New York Zoning and Municipal Law Blog

In a decision issued today, the New York Court of Appeals reversed the Appellate Division and found that a non-conforming mining operation had attained vested rights in that use. In Glacial Aggregates LLC v. Town of Yorkshire, the Court concluded that the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area.

At the time that the property owner began the process of obtaining a DEC permit for mining the Town had no zoning ordinance. It was only after the DEC permit was issued that the Town enacted zoning which prohibited the use. The property owner then claimed it had obtained vested rights to the non-conforming use. The trial court found in favor of the property owner and the Town appealed.

We previously reported on the decision of the Appellate Division in this case noting in an April 27, 2009 post that the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.

In reversing the Appellate Division, the Court of Appeals noted both the nature of the situation in this case and the unique nature of mining and that little actually needed to be built for mining to take place. "When applying our vested-rights jurisprudence to the facts in this case, there are two significant considerations that must be kept in mind. First, the Town had no zoning laws when Glacial acquired the property in 1996 — or, for that matter, when Glacial applied for the DEC mining permit in 1996, or even when DEC issued Glacial a mining permit in 1999 (cf. Preble Aggregate, supra). Relatedly(sic), mining is a unique land use, which colors our analysis of vested rights and nonconforming use."

Perhaps most significantly, to our knowledge, for the first time the Court added the cost of permitting to the test of substantial expenditure in obtaining vested rights and further expanded the concept of vesting through a validly issued permit to include "unqualified permission." "Put another way, the issue is not whether Glacial gained a vested right by way of its DEC mining permit, but whether Glacial acquired a vested right by way of the unqualified Town permission it once enjoyed to mine its property. And when deciding whether a landowner has made substantial expenditures in reliance upon such local permission, we see no reason for the factfinder to disregard DEC permitting costs. Indeed, in light of the stringent requirements imposed by the Mined Land Reclamation Act, such costs frequently, if not invariably, run into the hundreds of thousands of dollars or more, and represent a significant portion of the investment necessary for a landowner to devote real property to quarrying."

While the current case involves mining, which the Court noted has unique elements, it will be interesting to see how broadly the Court applies these revised criteria in the future.

-Steven Silverberg

In a decision addressing two separate claims of substantial burden under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Seventh Circuit Court of Appeals reached two different conclusions as to the effects of municipal actions on religious groups. In World Outreach Center v. City of Chicago and Trinity Evangelical Lutheran Church v. City of Peoria, the court held that World Outreach Center had been substantially burdened but that Trinity Evangelical Church had not.

In the World Outreach case the district court had dismissed the action. The building at issue contains mainly recreational and living quarters with some space for religious service. However, the circuit court found that the building's uses were all in furtherance of the religious mission of the organization. Before being purchased the building had been operated as a YMCA for many years and included renting out 168 single room occupancy (SRO) units. During the 80 years of operation by the YMCA the City never required a special permit. Rather the building's use was considered legal nonconforming as it was legal when established and subsequent changes in zoning regulations requiring a special permit for such use did not change its status. Under the Chicago zoning code the legal nonconforming status runs with the land and is not changed by changes in ownership.

However, World Outreach was required to apply for a license to operate the SRO units and the City took the position that it would not issue the SRO licenses without World Outreach first obtaining a special permit. This was despite the fact that the YMCA was issued SRO licenses without being required to apply for the special permit, even after the zoning was changed to require a special permit for the use.

At the instigation of an alderman who was seeking to help a developer acquire the property, the City then rezoned the property to a district which did not even permit SRO as a special permit use. The City continued to insist that a special permit was needed and brought a suit claiming the special permit was required but could not be issued due to the new zoning. The City then voluntarily discontinued the lawsuit but continued, without giving a reason, to deny the SRO license. When Hurricane Katrina struck FEMA contracted to rent 150 of the rooms for a year but the City continued to refuse the SRO licenses.

In April, 2006 World Outreach commenced this action and in August, 2006, without requiring the special permit, the City issued the SRO licenses. The court noted "World Outreach was impeded in its religious mission of providing living facilities to homeless and other needy people and incurred substantial legal expenses as well. It seeks damages, having abandoned its claim for injunctive relief when the City finally issued the SRO license that it had applied for two years earlier."

While the district court dismissed the action on what is essentially as exhaustion of administrative remedies ground-failure to seek the special permit from the zoning board- the circuit court points out the futility of such an application under all of the circumstances and disposes of that argument. Instead the circuit court held the "burden imposed on a small religious organization catering to the poor was substantial (for burden is relative to the weakness of the burdened) ...and there was no possible justification for it."

Interestingly, the court found that the discrimination against World Outreach was not motivated by religious views but rather an attempt by a Chicago alderman to help a developer, who supported the alderman, to acquire the property. The court found that anyone, irrespective of religion would have been discriminated against because of the intent to aid the developer to acquire the site. Yet, the court still held that the equal protection clause is also implicated stating "a deliberate, irrational discrimination, even if it is against one person (or other entity) rather than a group, is actionable under the equal protection clause. . ...That is one of the claims that World Outreach alleges; the claim is supported by the allegations of the complaint; and so it should not have been dismissed. It has nothing to do with religion, but so what?"

The second case, decided as part of the same decision, involves a RLUIPA claim by Trinity Evangelical Lutheran Church against the City of Peoria regarding a parcel the church purchased next to its existing church. A neighborhood group later applied to the City to have the building on the adjacent property designated a landmark. The landmark designation was granted. When the church sought to demolish the building to build a new center it was denied permission, due to the landmark status.

The Church brought a RLUIPA action claiming a substantial burden, The district court granted summary judgment to the City. The circuit court noted that the issue of substantial burden is a factual question "substantiality is a relative term—whether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question."

The court then went on to affirm the dismissal noting that the burden on the church is modest not substantial. The court found that the burden would only be substantial if the church had no alternative. But, in this case there is a market for the property and the church can sell the property and use the proceeds to construct its center on other property owned by the church. The court went on to note that the City conceded that the center could be built on the empty lot owned by the church and the court went on to state:

"We imagine that the real purpose of this litigation is to extract a commitment from the City to allow Trinity to build the family-life center on the empty lot, and so viewed the suit has succeeded."

-Steven Silverberg

The Appellate Division ruled that a zoning board of appeals need not justify the denial of an area variance under all five factors in the balancing test established by Town Law. In Matter of King v/ Town of Islip Zoning Board of Appeals the court upheld the denial of an area variance for a swimming pool finding that there was a rational basis for the decision of the board. The case involved a request to place a pool on a lot which did not meet the Town's zoning requirement that a lot have at least 12,000 square feet before a pool can be constructed.

In reversing the Supreme Court decision the Appellate Division found the Supreme Court had erred. Quoting its own recent deciion in Matter of Genser v Board of Zoning and Appeals of Town of N. Hempstead, 65 AD3d 1144 (2d Dept. 2009) the court noted "'the Zoning Board is not required to justify its determination with supporting evidence with respect to each of the five [statutory] factors, so long as its ultimate determination balancing the relevant considerations was rational....'"

Most significantly the court rejected the argument that the variance should be granted because even though the lot did not meet the minimum 12,000 square foot lot area the pool could still be placed in a manner which meets the set back requirements of the ordinance. The court found "petitioners' primary argument was that, because the proposed pool would meet the relevant property setback requirements, it would have no greater impact than would a pool on a standard lot. However, the ZBA properly rejected this argument, as granting the application on this basis alone would render meaningless the Town Board's legislative decision to limit above-ground swimming pools as of right to lots not less than 12,000 square feet...."

-Steven M. Silverberg

In the Matter of Harris Bay Yacht Club, Inc. v. The Town of Queensbury the Appellate Division, Third Department found that the town assessor had acted illegally when, after a town wide reassessment in 2005, the Yacht Club was singled out for a further reassessment in 2006 and again in 2007.

The court held:

"Indeed, an equal protection violation will be found when the assessing body isolates a particular property for reassessment and is unable to justify the changes with some legally recognized factor such as improvements to the property or equal application to all properties of similar character (see Matter of Kardos v Ryan, 28 AD3d 1050, 1051 [2006]; Matter of Adams v Welch, 272 AD2d 642, 643 [2000])....Here, it is undisputed that no improvements were made upon the property since the Town-wide reassessment. In explaining the basis for selectively reassessing the property, the Town Assessor merely stated that, based on her "familiarity with the [p]roperty and other area marinas and [her] experience and judgment," she thought that the appraisal consultant's value conclusion of $3,514,000 "might have understated the value of the [p]roperty." No comprehensive assessment plan was made to reassess all similarly situated marinas — class 570 properties — in the Town."

-Steven M. Silverberg

The New York Appellate Division, Second Department, in Matter of Baker v Village of Elmsford has unanimously held that the Village of Elmsford may not demap and discontinue portions of Vreeland Avenue and River Street unless the Village Board determines the streets are useless and it takes a hard look at the proposed action under the State Environmental Quality Review Act (SEQRA). The Court reversed the 2007 decision of Supreme Court, Westchester County which had dismissed the Article 78 proceeding brought by two contiguous commercial property owners contesting demapping and discontinuance of the streets.

The streets in question have been in use for nearly 80 years and the contiguous property owners were required to make improvements to the streets within the past 20 years. The surrounding area is frequently subject to severe flooding and during such times of flooding, such streets provide the only means of access and egress to the contiguous properties.

The Court relied upon Bass Building Corp. v Village of Pomona, 142 AD2d 657 (Second Dept. 1988) which held as follows:

Municipalities hold the fee of streets for the general public. The trust is publicum juris, that is, for the whole People of the State (citing People v Grant, 306 NY 258; City of New York v Rice, 198 NY 124). A municipality may not reserve its public streets for the benefit of its citizens as against the rights of outsiders (City of New York v Rice, supra). Under the “zone of interest” doctrine of standing, a plaintiff need demonstrate only that a municipal action has damaged it, and that the interest asserted is arguably within the zone of interest to be protected (citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Glen Head--Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484). At pages 658 – 659.

The Court determined that the proper standard of review was the Article 78 “arbitrary and capricious” standard because the required public hearing which preceded the demapping and discontinuance resolution had been informal in nature.

The Court found the Village Board’s determination to be arbitrary and irrational, since the Board had apparently ignored the testimony of the contiguous property owners regarding their tenants’ use of the streets during frequent episodes of flooding and the property owners’ improvements to the streets as required by the Village. The Court further found the Short Form Environmental Assessment undertaken by the Village Board, in purported accordance with the State Environmental Quality Review Act (SEQRA) and prior to their adoption of the demapping and discontinuance resolution, to be wholefully inadequate and not meeting the “hard look” and “reasoned elaboration” standards set forth in Matter of Jackson v New York State Urban Dev. Corp, 67 NY2d 400, 417 (1986).

- Bernis E. Shapiro

The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL). In a rebuke to procedures followed by ESDC, in the Matter of West Harlem Business Group v. Empire State Development Corporation, the court found that the ESDC had failed to follow the statutory requirements in responding to the FOIL requests of a group that was seeking information about the proposed condemnation of property in West Harlem.

Initially, ESDC refused to release the documents requested. On administrative appeal the ESDC merely repeated the general denial without particularizing the basis for the denial. Once the action was commenced ESDC claimed various exemptions for different categories of documents but, the court found, again failed to specify which documents fell into each category of exemption. Therefore, the Supreme Court ordered an in camera review of the documents, labeled the documents according to its analysis of the documents and ultimately ordered their release.

The Appellate Division affirmed the lower court ruling. On appeal to the Court of Appeals, the ESDC argued, among other things, that the Supreme Court had placed documents in the wrong categories. The court held:

"In response to Supreme Court's order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents."
-Steven M. Silverberg

In a case that appears to break new ground, the Appellate Division, First Department, found that the proposed condemnation of a number of parcels to make way for a new Columbia University Campus should be rejected. In Matter of Kaur v. New York State Urban Development Corporation the split court issued a strongly worded decision finding the "process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court. In short, it is a skein worth unraveling."

By way of background, the Manhattanville area of West Harlem has been in the sights of Columbia University for a number of years as the location for a new campus. Several years ago it began acquiring property in the area, but a number of property owners refused to sell to Columbia and Columbia began working with the Empire State Development Corporation (ESDC) to acquire the holdouts through eminent domain. The court found that while in 2000 Columbia owned only 2 properties in the area, by 2003 Columbia owned 51% of the properties in the roughly 17 acres at issue. In 2004, the New York City Economic Development Corporation (EDC), the ESDC and Columbia began meeting concerning the project. In 2006, the ESDC hired Columbia's planning consultant to do a study of the area. The study, issued in 2007 noted that by 2007 Columbia controlled 72% of the properties. The study concluded that the majority of the lots in the area were substandard.

During the course of related litigation over release of documents under the Freedom of Information Law (discussed in this Blog in July, 2008) issues were raised concerning the neutrality of the consultant who worked for both Columbia and ESDC. ESDC thereafter retained another consultant to do a further study. By the time of the new study Columbia either owned or was in contract to purchase 48 of the 67 lots in the study area. The new study concluded many of the properties were neglected and the area was "blighted."

In rejecting the findings of blight the court noted: "EDC's 2002 West Harlem Master Plan which was created prior to the scheme to balkanize Manhattanville for Columbia's benefit found no blight, nor did it describe any blighted condition or area in Manhattanville. Instead, as described above, the Plan noted that West Harlem had great potential for development that could be jump-started with re-zoning. It was only after the Plan was published in July 2002 that the rezoning of the "upland" area was essentially given over to the unbridled discretion of Columbia. In little more than a year from publication of the Plan, EDC joined with Columbia in proposing the use of eminent domain to allow Columbia to develop Manhattanville for Columbia's sole benefit.... Columbia not only purchased or gained control over most of the properties in the area, but it also forced out tenant businesses, ultimately vacating, in 17 buildings, 50% or more of the tenants. The petitioners clearly demonstrate that Columbia also let water infiltration conditions in property it acquired go unaddressed, even when minor and economically rational repairs could arrest deterioration....Thus, ESDC delayed making any inquiry into the conditions in Manhattanville until long after Columbia gained control over the very properties that would form the basis for a subsequent blight study."

The court then went on to reject "underutilization" as sole criteria in determining blight, no doubt because Columbia, in acquiring the properties and vacating them created much of the underutilization, stating "time has come to categorically reject eminent domain takings solely based on underutilization." The court further found that the project had no "civic purpose, "Columbia is virtually the sole beneficiary of the Project. This alone is reason to invalidate the condemnation especially where, as here, the public benefit is incrementally incidental to the private benefits of the Project."

The court then went on to find additional procedural defects which rendered the actions unconstitutional.

As this case is likely to be heard by the Court of Appeals, it will be interesting to see how these issues are ultimately resolved, particularly in light of the Court's decision on eminent domain last week in the case of Goldstein v. the New York State Urban Development Corporation.

In a major decision, the New York Court of Appeals put a new gloss on the New York Eminent Domain Procedure Law (EDPL) allowing the condemnation by the Empire State Development Corporation (ESDC) of the so called "Atlantic Yards" area of Brooklyn to proceed. In Matter of Goldstein v. New York State Urban Development Corporation d/b/a Empire State Development Corporation, the court found that the ESDC had properly determined that the area at issue met the criteria for being "blighted." Therefore, the taking of private property for the development of 16 commercial and residential towers along with, most notably, a new arena for the "NBA Nets franchise" may proceed.

Initially the court addressed the issue of timeliness of the action. As previously noted in this Blog the EDPL sets forth a two part process for condemnation in New York. The first step is a determination under Article 2 of the EDPL that a site would serve a public purpose and is appropriate for condemnation. Once such a determination has been made a challenge must be brought in the Appellate Division within 30 days pursuant to EDPL section 207. However, in this case the petitioners initially brought an action in federal court and raised federal constitutional issues as well as state claims. The federal action was decided against the petitioners and the state claims dismissed without prejudice. The Court of Appeals therefore concluded that since the state claims were raised in federal court and dismissed without prejudice CPLR 205 (a), which allows a tolling of the statute of limitations under certain circumstances, tolled the statute of limitations in this case.

In a concurring opinion, Judge Read invokes what appeared to be the conventional wisdom prior to this decision. Judge Read argues that EDPL section 207 confers exclusive jurisdiction on the Appellate Division in an EDPL Article 2 challenge and therefore starting the action in another forum, even a federal court, does not toll the statute.

On the merits of the case, as outlined by the court, the petitioners argued "the State Constitution's takings clause, unlike its federal counterpart, has been consistently understood literally, to permit a taking of private property only for "public use," and not simply to accomplish a public purpose." The dissent by Judge Smith seems to view this statement as the position of the majority of the court as well. Yet, the next sentence of the majority opinion appears to reject this premise by stating: "...if this gloss on this State's takings laws and jurisprudence were correct — and it is not...." Thus, the majority appears to adopt the broader holdings of the federal courts in condemnation actions which reject the proposition that there may only be a taking for a public use "and not simply to accomplish a public purpose."

However, the court decides this case on other grounds holding "it is indisputable that the removal of urban blight is a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain. It has been deemed a "public use" within the meaning of the State's takings clause at least since Matter of New York City Housing Authority v Muller (270 NY 333 [1936]) and is expressly recognized by the Constitution as a ground for condemnation." The court's analysis continues finding that, while the area in question may not meet the classic description of a slum, the ESDC made findings that the area was substandard and insanitary and those terms have evolved over time to have a broader application than when the statutes were adopted for slum clearance purposes.

Further, the court limits the scope of judicial review of such findings. "It is important to stress that lending precise content to these general terms has not been, and may not be, primarily a judicial exercise. Whether a matter should be the subject of a public undertaking — whether its pursuit will serve a public purpose or use — is ordinarily the province of the Legislature, not the Judiciary, and the actual specification of the uses identified by the Legislature as public has been largely left to quasi-legislative administrative agencies. It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies..."

The court then goes on to state that it is possible that in determining blight "the bar has now been set too low" but declines to act stating that this is something for legislative determination.

The other argument raised by the petitioner is that the proposed condemnation violates Article XIII section 6 the State Constitution which provides that projects which receive state loans or subsidies must be for low income housing. The court distinguishes this provision of the Constitution finding that the project at issue is not one of large scale slum clearance where there will be a large displacement of low income families requiring relocation. Therefore the court concludes that low income housing is a "worthy objective" but not mandated for a project "that does not entail substantial slum clearance."

In a dissent, Judge Smith argues that the court has given too much deference to the "self-serving" determination of the ESDC. He concludes: "I think it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use."

-Steven M. Silverberg

The New York Court of Appeals ruled last week that a property owner who was successful in defeating an attempt to acquire her property by eminent domain may recover certain of her attorney's fees and costs. In Hargett v. Town of Ticonderoga the Court noted that in a prior action the Appellate Division had ruled that the Town's superintendent of highways had exceeded his authority in attempting to condemn property for purposes unrelated to his position. In the earlier action the property owner had challenged the initial finding by the Town that there would be a public purpose in taking her property.In the current action the property owner sought reimbursement pursuant to EDPL 702 for costs and attorney's fees incurred in the successful challenge to the finding of public purpose. The issue in the case was whether the reimbursement provisions of EDPL 702 would apply to this first stage of the condemnation process in which the Town targeted the property for acquisition or only after the Town actually commenced an acquisition/vesting procedure to condemn the property.

The Appellate Division Third Department denied the application relying upon the holding in Matter of 49 WB, LLC v. Village of Haverstraw in which the Appellate Division Second Department concluded that no reimbursement was available under similar circumstances. As previously discussed on this Blog in a June 23, 2007 post the Second Department in the Haverstraw case held that the petitioner was not entitled to attorney’s fees and costs under EDPL 702 (B) as no acquisition procedure had been commenced. EDPL has a two step process (1) determining public purpose and (2) acquisition. As Haverstraw had only identified the public purpose but no actual acquisition procedure had been commenced, the Court determined there was no right to recover fees and costs.

In reliance on the Haverstraw case the Town of Ticonderoga argued that EDPL 702 only provides for reimbursement during the vesting stage of a condemnation proceeding. The Court of Appeals, however, disagreed with that prior holding and concluded that under these circumstances the property owner is entitled to recover certain fees and costs. The Court held in the first stage of the eminent domain process, prior to an actual vesting procedure has been commenced, "reimbursement for attorney's fees and other costs incurred by a condemnee may be sought pursuant to EDPL 702 (B) after it is determined in an EDPL article 2 proceeding that the condemnor lacked authority to pursue the proposed acquisition." The Court concluded that this first stage was part of the "acquisition" process contemplated by the language in EDPL 702.

The Court qualified the extent of available reimbursement by stating reimbursement is available for "fees and costs incurred by a condemnee after a condemnor makes a determination and findings that are adverse to the condemnee pursuant to EDPL 203 and 204... However, we take no view here as to whether fees incurred before such an adverse determination may be said to be incurred "because of the acquisition procedure" within the meaning of EDPL 702 (B)." Thus, once a municipality makes a determination that a particular property would serve a public purpose, if a property owner successfully challenges that determination the property owner can seek reimbursement. Yet, whether the costs of preparing for the hearing conducted by the municipality in reaching its public purpose determination are also reimbursable is still an open question.

-Steven M. Silverberg

The New York Court of Appeals in In the Matter of Edward J. Vomero v City of New York, et al has unanimously held that the City of New York Board of Standards and Appeals abused its discretion in granting a use variance to use residentially-zoned property for commercial use. The Court reversed the decision of the Appellate Division, Second Department in which two justices had dissented, and reinstated the original judgment of the Supreme Court, Richmond County.

Under the New York City zoning code, a use variance may be granted only if: 1) use of the property for permitted uses would impose practical difficulties or unnecessary hardship because of the unique physical conditions of the property, 2) the owner cannot realize a reasonable financial return from use of the property for permitted uses because of such unique physical conditions, 3) use of the property for non-permitted uses would not alter the essential character of the neighborhood, and 4) the owner did not create the practical difficulties or unnecessary hardship.

The property at issue is a corner lot located in a residentially-zoned district on Staten Island abutting a six-lane wide street. The owner purchased the property for $275,500 and then demolished the existing house located on the land, all for the purpose of constructing a photography studio accessory to its catering hall located directly across the street in a commercially-zoned district. An appraisal was obtained seven months following purchase which showed that the vacant land could be sold for $375,000 for residential use. The land is similar in size to other residential properties located in the neighborhood.

The Court of Appeals cited its 2004 holding in Matter of Pecoraro v Board of Appeals of Town of Hempstead (2 NY3d 608 – 2004) that “(a) local zoning board has broad discretion when reviewing an application for a zoning variance, but its determination may be set aside if the record reveals that ‘the board acted illegally or arbitrarily, or abused its discretion,’” and found that “the zoning board’s decision to grant a use variance for the construction of a commercial structure in a residentially-zoned area was an abuse of discretion. The physical conditions of the parcel relied on by the board did not establish that the property’s characteristics were ‘unique’ … Proof of uniqueness must be ‘peculiar to and inherent in the particular zoning lot’ … rather than ‘common to the whole neighborhood’…The fact that this residentially-zoned corner property is situated on a major thoroughfare in a predominantly commercial area does not suffice to support a finding of uniqueness since other nearby residential parcels share similar conditions.”

-Bernis E. Shapiro

The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City "was not required to scrutinize every possible environmental issue, and the failure of the City's environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw."

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other "rare or unusual species...Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad." The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder's Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is "'likely to occur in the same places as Karner blue butterflies'; that the plants on which it is known to feed 'are absent or rare in the Albany Pine Bush'; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad." Thereafter the FEIS was accepted and the zone change was approved.

Petitioners then brought this action under SEQRA. While several causes of action were dismissed, and the Petitioners did not appeal dismissal of those causes of action, on the remaining cause of action, which alleged that he City failed to take a hard look at the potential impacts on species other than the Karner Blue butterfly, both the Supreme Court and Appellate Division found Petitioners had standing and that the City had failed to take a "hard look" at the potential impacts.

The City argued that under the Court's prior holding in Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d 761 [1991]) that Petitioners lacked standing because the closest of them lives half a mile from the project. Petitioners argued that the Court should either abandon or modify the holding in Society of Plastics. Instead, the majority of the Court reached the conclusion that the prior holding in Society of Plastics supported its finding of standing for the Petitioners.

In an interpretation which appears to differ from that of many courts and commentators since Society of Plastics was decided the Court stated "...Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case."

In finding that Petitioners in this case had standing the Court held "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development — the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury."

The Court went on to say: " we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face...while we decline to erect standing barriers that will often be insuperable, we are also conscious of the danger of making these barriers too low...Striking the right balance in these cases will often be difficult, but we believe that our rule — requiring a demonstration that a plaintiff's use of a resource is more than that of the general public — will accomplish that task better than the alternatives."

Yet, on the merits the Court held that the City had complied with the mandate of SEQRA. Pointing out that while the Karner Blue butterfly had been of major concern and impacts on its habitat had been addressed, with respect to the other species the Court found that while the "DEC did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the DEIS neither DEC nor anyone else called attention to the omission....While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too....That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A "rule of reason" (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation."

Thus, the Court's decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

-Steven M. Silverberg

In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies. In Matter of Vinrus v. the Village of Pelham Manor Building Inspector, the building inspector had issued a notice that the property owner was required to obtain a certificate of occupancy for a new tenant. The property owner brought an article 78 proceeding challenging the direction of the building inspector on various grounds.

The Village, which was defended by Silverberg Zalantis LLP, argued that the building inspector had acted properly but that, irrespective of that fact, a precondition to a suit challenging the actions of a building inspector's interpretation of the zoning ordinance is that an appeal must be submitted to the zoning board of appeals to review the determination of the building inspector. Further, such an appeal must be made to the zoning board of appeals within 60 days of the challenged decision pursuant to Village Law section 7-712-a (5)(b). The lower court dismissed the action and the appellate division affirmed simply stating "the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756)."

The brief on appeal was written by Katherine Zalantis and the appeal was argued by Steven Silverberg.