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

January 3, 2014

Court Upholds Denial of Use Variance for a Ski Lift

The Appellate Division upheld a Zoning Board's denial of a use variance to extend a ski lift over a currently unused parcel. In Matter of Holimont, Inc. v Village of Ellicottville Zoning Board of Appeals, et.al. the Court noted that the applicant failed to meet the criteria for obtaining a use variance. Although, the applicant submitted expert evidence on the issue of why it could not obtain a reasonable return without the use variance, the Court held:

"...the "sole province of the ZBA . . . as administrative factfinder" to resolve issues of credibility (Matter of Supkis v Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 781). Additionally, petitioner failed to establish that its proposed development would not alter the essential character of the surrounding neighborhood (see Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147). Indeed, the record establishes that permitting petitioner to maintain an active ski lift and snowmaking equipment on its parcel will alter the quiet residential area surrounded by nature in which that parcel is located because of the increased use of the parcel. Finally, the record establishes that petitioner's hardship was self-created inasmuch as petitioner previously had stipulated to restrictions calling for an "undisturbed green area" in the location petitioner now seeks to develop..."

-Steven Silverberg

December 27, 2013

Proximity of Neighborhood Access Road to Project Site Not Sufficient for Standing to Challenge Site Plan

The Appellate division determined that mere proximity of a neighborhood access road was not sufficient to create standing for individuals who reside 1,300 to 2,000 feet from a proposed regional mall. In Matter of Riverhead Neighborhood Preservation Coalition v. Town of Riverhead Town Board, a local neighborhood association challenged the site plan approval for a regional mall that would have its main entrance directly across from the access road that serviced a specific neighborhood that included members of the group challenging the site plan approval. Noting that the standing of the association was dependent on whether individual members of the association would have had standing on their own, the Court held:

"Contrary to the petitioners' contention, the Supreme Court properly concluded that they lacked standing. " [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large'" ...Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone (see Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420, 1421-1422; Matter of Harris v Town Bd. of Town of Riverhead, 73 AD3d 922, 924; Matter of East End Prop. Co. # 1, LLC v Town Bd. of Town of Brookhaven, 56 AD3d 773, 777-778; Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17 AD3d 590, 595). Further, the individual petitioners' allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course...."

-Steven Silverberg

December 22, 2013

Extension of Grandfather Clause to Allow Development Consistent With Comprehensive Plan

The Appellate Division found multiple extensions of a grandfather clause that permitted a specific development to proceed to final approval, despite local regulations that would have otherwise prevented it, is consistent with the Town's comprehensive plan. In Matter of Birchwood Neighborhood Association v. Planning Board of the Town of Colonie, the Court noted that legislative acts carry a presumption of validity.

"Petitioners primarily argue that the repeated renewals of the first grandfathering provision were unlawful because they did not comport with the Town's comprehensive plan, rendering approval of the developer's subdivision plan invalid. We disagree. "A town's zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, 'beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'" (Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018, 1019 [2012], quoting Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [1988]). While "[z]oning laws must be [*3]enacted in accordance with a comprehensive land use plan" (Rocky Point Drive-In, L.P. v Town of Brookhaven, 21 NY3d 729, ___, 2013 NY Slip Op 07513, *2 n 1 [2013]; see Town Law § 263), to establish compliance, "respondents need only show that the zoning amendment was adopted for 'a legitimate governmental purpose'" and the amendment will not be considered arbitrary unless "'there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'" (Matter of Rossi v Town Bd. of Town of Ballston, 49 AD3d 1138, 1144 [2008], quoting Fred F. French Inv. Co. v City of New York, 39 NY2d 587, 596 [1976], appeal dismissed, cert denied 429 US 990 [1976])."

In this case, the application at issue was initially submitted in 2002. Thereafter, the Town adopted a comprehensive plan in 2007 and provided for a conservation overlay zone. It also grandfathered any inconsistent application that had already received concept approval, so long as it met certain deadlines for final approval. The deadline was subsequently extended several times by local law allowing the development at issue to receive final approval. The Court found that allowing the particular development to proceed, despite enactment of zoning provisions that would have limited such development, was reasonable under the circumstances.

"As set forth in the comprehensive plan, the Town's primary concerns included "ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area's natural resources and remaining open spaces." The adoption of the initial grandfathering provision clearly evidenced and furthered the Town's interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements (see Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 AD3d 1384, 1387 [2011], lv denied 17 NY3d 705 [2011]).

Petitioners have not shown that, under the circumstances here, the challenged extensions — amounting to a 2½-year period from the beginning of 2010 to the middle of 2012 — were inordinately lengthy as to render them "arbitrary and unreasonable or otherwise unlawful" (Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at 1362; see Boyles v Town Bd. of Town of Bethlehem, 278 AD2d 688, 690 [2000]). In our view, such extensions were consistent with the comprehensive plan and were reasonably adopted to further the purposes of the original grandfathering provision. This is particularly true considering that Local Law No. 2 (2012), which created the final six-month extension for filing final subdivision plans, was tailored to apply exclusively to development proposals in which significant steps had been taken to advance through the approval process during the previous year."

-Steven Silverberg

December 19, 2013

ZBA Failed to Accommodate Religious Use by Denying Special Permit and Variance

The Appellate Division upheld the lower court's reversal of the denial of a special permit and a parking variance for a church use. In the Matter of Gospel Faith Mission International, Inc., v. Weiss, the Court found the ZBA was arbitrary in denying the application due to the fact that "greater flexibility" is to be applied to applications by religious organizations. This rule is based upon New York law not the often cited Religious Land Use and Institutionalized Persons Act (RLUIPA) which does not appear to have been raised in this case.

In reversing the ZBA the Court stated:

"Here, the record reflects that the Board voted to deny the petitioner's applications without making any attempt to accommodate the proposed religious use (see Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572, 573). The petitioner suggested conditions for the limitation of its use in order to mitigate the impact on the surrounding community. However, despite the conditions proposed by the petitioner, the Board denied the petitioner's applications in their entirety, even though the proposed religious use could have been substantially accommodated..."

-Steven Silverberg

December 18, 2013

Record RLUIPA Settlement

The Town of Greenburgh has agreed to pay a reported record setting 6.5 million dollars to settle the RLUIPA claims of Fortress Bible Church. The long saga of the claims against the Town of Greenburgh (located in Westchester County, New York), which we have reported at length in this Blog, reached a settlement on December 16 when the Town Board approved the settlement with only 1 million of the 6.5 million dollar settlement covered by insurance.

The case arose out of the request by Fortress Bible for approval to construct a new church on property it acquired in the Town. The Town engaged in a lengthy SEQRA review only to reject the application. Once Fortress Bible brought suit the Town made a number of claims, including that SEQRA was not a land use regulation within the meaning of RLUIPA. After a bench trial, the Town's claims were rejected and the Federal District Court found the Town had, among other things, violated RLUIPA. On appeal to the Second Circuit Court of Appeals, that court, in affirming the District court, stated:

"The Town’s own Planning Commissioner (subsequently replaced by the Town) believed that the alleged environmental impacts did not warrant a positive declaration, but the Town initiated the SEQRA review process anyway after the Church refused to accede to the Town’s demand that it donate a fire truck or provide some other payment in lieu of taxes. The Town then manipulated its SEQRA findings statement to “kill” the project on the basis of zoning concerns despite the fact that there were no serious environmental impacts. We decline to insulate the Town from liability with regard to its decisions on zoning issues simply because it decided them under the rubric of an environmental quality review process."

With a hearing on damages scheduled, the Town and Fortress Bible have now reached a settlement.

Thanks to Nick Ward-Willis of Keane and Beane, who was one of the attorneys representing the Church, for keeping my up to date on the status of this matter over the last several years.

-Steven Silverberg