Posted On: December 25, 2009

Determination to Deny Area Variance Does Not Require Justification in Each of the Five Statutory Factors

The Appellate Division ruled that a zoning board of appeals need not justify the denial of an area variance under all five factors in the balancing test established by Town Law. In Matter of King v/ Town of Islip Zoning Board of Appeals the court upheld the denial of an area variance for a swimming pool finding that there was a rational basis for the decision of the board. The case involved a request to place a pool on a lot which did not meet the Town's zoning requirement that a lot have at least 12,000 square feet before a pool can be constructed.

In reversing the Supreme Court decision the Appellate Division found the Supreme Court had erred. Quoting its own recent deciion in Matter of Genser v Board of Zoning and Appeals of Town of N. Hempstead, 65 AD3d 1144 (2d Dept. 2009) the court noted "'the Zoning Board is not required to justify its determination with supporting evidence with respect to each of the five [statutory] factors, so long as its ultimate determination balancing the relevant considerations was rational....'"

Most significantly the court rejected the argument that the variance should be granted because even though the lot did not meet the minimum 12,000 square foot lot area the pool could still be placed in a manner which meets the set back requirements of the ordinance. The court found "petitioners' primary argument was that, because the proposed pool would meet the relevant property setback requirements, it would have no greater impact than would a pool on a standard lot. However, the ZBA properly rejected this argument, as granting the application on this basis alone would render meaningless the Town Board's legislative decision to limit above-ground swimming pools as of right to lots not less than 12,000 square feet...."

-Steven M. Silverberg

Posted On: December 18, 2009

Reassessment of Single Property that is Otherwise Unchanged is Illegal

In the Matter of Harris Bay Yacht Club, Inc. v. The Town of Queensbury the Appellate Division, Third Department found that the town assessor had acted illegally when, after a town wide reassessment in 2005, the Yacht Club was singled out for a further reassessment in 2006 and again in 2007.

The court held:

"Indeed, an equal protection violation will be found when the assessing body isolates a particular property for reassessment and is unable to justify the changes with some legally recognized factor such as improvements to the property or equal application to all properties of similar character (see Matter of Kardos v Ryan, 28 AD3d 1050, 1051 [2006]; Matter of Adams v Welch, 272 AD2d 642, 643 [2000])....Here, it is undisputed that no improvements were made upon the property since the Town-wide reassessment. In explaining the basis for selectively reassessing the property, the Town Assessor merely stated that, based on her "familiarity with the [p]roperty and other area marinas and [her] experience and judgment," she thought that the appraisal consultant's value conclusion of $3,514,000 "might have understated the value of the [p]roperty." No comprehensive assessment plan was made to reassess all similarly situated marinas — class 570 properties — in the Town."

-Steven M. Silverberg

Posted On: December 17, 2009

Appellate Division Determines Village May Not Discontinue Streets Unless Useless and There Has Been SEQRA Compliance

The New York Appellate Division, Second Department, in Matter of Baker v Village of Elmsford has unanimously held that the Village of Elmsford may not demap and discontinue portions of Vreeland Avenue and River Street unless the Village Board determines the streets are useless and it takes a hard look at the proposed action under the State Environmental Quality Review Act (SEQRA). The Court reversed the 2007 decision of Supreme Court, Westchester County which had dismissed the Article 78 proceeding brought by two contiguous commercial property owners contesting demapping and discontinuance of the streets.

The streets in question have been in use for nearly 80 years and the contiguous property owners were required to make improvements to the streets within the past 20 years. The surrounding area is frequently subject to severe flooding and during such times of flooding, such streets provide the only means of access and egress to the contiguous properties.

The Court relied upon Bass Building Corp. v Village of Pomona, 142 AD2d 657 (Second Dept. 1988) which held as follows:

Municipalities hold the fee of streets for the general public. The trust is publicum juris, that is, for the whole People of the State (citing People v Grant, 306 NY 258; City of New York v Rice, 198 NY 124). A municipality may not reserve its public streets for the benefit of its citizens as against the rights of outsiders (City of New York v Rice, supra). Under the “zone of interest” doctrine of standing, a plaintiff need demonstrate only that a municipal action has damaged it, and that the interest asserted is arguably within the zone of interest to be protected (citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Glen Head--Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484). At pages 658 – 659.

The Court determined that the proper standard of review was the Article 78 “arbitrary and capricious” standard because the required public hearing which preceded the demapping and discontinuance resolution had been informal in nature.

The Court found the Village Board’s determination to be arbitrary and irrational, since the Board had apparently ignored the testimony of the contiguous property owners regarding their tenants’ use of the streets during frequent episodes of flooding and the property owners’ improvements to the streets as required by the Village. The Court further found the Short Form Environmental Assessment undertaken by the Village Board, in purported accordance with the State Environmental Quality Review Act (SEQRA) and prior to their adoption of the demapping and discontinuance resolution, to be wholefully inadequate and not meeting the “hard look” and “reasoned elaboration” standards set forth in Matter of Jackson v New York State Urban Dev. Corp, 67 NY2d 400, 417 (1986).

- Bernis E. Shapiro

Posted On: December 15, 2009

Court of Appeals Upholds Release of Documents Under FOIL Despite Claim of Exemption

The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL). In a rebuke to procedures followed by ESDC, in the Matter of West Harlem Business Group v. Empire State Development Corporation, the court found that the ESDC had failed to follow the statutory requirements in responding to the FOIL requests of a group that was seeking information about the proposed condemnation of property in West Harlem.

Initially, ESDC refused to release the documents requested. On administrative appeal the ESDC merely repeated the general denial without particularizing the basis for the denial. Once the action was commenced ESDC claimed various exemptions for different categories of documents but, the court found, again failed to specify which documents fell into each category of exemption. Therefore, the Supreme Court ordered an in camera review of the documents, labeled the documents according to its analysis of the documents and ultimately ordered their release.

The Appellate Division affirmed the lower court ruling. On appeal to the Court of Appeals, the ESDC argued, among other things, that the Supreme Court had placed documents in the wrong categories. The court held:

"In response to Supreme Court's order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents."
-Steven M. Silverberg

Posted On: December 4, 2009

Court Throws Out Condemnation for Columbia University Campus

In a case that appears to break new ground, the Appellate Division, First Department, found that the proposed condemnation of a number of parcels to make way for a new Columbia University Campus should be rejected. In Matter of Kaur v. New York State Urban Development Corporation the split court issued a strongly worded decision finding the "process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court. In short, it is a skein worth unraveling."

By way of background, the Manhattanville area of West Harlem has been in the sights of Columbia University for a number of years as the location for a new campus. Several years ago it began acquiring property in the area, but a number of property owners refused to sell to Columbia and Columbia began working with the Empire State Development Corporation (ESDC) to acquire the holdouts through eminent domain. The court found that while in 2000 Columbia owned only 2 properties in the area, by 2003 Columbia owned 51% of the properties in the roughly 17 acres at issue. In 2004, the New York City Economic Development Corporation (EDC), the ESDC and Columbia began meeting concerning the project. In 2006, the ESDC hired Columbia's planning consultant to do a study of the area. The study, issued in 2007 noted that by 2007 Columbia controlled 72% of the properties. The study concluded that the majority of the lots in the area were substandard.

During the course of related litigation over release of documents under the Freedom of Information Law (discussed in this Blog in July, 2008) issues were raised concerning the neutrality of the consultant who worked for both Columbia and ESDC. ESDC thereafter retained another consultant to do a further study. By the time of the new study Columbia either owned or was in contract to purchase 48 of the 67 lots in the study area. The new study concluded many of the properties were neglected and the area was "blighted."

In rejecting the findings of blight the court noted: "EDC's 2002 West Harlem Master Plan which was created prior to the scheme to balkanize Manhattanville for Columbia's benefit found no blight, nor did it describe any blighted condition or area in Manhattanville. Instead, as described above, the Plan noted that West Harlem had great potential for development that could be jump-started with re-zoning. It was only after the Plan was published in July 2002 that the rezoning of the "upland" area was essentially given over to the unbridled discretion of Columbia. In little more than a year from publication of the Plan, EDC joined with Columbia in proposing the use of eminent domain to allow Columbia to develop Manhattanville for Columbia's sole benefit.... Columbia not only purchased or gained control over most of the properties in the area, but it also forced out tenant businesses, ultimately vacating, in 17 buildings, 50% or more of the tenants. The petitioners clearly demonstrate that Columbia also let water infiltration conditions in property it acquired go unaddressed, even when minor and economically rational repairs could arrest deterioration....Thus, ESDC delayed making any inquiry into the conditions in Manhattanville until long after Columbia gained control over the very properties that would form the basis for a subsequent blight study."

The court then went on to reject "underutilization" as sole criteria in determining blight, no doubt because Columbia, in acquiring the properties and vacating them created much of the underutilization, stating "time has come to categorically reject eminent domain takings solely based on underutilization." The court further found that the project had no "civic purpose, "Columbia is virtually the sole beneficiary of the Project. This alone is reason to invalidate the condemnation especially where, as here, the public benefit is incrementally incidental to the private benefits of the Project."

The court then went on to find additional procedural defects which rendered the actions unconstitutional.

As this case is likely to be heard by the Court of Appeals, it will be interesting to see how these issues are ultimately resolved, particularly in light of the Court's decision on eminent domain last week in the case of Goldstein v. the New York State Urban Development Corporation.