Posted On: February 26, 2008

Conditions on Zoning Variance Must Be Reasonable


The Appellate Division, Second Department rejected as unreasonable a condition on an area variance that a parking lot be chained at night to prevent overnight parking. In Matter of Voetsch v. Craven the petitioner sought area variances for a parking lot adjacent to a professional office.

The Zoning Board denied a variance for a 4 foot stockade fence but granted the other area variances for the parking lot, contingent upon petitioner putting a chain at the entrance at night to prevent overnight parking on the lot when the offices were not open. The Court upheld the denial of the stockade fence but reversed that portion of the decision which required the chain across the lot at night to prevent parking.

The Court noted that a zoning board may impose reasonable conditions “directly related to and incidental to the proposed use” but that unreasonable conditions must be annulled. The court found that a condition preventing overnight parking was reasonable to minimize adverse impacts on the neighborhood. However, it held “there was no such rational basis” for also having to chain the parking lot. The decision is silent as to why the court found this condition unreasonable. This writer suspects that other parking lots in the town are not required to be chained to prevent overnight parking and that this was a unique requirement for this specific property.

Posted On: February 24, 2008

Courts Must Apply a Zoning Law as Amended Following Submission of an Application

In upholding the rejection of a draft environmental impact statement submitted pursuant to SEQRA, the appellate division reiterated the long standing rule that when a zoning law is amended, after submission of an application and before a decision, the courts must apply the new law and there is no vested right in development under the old law. In Matter of Jul-Bet Enterprises, LLC v. Town Board of Town of Riverhead, the Appellate Division Second Department also noted that the failure to act, as required, within 45 days of submission of the DEIS did not constitute an automatic acceptance of the DEIS.

Posted On: February 19, 2008

Court Reverses Determination that Rezoning Constituted an Unconstitutional Taking


Last week the Appellate Division Second Department reversed and remitted for retrial a 42 USC 1983 regulatory takings claim in the case Noghrey v. Town of Brookhaven. Plaintiff had purchased 2 parcels in 1985 that were zoned for shopping plazas with the intention of building shopping plazas. After adopting a moratorium to study the zoning of these parcels and others, the Town rezoned plaintiff’s property to residential use. Plaintiff then brought a regulatory takings claim. A trial was held and the jury found a partial taking based upon the Supreme Court’s ruling in Penn. Cent. Transportation v. City of New York.

The Appellate Division reversed and remanded the case for a new trial finding that the jury charge on the takings issue was inadequate. The Court stated that for there to be even a partial taking, the diminution in value must be “one step short of complete.” Noting that courts have rejected cases where the diminution in value even “approached or exceeded 90% of the pre-regulation value” the Court found the trial court failed to explain to the jury the true standard to be applied.

In remitting the case the Court ordered a new trial and directed that the trial court instruct the jury that “mere diminution in value” is not adequate to prove a taking. Rather the jury should be instructed that the test is whether the regulation has left only a “bare residue” of economic value.

Posted On: February 17, 2008

Court Rules Municipal Annexation Requires Special Election

The New York Court of Appeals ruled this week, in a case involving a contested annexation of land by one municipality from another that an informal petition by the residents of the area to be annexed was inadequate. In Matter of the City of Utica v. Town of Frankfort the Court found that the practice of the appellate divisions of waiving special elections in certain instances violated the clear mandate of Article IX § 1 (d) of the New York State Constitution which provides that annexation may not take place "until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum."

The Court concluded that the special election must be held "no matter how few eligible voters there are or how superfluous such an election might be."

Posted On: February 2, 2008

Second Circuit Affirms Dismissal of Challenge to “Atlantic Yards” Condemnation

The Second Circuit Court of Appeals upheld dismissal of the challenge to condemnation of private property for the Atlantic Yards Project in Brooklyn stating in the case Goldstein v. Pataki, decided on February 1, 2008: “…eminent domain has its costs, it has its benefits, and in all but the most extreme cases, Supreme Court precedent requires us to leave questions of how to balance the two to the elected representatives of government, notwithstanding the hardships felt by those whose property is slated for condemnation.” The Court found that neither the fact that the area at issue would be developed privately nor the fact that the individual property owners’ lots are not themselves blighted changed the public purposes of the project to remove blight and provide affordable housing.

The well publicized proposal is to construct a new sports arena for the New Jersey Nets, sixteen high rise apartment buildings and several office towers in a portion of downtown Brooklyn which the Court described as being “afflicted for decades with substantial blight.” Plaintiffs are 15 property owners whose homes or businesses are in a less blighted portion of the project area which are slated for condemnation.

Plaintiffs claimed violations of the “Public Use Clause” of the Fifth Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, along with a New York State law claim. The basis for the action was the allegation that the “public use” for the project is merely a pretext and any incidental public benefit is secondary to the primary purpose of the project, which Plaintiffs’ claim is to allow a private taking in order to advance the personal fortune of the developer, Bruce Ratner.

The District Court, on a motion to dismiss, dismissed the federal claims and declined to retain supplemental jurisdiction over the state claim. Finding that “pretext” was an argument that could be advanced under the Supreme Court decision in Kelo v. City of New London, the District Court determined a reasonable juror could not conclude removal of blight and construction of 2,250 new units of affordable housing were mere pretexts. The District Court also concluded, based upon a prior holding by the Circuit Court in Brody v. Port Chester, that the due process challenge to the New York Eminent Domain Procedure Law would fail.

On appeal, Plaintiffs claimed that government officials had abdicated their eminent domain authority and had been co-opted by Mr. Ratner in order to increase his personal profit. While the Circuit Court noted that the Fifth Amendment requirement that private property may not be taken without just compensation has been understood to include the prohibition of taking private property for the benefit of another private person without “a justifying public purpose” the court also observed that “the primary mechanism for enforcing the public-use requirement has been the accountability of political officials to the electorate, not the scrutiny of the federal courts.”

The Court concluded the role of the Courts is the narrow one of determining if the exercise of eminent domain is “rationally related to a conceivable public purpose” (citing Hawaii Housing Authority v. Midkiff). It found the Complaint on its face conceded “several well-established categories of public uses, among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass-transit movements.”

Finally, the Court determined that the “single sentence” in the Kelo decision referring to pretext did not open the door “to require federal courts in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motives of the various government officials who approved it.”