New York Zoning and Municipal Law Blog

The Appellate Division ruled that the New York Environmental Conservation Law (ECL) does not prevent a Town from enacting zoning that prohibits hydrofracking. In Matter of Norse Energy Corp. USA v. Town of Dryden, the Court held that provisions of the ECL that regulate mining did not conflict with the ability of municipalities to enact zoning codes that prohibit certain mining activities.

Noting that "[A]mong the powers delegated to local governments is the authority to regulate the use of land through the enactment of zoning laws (see Municipal Home Rule Law § 10 [1] [ii] [a] [11]; Statute of Local Government § 10 [6], [7]; Town Law § 261" the Court found the ECL language and legislative history did not evidence an intent by the state legislature, either explicitly or by implication, to preempt local zoning authority to prohibit mining operations.

Therefore, the Court concluded: "respondents' decision to amend the Town's zoning ordinance to prohibit the activity of hydrofracking does not conflict with the Legislature's intent to ensure that, where oil or gas drilling occurs, the operations are as efficient and effective as possible."

-Steven Silverberg

The Appellate Division ruled that a zoning board correctly interpreted the zoning code when it held that keeping 40 racing pigeons was not what was intended in a zoning code that permits "customary household pets" as accessory to a residence. In Matter of LaRusso v. Neuringer the court found:

"the petitioner's proposed use of a coop in his backyard to keep and raise 40 or more racing pigeons, or 'racing homers,' did not qualify as keeping 'a reasonable number of customary household pets' within the meaning of section 342-21(B)(7) of the Code. In reaching this determination, the ZBA considered record evidence that these pigeons would be specially bred, trained, and handled to compete in races, at least some of which may result in cash prizes. "

In analyzing the criteria applicable to interpreting the zoning code the Court noted that generally

"zoning ordinances are in derogation of the common law and must be strictly construed against the municipality.... 'However, 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..."

Our partner Kathy Zalantis argued this case on behalf of the ZBA.

-Steven Silverberg

The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land "not the identity of the user." In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town's zoning code that prohibited check cashing establishments were invalid.

The Court noted that the basis for the prohibition was a memorandum produced by one of the Town's attorneys who, among other things, concluded the prohibition would be beneficial because it :

"...encourages young and lower income people to open up bank accounts, save their money, and develop a credit rating" and "also removes a seedy type of operation, akin to pawnshops and strip clubs, from the commercial areas of the Town."

In rejecting this analysis as the basis for adoption of zoning regulations the Court held:

"It is clear from the memorandum of the deputy town attorney that section 302 (K) was directed at the perceived social evil of check-cashing services, which were thought to exploit the younger and lower income people who are their main customers. Whatever the merits of this view as a policy matter, it cannot be implemented through zoning."

The Court concluded that, while there may be uses, such as adult entertainment uses, that have negative secondary effects on the surrounding community, "the Town has not tried to show and does not argue that check cashing services are in a similar category."

Instead, the Town argued that the purpose of the law was related to health and safety, specifically by preventing armed robberies. But the court noted that this was not advanced as a basis for adopting the law when it was enacted. Therefore, the Court found, irrespective of whether or not that might be a valid argument for such a prohibition, perceived threats of armed robbery was not the basis for the adoption of this prohibition.

-Steven Silverberg

The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site.

The property in question is located in three municipalities. Municipal boards in two of those towns declared themselves co-lead agencies under SEQRA, for the purpose of reviewing the proposed development and issued a positive declaration, requiring preparation of an environmental impact statement. Meanwhile the municipalities in which the project is located declined to guarantee sewer service to the site.

While the SEQRA review was pending, the County determined to allow the extension of a County Sewer District ("OCSD") to serve the property. The County declared itself lead agency for purposes of the proposed OCSD extension, prepared a short form EAF and issued a negative declaration. Thereafter, the County approved the extension.

After finding that the Petitioners had standing to challenge the SEQRA determination, the Court held:

"under the circumstances of this case, the County improperly segmented the SEQRA review of the OCSD extension from the Mountco project (see 6 NYCRR 617.3[g][1]; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of AC I Shore Rd., LLC v Incorporated Vil. of Great Neck, 43 AD3d 439, 442; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of Riverhead, 290 AD2d 448, 448). Contrary to the appellants' contentions, the record establishes that the Mountco project and the OCSD extension are part of an integrated and cumulative development plan sharing a common purpose (see Matter of East End Prop. Co # 1, LLC v Kessel, 46 AD3d 817, 823; cf. Matter of Friends of Stanford Home v Town of Niskayuna, 50 AD3d 1289). Since the Town of Chester and the Planning Board of the Town of Blooming Grove, as co-lead agencies of the Mountco project, had already issued a positive declaration, the County was prohibited from issuing a subsequent determination (see 6 NYCRR 617.6[b][3][iii]; Matter of Gordon v Rush, 299 AD2d 20, 29, affd 100 NY2d 236; Matter of Incorporated Vil. of Poquott v Cahill, 11 AD3d 536, 542)."

-Steven M. Silverberg

The Appellate Division Second Department vacated conditions fixed by a zoning board as part of the grant of a permit to operate a farm stand. In The Matter of Edson v. Southold Town Zoning Board of Appeals, the Court reversed the lower court's dismissal of the petition.

The Petitioner has a Christmas tree farm and wanted to also open a farm stand in its building. However, the building is 7,826 square feet, where the Town Code limits farm stands to 3,000 square feet. The Petitioner proposed to partition the building and limit the area used for the farm stand to 3,000 square feet. After the building inspector denied the permit the Petitioner applied to the zoning board. The zoning board found that the application met the requirements of the code but fixed conditions not agreed to by the Petitioner. The conditions limited the operations to only certain months and prohibited the storage of incidental items, not raised on the farm, within the balance of the building outside the stand.

In reversing the lower court and vacating the conditions the Court held:

" the board could have acted within its authority to rationally interpret the Town Code so as to require that all farm stand inventory be stored within the 3,000 square-foot area limitation of the proposed farm stand (see generally Matter of Ferraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710, 711). However, it did not have the authority to attach a condition to its approval of the petitioner's farm stand application that arbitrarily distinguishes between the types of inventory to be offered for sale, by permitting the storage of farm stand inventory produced on the petitioner's farm in the partitioned area adjacent to the proposed farm stand, while prohibiting the similar storage of incidental accessory items that are not produced on the petitioner's farm. Likewise, there is no authority in the Town Law or the Town Code, or any evidentiary basis, for the imposition of the condition limiting the operation of the proposed farm stand to a particular season or to specific dates. Accordingly, the judgment must be reversed, the petition reinstated and granted, and so much of the determination as imposed the challenged conditions annulled."

-Steven M. Silverberg

The Appellate Division held that an assisted care facility did not have standing to challenge a change in definition under local zoning that permitted a competitor to open a facility nearby. In Matter of VTR FV, LLC v Town of Guilderland, the Court held the:

"allegations distill to a claim of 'the threat of increased business competition, which is not an interest protected by the zoning law[]' (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 415). Thus, notwithstanding the proximity of petitioners' property to the phase IV site affected by the amendment to Local Law No. 1, the economic harm they allege is insufficient to confer standing on them (see id. at 409-410, 414)."

In addition, the Court noted there was no allegation of a specific noneconomic environmental harm. As for other claims raised by the Petitioner, the Court found that the change did not constitute spot zoning, nor did it result in a taking.

-Steven M. Silverberg

This week, the U.S. Supreme Court reversed the Federal Circuit decision finding that temporary flooding of property instituted by the government could not be a taking and remanded the matter for further findings.In Arkansas Fish and Game Commission v United States (11-597), the Court reversed the Circuit's conclusion that there can only be a taking if the flooding were permanent or inevitably reoccurring. Instead, the Court determined that "recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."

Here, the Commission owns timber land upstream of a dam controlled by the Army Corps of Engineers (Corps). Between 1993 and 2000 the Corps modified and slowed the release of waters, so that downstream farms would have a longer growing season. However, this deviation from the adopted plan caused recurrent flooding of the upstream timber lands owned by the commission. As a result the Commission claims significant damage to those timber lands.

In reversing the decision finding that there could be no taking under these circumstances, the Court remanded the matter for further findings and limited its decision as follows:

"We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize,time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States, 257 U. S. 138, 146 (1921) (no takings liability when damage caused by government action could not have been foreseen). See also Ridge Line, Inc. v. United States, 346 F. 3d 1346, 1355–1356 (CA Fed. 2003); In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 799 F. 2d 317, 325–326 (CA7 1986). So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001). For example, the Management Area lies in a floodplain below a dam, and had experienced flooding in the past. But the trial court found the Area had not been exposed to flooding comparable to the 1990’s accumulations in any other time span either prior to or after the construction of the Dam. See supra, at 4–5. Severity of the interference figures inthe calculus as well. See Penn Central, 438 U. S., at 130– 131; Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327, 329–330 (1922) (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [a taking]. Every successive trespass adds to the force of the evidence.”)."

-Steven Silverberg

The New York Court of Appeals has interpreted Civil Service Law section 71 as mandating reinstatement of an employee, previously terminated due to the inability to perform his duties resulting from a work related injury, once the county civil service office has certified the employee as fit to work. In Matter of Lazzari v Town of Eastchester, the Court held that upon receipt of a communication from the County Department of Human Relations that the employee had been examined and found fit for duty the employee must be reinstated. The Court found that if the municipality disagrees, it may commence an Article 78 proceeding against the County to challenge its determination, but may not deny reinstatement while it argues with the County.

Civil Service Law section 71 provides that where a municipal employee has been found unfit for work, due a to a work related incident, he/she may seek reinstatement through the County. In the event the County, by way of an independent examination, finds the employee fit for duty, the municipality must reinstate the County. In this case, the Town had the employee examined by two doctors who found the employee could not perform the functions of his position due to prior work related injuries. The employee sought reinstatement by the County which had him examined by a third physician. The County then advised the Town the employee was fit for duty. The Town requested a copy of the medical report and the County declined to provide it. The Town then refused to reinstate the employee based solely on the letter from the County unsupported by a copy of a medical certification. The Town also failed to either pursue a formal Freedom of Information request for the medical report or otherwise bring an action to challenge the determination.

In this action, brought by the employee for reinstatement, the Court concluded the Town "...does not have discretion regarding reinstatement determinations when a Civil Service Department, pursuant to Civil Service Law § 71, has determined that a medical official has certified that the employee is fit to return to work and orders reinstatement. Civil Service Law § 71 does not give the Town the responsibility or power to police the performance of the County's statutorily mandated duties."

The Court also ordered that the employee be given back pay.

In dissent, Judge Prigott expressed concern over the practical impact of this ruling:

"I dissent and decline the majority's invitation to go "through the looking glass" to a world where a municipal employer must, in blind faith, reinstate an employee under Civil Service Law § 71 without first receiving a certification from a medical officer that the employee is fit for duty. The majority berates the parties for "squabb[ling] in and out of court," (deservedly so), but, instead of interpreting § 71 in a manner that would lead to less litigation, it offers a solution that invites more by requiring a municipal employer to commence an article 78 proceeding against another municipality that should be assisting it to obtain the certification. Although § 71 does not state to whom the certification must be given, the only practical interpretation is that it should be given to the municipal employer, the entity ultimately responsible for the consequences of an imprudent reinstatement."

-Steven Silverberg

The Appellate Division affirmed the denial of summary judgment in an action by a town, seeking to enjoin the use of a property as being in violation of the local zoning ordinance. In Matter of Town of Huntington v. Braun, the court explained the zoning ordinance permits florist shops and nurseries with accessory greenhouses that are defined "as '[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit.'" The Town claims the business is not in compliance because it sells products that are not "field-grown."

The Court concluded:

"Possible ambiguities in zoning ordinances are to be construed against the municipality which has enacted them and seeks to enforce them (see Town of Riverhead v Gezari, 63 AD3d 1042; Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 527; Town of Huntington v Barracuda Transp. Co., 80 AD2d 555). Construction of ambiguous language is an issue of fact that cannot be decided on a motion for summary judgment (see DiLorenzo v Estate Motors, Inc., 22 AD3d 630, 631; Leon v Lukash, 121 AD2d 693, 694).

Here, the Supreme Court properly determined that triable issues of fact regarding ambiguities in the definitions of permitted uses of the premises existed, precluding the award of summary judgment"

-Steven M. Silverberg

The N.Y. Court of Appeals has directed the New York City School Construction Authority to prepare a Supplemental Environmental Impact Statement to detail its ongoing management of remediation measures at a brownfield site where it proposed to construct a campus for four public schools. In Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Court held that the failure of the Authority to subject its ongoing management plan for the site to scrutiny pursuant to the State Environmental Quality Review Act (SEQRA) violated the purposes and intent of the regulations and required the preparation of a Supplemental Impact Statement.

SEQRA review by the Authority was initially challenged for failure to include in the EIS a description of the long term site management plan. The Authority did not argue that the long term plan was not an important environmental consideration but instead took the position that: "...the plan must be governed by post-remediation soil and groundwater conditions" that could not be assessed until after the site cleanup was complete. The Supreme Court therefore treated this position as an admission that the long term management should be addressed and directed that once the plan was completed that a Supplemental EIS should be prepared.

Thereafter, the Authority prepare a long term management plan that was submitted to and approved by the DEC, but no Supplemental EIS was prepared. Instead, the Authority to moved to renew and reargue asserting that the preparation of the long term plan and sign-off by DEC were sufficient and no further SEQRA review was necessary. The lower courts disagreed with the Authority's position.

In affirming the lower courts the Court of Appeals noted:

"We do not view this case as a dispute over how much detail must be included in an EIS, or over whether events occurring after the EIS was filed were significant enough to call for a supplement. If those were the issues, we would defer to any reasonable judgment made by the Authority (see Matter of Eadie v Town Bd. of N. Greenbush, 7 NY3d 306, 318-319 [2006]; Webster Assoc. v Town of Webster, 59 NY2d 220, 227-229 [1983]). But the Authority does not assert that, in its judgment, the maintenance and monitoring measures were relatively minor details that the public did not need to know about. The Authority has not disputed petitioners' showing that these measures were "essential" to protecting the site's occupants from dangerous contaminants.

The Authority seems instead to be arguing that it should not have to describe the long-term maintenance and monitoring measures in a supplemental EIS because (1) it reasonably chose not to decide on those measures before its EIS was filed and (2) it adequately described them in the site management plan approved by the DEC as part of the Brownfield Program. Both of these arguments lack merit. "

The Court noted that while, without deciding, it appears the conclusion to postpone preparing the long term management plan was reasonable it "...does not mean, however, that mitigation measures of undisputed importance may escape the SEQRA process."

The Court concluded:

"Nor does the submission of the site management plan to the DEC, or the approval of that plan as part of the Brownfield process, justify short-circuiting SEQRA review. The Brownfield Program and SEQRA serve related but distinct purposes. SEQRA is designed to assure that the main environmental concerns, and the measures taken to mitigate them, are described in a publicly filed document identified as an EIS, as to which the public has a statutorily-required period for review and comment. We understand the Authority's view that, as to this project, it has already done enough public outreach and considered enough public comments, but SEQRA requires it to take this one step more."

- Steven M. Silverberg

The N.Y. Court of Appeals rejected a lawsuit by the Town of Oyster claiming an administrative complaint by the State Division of Human Rights (SDHR) was unconstitutional reverse discrimination. In Matter of the Town of Oyster Bay v. Kirkland, the SDHR had asserted a claim that certain provisions of the Town of Oyster Bay zoning ordinance discriminated against minorities in violation of the State Human Rights Law. Oyster Bay, without awaiting completion of the SDHR investigation, brought an action raising a number of claims. Except for the reverse discrimination claim the other claims were ultimately dropped by the Town.

The Court began by analyzing the exhaustion of administrative remedies rule and the exceptions to that rule:

"The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] [citations omitted]). Here, the Town has abandoned its argument that the SDHR's complaint was ultra vires, but pursues its claim that the SDHR is engaged in unconstitutional "reverse discrimination.'"

However, the Court noted that, " 'merely asserting a constitutional violation will not excuse a litigant from first pursuing administrative remedies that can provide the requested relief'." Therefore, the Court concluded that the matter should be addressed first at the administrative level, as an administrative law judge could find that the zoning is not discriminatory.

-Steven Silverberg

The Appellate Division held that a trial is required to determine whether Rockland County properly determined the costs that must be prepaid before it will comply with a FOIL request. In Matter of Weslowski v Vanderhoef, the Second Department concluded there were triable issues of fact as to whether the County had used the proper criteria in requiring the prepayment of over $ 156,000.00 before complying with a large FOIL request.

The Court reviewed the statutory provisions for recovery of the costs of complying with a FOIL request:

"Public Officers Law § 87 sets limits on the costs which an agency may charge those who have requested records: "fees for copies of records . . . shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record" (Public Officers Law § 87[1][b][iii]). Section 87(1)(c) of the Public Officers Law defines the term "actual cost." Under that provision, an agency may only recover the "actual cost" of reproducing the record, including "an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record" (Public Officers Law § 87[1][c][i]). However, the statute provides that "preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested" (Public Officers Law § 87[1][c][iv])."

The Court then found that the County Records Access Appeals Officer applied the wrong criteria in merely concluding that he should give the County Records Access Officer "the benefit of the doubt" as to his calculation of the chargeable costs for document recovery. Noting, based upon e-mails from the County, that while it appeared some of the costs were properly recovered, remand and immediate trial are required because:

"the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL (see Public Officers Law § 87[1][c]). If an agency imposes fees which are not authorized by FOIL, the determination requiring the prepayment of such fees must be deemed to have been "affected by an error of law or . . . arbitrary and capricious" (CPLR 7803[3]). ...The Access Officer's e-mails indicate that the petitioner may have been improperly charged for the time it would take County employees to search for paper documents, as those e-mails make reference to time spent retrieving "32,400 pages that would need to be located in the Archives," the retrieval of "files [that] would have to be located," "a manual search of numerous files at the Department of Personnel," and the retrieval of "the hard copy of each employee packet." The Access Officer's e-mails also indicated that, even where electronic copies were maintained, it would be necessary to check the accuracy of those copies by comparing them with hard copies and, thus, the County charged the petitioner for time that employees would spend locating those paper documents. The Access Officer's e-mails, therefore, revealed the existence of a triable issue of fact as to whether and to what extent the County sought to impose fees associated with the time its employees would spend searching for paper documents (cf. Public Officers Law § 87[1][c][iv])."

-Steven Silverberg