October 17, 2014

N.Y. Court of Appeals "Clarifies" Whether a Parking Variance is a Use or Area Variance

This week the New York Court of Appeals clarified that a parking variance is an area variance, except when it is not. In Matter of Colin Realty Co. v. Town of North Hempstead, the Court concluded that, in most instances, a parking variance is an area variance. However, at the very end of the decision, the Court inserted a line that appears to open the door for further interpretation and possible confusion.

The case involves a commercial use in an older building that does not have adequate off-street parking under the more modern requirements of the amended zoning ordinance. The local zoning board granted an area variance. A neighboring property owner challenged the decision arguing, in part, that it should be a use variance. The Petitioner relied on language in Matter of Offshore Rest. Corp. v. Linden, 30 NY2d 160 (1972).

In Offshore the Court stated:

"To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem...."

Noting that the statute governing variances was amended in 1994 to more clearly define both use and area variances and the criteria applicable to each, the Court seem poised to make an unequivocal statement that parking variances are area variances when it held:

"Finally, and whether dictum or not, Off Shore's declarations about use variances for off-street parking requirements have effectively been superseded by statute. Off Shore requested a building permit to make alterations in connection with a proposed change from one use permitted in the zoning district (delicatessen and restaurant) to another (cocktail lounge and restaurant). But as of July 1, 1994, General City Law § 81-b (1) has defined a 'use variance' as an authorization for the use of land for a purpose 'otherwise not allowed or . . . prohibited' in the zoning district; and an 'area variance' as an authorization to use land 'in a manner which is not allowed by the dimensional or physical requirements' of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions."

Then the Court added language this writer views as creating the potential for confusion by noting:

"Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295)."

Thus, it appears that if you merely require a parking variance for two additional parking spaces, where off-street parking is a permitted accessory use, the balancing test for an area variance applies. However, does the Court mean to say that if you also require a use variance, the zoning board should apply the dollars and cents proof standard to that portion of the use that also seeks two fewer parking spaces than are permitted? This could result in some interesting decisions.

-Steven Silverberg

August 31, 2014

Court Upholds Denial of Special Permit

The Appellate Division, in a somewhat rare instance, upheld the denial of a special permit to expand an existing day care center. In Matter of Smyles v. Board of Trustees of Incorporated Village of Mineola, the Court found there was sufficient expert evidence that the expansion of the facility would have an adverse impact on traffic, parking and available emergency services.

"A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection (see Matter of Green 2009, Inc. v Weiss, 114 AD3d 788; Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731). However, where evidence supporting the denial exists, deference must be given to the discretion of the authorized board, and a court may not substitute its own judgment for that of the authorized board, even if a contrary determination is supported by the record...
Here, evidence in the record, including testimony by experts in traffic and real estate and by neighboring property owners, supports the findings of the Board of Trustees of the Incorporated Village of Mineola (hereinafter the Board) that the proposed expansion of the subject day care facility into vacant retail space would result in a dangerous traffic situation, an over-intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services. Contrary to the petitioners' contention, the Board was entitled to base its decision upon, among other things, its members' personal knowledge and familiarity with the community (see Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 67 AD3d 1019; Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d 1068). Accordingly, the Board's determination to deny a special use permit on the ground that it would not be in the best interests of the health, safety, and welfare of the community was supported by the record, and was not arbitrary and capricious."

-Steven Silverberg

July 31, 2014

Court Restates Standard of Review for Zoning Board Decisions

The Appellate Division restated the limited nature of judicial review of the decisions of a Zoning Board of Appeals (ZBA). In Matter of Slonim v. Town of E. Hampton Zoning Bd. of Appeals, the Court noted that the ZBA properly upheld the determination of the building inspector finding that a particular retail use was pre-exisiting.

"In a CPLR article 78 proceeding to review a determination of a Zoning Board of Appeals (hereinafter the Zoning Board), which was made after a quasi-administrative proceeding, judicial review is limited to considering only whether the Zoning Board's discretionary determination was arbitrary, capricious, an abuse of discretion, or irrational... Thus, the Zoning Board determination at issue in this proceeding may be set aside only if the Zoning Board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community opposition, and must be sustained if the determination has a rational basis... To the extent the phrase "substantial evidence" arises in cases involving challenges to Zoning Board determinations made after a quasi-administrative proceeding, in this context that standard is limited to examining 'whether the record contains sufficient evidence to support the rationality of the determination' ...."

-Steven Silverberg

June 30, 2014

Town Zoning Law May Ban Hydrofracking in New York

A divided New York Court of Appeals validated local zoning laws of two towns that banned hydrofracking in that Town. In Matter of Wallach v. Town of Dryden, the Court held that state law did not preempt the right of local municipalities to ban certain mining activities.

The Court noted that as "... a fundamental precept, the Legislature has recognized that the local regulation of land use is '[a]mong the most significant powers and duties granted . . . to a town government' (Town Law § 272-a [1] [b])." Nonetheless, municipalities may not adopt laws that are inconsistent with State laws of general applicability. Therefore, the Court stated "... we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a 'clear expression of legislative intent to preempt local control over land use'...".

The parties challenging the local laws relied upon specific provisions in State law that provide "'... provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law' (ECL 23-0303 [2] [emphasis added])."

The Court stated that the relevant inquiry is that the "... scope of section 23-0303 (2) must be construed in light of our decision in Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]), which articulated the analytical framework to determine whether a supersession clause expressly preempts a local zoning law. There, we held that this question may be answered by considering three factors: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. The goal of this three-part inquiry, as with any statutory interpretation analysis, is to discern the Legislature's intent."

While the Court went into a much more detailed analysis than can be repeated here, applying the tests established by the Court in the Frew Run case, the Court held:

"...the distinction we drew in Frew Run applies with equal force here, such that ECL 23-0303 (2) is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries....

it is readily apparent that the OGSML is concerned with the Department's regulation and authority regarding the safety, technical and operational aspects of oil and gas activities across the State. The supersession clause in ECL 23-0303 (2) fits comfortably within this legislative framework since it invalidates local laws that would intrude on the Department's regulatory oversight of the industry's operations, thereby ensuring uniform exploratory and extraction processes related to oil and gas production. Similar to the scope of the MLRL in Frew Run, we perceive nothing in the various provisions of the OGSML indicating that the supersession clause was meant to be broader than required to preempt conflicting local laws directed at the technical operations of the industry....

In 1978, the State Legislature amended the OGSML to modify its policy by replacing the phrase 'to foster, encourage and promote the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste" with "to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste' (ECL 23-0301, as amended by L 1978, ch 396, § 1 [emphasis added]). The legislation also transferred the task of encouraging and promoting the prudent development of New York's energy resources to the Energy Law (see Energy Law § 3-101, as amended by L 1978, ch 396, § 2) for the purpose of establishing 'the Energy Office as the State agency primarily responsible for promoting the development of energy resources" and removing 'such promotional responsibilities from the Department of Environmental Conservation which would, however, retain regulatory responsibilities over such resources" (Governor's Program Bill Mem, Bill Jacket, L 1978, ch 396)....

In sum, application of the three Frew Run factors — the plain language, statutory scheme and legislative history — to these appeals leads us to conclude that the Towns appropriately acted within their home rule authority in adopting the challenged zoning laws. We can find no legislative intent, much less a requisite 'clear expression,' requiring the preemption of local land use regulations."

The court noted that the policy determination of whether hydrofracking is beneficial or not was not before the Court and only the narrow issue of whether local zoning was preempted by the State Environmental Conservation Law.

-Steven M. Silverberg

May 25, 2014

Takings Claim Ripe Despite No Final Determination

The Second Circuit Court of Appeals held there was a claim that was ripe for adjudication, in view of the ten years of delay in processing the Plaintiffs application, even though there was no final determination on Plaintiff's subdivision application. In Sherman v. Town of Chester, the Court's summary of the background, drawing an analogy to the novel "Catch 22," is worth reading verbatim:

"Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But things were not so simple on Catch‐22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of missions to 30, forcing Hungry Joe to unpack his bags and rewrite his happy letters. At the time, Yossarian had flown 23 missions.The Colonel later increased the number to 35. When Yossarian was just three away from that mark, the number was increased to 40, and then to 45. When Yossarian had 44 missions under his belt, the Colonel made the number 50. And later 55. When Yossarian reached 51 missions, he knew it was no cause to celebrate: 'He’ll raise them,' Yossarian understood. He appealed to squadron commander Major Major to be exempted from flying his four remaining missions. 'Every time I get close he raises them,' Yossarian complained. Major Major responded, 'Perhaps he won’t this time.' But of course Yossarian was right. Colonel Cathcart raised the number to 60, then 65, then 70, then 80, with no end in sight.

Plaintiff Steven M. Sherman must have felt a lot like Yossarian in his decade of dealing with defendant Town of Chester. In 2000, Sherman applied for subdivision approval while he was in the process of buying a nearly 400 acre piece of land for $2.7 million. That application marked the beginning of his journey through the Town’s ever‐changing labyrinth of red tape. In 2003, the Town enacted a new zoning ordinance, requiring Sherman to redraft his proposed development plan. When he created a revised proposal in 2004, the Town again enacted new zoning regulations. When he created another revised plan in 2005, the Town changed its zoning laws once more. And again in 2006. And again in 2007.

On top of the shifting sands of zoning regulations, the Town erected even more hurdles. Among other tactics, the Town announced a moratorium on development, replaced its officials, and required Sherman to resubmit studies that he had already completed. When the Town insisted that Sherman pay $25,000 in consultants’ fees before he could obtain a hearing, he might have thought,'The Colonel will just raise it again.' And he would have been right. After paying the $25,000, he was told he owed an additional $40,000, and that he would also have to respond to a lengthy questionnaire.

By the time this lawsuit was filed, over ten years had passed. In that time, Sherman became financially exhausted – forced to spend $5.5 million on top of the original $2.7 million purchase. The District Court (Edgardo Ramos, Judge) ruled that Sherman’s claim under the Takings Clause was not ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because Sherman had not received a final decision on his property and seeking a final decision would not be futile. The court reasoned that while Sherman may have to jump through more hoops in the future, he had not established that his application would definitely be denied in the end. To Sherman, this must have sounded a lot like: 'Perhaps he won’t raise the number this time.'

We conclude that under these circumstances, Sherman was not required to obtain a final decision from the Town. Sherman’s takings claim was ripe and adequately alleged. Accordingly, we REVERSE that part of the District Court’s decision that dismissed the takings claim, and we REMAND for further proceedings consistent with this opinion."

The Court concluded that the Williamson decision establishes a two prong test for ripeness of a takings claim that includes a final decision by the state authorities and pursuit of relief in the state courts. First addressing finality, the Court also noted the requirement of finality is"prudential" rather than jurisdictional. Citing several other decisions, the Court stated that a municipality cannot merely throw up one hurdle after another in order to avoid a final determination. In finding that the District Court had used too narrow a test by determining that the Plaintiff had failed to establish that the Town had placed a proverbial brick wall in his path, the Court held:

"This analysis does not account for the nature of the Town’s tactics. The Town will likely never put up a brick wall in between Sherman and the finish line. Rather, the finish line will always be moved just one step away until Sherman collapses. In essence, the Town engaged in a war of attrition with Sherman. Over ten years, Sherman was forced to spend over $5.5 million on top of the original $2.7 million purchase. As a result, he became financially exhausted to the point of facing foreclosure and possible personal bankruptcy. Moreover, at no point could Sherman force the Town to simply give a final 'yay or nay' to his proposal."

The Court therefore concluded:

"Unfortunately, it is no simple task to distinguish procedures that are merely frustrating from those that are unfair or would be futile to pursue. But when the government’s actions are so unreasonable, duplicative, or unjust as to make the conduct farcical, the high standard is met. And it was met in this case. Seeking a final decision would be futile because the Town used – and will in all likelihood continue to use – repetitive and unfair procedures, thereby avoiding a final decision. Sherman is therefore not required to satisfy the first prong of Williamson County."

The Court found that as a result of the procedural history, the second prong of the Williamson test had also been met.

"Under the second prong of Williamson County. a plaintiff's claim is ripe only if the 'plaintiff has sought just compensation by means of an available state procedure.' Dougherty, 282 F.3d at 88.

While Williamson County prevents a plaintiff from bringing his takings claim in federal court before first seeking compensation from the state, it 'does not preclude state courts from hearing simultaneously a plaintiff’s request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the [Takings Clause of the] Fifth Amendment of the Federal Constitution.' San Remo Hotel, L.P. v. City and Cnty. of S.F., 545 U.S. 323, 347 (2005). This is because '[r]eading Williamson County to preclude plaintiffs from raising such claims in the alternative would erroneously interpret [the Supreme Court’s] cases as requiring property owners to ‘resort to piecemeal litigation or otherwise unfair procedures.’ Id. (quoting MacDonald, 477 U.S. at 350 n.7).

Sherman first brought suit against the Town in federal court in 2008. The Town argued that the takings claim was unripe in part because Sherman had not alleged that he sought and was denied just compensation by an available state procedure. Sherman voluntarily dismissed the case, and followed San Remo by filing his federal takings claim and his state law claim for compensation in state court. The Town then removed the case from state court to federal court, where it argued once again that the takings claim must be dismissed because it can be heard only in state court under Williamson County.

In Sansotta v. Town of Nags Head, 724 F.3d 533 (4th Cir. 2013), the Fourth Circuit concluded that when the defendant removes a takings claim to federal court, the state procedures prong of Williamson County does not apply. We agree with that court’s reasoning that 'refusing to apply the state‐litigation requirement in this instance ensures that a state or its political subdivision cannot manipulate litigation to deny a plaintiff a forum for his claim.' Id. at 545.

The removal maneuver prevents Sherman from litigating his federal takings claim until he finishes litigating his state law claim for compensation. In other words, it prevents Sherman from pursuing both claims simultaneously, no matter what forum they are brought in. This runs against San Remo, which allows plaintiffs to do just that. In other words, the removal tactic can 'deny[ ] a plaintiff any forum for having his claim heard,' or at least force the plaintiff into the kind of piecemeal litigation that, under San Remo, cannot be required. See id. at 547."

The Court went on to discuss several other issues, including the Town's claim that the takings claim was barred by the three year statute of limitations. While declining to reach the ultimate issue raised by the Town, the Court held that where the action arises out of the cumulative actions of a government agency, so long as one act occurred within three years of commencing the action the statute of limitation had not run.

-Steven Silverberg

April 5, 2014

Court Reverses Zoning Board Definition of Auditoriun

The Appellate Division overturned a determination by the Albany Board of Zoning Appeals (BZA) that found an event at which the audience stands is not a permitted use of an auditorium. In Matter of Albany Basketball & Sports Corp. v. City of Albany, the Court held, since the issue was one of "pure legal interpretation", the determination of the BZA was not entitled to deference.

"The BZA correctly noted that certain dictionaries define an 'auditorium' as 'the area of a concert hall, theatre, school, etc, in which the audience sits' (Harper Collins Online Dictionary, http://www.collinsdictionary.com/dictionary/english/ auditorium [accessed Feb. 28, 2014] [British English Dictionary]) or as 'the part of a public building where an audience sits' (Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/auditorium [accessed Feb. 28, 2014]). Based on these definitions, the BZA determined that petitioner's use of the Armory for a 'Rave' party, nightclub, dance club, or other similar event' was inconsistent with the permitted use of an auditorium, because such events did not provide for 'actual fixed seating.'... However, the BZA ignored alternative definitions of an auditorium — set forth in the same dictionaries it used — as 'a building for public gatherings or meetings' (http://www.collinsdictionary.com/dictionary/american/auditorium [accessed Feb. 28, 2014]) or 'a large room or building where people gather to watch a performance, hear a speech, etc.' (http://www.merriam-webster.com/dictionary/auditorium [accessed Feb. 28, 2014]), which make no reference to an audience sitting .... Even if petitioner's proposed uses of the Armory are inconsistent with the definitions relied on by the BZA, they are entirely consistent with the commonly used alternative definitions. Resolving, as we must, any ambiguity in favor of petitioner, we conclude that the BZA's determination that the proposed use was impermissible — based solely upon its limited interpretation of the definition of auditorium as requiring fixed seating, to the exclusion of other commonly accepted definitions — was irrational and unreasonable ... and must be annulled.."

-Steven Silverberg

March 31, 2014

State "Cemetery Law" Does not Preempt Local Zoning

In a case where the claim is the Not For Profit Corporation Law Article 15 (cemetery law) preempts local zoning, the Appellate Division held a local prohibition on crematories was not invalid. In Matter of Oakwood Cemetery v. Village/Town of Mt Kisco, the local cemetery claimed that a new zoning provision that prohibited a crematory could not be enforced as it was inconsistent with provisions of the Not for Profit Corporation Law that include crematories within the definition of cemetery.

In dismissing the claim, the Court found:

"although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent...The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village's more restrictive definition of "cemetery" under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code's definition of "cemetery," which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of "cemetery" are addressed to differing purposes, they are not in direct conflict..."

-Steven Silverberg

March 30, 2014

SEQRA Challenge Not Ripe Absent Approvals

The Appellate Division dismissed a challenge to SEQRA Findings where no approvals had actually be granted. In the Matter of Patel v.Board of Trustee of Village of Muttontown, the Court found the " position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party...".

In this case the applicant was seeking special permit and site plan approval. The SEQRA Findings were issued, but no approvals were granted for the special permit or site plan.

"Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication...".

-Steven Silverberg

February 27, 2014

Court Finds DEIS Unnecssary for Type I Action

The N.Y. State Supreme Court found that an extensive review of environmental issues was sufficient to meet the requirements of SEQRA without preparation of an environmental impact statement. In Matter of Magat v. the Village of Bronxville Planning Board, the judge of the environmental claims part of the New York Supreme Court in Westchester County dismissed the petition brought to challenge the site plan and special permit approval for the expansion of a local hospital.

The Petitioners claimed, among other things, that the Planning Board failed to take a hard look at environmental issues, as mandated by SEQRA, due to the failure to require preparation of a Draft Environmental Impact Statement (DEIS). Yet, the Court noted the level of study, the public participation in the process and the fact that the plan was modified as a result of input from the Village's boards, as well as the public (including the Petitioners) demonstrated that the required "hard look" was applied to this application, negating the need for a DEIS.

Petitioners further claimed that by constructing a foundation that could support additional floors in the future there was an improper segmentation of the SEQRA review. The Court found that there was no evidence that the hospital had any plan to construct additional floor and cited a communication from the hospital stating this fact, as well as the need to do the construction in a manner that did not preclude an application for future expansion, should the need arise. Citing the Planning Board's negative declaration the Court found:

"... the Board found the Project 'to be a whole action and not part of any long-range plan,' and that any future applications for such expansion constituted 'a necessarily speculative or hypothetical plan at this time.'... Nor is there any evidence in the Record that the addition reflected in the site plan was actually the first phase of a larger, unified project. Therefore, the Board's failure to consider the potential environmental impacts from the construction of four additional floors did not constitute impermissible segmentation."

The Court also rejected several other claims made by the Petitioners.

This matter was handled for the hospital by our partner, Katherine Zalantis.

-Steven Silverberg

February 21, 2014

Public Trust Doctrine Not Violated By Restaurant In City Park

The New York Court of Appeals held that a license to operate a restaurant in New York's Union Square Park does not constitute an improper alienation of parkland in violation of the public trust doctrine. In Union Sq. Park Community Coalition, Inc.v. New York City Department of Parks and Recreation, the Court noted that the challenge to the operation of a private restaurant in the park was based upon two claims: (1) the restaurant is not a park use and (2) that the "license" was actually a lease that alienated parkland without proper legislative approval.

In addressing the first issue, the Court noted that decades ago the Court had upheld the use of a restaurant in New York's Central Park (795 Fifth Ave. Corp. v City of New York (15 NY2d 221 [1965]). In part that holding was based on the fact "that the 'Park Commissioner is vested by law with broad powers for the maintenance and improvement of the city's parks' and that judicial interference would be 'justified only when a total lack of power is shown' (15 NY2d at 225 [internal quotation marks and citation omitted])."

In further applying the rational established in 795 Fifth Avenue the Court held the:

"claims are substantially similar to the ones we found insufficient in 795 Fifth Ave. Plaintiffs have a different view of the best use of Union Square Park and its pavilion in particular, but this difference of opinion, without more, does not demonstrate the illegality of the Department's plan. Put differently, plaintiffs have not demonstrated that the 'type and location' of the restaurant are unlawful. While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose."

The Court likewise rejected the claim that the license was, in reality, a lease that improperly alienated parkland.

"A document is a lease 'if it grants not merely a revocable right to be exercised over the grantor's land without possessing any interest therein but the exclusive right to use and occupy that land'....A license, on the other hand, is a revocable privilege given 'to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands'...

Here, the language of the agreement confirms that it is what it purports to be — a revocable license. The Department retained significant control over the daily operations of the restaurant, including the months and hours of operation, staffing plan, work schedules and menu prices. Moreover, CDM's use of the premises is only seasonal, and is not exclusive even in the summer, as outdoor seating is required to be available to the general public (with the exception of an area reserved for the service of alcoholic beverages) and CDM is obligated to open the pavilion to the public for community events on a weekly basis. The agreement also contains numerous environmental and community-based provisions. Aside from complying with extensive environmental standards, CDM is required, for example, to use Greenmarket vendors, offer culinary internships and host charitable events. More importantly, the agreement broadly allows the Department to terminate the license at will so long as the termination is not arbitrary and capricious. Consequently, despite the 15-year term and payment structure, we agree with the Department that it entered into a valid license arrangement with CDM."

-Steven Silverberg

February 14, 2014

Conditional Site Plan Approval Not Enough to Create Vested Right in Prior Zoning

The Appellate Division Second Department concluded that a conditional site plan approval, without more, was insufficient to create vested rights in the prior zoning of a parcel. In Matter of Exeter Building Corp. v. Town of Newburgh, the Appellate Division reversed the Supreme Court holding that the Newburgh Zoning Board was incorrect in determining the property owner had no vested rights.

While the property owner was processing its application, obtaining a subdivision and conditional approval of a site plan that required a compliance with a number of conditions, the property was rezoned. In an earlier litigation, it was determined that because part of the property owner's application process included a subdivision the property had the benefit of Town Law § 265-a, which grants a three year exemption from a rezoning for property that has been subdivided. During that three year period a single family home on the property and water tanks were removed, there was some grading and clearing done and a sign announcing the availability of town homes on the site was erected, pursuant to permits. However, all the conditions to the site plan were not fulfilled and the chair of the planning board was not authorized to sign the site plan until all of the conditions were fulfilled.

Upon the expiration of the three year exemption period, the property owner sought a declaration from the ZBA that it had vested rights. The ZBA disagreed and this lawsuit ensued.

The Court summarized the law on vested rights in New York as follows:

" 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; see Matter of RC Enters. v Town of Patterson, 42 AD3d 542, 544; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 218, affd 32 NY2d 796, cert denied 414 US 1004; Matter of Fox Lane Corp. v Mann, 216 App Div 813, 813, affd 243 NY 550). "Neither the issuance of a permit . . . nor the landowner's substantial improvements and expenditures, standing alone, will establish the right. The landowner's actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless" (Town of Orangetown v Magee, 88 NY2d at 47-48; see Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d at 136; People v Miller, 304 NY at 109; Matter of RC Enters. v Town of Patterson, 42 AD3d at 544; People ex rel. Publicity Leasing Co. v Ludwig, 172 App Div 71, 73-74, affd 218 NY 540, 542)."

In concluding the property owner lacked vested rights in this case the Court held:

"Whether a planning board's final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York (cf. Figgie Intl. v Town of Huntington, 203 AD2d 416, 418-419; but cf. 202 Devs. v Town of Haverstraw, 175 AD2d 473), and it is not before us now....Even if a property owner may claim vested rights in reliance on an unconditional final approval of a site plan, it is undisputed that the Planning Board never granted unconditional approval of the plaintiffs' site plan.

Further, the plaintiffs may not ground a claim of common-law vesting upon reliance on the limited permits that were issued to them. None of those permits—which authorized demolition of the single-family house and the water tanks, erection of a sign, and regrading and clearing—either singly or together amounted to the Town's approval of Madison Green. Thus, the plaintiffs' expenditures and construction in reliance on those limited permits could not satisfy the prerequisite for common-law vesting of the right to construct the entire project. At most, the limited permits authorized the plaintiffs to complete the work described in the permits themselves, which, if undertaken, would leave the subject property in a condition amenable to development under the new, more restrictive R-1 zoning regulations."

-Steven Silverberg

February 13, 2014

Condition Set by ZBA Negated by Subsequent Zoning Amendment

An appellate court held that a restriction on the height of buildings fixed by a zoning board of appeals did not survive a later change of zoning for the parcel at issue. In Matter of Livingston Parkway Assn., Inc. v. Town of Amherst Zoning Board of Appeals, the Third Department held: " the language of Condition No. 4 specifically and unambiguously applied the height restriction only to new buildings proposed by a developer in June 1968. That development never came to fruition, and the subject parcel was rezoned in 1976. We therefore conclude that the Amherst Town Board annulled Condition No. 4 when it rezoned the property in 1976 (cf. Matter of D'Angelo v Di Bernardo, 106 Misc 2d 735, 737, affd 79 AD2d 1092, lv denied 53 NY2d 606)."

The Petitioner in the case had claimed that a saving clause in the amendment that stated prior regulations of the Town survived the amendment meant that the ZBA condition on height also survived, In rejecting that argument the Court noted that a condition fixed by a zoning board is not a Town regulation.

The Court also rejected the Petitioner's argument that the ZBA decision, holding the prior height restriction no longer applied, was fatally defective for failure to make findings of fact. The Court noted that, while generally findings of fact are required to permit intelligent judicial review, when there is a pure question of law:

"we have the power to conduct an independent review of the applicable law (see Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 160; see also Matter of Emmerling v Town of Richmond Zoning Bd. of Appeals, 67 AD3d 1467, 1467-1468), and petitioners correctly concede that this case involves only an issue of legal interpretation. Under the circumstances, we conclude that the record "contain[s] sufficient facts to permit intelligent judicial review of the . . . determination" (Matter of Iwan v Zoning Bd. of Appeals of Town of Amsterdam, 252 AD2d 913, 914..."

-Steven Silverberg