been substantially vacant for 30 years” that “only 10% to 15% of the space was occupied at the time of the applications and the prospects for expanding occupancy and generating sufficient revenue to cover necessary maintenance, repairs and improvements were marginal.” The court also found that the variance would not “alter the essential character of the neighborhood”, as similar uses “exist in proximity to the property” and the zoning board properly found the hardship was not self created.

Thanks to Alan J. Bozer, Esq. of the Buffalo Office of Phillips Lytle LLP who brought this case to our attention.

In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v. Town of Yorkshire, reversed the judgment after a jury trial finding the Supreme Court should have granted a directed verdict at the close of the plaintiff’s case.

The court noted that prior to adoption of its zoning ordinance the Town prohibited mining, absent a special permit. The plaintiff had obtained a mining permit from the DEC, hauled out 40 truck loads of material for testing, cleared the property of trees and performed a number of other activities.

However, the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.

The court also noted that a directed verdict should have issued finding that the plaintiff did not have a vested right in the mining operation. "In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development" (Town of Orangetown v Magee, 88 NY2d 41, 47 [1996]; see Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]).”

Here the testimony was that a total of $800,000 was spent on the project but that $750,000 of that was to acquire the land and obtain the DEC permit. Therefore, the court found that there was not a substantial expenditure in reliance on the permit. Further, since the paving of the road and construction of a bridge necessary to conduct mining operations had not taken place, plaintiff also failed to prove that it had “effected substantial changes…to further development pursuant to a legally issued permit.”

Absent from the analysis is whether the mining permit from the DEC was the same as the "special permit" required by the town and therefore would have been sufficient to create a legal non-conformity, if the other tests of substantial expenditure and substantial change had been met.

In Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay the Second Department upheld the denial of a special permit. This case has a seven year litigation history with multiple decisions by the Supreme Court and Appellate Division addressing the SEQRA review for a proposed 860,000 square foot mall and an alternate proposal for a 750,000 square foot mall.

The Town had an environmental review committee (TEQR Commission) review the proposal and issue findings under SEQRA recommending approval of the 860,000 square foot mall. The Town Board subsequently directed the TEQR Commission to rescind its findings which was done. Thereafter new SEQRA findings were issued and the application was denied. On appeal the courts remanded the matter for further consideration of a proposal to reduce the mall to 750,000 square feet. The Town then undertook the additional review and, based upon information it identified post-FEIS, directed the applicant to prepare a SEIS and submit plans for a 750,000 square foot mall. Instead the petitioner sued to compel the Town to adopt the original favorable TEQR findings.

In this most recent incarnation, the Appellate Division upheld the Town’s actions noting: “the Town Board properly identified the post-FEIS submissions which supported its deviation from the TEQR Commission's SEQRA findings. The Town Board demonstrated that the post-FEIS submissions identified areas such as traffic impacts, impacts on existing retail facilities, and impacts on residential real estate values in the surrounding area which supported its determination.“ Further holding that “the Supreme Court erred in determining that the Town Board's request that the petitioners prepare an SEIS was arbitrary and capricious. The Town Board, as the lead agency, "may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; or (b) newly discovered information; or (c) a change in circumstances related to the project" (6 NYCRR 617.9 [a] [7] [i]; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 231).”

The Appellate Division held that taking of private property by eminent domain fulfilled a public purpose even though the taking primarily benefited commercial traffic. In the Matter of 225 Front Street, Ltd. v. City of Binghamton the court noted the limited scope of judicial review of a proceeding under the EDPL which "must focus on "whether the proceeding was in conformity with constitutional requirements, whether the proposed acquisition is within the statutory jurisdiction or authority of the condemnor, whether the condemnor's determination and findings were made in accordance with the procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed [public] use, benefit or purpose will be served by the proposed acquisition."

Here the Court found that the purpose of acquiring the petitioner's property was to facilitate road improvements in order to resolve traffic congestion in the City. Petitioner argued that the taking served no public purpose but was for the private benefit of commercial traffic. The court held: "[p]utting aside the fact that commercial use of public highways has obvious public benefits, there can be no doubt but that where an intersection of two public roadways is constructed in such a way that some vehicles cannot safely negotiate it, all vehicular traffic that utilizes the area is obviously affected. This project, as designed, seeks to address such a concern and, as such, has a public purpose."

The New York Court of Appeals held today that a municipality may sell municipal real property and take back a purchase money mortgage without violating the State Constitutional prohibition against municipalities making a gift or loan. In Matter of 10 E. Realty LLC v. Incorporated Village of Valley Stream, the court found that: "the Village made no loan of money or property to the purchaser. The fact that the consideration in this sale mentions an interest rate and a term of payment, or that a mortgage was taken as a security interest, does not make this transaction involving a deferred payment plan an unconstitutional loan."

The Village had sold a parcel of municipal property for $275,000 with payment deferred over fifteen years, with interest at 5% and took back a mortgage to secure the payments. The Petitioners challenged the action claiming it violated Article VIII of the State Constitution which provides: ""[n]o county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking ..." (NY Const art VIII, § 1)."

The Court disagreed finding that there was no violation of the Constitutional provision. Citing an earlier decision the Court noted:
"In Mandelino v Fribourg, this Court answered the question of "whether a purchase money mortgage is to be regarded in law as a loan" in the negative (23 NY2d 145, 147 [1968]). Although decided in the context of the usury laws, the rationale is equally applicable in this case. "A contract which provides for [payment of interest] ... upon a deferred payment ... constitutes the consideration for the sale ... " (id. at 151) and such a transaction is not the type contemplated by the Gift or Loan clause (see Sun Print & Publ Assn v Mayor of the City of New York, 152 NY 257, 268-269 [1897])."

The Appellate Division, Second Department decided two cases last week, Matter of Verizon New York, Inc. v. Devita and Matter of Verizon New York, Inc. v. Mills on the issue of whether quarterly franchise reports submitted to municipalities by Verizon are exempt from disclosure under the Freedom of Information Law (FOIL). The cases basically held that disclosure of the detailed revenue and customer information contained in quarterly reports filed with municipalities fell within the exemption from disclosure provided in (Public Officers Law section 87(2)(d)). However, the court also held that, since FOIL favored disclosure, it is a matter of discretion whether the municipalities actually disclose the information and remitted both matters to the municipal officials to decide, in their discretion, whether to release the information.

In the Devita case, Verizon sought to enjoin both the Village of Laurel Hollow and the Town of Hempstead from releasing the quarterly reports in response to a FOIL request from Cablevision. Due to the procedural history of the two claims the Court remitted the matter to the municipalities for a determination. In the Mills case, which involves the Village of Elmsford, the Village had actually determined to release the information to Cablevision. The court's decision in Mills not only mirrored the determination in the Devita case, also remitting the matter, but it expanded upon the analysis.

In the Mills case the Village sent a letter to Verizon advising it intended to release the information stating the Village ""did not intend to become an arbiter of pending disputes between Verizon and Cablevision" and Verizon sued to block the release.

The court noted Public Officers Law § 87(2)(d) "allows an agency to deny access to records submitted by a commercial enterprise 'which if disclosed would cause substantial injury to the competitive position of the subject enterprise'." It further found that "Verizon met its burden of demonstrating that its franchise reports fell squarely within the statutory exemption to FOIL disclosure under Public Officers Law § 87(2)(d) for records 'which if disclosed would cause substantial injury to the competitive position of the subject enterprise.' Moreover, Verizon offered the required 'particularized and specific' justification for the denial of Cablevision's request'."

But the Court also found that the exemptions should be "narrowly interpreted" and therefore it is a matter of discretion as to whether the information should actually be released. Although the Village had originally decided to release the information, the Court went on to hold that merely being unwilling to be the "arbiter of pending disputes" was not a valid reason for the Village to grant access and remitted the matter so that the Village could issue a reasoned decision demonstrating that it had considered "the facts underlying Cablevision's FOIL request and Verizon's opposition to it."

No doubt there will be further litigation over this issue.