New York Zoning and Municipal Law Blog

The appellate division dismissed a challenge to the continuation of a condition to a variance on the grounds that the challenge is barred by the doctrine of res judicata. In Matter of Calapai v. Zoning Board of Appeals of the Village of Babylon, the court held that a variance conditioned upon the removal of the building modifications in the event of a change of circumstances was a condition which could have been challenged when the variance was granted in 2000. Therefore, this challenge to a 2007 renewal of the variance, on grounds that could have been raised in 2000, is barred.

The petitioner applied to convert a garage to living space for her disabled son in 2000. The variance was conditioned upon the requirement that the modifications to the structure be removed upon a change of circumstances and at such time that the structure also be restored to a garage use. The petitioner’s son died and in 2006 petitioner applied for a one year extension of time to convert the structure. In 2007, she applied to delete the condition. Instead the zoning board granted a three year extension with the right to renew every three years and further provided that if the property is sold that the garage would be restored.

Petitioner brought this Article 78 proceeding challenging the condition. The court held that administrative res judicata applied finding that: the issues raised on the variance application that is the subject of this appeal were raised in the petitioner’s initial 2000 application to make alterations to her garage, and the change of circumstances that occurred, to wit, the death of petitioner’s son, cannot be viewed as unanticipated.”

The interesting aspect of this decision is not the application of the doctrine of res jusdicata to a zoning board determination. Rather, of interest is that the court did not mention it has held, as recently as June of 2008, that variances tied to a particular user are generally void. In the case Matter of Fowlkes v Zoning Board of Appeals of the Town of North Hempstead, 53 AD3d 711 (2d Dept. 2008) the same court held: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….” Yet, this new decision, involving a variance related solely to the ownership by this petitioner, makes no mention of such any impediment to the underlying variance.

A town zoning ordinance, which established the specific number of residences and the form of ownership of the residences, as well as the size and ownership of recreational facilities for a specific property, was voided by the appellate division in Matter of BLF Associates LLC v Town of Hempstead. In a decision which restates some of the fundamentals of zoning law in New York, the court held the attempt by the Town of Hempstead to control virtually every aspect of the ownership and use of a property exceeded its authority.

The property at issue is a 17 acre parcel previously owned by the United States and used as an army reserve facility. Originally the property was zoned Residence “B” allowing single family or senior housing on 6,000 square foot lots, as well as school, religious, municipal recreational and agricultural uses. The army base was closed in 1996 and Town was given first opportunity to acquire the property. In order to explore the purchase and reuse of the property the Town formed a Local Redevelopment Agency (LRA). The LRA prepared a reuse plan which combined residential uses and recreational uses. Initially the Town contemplated purchasing the property and incorporating the reuse plan in a deed restriction.

Ultimately, the Town did not purchase the property and instead the property was sold through competitive bidding to BLF Associates LLC (BLF) with no reference to the reuse plan in the agreement to purchase the property.

In 2004, while the sale was pending, the Town began looking into legislation that would implement the reuse plan. In April, 2005 the Town adopted a resolution creating the “North Bellmore Planned Residence District” for the property. The new zone established the number and type of permitted housing units. The zone also required specific recreational facilities and provided details on the size of the required facilities down to the minimum number of tennis and shuffleboard courts. It also required that ownership of the facilities be transferred to a homeowner’s association.

The ownership of the property was transferred to BLF in November, 2005 and this action was commenced by BLF seeking a declaration that the enactment was ultra vires, void and unconstitutional. The Supreme Court granted summary judgment to BLF.

In affirming the lower court, the appellate division noted that Town’s may only enact zoning ordinances based upon the authority granted by the State legislature. Pursuant to section 263 of Town Law such enactments must be in accordance with a comprehensive plan. In holding the enactment was ultra vires, the court found that in implementing the reuse plan through the zoning ordinance the Town had intended to control the use of the property in the same manner it would have if it acquired the property but such an action was “not a consideration or purpose embodied in the enabling act.” Further, the court found that while the town can “regulate and restrict lot sizes and permitted uses, there is nothing in these sections which empower the Town to create a zoning ordinance that specifies the exact number and type of dwelling allowed.”

The court also found that the zoning was “unnecessarily and excessively restrictive” in mandating the specific size and types of recreational facilities. Requiring the transfer of ownership of the recreational facilities to the homeowners and requiring that the senior facilities be owned as cooperatives was also declared ultra vires because a “fundamental rule of zoning deals basically with land use and not with the person who owns or occupies it.”

In holding that the zoning was inconsistent with the surrounding area, the court ruled that BLF was not, as the Town claimed, barred from bringing the action because it knew of the zoning before it purchased the property. The court stated that knowledge of zoning prior to purchase “does not bar purchaser from testing the validity of the zoning ordinance.”

A local zoning board’s interpretation of the application of a zoning ordinance provision to a particular property shall be upheld unless that interpretation is “unreasonable or irrational.” In Kennedy v. Zoning Board of Appeals of the Village of Patchogue, the appellate division reiterated this rule while upholding the zoning board’s application of a specific provision of the zoning code to the property in question.

The local code requires that when a variance is granted “improvement, construction or alteration” must be “substantially commenced” within one year of obtaining the variance. In this case a variance had been granted and a neighbor challenged the continuation of the variance because more than a year had passed, a building permit had been granted but only site clearing had begun. The zoning board interpreted the term “substantially commenced” as being met by merely obtaining a building permit.

In upholding the interpretation by the zoning board, the Court noted that judicial review of such decisions is limited to determining whether the decision was “illegal, arbitrary and capricious or an abuse of discretion.” The Court found the interpretation to be reasonable and rational and therefore should be affirmed.

The decision is consistent with precedent, although the application in this case is interesting. Since many ordinances, although apparently not this one, specifically distinguish between issuing a building permit and commencing construction, it seems strained to equate “substantially” commencing construction with issuing a building permit.

When a findings statement fails to pass, SEQRA does not preclude a reconsideration of the exact same findings statement at a later date. In the Matter of East End Property Company #1 LLC v. Town Board of the Town of Brookhaven, the Appellate Division found that there was nothing in the SEQRA regulations which precluded such reconsideration.

In a case involving the construction of a power generator various land use approvals were required. Prior to issuing the approvals the Town Board voted on a proposed SEQRA findings statement which would have permitted the project to move forward. The findings statement failed to be adopted by a 4-3 vote. The matter was kept open on the Town Board agenda during which there were additional discussions over the next few meetings of the Board. Ultimately the matter came up for a vote again and was approved with one of the members indicating his concerns had been addressed.

The challenge to the approval was initially sustained by the lower court finding that the Town Board had failed to articulate the reason for adopting the SEQRA findings. The Appellate Division found that since the findings resolution was not amended there was nothing that requires an explanation of the revote or that precluded the revote. Rather, SEQRA requires a written findings statement and the revote approved a written findings statement which complied with the mandate of SEQRA. The court noted: “the Town Board’s determination to adopt, rather than reject, the resolution to approve the SEQRA findings statement was neither arbitrary nor capricious, but was based on reasons readily apparent on the face of the record.”

The Court’s reliance on the fact that the resolution was not amended implies that had there been a modification of the findings statement some explanation would have been required. Ultimately, the decision underscores the need for findings statements to clearly articulate the reasons for actions by an administrative board.

A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval.

Planning Boards are authorized to make a determination, under appropriate circumstances, that developers should dedicate parkland for recreational purposes or that the developer should pay a fee in lieu of dedicating parkland. The court found that the practice of the particular planning board to make such determination at the time of final approval, rather than preliminary approval, is not arbitrary and capricious. The decision was also influenced by the fact that the applicant was told prior to preliminary approval that a fee would be fixed and that the same procedure was followed for a nearby development by the same applicant.

Reiterating that “vested rights cannot be acquired in reliance upon an invalid permit” the Appellate Division of the First Department upheld a determination of the New York City Board of Standards and Appeals (“BSA”) in the case In re GRA, LLC v. Srinivasan.

The petitioner owned property in the R6 district which initially permitted buildings of up to 12 stories. The neighborhood consists of mostly one and two family homes. As a result of petitioners proposed project the neighbors lobbied for a rezoning to prohibit such construction. As the court noted “a race ensued” to see whether petitioner could complete enough of the building to obtain vested rights under the existing zoning before the rezoning took effect. Initially it appeared the petitioner had won the race as it was able to complete enough of the foundation to obtain a vested right to complete the building under the old zoning.

However apparently in an effort to save time and win the race petitioner used a “Sanborn Map” stamped by his architect as accurate, as opposed to a survey as required by regulations. It turned out the map was inaccurate and as a result the foundation was placed closer to the property line than is permitted under the regulations. When the petitioner produced an actual survey this error was confirmed. The department of buildings therefore rejected the claim by petitioner of vested rights to complete the building under the old zoning based upon percentage of completion of the structure before the new zoning went into effect.

Thereafter the BSA denied the petitioner’s appeal. In upholding the BSA the court found that the department of buildings and BSA had acted properly and were not being arbitrary. It was noted they were even willing to accept the Sanborn Map, which did not comply with the regulation requiring a survey, if it could be demonstrated that the information in the Sanborn Map was in fact accurate. It was only after the Sanborn Map was demonstrated, by an actual survey, to be in accurate that the department of buildings refused to acknowledge any vested rights.

The BSA noted that it was not the filing of the Sanborn Map, instead of a survey, that was critical to the decision but “the fact that the architect filed for an erroneous street wall setback” albeit based upon the Sanborn Map. Thus, it was ultimately the setback error, not the use of the Sanborn Map, which invalidated the permit and precluded a claim of vested rights. In responding to a vigorous dissent the court stated equitable principles require noting “that Owner created the very condition leading to revocation of the permit by attesting to a Sanborn Map as accurate without verifying whether that assertion was true.”

In July, 2008 the rules governing Adverse Possession in New York were modified by Chapter 269 of the Laws of 2008. As a result of a number of judicial decisions over the last several years which added further confusion to an already complex legal concept, the Legislature obviously felt it was time to try to add some clarity to this evolving area of the law.

The amendments to several provisions of the Real Property Actions and Proceedings Law (“RPAPL”) more clearly define adverse possession (section 501) including that one may be an adverse possessor “with or without knowledge of the other’s superior ownership rights.” Sections 512 and 522 were changed by taking out the requirement that the property be cultivated or improved by the adverse possessor and instead inserting a provision that in order to claim adverse possession there must “have been acts sufficiently open to put a reasonably diligent owner on notice.”

While disagreement over what constitutes “sufficiently open” and a “reasonably diligent owner” may cause additional litigation, the amendment to section 543 of the RPAPL may provide some relief and clarity in an area that is probably the most common cause of adverse possession claims. The new provisions of section 543 state:

“1. Notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed permissive and non-adverse.
2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining owner’s property shall be deemed permissive and non-adverse.”

It appears that at least the issue of a neighbor’s fence or shrubs encroaching slightly onto another property has been put to rest, although no doubt there will be litigation over what constitutes a de minimus encroachment.

The Legislature has clarified a long contentious issue over the availability of electronic media under the New York Freedom of Information Law (FOIL). In Chapter 223 of the 2008 legislative session, which became law on July 7, 2008, the Legislature expanded FOIL to include electronic data that must be complied by government agencies. The new law requires government agencies and municipalities to “provide records in the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service.” The law also allows the agency to charge back the cost of the storage media, the actual cost of an outside service to retrieve the data or in some instances at least part of the salary of the person doing the retrieval.

It has often been a claim by agencies that records could not be retrieved because to do so would be “unduly burdensome” The new law provides in part that an: “agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside staffing service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph ( c ) of subdivision one of section eighty-seven of this article” (Public Officers Law).

This provision should result in some interesting litigation as agencies and individuals wrangle over whether the documents could be retrieved under these circumstances or whether the charges by outside vendors or for employee salaries are too high.

In a recent decision by the Appellate Division Second Department that Court again reminded litigants that variances run with the land and zoning boards can only place conditions on variances that relate to the property involved and the purpose of zoning. In Fowlkes v Zoning Board of Appeals of the Town of North Hempstead the Court went through the usual balancing test and found that the zoning board had, despite certain conclusory findings, “appropriately considered the other statutory factors and concluded that the detriment to the neighborhood outweighed the benefit to the petitioner.”

However, the petitioner apparently also argued that a balance could be struck in her favor if the variances sought were limited to her term of ownership. In rejecting that argument the Court pointed out: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….”

In a detailed analysis of New York’s Freedom of Information Law (FOIL) the Appellate Division First Department held that certain communications from a consultant hired by the Empire State Development Corporation (ESDC) were not exempt from release under FOIL as intra-agency communications. Noting that while there is generally such an exemption “such communications lose their exemption if there is reason to believe that the consultant is communicating with the agency in its own interest or on behalf of another client whose interests might be affected by the agency action addressed by the consultant” the court held that because the consultant was also hired as a consultant by Columbia University to assist with the same project the communications sought under FOIL were subject to release under FOIL.

The issues in the case arose in the context of a proposed project by Columbia University which also requires approvals and assistance through ESDC in order to be fully implemented. The action entitled Tuck It Away Associates L.P. v Empire State Development Corp. involves an attempt by the largest property owner impacted by the Columbia University proposal (along with others) to obtain documents from ESDC related to its proposal to implement the Columbia University project. ESDC claimed certain documents, consisting of communications from a consultant hired to assist ESDC with a blight study preparatory to ESDC exercising eminent domain on behalf of the Columbia University project were exempt from FOIL as intra-agency communications. The Court noted that the consultant (AKRF) had also been retained by Columbia University to assist with other aspects of the same project, which were ultimately related to the ESDC adopting the General Project Plan (GPP) for Columbia University.

The Court found that “the question to be answered is whether the fact that AKRF represents both ESDC and Columbia, albeit, allegedly in separate areas related to the same massive project, constitutes a conflict such that AKRF is not capable of rendering a truthful, objective expert study of neighborhood conditions irrespective of its impact on Columbia’s plan.” The Court went on to make findings that it is “undisputed that AKRF has worked to promote ESDC’s adoption of Columbia’s GPP and that AKRF acted as Columbia’s consultant, agent and representative in all phases of environmental review under SEQRA” and that “Columbia’s interest in an agency finding of blight is virtually inseparable from its interest in ESDC’s adoption of its GPP.” The Court therefore held that the communications between ESDC and AKRF are not subject to intra-agency exemptions under FOIL because “the gargantuan size of the project, the layers of conflict between Columbia and ESDC and the difficulty of offering perfectly objective advice while serving two masters elevates this FOIL appeal beyond the average agency-consultant relationship that FOIL exemptions are designed to foster and protect.”

A note, in the interest of full disclosure it should be noted that, while this firm did not participate in this action, this firm is lead counsel to Tuck It Away in a challenge presently pending in New York State Supreme Court related to the SEQRA/CEQRA findings adopted by the New York City Planning Commission for the same project.

In upholding the decision of a zoning board denying an area variance, the Appellate Division in Fowlkes v Board of Zoning Appeals of the Town of North Hempstead noted that the variance could not have been limited in time to the term of ownership of the present applicant. Instead the Court noted: “the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it.”

This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage. The property owners applied to the zoning board for the necessary variances, which was opposed by neighbors. Based largely on a statement by the Village attorney that similar applications had been granted in the past, the zoning board granted the application.

The neighbors brought an Article 78 proceeding challenging the variances and for the first time claimed that the lot in question did not have the required lot area. In modifying the decision of the Supreme Court, the Appellate Division held this issue should not have been considered as it was neither a question of law nor “apparent from the face of the record.” The Court noted that in an Article 78 proceeding the court’s review is “limited to the arguments and record adduced before the agency” and that a litigant is require to exhaust all possible relief through administrative review before resorting to the courts.

However the Court still remitted the case to the zoning board noting that it was not clear from the record that the zoning board had considered the five factor balancing test required by Village Law section 7-712 (b) in granting the variances. Further, on the contention that the zoning board was compelled to follow its precedent in granting similar variances, the Court found: “other than the conclusory statement from the Village Attorney, it was never established that applications for area variances involving similar factual circumstances had been granted in the past….”

The case acts as a reminder of two important and related points: (1) the zoning board has to make a clear record of the reasons for its decision and (2) those appearing before a zoning board have to make a clear record of the relevant issues. Absent a well developed record the court will either reject the arguments outright or remit the matter for further proceedings.