Posted On: June 29, 2006

Court Rules Adverse Possessor’s Actual Knowledge of True Owner Does Not Preclude Successful Adverse Possession Claim

Actual knowledge that another person is the title owner does not alone defeat an adverse possessor’s claim. In Walling v. Przybylo the Court of Appeals affirmed an order granting summary judgment in favor of plaintiff-adverse possessors.

Plaintiff Walling commenced an action to quiet title upon learning that defendant Przybylo had the land surveyed and Przybylo had discovered that he had title to the disputed parcel. The county court granted plaintiff’s motion for summary judgment finding that Walling had satisfied the requirements of adverse possession. In affirming the lower court’s finding of adverse possession, the Court of Appeals noted that defendants did not seek to assert their rights to the disputed parcel until almost fifteen years after they had purchased the property. The Court rejected the claim by defendants that plaintiffs’ knowledge of defendants’ ownership of the disputed parcel barred the adverse possession claim since plaintiffs otherwise met the criteria necessary to prove adverse possession,

Posted On: June 26, 2006

Court Declines to Apply RLUIPA But Upholds Religious Organization’s Use of Lot Zoned for Conference and Training Facilities

New York’s highest court declined to apply the Religious Land Use and Institutionalized Persons Act (RLUIPA) in finding a religious institution’s use of a lot zoned for “conference and training facilities” is permitted under local zoning. In Town of Mount Pleasant v. Legion of Christ, Inc., the Town appealed an Appellate Division decision, which held that the Legion’s use complied with the Town’s Code, and that the Town’s interpretation of the Code as prohibiting the Legion’s use violated RLUIPA. The Court of Appeals affirmed the holding that the Legion’s use is permitted by the Town’s Code, but did not reach the RLUIPA claim.

The Town argued that because the Legion offered a two-year course of study, rather than shorter-term courses as the lot’s previous owner had, the Legion’s use of the parcel is more accurately described as a college or seminary than as a conference and training center. The Court rejected the Town’s argument, reasoning that the Code does not specify a time limit for visitors to the lot. The Court noted that the Code prohibits “hotel or restaurant” use, but reasoned that this indicates that the town seeks to prohibit shorter-term, rather than longer-term guests.

Further, the Court held that it did not have to decide RLUIPA questions raised in the lower court because the action was instituted before RLUIPA was enacted and the issue of whether the Legion’s use was permissible under the Town’s Code did not require a determination under RLUIPA.

Posted On: June 12, 2006

Court May Not Compel Town Board To Consider Zone Change Application

A court may not require a town board to reach a determination on, or even consider an application for a zoning change. In Matter of Richard M. Wolff v. Town/Village of Harrison, the Appellate Division Second Department dismissed petitioner’s request for judgment compelling the town board to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.

The petitioner had applied for a zone change and the town board had refused to make a decision on the request. The petitioner commenced an Article 78 proceeding seeking to compel the town board to make a decision on the requested zone change. The court reasoned that the petitioner’s Article 78 proceeding could only be brought to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (writ of mandamus). Since the amendment of a zoning ordinance is a purely legislative function, a court may not compel a board to consider or decide upon a zoning change by ordering a writ of mandamus. In addition, the court recognized that the statute establishing the procedure for zone changes vests broad legislative power in a town board and does not require the board to vote upon every application for a zoning change.

Posted On: June 5, 2006

Court Upholds New York City’s Use of Eminent Domain for Hudson Yards Project

An appellate court dismissed five consolidated actions challenging New York City’s and the MTA’s use of eminent domain to obtain land for a project on Manhattan’s West Side. In Matter of C/S 12th Ave. LLC v. City of New York, the Appellate Division First Department upheld the City’s approval of property acquisition and easements related to the project, as well as the Determination and Findings generated by the City and the MTA. The court also held that condemnation of an entire parcel is reasonable where the project for which the parcel is sought only requires a portion of the parcel, but partial demolition of the existing structure is not feasible.

Owners of property subject to condemnation for the project, which is known as the No. 7 Subway Extension Hudson Yards Rezoning and Redevelopment Program, challenged the City’s authority to acquire their land. Petitioners’ numerous claims include arguments that the City failed to comply with requirements of the Eminent Domain Procedure Law, engaged in unconstitutional spot zoning, acted ultra vires, and failed to state an adequate public use to be served by the project.

The court held that Eminent Domain Procedure Law 204 does not require “extreme accuracy” in reference to the property to be acquired; rather the procedural requirement is satisfied when the acquiring agency sets forth the approximate location and the reasons for the location selection for the proposed project. In reaching its determination that specificity is not required, the court pointed out that the taking challenged in the EDPL claim is a temporary easement needed to construct and support portions of the project. In addition, the court reasoned, the easements were sought for structural stabilization of the subway tunnel during its construction, and precisely where the stabilization points would be required could not be determined in the planning stage of the project.

Petitioners claimed their property was singled out for a use classification that differs from that of the surrounding areas in violation of the Constitution’s Equal Protection clause. In examining this claim, the court found that there was a rational relationship between the disparate treatment of the parcel and the legitimate government purposes of well-considered development, generating jobs, and increasing the tax base. The court thus upheld disparate treatment of the property and discounted petitioners’ spot zoning claim.

In reviewing petitioners’ argument that the City’s actions were ultra vires, the court held that the actions were within the scope of its authority and further found that the Hudson Yards project constitutes a public use as required by the Constitution, since it serves a public purpose, citing the broad definition of public use upheld in Kelo v. City of New London.

The court also noted because the EDPL provided an adequate mechanism allowing the property owners to seek compensation, the challengers bore the burden of proving beyond a reasonable doubt that the challenged rezoning plan destroyed the economic value of the property. The court held that petitioners did not satisfy the burden and therefore allowed the regulations to stand.

Posted On: June 1, 2006


In a CPLR Article 78 proceeding, an appellate court held that where a zoning board provides a rational explanation for denying a variance, the determination will not be viewed as either arbitrary or capricious even if a variance has been granted to another property on similar facts. In Matter of Ronald Berk v .Richard McMahon, the Appellate Division Second Department upheld the Zoning Board of the Village of Southampton’s refusal to grant a wetlands special permit and area variances.

The appellate court considered the zoning board’s reasoning in upholding its action. In determining whether to grant an area variance, the board engaged the required balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community in the event the variance is granted. The board also satisfied a statutory requirement by examining whether (1) an undesirable change in the character of the neighborhood will result, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method, other than an area variance, (3) the required area variance is substantial, (4) the proposed variance will have an adverse impact on environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created.

Supplying a rational explanation for refusing to grant a variance is therefore sufficient to validate the action; the board is not required to grant the variance solely because one has been granted in the jurisdiction in similar circumstances. Judicial review of a board decision is limited in scope to a determination of whether the board’s action violated lawful procedure, was affected by an error of law or was arbitrary and capricious, or an abuse of discretion. In this instance the court upheld the Southampton Board decision based on a finding that it has some objective factual basis in the record and did not entirely rest on subjective considerations.