Posted On: July 31, 2008

Variance May Not Be Conditioned Upon Term of Ownership of Current Owner

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….”

Posted On: July 28, 2008

Court Holds Communications from Consultant Not Exempt from FOIL

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.