Posted On: February 20, 2013

Court of Appeals Reaffirms Zoning Relates to Use Not the User

The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land "not the identity of the user." In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town's zoning code that prohibited check cashing establishments were invalid.

The Court noted that the basis for the prohibition was a memorandum produced by one of the Town's attorneys who, among other things, concluded the prohibition would be beneficial because it :

"...encourages young and lower income people to open up bank accounts, save their money, and develop a credit rating" and "also removes a seedy type of operation, akin to pawnshops and strip clubs, from the commercial areas of the Town."

In rejecting this analysis as the basis for adoption of zoning regulations the Court held:

"It is clear from the memorandum of the deputy town attorney that section 302 (K) was directed at the perceived social evil of check-cashing services, which were thought to exploit the younger and lower income people who are their main customers. Whatever the merits of this view as a policy matter, it cannot be implemented through zoning."

The Court concluded that, while there may be uses, such as adult entertainment uses, that have negative secondary effects on the surrounding community, "the Town has not tried to show and does not argue that check cashing services are in a similar category."

Instead, the Town argued that the purpose of the law was related to health and safety, specifically by preventing armed robberies. But the court noted that this was not advanced as a basis for adopting the law when it was enacted. Therefore, the Court found, irrespective of whether or not that might be a valid argument for such a prohibition, perceived threats of armed robbery was not the basis for the adoption of this prohibition.

-Steven Silverberg

Posted On: February 7, 2013

Court Finds Improper Segmentation of SEQRA Review

The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site.

The property in question is located in three municipalities. Municipal boards in two of those towns declared themselves co-lead agencies under SEQRA, for the purpose of reviewing the proposed development and issued a positive declaration, requiring preparation of an environmental impact statement. Meanwhile the municipalities in which the project is located declined to guarantee sewer service to the site.

While the SEQRA review was pending, the County determined to allow the extension of a County Sewer District ("OCSD") to serve the property. The County declared itself lead agency for purposes of the proposed OCSD extension, prepared a short form EAF and issued a negative declaration. Thereafter, the County approved the extension.

After finding that the Petitioners had standing to challenge the SEQRA determination, the Court held:

"under the circumstances of this case, the County improperly segmented the SEQRA review of the OCSD extension from the Mountco project (see 6 NYCRR 617.3[g][1]; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of AC I Shore Rd., LLC v Incorporated Vil. of Great Neck, 43 AD3d 439, 442; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of Riverhead, 290 AD2d 448, 448). Contrary to the appellants' contentions, the record establishes that the Mountco project and the OCSD extension are part of an integrated and cumulative development plan sharing a common purpose (see Matter of East End Prop. Co # 1, LLC v Kessel, 46 AD3d 817, 823; cf. Matter of Friends of Stanford Home v Town of Niskayuna, 50 AD3d 1289). Since the Town of Chester and the Planning Board of the Town of Blooming Grove, as co-lead agencies of the Mountco project, had already issued a positive declaration, the County was prohibited from issuing a subsequent determination (see 6 NYCRR 617.6[b][3][iii]; Matter of Gordon v Rush, 299 AD2d 20, 29, affd 100 NY2d 236; Matter of Incorporated Vil. of Poquott v Cahill, 11 AD3d 536, 542)."

-Steven M. Silverberg