Posted On: April 26, 2012

Court Reverses Dismissal of SEQRA Challenge By Adjoining Municipality

The dismissal of a challenge, by an adjoining Village, to a Town's rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law § 239-m to proceed. In Village of Pomona v. Town of Ramapo, the Appellate Divisions upheld the dismissal of of a cause of action claiming failure to comply with General Municipal Law §239-nn, which requires notice to abutting municipalities, holding that the statute does not create a separate right of action. The Court also upheld dismissal of the claim that the zoning enactment failed to comply with the Town's comprehensive plan noting:

"we held in Matter of Village of Chestnut Ridge v Town of Ramapo (45 AD3d 74), villages 'have no interest in [a] Town Board's compliance with . . . its comprehensive plan,' since, unlike individuals who reside within the Town, '[villages] are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement....'"

However, the Court found that, contrary to the arguments made by the Defendants, the Village did have standing to bring other challenges to the Town's actions:

"'[T]he right of a municipality to challenge the acts of its neighbors must be determined on the basis of the same rules of standing that apply to litigants generally... Community character is specifically protected by SEQRA '... 'The power to define the community character is a unique prerogative of a municipality acting in its governmental capacity . . . 'Substantial development in an adjoining municipality can have a significant detrimental impact on the character of a community . . . thereby limiting the ability of the affected municipality to determine its community character'" (citations omitted).

In further holding that the Village had a right to contest the SEQRA determination leading up to the challenged actions, the court held:

"'The unique nature of a municipality's environmental interests . . . requires that the inquiry into its environmental standing not be a mechanical one, particularly in light of the established preference that the issues presented by land use disputes be decided on the merits . . . rather than by a heavy-handed approach to standing'...the Village did not have to show, in opposition to the motions, that the proposed development 'would be visible from any particular Pomona neighborhoods' or that 'the plans call for clear-cutting and/or a lack of plantings or other visual barriers,' and the Village did not have to explain in further detail how the significant increase in density would specifically affect the character of the community...."

Finally, on the issue of bringing a challenge under General Municipal Law 239-m the Court found:

"the Village has standing to assert the fourth cause of action. The purpose of General Municipal Law § 239-m, which governs the review process by a county planning agency of a municipality's proposed planning and zoning actions, is to 'bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction' (General Municipal Law § 239-l[2]) and by so doing to facilitate regional review of land use proposals that may be of regional concern' (Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 88-89). 'Because [an] adjoining municipalit[y] necessarily [has] the same interest [as individual neighbors] in the regional review that General Municipal Law § 239-m requires, the Village[ ] also [has] standing to assert such claims'."

- Steven Silverberg

Posted On: April 22, 2012

Appellate Division Reverses Grant of Use Variance

The Appellate Division reversed the Supreme Court's decision to uphold the granting of a use variance and related area variances to permit expansion of a non-confirming adult entertainment night club. In Matter of Edwards v. Davison, the Mount Vernon City Council, in light of legislation adopted several years ago to ban such uses from the City's downtown business district, took the unusual step of suing the Zoning Board of Appeals to challenge the approval of the variances, which allowed the expansion of the non-conforming club.

The Appellate Division held:

"As the record was devoid of any evidence, in dollars and cents form, of Veronica Realty's inability to realize a reasonable return under the existing permissible uses, there was no rational basis for the ZBA's finding that the premises would not yield a reasonable return in the absence of the requested use variance...."

The other unusual aspect of the case, which was raised on appeal, but not reached by the Court, is that with respect to certain of the criteria to be examined by a ZBA in issuing use and area variances, the Zoning Board of Appeals' findings merely noted it did "not opine" on those issues. Silverberg Zalantis, which represented the City Council, was hopeful of getting a ruling on that issue as well, but the Court apparently felt it was no necessary to reach that issue.

-Steven Silverberg