The agreement between the State and Crown provided in part, under Section 2(E): “prior to any proposed installation of a telecommunications tower, Crown is required to provide to the State a schedule that contains the information set forth in that section, which includes, among other things, an environmental assessment, drafts of any documents required by the State Environmental Quality Review Act (hereinafter SEQRA), draft site plans and design specifications, a description of State action required, and local approvals, if any, required. Section 2(E) further provides that the State shall review the schedule, and within 30 days of receipt, the State shall notify Crown in writing of its approval or disapproval of the project. Failure to do so ‘shall constitute approval of such installation for purposes of [the] Agreement.'”
Effectively, Plaintiff argued in its August, 2020 pleadings that since more than 30 days had passed from the time of the submission of an Environmental Assessment Form by Crown (in July 2020), without action by the State, the project had been approved by default. The court disagreed noting:
]]>Outlining the general rule at issue, the Court explained that with: “the relation back doctrine, claims against a party mistakenly omitted from the initial filing and then added after the expiration of the limitations period may be treated as interposed when the action was timely commenced against the originally named respondents. The relation back doctrine applies when (1) the claims arise out of the same conduct, transaction or occurrence; (2) the new party is ‘united in interest’ with an original defendant and thus can be charged with such notice of the commencement of the action such that a court concludes that the party will not be prejudiced in defending against the action; and (3) the new party knew or should have known that, but for a mistaken omission, they would have been named in the initial pleading (see Buran v Coupal, 87 NY2d 173, 178 [1995]).
The doctrine focuses on the notice and prejudice to the added party. However, the doctrine does not apply when a plaintiff ‘intentionally decides not to assert a claim against a party known to be potentially liable’ or when the new party was omitted ‘to obtain a tactical advantage in the litigation’ (id. at 181). These exceptions minimize gamesmanship and manipulation of the CPLR (see id.).'”
In its analysis of the situation before it, the Court noted that this litigation has been part of an ongoing dispute for over a decade in which Petitioners, who own property adjacent to the property of Rosa Kuehn (hereinafter “Rosa”), have disputed the expansion of a nonconforming family owned manufacturing business on Rosa’s property. In an earlier Article 78 proceeding the petitioners named Rosa as a party and were successful in blocking a variance. Thereafter, a new request for a variance (also signed by Rosa) was granted and petitioners again challenged the variance request. Yet, they initially failed to name Rosa as a party and the Article 78 proceeding was dismissed. Petitioner’s filed an amended Petition naming Rosa, after the passage of the statute of limitations. The lower courts dismissed the amended petition as time barred.
“The Appellate Division affirmed with one Justice dissenting (205 AD3d 1093 [3d Dept 2022]). Relying on departmental precedent, the majority concluded that the relation back doctrine is unavailable to save an untimely filing where ‘there is no ‘mistake’ within the meaning of the relation back if [petitioners] ‘knew of the existence of the proper parties at the time of their initial filing’ and, here, petitioners could not claim ‘that they were unaware of Rosa Kuehn’s identity as the owner of the subject property or that there was a question of or misunderstanding regarding her status’ (id. at 1096, quoting Buran, 87 NY2d at 180).”
In taking up the argument of the dissenting Justice of the Appellate Division the Court found:
“Petitioners principally argue that, for purposes of the third prong of the relation back analysis, the addition of a mistakenly-omitted necessary party relates back whether one views the omission as a mistake of ‘law’ or simply an oversight in identifying the proper party unless the omission was a deliberate choice or motivated by gamesmanship. Respondents counter that the relation back doctrine is unavailable to petitioners because they were aware of the omitted necessary party’s existence but failed to include her in the action. We now hold that the relation back doctrine is not limited to cases where the amending party’s omission results from doubts regarding the omitted party’s identity or status….
The Appellate Division decision below is the latest in a line of cases interpreting Buran as limiting the relation back doctrine to mistakes regarding the identity or status of a proper party (see Matter of Nemeth, 205 AD3d at 1094-1095, citing, inter alia, Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 AD3d 1518, 1520 [3d Dept 2017]; Branch v Community Coll. of the County of Sullivan, 148 AD3d 1410, 1411-1412 [3d Dept 2017]; Matter of Ayuda Re Funding, LLC v Town of Liberty, 121 AD3d 1474, 1476 [3d Dept 2014]). However, as we now make clear, the relation back doctrine is not so limited. Rather, the doctrine applies when the party knew or should have known that, but for the mistake—be it a simple oversight or a mistake of law (i.e., that the amending party failed to recognize the other party as a legally necessary party)—the non-amending party would have been named initially….”
The Court concluded that Rosa was not prejudiced in failing to be named initially as she “…knew or should have known that, but for a mistake, she would have been named as a respondent…. when the ZBA granted a second request for a variance—a request Rosa signed on behalf of Kuehn Manufacturing—petitioners again sought to have the variance annulled. Under these circumstances, as the owner of the land benefited by the variance and as a signatory of the variance application on behalf of a company whose use of the property depends on the variance, Rosa could not have understood her omission to be anything other than an oversight. Indeed, respondents effectively concede Rosa’s omission from the proceeding here was a mistake. ”
As a result of Rosa’s interest in the property and the business there was a mutuality of interest with the other parties.
The Court also concluded that there was no evidence that the failure to include Rosa would fall within the exception to the doctrine, when a party omits a necessary party as a deliberate tactic.
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The Plaintiffs are nine citizens of the City who are active regarding various community issues. The City proposed to purchase an armored rescue vehicle. The Plaintiffs intended to protest the proposal by appearing in City Hall at the Council meeting. They intended to carry large signs objecting to the proposed action. Several days before the scheduled hearing the City had adopted a rule prohibiting the carrying of signs in City Hall, where the hearing was scheduled to take place.
Upon arriving at City Hall, the Plaintiffs were advised they could not carry their signs into City Hall, which had notices posted prohibiting the carrying of signs. Subsequently, Plaintiffs brought an action challenging the restrictions enforced by the City, claiming the regulation violated their First Amendment rights of free speech. The City moved to dismiss claiming that it could restrict types of speech in a limited public fora, such as those conduced during City Council meetings. The District Court granted the motion to dismiss, noting, in part, “government entities are permitted to regulate the manner or form of speech in limited public fora, including city council meetings, as long as such restrictions on speech are viewpoint neutral and reasonable.”
Plaintiffs argued on appeal “that the district court erred because (1) the City may not restrict certain forms of speech while permitting other forms of speech on the same topic; and (2) the sign prohibition is unreasonable because the City’s proffered interest in avoiding disruption or distraction is speculative, and the sign prohibition is not narrowly tailored to that interest.”
The Circuit Court noted there are four kinds of public fora, with different rules to be applied to each. In this case the activities fall within the meaning of a limited public forum “when the government opens a non-public forum for public expression, but limits expressive activity to certain kinds of speakers or the discussion of particular subjects…”. The Court went on to note that if there are ” ‘expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable.’… ‘[S]trict scrutiny is accorded only to restrictions on speech that falls within the designated category for which the forum has been opened.’ … Otherwise, such restrictions are ‘subject to only minimal constitutional scrutiny.’…”
The Plaintiffs argued that as the City Council permitted speech on the subject, both orally and in writing, there was no basis for restricting the manner of speech when it came to standing silently holding signs. In upholding the District Court, the Circuit Court disagreed with the position of the Plaintiffs finding “…the form or manner in which the public participates at Common Council meetings may certainly undermine the purpose for which the forum was created—e.g., to facilitate meaningful discourse on matters of the legislative agenda.”
Drawing an analogy the Court noted, “[s]uppose the Common Council adopted rules permitting meeting attendees to contribute only by way of written remarks or requiring meeting attendees to limit their verbal remarks to a fixed amount of time. Such restrictions would limit the form or manner of speech, but plainly they would be upheld as reasonable in a limited public forum, and they would not be subject to strict scrutiny.”
The Plaintiffs’ also alleged that the City’s claim that the use of signs at the meeting would be disruptive was speculative and therefore the restrictions were not reasonable. The Court, however, found, “[h]ere, we conclude that Plaintiffs have not adequately alleged that the sign prohibition was unreasonable in relation to the City’s common-sense interest in running efficient and orderly meetings.
Plaintiffs do not allege that they were disabled from voicing their views at the August 3, 2021 Common Council meeting, nor do they allege that they could not use their signs as part of protest activities on ‘the public sidewalks surrounding’ City Hall.”
Likewise Plaintiffs argued that the restriction was not solely for obscene, vulgar or otherwise disruptive signs and therefore was overbroad. Yet the Court again noted, “… the signs referenced in Exhibit 1 to the Complaint do appear to have the potential for disrupting the orderliness of the proceedings. They include life-sized puppets as well as large (2+ foot-wide) cardboard posters, which—particularly when wielded by many individuals at once—could have been visually disruptive and interfered with the decorum of the meetings. While Plaintiffs claim that signs generally are ‘less disruptive or intrusive than public comments,’ Plaintiffs’ Br.at 13, this self-serving assertion disregards how different forms of communication can facilitate or undermine the purpose of a forum…. Here, although the Common Council could have instituted more narrow restrictions on signs—such as confining sign-holders to designated areas of the room, limiting the types and sizes of signs that could be brought, or removing disruptive sign holders—the First Amendment, under the reduced level of scrutiny applicable in a limited public forum, does not require the Common Council to have done so.”
]]>Petitioner/Plaintiff (hereafter “Petitioner”) in this hybrid proceeding owns property in a residential district of the City of White Plains. Petitioner maintains a non-conforming use on its property consisting of a nursery. As part of the nonconforming use, Petitioner processes various materials such as soil, wood chips and mulch. The City undertook a review of those uses which included a proposed amendment to the City’s zoning regulations. The amendment was subject to review under the State Environmental Quality Review Act (SEQRA) as a Type I action. After conducting an environmental review, the City issued a negative declaration. The City Council “upon determining that processing activities had various harmful effects that were incompatible within residential districts, adopted amendments to the City’s zoning ordinance (hereinafter the zoning amendments) which ban processing activities by nurseries located within a residential district.”
Petitioner brought this hybrid action seeking to overturn the SEQRA negative declaration and challenging the constitutionality of the zoning amendments. In affirming the lower court’s determination the Appellate Division found, with respect to the SEQRA challenge pursuant to Article 78 of the CPLR:
“‘To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA’ (Matter of Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo, 112 AD3d 726, 727-728). Further, to qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature (see Matter of County Oil Co., Inc. v New York City Dept. of Envtl. Protection, 111 AD3d 718, 719). Economic injury is not by itself within the zone of interests which SEQRA seeks to protect (see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 777; Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433; Matter of Board of Fire Commrs. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 156 AD3d 621, 623). Here, the gravamen of the petition/complaint is that the zoning amendments will cause the petitioner/plaintiff to suffer economic harm. Such allegations are insufficient to confer standing to challenge the adequacy of the Common Council’s environmental review of the zoning amendments under SEQRA (see Matter of County Oil Co., Inc. v New York City Dept. of Envtl. Protection, 111 AD3d 718; Matter of Bridon Realty Co. v Town Bd. of Town of Clarkstown, 250 AD2d 677).”
With respect to the challenge to the constitutionality of the amendments, the Appellate Division noted the presumptions in favor of validity and that the burden upon a party challenging local laws and ordinances is to prove the invalidity “beyond a reasonable doubt”.
The Appellate Division found:
“Here, the respondents/defendants demonstrated, prima facie, that the zoning amendments were rationally related to a legitimate governmental purpose, and that there was a reasonable relation between the end sought to be achieved by the zoning amendments and the means used to achieve that end. The respondents/defendants further demonstrated, prima facie, that the zoning amendments are in accordance with a well-considered comprehensive plan, and fall within the bounds of the zoning power delegated to the City by statute (see Asian Ams. for Equality v Koch, 72 NY2d at 121; Matter of JDM Holdings, LLC v Village of Warwick, 200 AD3d 880; Hogue v Village of Dering Harbor, 199 AD3d 904). In opposition, the petitioner/plaintiff failed to raise a triable issue of fact.”
As noted, the Appellate Division went on to uphold the lower court but also modified the decision by specifying “we modify the order and judgment by adding thereto a provision declaring that the zoning amendments are not invalid as arbitrary and unconstitutional (see Lanza v Wagner, 11 NY2d 317, 334).”
]]>The Boston City Hall Plaza has been used for various public events and the City has acknowledged the space is a “public forum”. The Plaza contains three flag poles, one flying the American Flag, one flying the flag of the Commonwealth of Massachusetts and the third either flying the Boston Flag or, with permission from the City, the flag of a group holding a ceremony in the plaza. Between 2005 and 2017, 284 ceremonies, flying 50 different flags were held in the Plaza.
“Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank”
In 2017, Schurtleff, the director of a group known as Camp Constitution, asked to hold a flag raising during an event that would “commemorate the civic and social contributions of the Christian community”. The flag would be a “Christian” flag. The City commissioner requested a description of the flag. After reviewing the description, he stated he felt raising the flag would violate the Establishment Clause of the Constitution. Therefore, he proposed that they hold the event but use a different flag.
This action was commenced in District Court, claiming, among other things, a violation of the First Amendment right to free speech, in denying use of the proposed flag. The District Court held flying the flag at City Hall amounted to government speech and therefore the denial was within the city’s constitutional authority. The First Circuit affirmed.
The Supreme Court noted the “…first and basic question we must answer is whether Boston’s flag-raising program constitutes government speech. If so, Boston may refuse flags based on viewpoint.” The opinion of the Court stated that government may state or decline to state viewpoints under the first Amendment. The issue becomes the line between government speech and private expression. “Applying the government-speech analysis to this record, we find that some evidence favors Boston, and other evidence favors Shurtleff.”
The Court then discussed the history and symbolism of flags, as well as where and when they are flown. “Keeping with this tradition, flags on Boston’s City Hall Plaza usually convey the city’s messages. On a typical day, the American flag, the Massachusetts flag, and the City of Boston’s flag wave from three flagpoles. Boston’s flag, when flying there at full mast, symbolizes the city. When flying at half staff, it conveys a community message of sympathy or somber remembrance. When displayed at other public buildings, it marks the mayor’s presence.”
The Court then notes, while the history of flags discussed in the opinion would tend to favor the position of Boston, this only begins the inquiry. Boston allowed its flag to be lowered in order to allow other flag ceremonies. “Thus, even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here.”
The Court noted, the issue is the extent to which Boston controlled the content of the flags flown during the various ceremonies it permitted. The Court concluded on that issue “…Boston’s record is thin.” Boston argued raising flags of other countries and for such events as Pride Week reflected the City’s support of the heritage of its population and diversity. Yet, the Court notes that it is difficult to see a connection to the City for display of such flags as that of the local bank, the Metro Credit Union. Further, the record demonstrates that the City indicated an intent to accommodate all applicants. Previously, the content of flags had not been reviewed. Rather the application for use of the plaza and flag pole asked only for contact information and a brief description of the event. There were no written policies on the flags that could be raised, no review of the content of the flags and no record of any prior denial of the use of a flag.
In reviewing its prior decisions, the Court differentiated between a situation where a community selected monuments that were placed in a city park, even those financed privately, which involved active government oversight and cases such as trademarks, where, except in the case of “offensive” trademarks, the government registered them without consideration of viewpoint.
The Court pointed out, other cities maintain strict regulation of what flags may be flown and approve the flags that may be flown. “All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.”
Here Boston acknowledged its claim that flying the religious flag at City Hall would violate the Establishment Clause. “When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’ Good News Club v. Milford Central School, 533 U.S. 98, 112, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001).”
The Court concluded “… Boston’s flag-raising program does not express government speech. As a result, the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion.
]]>The Respondent, Rockland Tree Expert, Inc., which does business in the Village as Ira Wickes, Arborist (hereinafter “Wickes”) had made an application, pursuant to the Village of Wesley Hills zoning ordinance, for a special permit to operate its nursery, landscaping and arborist business and for a site plan approval for the operation of the business within a primarily residential (R-35) zoning district. As this was a business within a residential zone, the proposal needed review and approval of both a special permit, as well as for the site plan proposed by the applicant. The determinations of the Planning Board were challenged and the Supreme Court upheld the decisions of the Planning Board.
On appeal, the Appellate Division reversed and remanded the matter to the Planning Board. As the Court noted, a special permit use is a use permitted by the zoning ordinance, provided the conditions and requirements for a special permit are met.
“One of the requirements of the special use permit at issue was that the arborist service, landscape services and/or wholesale nursery ‘shall have frontage on and practical access to two major roads’ (Code of the Village of Wesley Hills [hereinafter Village Code] § 230-26[N][2]). Here, the Planning Board abused its discretion by waiving this requirement and deeming ‘practical access’ to a second major road unnecessary. Moreover, in contravention of the Village Code, the Planning Board’s finding that Wickes had ‘potential practical access’ to a second major road is insufficient. Accordingly, the Supreme Court should have annulled the Planning Board’s determination granting the special use permit.”
The Court also found that the “… Supreme Court should also have annulled the Planning Board’s determination to approve the site plan. A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 150 AD3d 1099, 1102-1103; Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 AD3d 687, 688; Matter of Hejna v Planning Bd. of Vil. of Amityville, 105 AD3d 846). Village Code § 230-45 states that the Planning Board ‘shall not approve a site plan unless it shall find that such plan conforms [with] the requirements of [the Village Zoning Law].’ Since the Village Zoning Law requires that a lot in the R—35 zoning district have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment I), the Planning Board abused its discretion in approving the site plan, which had a proposed gross impervious surface ratio of .44.”
]]>The Petitioner, Historical Society, was the beneficiary of the Estate of Raymond F. Green, who left his home and approximately fourteen surrounding acres of property to the Petitioner. The Petitioner sought to establish its headquarters, a meeting space and museum at the location of the home and walking trails, with educational markers, on the remainder of the property.
The Petitioner applied to the Planning Board for approval claiming the uses were permitted and the Planning Board determined that a “conditional use variance” was required.
“The petitioner then sought an interpretation of the relevant zoning requirements from the Zoning Board of Appeals of the Village of Florida (hereinafter the ZBA) and, in the alternative, applied for a conditional use variance. In a resolution dated September 22, 2015, the ZBA determined that a conditional use variance was required. The ZBA then granted the variance, but only as to a small part of the property on which the residential building was located. The ZBA denied the variance as to the remaining undeveloped acreage ‘without prejudice with the right . . . to re-apply with a more detailed plan at a future time.’
In a subsequent resolution, dated March 14, 2016, the ZBA again found that a conditional use variance was required. The ZBA then granted the variance for the remaining undeveloped acreage, subject to authorization and plan approval by the planning board.”
Thereafter, the Petitioner applied to the Planning Board. The Planning Board granted a conditional approval of the site plan, subject to several conditions, including the filing of a survey for the entire property. The Petitioner “refused” to meet the conditions and the Planning Board subsequently, in May of 2017, denied the application for site plan approval.
“The petitioner commenced this hybrid proceeding to review so much of the ZBA’s September 22, 2015 and March 14, 2016 resolutions as determined that a conditional use variance was required, and action, inter alia, for injunctive relief against the respondents/defendants Village, ZBA, planning board, and others (hereinafter collectively the respondents). The respondents joined issue and moved to dismiss the petition/complaint pursuant to CPLR 3211(a)(5) and (7). In an order and judgment dated December 28, 2017, the Supreme Court granted the motion, in part, and, in effect, denied the petition and dismissed the proceeding/action. The petitioner appeals”
The Appellate Division upheld the lower Court’s determination. To the extent the challenge seeks to overturn the ZBA determinations dated September 22, 2015, and March 14, 2016, the Court noted such challenges must be brought within thirty days of filing and having failed to bring timely challenges, the matters were properly dismissed. With regard to the denial by the Planning Board, the Court likewise found the lower court was correct, in finding a rational basis for the Board’s determination.
“A local planning board has broad discretion in conducting a site plan review, and in setting appropriate conditions and safeguard in harmony with the general purpose and intent of the applicable zoning code (see Matter of Rock of Salvation Church v Village of Sleepy Hollow Planning Bd., 166 AD3d 985, 986; Matter of Valentine v McLaughlin, 87 AD3d 1155, 1157; see also Code of the Village of Florida § 119-34). Where a planning board’s decision has a rational basis in the record, a court may not substitute its own judgment, even where the evidence could support a different conclusion, and judicial review is limited to determining whether the action taken by the planning board was illegal, arbitrary, or an abuse of discretion…”.
It would seem requiring a survey of the property, for which a site plan is sought, is a rational condition.
]]>The owner of the property seeking a building permit, Edward Hocker, received a denial from the Town Building Inspector, indicating that Hocker needed four area variances in order to obtain a building permit. “At the public hearing concerning Hocker’s application, the petitioners…, who own a house close to the subject parcel, complained that, among other things, Hocker needed a lot size area variance to build on the subject parcel. After the hearing, the ZBA granted Hocker’s application for the four variances. The ZBA also determined that Hocker did not need a lot size area variance.”
Despite Petitioners’ objection at the hearing, claiming that a lot area variance was required, Petitioners had never directly appealed the determination of the building inspector, which determination did not include a finding of the need for a lot area variance.
]]>The developer, 116 Elm Street Realty LLC (“the Developer”), sought permission to develop a parcel owned by Frank D. Petrucci, Lynn Crane, and Glenn Petrucci (“the Owners”). The Village Planning Board conducted a SEQRA review and issued a negative declaration. Thereafter, the Planning Board granted site plan approval to the Developer, permitting construction of a restaurant/catering facility on the property at issue. The Petitioners, who own property that borders the site in question, then brought this hybrid Article 78/Declaratory Judgment Action, challenging the actions of the Planning Board, seeking a determination from the Building Inspector that the approval was for a use not permitted in the Zoning Code and a declaration that the use was not permitted. Initially, Petitioners failed to name the Owners of the property. When Petitioners filed an amended Petition/Complaint, it was filed and served subsequent to the expiration of the statute of limitations. The lower court dismissed the case.
In upholding the lower court decision, the Appellate Division held:
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The Court noted Town Law requires, in order to be eligible for a use variance, the applicant must demonstrate that it may not obtain a reasonable return from any use of the property permitted under the applicable zoning code. The law requires a financial analysis of the costs and the degree of monetary return that can be recovered if the property is used as permitted under existing zoning regulations- the “dollars and cents” proof. In this case, evidence was submitted that the cost of removal of an over one hundred year old house on the two acre parcel would be prohibitive to removing the house and selling the lot as vacant land.
However, the Court noted:
“…there is no evidence in the record establishing whether respondents could realize a reasonable return on the parcel if it were used for any other conforming use. Indeed, respondents’ expert did not discuss any possible use of the property other than as vacant land. Thus, inasmuch as respondents’ expert failed to discuss the possible return with respect to all uses permitted within the zoning district, respondents failed to meet their burden of demonstrating that they cannot realize a reasonable return on the property without the requested use variance ….”
In addition, as noted, the two acre parcel was part of a much larger, 17 acre property. Therefore, the Court held:
“…the expert discussed only the possible return on a small section of the property owned by the Ormond respondents, rather than evaluating the potential return on the Ormond respondents’ entire parcel (see Matter of Concerned Residents of New Lebanon v Zoning Bd. of Appeals of Town of New Lebanon, 222 AD2d 773, 774-775 [3d Dept 1995]; Matter of Amco Dev. v Zoning Bd. of Appeals of Town of Perinton, 185 AD2d 637, 638 [4th Dept 1992]). The fact that respondents’ application for a use variance was limited to the two-acre parcel is ‘of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime’ (Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127 AD3d 1360, 1363 [3d Dept 2015]). The expert’s failure to address respondents’ ability to obtain a reasonable return on the remaining parts of the parcel, or on other permissible uses within the zoning district, is fatal to the application. Thus, the determination is not supported by substantial evidence (see generally Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 147 AD3d 1427, 1428-1429 [4th Dept 2017]).”
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