New York Zoning And Municipal Law Blog
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The Appellate Division upheld a Zoning Board of Appeals (ZBA) determination that the owner of property,  containing several retail stores, had failed to demonstrate the location at issue was used for retail purposes prior to a zoning amendment. In Matter of East End Holdings LLC v. Village of Southhampton Zoning Board of Appeals, the Court found  the ZBA had rationally concluded the evidence submitted did not support the property owner’s claims of a legal nonconforming use.

The buildings on the property were constructed in 1976. In 1982 the Village amended the zoning code to provide that no retail use could be less than 800 square feet. In 2008 the Building Inspector issued a violation for operating a retail unit of only 100 square feet. The owner appealed to the ZBA claiming that in 1999, when the property was purchased, an appraisal report and certificate of occupancy (C of O) showed there were seven existing retail locations on the property and one was 100 square feet. The owner claimed that the C of O and appraisal demonstrated  the 100 square foot retail space was previously in use and was therefore legal.

However, the Building Department file contained 1981 and 1999 surveys, with floor plans that showed seven stores, including a 100 square foot space that was not the space at issue. Therefore, the ZBA concluded the space at issue was not legal.

In affirming the lower court dtermination to uphold the ZBA, the Appellate Division held:

“Here, the record is devoid of evidence demonstrating that the subject 100-square-foot unit existed and was being used as retail space in or before 1982 when the zoning code was amended to prohibit such use. Further, the ZBA rationally determined that the certificate of occupancy acquired by the petitioner in 1999 did not give it the right to use this particular unit as retail space. Based on the records on file at the Building Department, the certificate of occupancy gave the petitioner the right to use seven stores depicted on the 1999 survey. Since the unit at issue was not portrayed on this survey, the certificate did not authorize its use. Therefore, it was not arbitrary and capricious or irrational for the ZBA to conclude that the petitioner’s use of the subject unit was not the continuation of a legal, nonconforming use…”

Steven Silverberg


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The New York Court of Appeals reversed a lower court determination that a petitioner did not have standing to challenge an action because others were also impacted by train noises that formed a basis for his objections. In Matter of Sierra Club v. Village of Painted Post, the Court noted that while, in order to have standing to challenge a SEQRA determination a party must demonstrate they suffer a harm different from the public at large the “number of people who are affected by the challenged action is not dispositive of standing”.

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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).”

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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

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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

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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

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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

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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

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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

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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