Posted On: January 8, 2007

Zoning Board Bound by Precedent Unless It States a Reason for a Different Result

The Appellate Division Second Department reversed the denial of an area variance where the Zoning Board previously granted a similar variance and gave no reason for a contrary result. In Matter of Aliperti v Trotta, the Zoning Board of Appeals of the Town of Brookhaven denied an area variance for the size of a home after it had previously granted the same variance for the adjoining parcel several years earlier.

The Court found that the Board “articulated no rational basis for reaching a different result on essentially the same facts”. It therefore reversed the determination of the Zoning Board denying the area variance.

Posted On: January 4, 2007

Court Rules Demolition Permit Does Not Trigger SEQRA Review

A Court has ruled that the issuance of a demolition permit is not an “action” within the meaning of the State Environmental Quality Review Act (“SEQRA”) that requires review under SEQRA. In Matter of Ziemba v. City of Troy, the Appellate Division, Third Department, held that the discretion to be exercised in issuing a demolition permit under the Troy Code “is limited to a narrow set of criteria that is unrelated to the environmental concerns that would be raised in an EIS”.

The SEQRA regulations provide that purely ministerial acts requiring no exercise of discretion are exempt from review under SEQRA. The Court concluded the real inquiry in determining if an action is exempt from SEQRA review is whether the factors to be considered by the permitting agency could trigger issues that would be raised in an environmental impact statement (“EIS”). The Court found SEQRA requires a determination of whether “the underlying regulatory scheme invests the authorizing agency with discretion to act or refuse to act based upon the type of information contained in an EIS”. Therefore, the Court found that an action for which an agency has discretion that is narrowly circumscribed by factors that do not bear any relationship to information that may be contained in an EIS is not an action requiring review under SEQRA.

Here the Court analyzed the nature of the discretion of the permitting authority in issuing a demolition permit under the City of Troy Code and concluded that the discretion to be exercised did not involve issues that would be reviewed by an EIS. Accordingly, the permit could not be denied on SEQRA grounds.

Posted On: January 2, 2007

Court Finds Long Beach New York Ordinance Unconstitutionally Vague

A State Supreme Court Judge found that the Long Beach New York ordinance governing sales from food carts was unconstitutionally vague. In Party Magic Enterprises, Inc. v. City of New Rochelle, the plaintiff, who held a peddlers license from the city which permitted sale of food from a cart, challenged the local ordinance’s restriction on how long a peddler may keep his cart in the same location.

The challenged language required that the holder of a license may not “stand or permit the unmotorized vehicle used by him … to stand in a fixed location in any public place or street for more than five (5) minutes.”

The Court held that the ordinance was vague as the failure to define the distance a peddler must move every five minutes did not give a person of ordinary intelligence fair notice that contemplated conduct is forbidden and subjected the ordinance to arbitrary enforcement. It reasoned that one police officer might find that moving 100 feet was sufficient to comply with the law while another officer might conclude a greater distance was required. The court noted that several similar ordinances specify the distance that must be moved periodically and such a modification would cure the deficiency in this ordinance.