New York Zoning and Municipal Law Blog

A Local village's law requiring occupancy applications and inspection of rental units, before permiting occupancy, was held to be unconstitutional by the Appellate Division this week. In ATM One, LLC v. Incorporated Village of Hempstead, the Court noted that the local law:

"required registration of each rental dwelling unit in the Village and a "rental occupancy permit" for each rental dwelling unit...the law (hereinafter chapter 106) requires a site inspection of "each rental dwelling unit": "The Superintendent of the Building Department or his or her delegate shall review each application for completeness and accuracy and shall make an on-site inspection of the proposed rental dwelling unit or units" (Village Code § 106-6)."

While noting that there is a strong presumption of constitutionality of legislative actions, the Court stated :

" In Sokolov v Village of Freeport (52 NY2d 341), the Court of Appeals examined a local ordinance that required rental permits similar to those required by the Village here. That ordinance, like the one at bar, required site inspections and certifications before a permit or renewal could be issued. The Court declared that "[i]t is beyond the power of the State to condition an owner's ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution" (id. at 346), and it held that the ordinance was unconstitutional "insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential real property" (id.)."

Based upon the decision in Sokolov, the Court held that the Hempstead local law suffered from the same defect and was therefore unconstitutional.

-Steven M. Silverberg

The Appellate Division affirmed dismissal of a claim under 42 U.S.C. §1983 for violation of civil rights, based upon a claim of improper delay in issuing a certificate of occupancy for a house. In Matter of Zarabi v. Incorporated Village of Roslyn Harbor, the Court found that the existence of unapproved changes in the construction served as a legitimate basis for the delay in issuing the certificate of occupancy.

As the Court noted:

"the defendants established, prima facie, that, inasmuch as there were building code violations on the property that needed to be corrected, which the plaintiff conceded, any delays in issuing the certificate of occupancy did not amount to egregious conduct so as to amount to a deprivation of the plaintiff's property interests without due process (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 628-629; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192, 202)."

The Court found the balance of Plaintiff's claims without merit.

-Steven Silverberg

The Appellate Division held that despite the fact that a parcel had been zoned for industrial use for fifty years, and that the Town's comprehensive plan designated the parcel for industrial use, a rezoning and change of the comprehensive plan to residential use of the parcel was a proper exercise of discretion. In Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, the Court found the property in question had been used as a multifamily residential property for the period in question and the rezoning was consistent with the transitional nature of the site between an industrial use and a residential neighborhood.

The Petitioner owns an industrial site which was part of an army depot that also included the parcel in question that had been used to house military families. When the Respondent SYNC acquired the site in 2008 it first sought a variance, which was denied and then petitioned for a rezoning, which was granted. The Town issued a SEQRA negative declaration finding that the rezoning was consistent with the current use of the property and would have fewer impacts than the potential use as an industrial site under the existing zoning.

The Court upheld the SEQRA determination and found that the rezoning did not, as Petitioner claimed, constitute spot zoning. Rather, the court found the fact that prior revisions to the comprehensive plan did not suggest a residential use of the property was not proof of spot zoning, because "although the property abuts a portion of petitioner's industrial park, it also projects into an area of predominantly residential use. The Town, including its senior planner, concluded that rezoning the property so as to permit its continued use for residential purposes would benefit the community by retaining a transitional area between residential/commercial and industrial zones, whereas industrial use of the property would create an incongruity with the character of the existing neighborhood. Petitioner's reliance on the Town's failure to rezone the property as part of the 2001 and 2009 revisions of the comprehensive plan is misplaced, as the studies that supported that revision did not include an evaluation of SYNC's property. According to the Town's senior planner who oversaw the revisions, the industrial zoning classification for this property was simply continued without discussion or analysis."

Thus, the Court concluded that Petitioner had failed to prove the rezoning and change in the comprehensive plan was unlawful.

-Steven M. Silverberg

The Appellate Division directed that the Town of Oyster Bay file a Final Environmental Impact Statement (FEIS) and take final action upon a special permit application by Costco. In the Matter of Costco Wholesale Corporation, v. Town Board of the Town of Oyster Bay, the Appellate Division affirmed the lower court judgment directing that the Town "complete environmental review of the petitioners' proposal to develop a retail store, and to take final action upon the petitioners' applications for a special use permit and site plan."

This case involves an application for site plan and a special permit that has been going on since 2001. In 2003 the Town denied the application and thereafter the Supreme Court remitted the matter for the Town to comply with SEQRA. The Town then issued a positive declaration, a Draft Environmental Impact Statement (DEIS) was prepared and a hearing held in January 2007, with the public comment period being closed on January 31, 2007. Costco made three submissions of a proposed FEIS, the last being in April 2009 and then started this Article 78 proceeding, seeking to compel the Town to complete the SEQRA process and make a decision on the special permit and site plan applications.

In upholding the lower court's direction that the Town complete SEQRA and issue a determination on the applications, the Court held:

"Contrary to the Town's contentions, the Supreme Court properly determined that the Town's failure to act pursuant to the applicable local code provision (see Code of the Town of Oyster Bay § 110-9 [I]), as well as the applicable SEQRA provision (see 6 NYCRR 617.9[a][5]) requiring it to "prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later," warranted mandamus relief (id.; see Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, 24 AD3d 669, 671; Matter of 2433 Knapp St. Rest. Bar v Department of Consumer Affairs of City of N.Y., 150 AD2d 464, 465)."

-Steven M. Silverberg

The Appellate Division held that the filing of a zoning board's minutes, rather than the subsequent filing of the zoning board's formal decision, commenced the running of thirty day statue of limitations for challenging that decision. In Matter of 92 MM Motel, Inc. v. Zoning Board of Appeals of the Town of Newburgh, the court found that, as the minutes of the meeting reflected the vote of each member of the zoning board, the filing of the minutes commenced the running of the statute of limitations. The court therefore concluded that the commencement of an Article 78 proceeding within 30 days of the filing of the formal decision was time barred when the minutes were filed with the Town Clerk more than thirty days prior to the commencement of the action.

-Steven Silverberg

The Appellate Division, Third Department, reversed the denial of a special permit for 48 affordable apartment units as being based solely on generalized community objections and unsupported by empirical evidence. In Matter of Kinderhook Development, LLC v. City of Gloversville Planning Board the Court found that, after the planning board issued a SEQRA negative declaration in which it concluded that the stormwater management plan for the site was adequate, the planning board then denied the special permit based upon objections from the neighbors, who expressed concern over stormwater runoff, but provided no expert opinion to support their concerns.

Noting that one of the planning board members stated: "people living in a particular neighborhood know more about the physical conditions of where they live than any experts brought in by an applicant," the Court concluded:

"There is no dispute that petitioner met its initial burden of demonstrating that the proposed project 'compli[ed] with any legislatively imposed conditions on an otherwise permitted use' ... While respondent thereafter remained free to evaluate the application and reject it '[i]f there [were] specific, reasonable grounds . . . to conclude that the proposed special use [was] not desirable at the particular location,' its determination in that regard must be supported by substantial evidence in the record...the engineering evidence submitted established that the project would reduce the preexisting runoff problems and, indeed, respondent relied upon that evidence in issuing its negative declaration for purposes of SEQRA. Even assuming, as respondent argues, that its own negative declaration was not binding upon it in rendering its ultimate determination, the fact remains that the only evidence respondent thereafter received on the runoff issue consisted of the conclusory opinions of neighbors opposed to the project."

The Court went on to note that the empirical evidence that there would be no increase in runoff remained unchallenged, except by the general concerns of neighbors opposed to the project.

-Steven M. Silverberg

The New York Court of Appeals held that a Freedom of Information (FOIL) request may not be denied because a portion of the requested information may be exempt from disclosure. In Matter of Schenectady County Society for the Prevention of Cruelty to Animals, Inc. v. Mills the Court admonished the parties for taking the time of three courts to resolve an issue that could have been addressed by merely redacting some of the information in a data base.

Here the request was for a list of names and business addresses of veterinarians in the County. The County refused to produce the list because it did not differentiate between residential and business addresses and therefore disclosure might constitute an invasion of privacy by releasing some residential addresses.

The Court held:

"an agency responding to a demand under the Freedom of Information Law (FOIL) may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information....In responding to petitioner's FOIL request, the Department had the choice of producing the existing record in full or removing the information that it did not want to produce and that petitioner did not demand. It cannot refuse to produce the whole record simply because some of it may be exempt from disclosure."

-Steven Silverberg

The Second Circuit Court of Appeals held a local zoning provision, relating to the measurement of the height of a building, to be unconstitutionally vague and remanded the matter for consideration of the Plaintiff's substantive due process claim. In Cunney v. Bd. of Trustees of the Village of Grand View, the court reversed the granting of summary judgment on behalf of the Village and upheld the void for vagueness claim of Plaintiff. The court noted that the Village officials had several varying interpretations of the ordinance themselves, originally granting a building permit, then interpreting the construction as compliant with the ordinance and finally reversing themselves and finding the construction violated the ordinance.

The matter involves construction of a house along the Hudson River in New York, at a point where the land drops down below the height of the adjacent roadway. The ordinance, adopted to preserve views of the river, provides that no building may rise more than 4 1/2 feet above the easterly side of River Road. Initially, the Plaintiff sought variances and an interpretation of the provision from the local zoning board. The issue is that the property borders the road for 149 feet and the height of the road varies by 6 feet. The Plaintiff requested that the zoning board interpret the point or points from which the height of the road should be measured.

The zoning board declined to issue a finding on that issue, although three of the members gave two different interpretations of the provision. Thereafter, the Plaintiff, through his surveyor, provided various measurements of the road height and applied for and obtained a building permit. However, after the house was constructed the Village engineer was asked to confirm the heights based upon complaints by the neighbors. He at first found the structure to be compliant but later applied a different calculation to the manner of determining height and concluded the structure was not compliant. Based upon that determination the Plaintiff was denied a certificate of occupancy.

The Plaintiff then went back to the zoning board seeking alternatively an interpretation that the house was compliant or variances. The zoning board found that the house was not compliant but granted the variance with significant conditions. Plaintiff brought an action to review in state court and the matter was removed to the District Court.

Reviewing the law on vagueness the Court noted:

"a law violates due process "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." Hill v. Colorado, 530 U.S. 703, 732 (2000). "Animating this first vagueness ground is the constitutional principle that individuals should receive fair notice or warning when the state has prohibited specific behavior or acts." Thibodeau v. Portuondo, 486 F.3d 61,65 (2d Cir. 2007); Smith v. Goguen, 415 U.S. 566, 572 (1974) ("The doctrine incorporates notions of fair notice or warning."). Second, a law is unconstitutionally vague "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732. Statutes must "provide explicit standards for those who apply" them to avoid "resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)."

The Court then went on to hold:

"In arriving at this decision, however, the ZBA declined to address the question placed squarely before it by Cunney and his engineer at the design stage of the project-from what adjacent point or points on River Road the ordinance required the height of the house to be measured. For these reasons, we agree with the district court that "the Village's actions-its measurement procedure at the Property-and its own admissions [by ZBA members], demonstrate that no explicit standards exist regarding the method with which to measure from the easterly side of River Road. Thus, [section E] could encourage potentially arbitrary or ad hoc enforcement." Cunney, 675 F. Supp. 2d at 400....We recognize that "[ w ]here an ordinance provides insufficient general guidance, an as applied vagueness challenge may nonetheless fail if the [ordinance's] meaning has a clear core."Farrell, 449 F.3d at 493; Brache v. Cnty. of Westchester, 658 F.2d 47,51 (2d Cir. 1981)...we do not see how section E's imprecise core meaning-the preservation of river views-translates into the precise construct laid out by the district court. While there is no question that the ordinance could have been drafted to do exactly what the district court suggests, or could have been interpreted by the ZBA to call for this result, the ZBA refused to provide such guidance, and the ordinance's statement of core purpose is not so explicitly demanding....Based on the record before us, because a reasonable enforcement officer could find that Cunney's house does comply with the ordinance, we conclude that the height of Cunney's house does not constitute a "hard-core" violation of section E, and thus does not fit squarely within the ordinance's core prohibition. See Goguen, 415 U.S. at 577-78. Our review of the record gives us substantial concern that the ordinance was arbitrarily applied to Cunney's property. We therefore reverse the district court's dismissal of this claim."

The Court went on to direct that the District Court issue judgment in favor of the Plaintiff on the claim of unconstitutional vagueness.

In remanding the substantive due process claim the Court stated:

"[i]n the land use context, an action for violation of substantive due process rights is "intended to be a tool capable of measuring particular applications to determine if the applicant had a legitimate claim of entitlement based on the likelihood that without the due process violation that application would have been granted." Sullivan v. Town of Salem, 805 F .2d 81, 85 (2d Cir. 1986). The record is clear that the only reason provided by the Village for the denial of Cunney's CO application was that his house exceeded section E's height restriction....In light of our holding today that section E is unconstitutionally vague, and thus may not be applied as a basis for denying Cunney a CO for the house that has been erected on his property, we will leave it to the district court to decide in the first instance the viability and merits of Cunney's substantive due process claim. See City of Chicago v. Morales, 527 U.S. 41, 64 n.35 (1999)."

-Steven Silverberg

This morning the New York DEC released proposed regulations for hydraulic fracturing for review and public comment. Hydrofracking, the process used to extract gas from shale, has been controversial due to the claimed adverse environmental effects of the process.

There are three general areas of regulatory proposals:

(1) surface area disturbance of State owned lands which includes among other proposals 6NYCRR Part 52.3 which reads:

"Notwithstanding any other provision of this title, surface disturbance associated with the drilling of a natural gas well subject to Part 560 of this Title on State lands is prohibited and no permit shall be issued authorizing such activity. This prohibition shall apply to any pre-existing leases and any new leases issued for oil and gas development on State lands. This prohibition, however, does not include subsurface access to subsurface resources located under State lands from adjacent private areas."

(2)Mineral resources regulation which include permitting requirements providing in part at 6 NYCRR 553:

"Section 553.3 is revised to read:

(a) The department shall issue a permit to drill, deepen, plug back or convert a well, if all applicable requirements are met and the proposed spacing unit conforms to statewide spacing provided in section 553.1 of this Title.

( b) For wells which meet statewide spacing requirements, issuance of a permit to drill, deepen, plug back or convert by the department shall establish the spacing unit for the permitted well.

[(a)] (c) For wells exempt from statewide spacing requirements or wells that do not meet such requirements as provided in Section 553.1 of this Title, an order establishing well spacing may be promulgated by the department to[ To] promote effective development, use or conservation of the natural resources of oil and gas[, an order establishing well spacing may be promulgated by the department]."

(3) Revisions to SPDES Permit regulations including 6 NYCRR Part 750-1.1 which provides:

"High-volume hydraulic fracturing (HVHF) operations, as defined in Section 750-3.2, require a SPDES permit in accordance with Subparts 750-1, 750-2, as well as additional provisions in Subpart 750-3. Provisions applicable to issued HVHF activities are set forth in Subpart 750-1, 750-2 as well as Sub-Part 750-3."

-Steven Silverberg

An appellate court held that a reduction in the size of a structure by over 30% was a proper condition to site plan approval. In Matter of Greencove Associates LLC v. Town Board of the Town of North Hempstead, the appellate division found that the reduction in the size of the proposed building was appropriate to preserve a landscape buffer between the shopping center and a residential neighborhood.

Petitioner had an existing shopping center which was required to maintain a landscape buffer at an average width of 22 feet. When it applied for a 10,000 square foot addition, Petitioner proposed reducing the buffer to between 4 and 5 feet behind the new building. The Nassau County Planning Commission, as part of its General Municipal Law review, recommended reducing the building to 6,800 square feet in order to maintain the buffer.

When the Town Board implemented the reduction of the building as a condition of approval, the Petitioner brought an Article 78 proceeding. In upholding the condition the Court stated:

"the contested condition was within the Town Board's power to impose and was not affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational. "[A] condition may be imposed upon property so long as there is a reasonable relationship between the problem sought to be alleviated and the application concerning the property" (Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531, 533; Matter of Mackall v White, 85 AD2d 696, 696). Here, the contested condition was a reasonable means of assuring that the existing landscaped buffer, which was designed to screen the adjacent residential neighborhood from the effects of the shopping center, would be preserved (see Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d at 533; Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469, 470). Although the proposed 10,000 square foot building was dimensionally code compliant (see generally Moriarty v Planning Bd. of Vil. of Sloatsburg, 119 AD2d 188, 191), a structure of such size could not be placed into the southwest corner of the lot without encroaching on the existing buffer."

-Steven Silverberg

The N.Y. Court of Appeals found a Town Board was arbitrary in rejecting a low bid based upon criteria not specified in the bid documents. In AAA Carting & Rubbish Removal, Inc. v. Town of Southeast, the Court reversed the Appellate Division and held "accepting a higher bid based on subjective assessment of criteria not specified in the bid request gives rise to speculation that favoritism, improvidence, extravagance, fraud or corruption may have played a role in the decision. One of the primary purposes of the competitive bidding statutes is to guard against such factors...."

The Court found that the decision of the Town Board to award the contract to a higher bidder based upon previously unspecified criteria such as training, cleanliness and age of equipment, when there was never a finding that the low bidder was not a responsible bidder, was not supported by the provisions in the General Municipal Law for bidding on municipal contracts.

The Court went on to note:
"[i]f the Town wishes to have these qualitative factors considered, the proper remedy is not to reject the lowest responsible bid, but to reject all the bids submitted and begin the process anew, incorporating whatever reasonable and nonrestrictive requirements it wishes to consider into the bid solicitation (see Matter of Conduit & Found. Corp., 66 NY2d at 149 ["statutory law specifically authorizes the rejection of all bids and the readvertisement for new ones"]; see also General Municipal Law § 103 [1])."

-Steven M. Silverberg

The New York Court of Appeals held that a municipality has the burden of proving a tax exempt property no longer qualifies for tax exempt status. In Congregation Rabbinical College of Tartikov v.Town of Ramapo, the Court held "when a municipality seeks to revoke a previously granted tax exemption, it bears the burden of proving that the real property is now subject to taxation (Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 334 [1982])."

The previous owner of the property at issue had used the property as a summer camp with a "religious curriculum." The claim by the Town was that a contractor, hired to operate the property, not the owner was the "entity" exclusively using the property to operate a camp. However the Court, in upholding the Appellate Division decision finding the exemption should continue, concluded:

"The contract indicated that the contractor was managing the camp on behalf of the plaintiff and the Town stipulated to the fact that plaintiff retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum. Moreover, an economic profit made by a religious corporation "does not by itself extinguish a tax exemption" (Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 216 [2008])."

-Steven Silverberg