New York Zoning and Municipal Law Blog

The New York Department of Environmental Conservation (DEC) has issued a new SEQRA Handbook. The Handbook was first issued in 1982 and then updated in 1992. The SEQRA regulations were revised in 1996, but no update of the Handbook followed. Now it has finally been updated. Its purpose is described by the DEC as follows:

"The SEQR Handbook provides agencies, project sponsors, and the public with a practical reference guide to the procedures prescribed by the State Environmental Quality Review Act (SEQR)--Article 8 of the Environmental Conservation Law. It addresses common questions that arise during the process of applying SEQR. The Handbook also attempts to address the needs of individuals who have varying degrees of experience with SEQR. Topics range from an introduction to the basic SEQR process to discussions of important procedural and substantive details."

-Steven Silverberg

In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.

The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.’” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.

In reviewing the record, the Court noted that initially the Town’s then planning commissioner indicated he thought the Town could issue a conditioned negative declaration under SEQRA which would provide for implementation of certain mitigation measures to address traffic concerns. By doing this it would not have been necessary to undertake further environmental review. But during a meeting in July 2000 the Court found that the Town Supervisor said that half the issue was traffic and the other half was the tax exempt status of the Church. The Supervisor then suggested that the Church either donate a fire truck or make some other payment to the Town in lieu of taxes. In fact, the Court noted that the Supervisor testified that the tax exempt status of the Church was “hampering or hindering” the approval. The Court also noted testimony by the then planning commissioner that he was instructed by at least one member of the Town Board to “help stop the project or kill the project” as the council person did not want another church in the Town. The Church refused to make a “donation” to the Town.

Thereafter, the Town Board, as lead agency under SEQRA, issued a positive declaration requiring the preparation of a Draft Environmental Impact Statement (DEIS), although the Court found that it was not warranted as the Church had “mitigated all identified potential adverse impacts.”

“The Court finds that the Town used the SEQRA process and the issuance of a Positive Declaration punitively because of the Church’s refusal to make a significant donation of value or monetary payment to the Town because of certain Town Board members’ desire to delay the project and increase the expense of the SEQRA process for the Church.”

The Court then went through a review of the lengthy SEQRA process which included the Town’s firing and hiring multiple consultants, the fees charged for the review by the multiple consultants and the Town’s decision to take over the preparation of the FEIS after it had been started by the Church. As for the FEIS prepared by the Town, the Court stated the “FEIS written by the Town is replete with errors, gratuitous comments and revisions intended to cast the project in the worst light possible.” Subsequently, the Town Board adopted a SEQRA findings statement which the Court also found to be unsupported by the record.

In concluding that the facilities at issue will be devoted to religious purposes, the court found that the facilities will either be devoted to religious practice and education “or are inextricably integrated with the Church’s ability to provide religious education and practice…” Then in determining that the actions of the Town constitute a substantial burden on religious practice, the Court rejected the claims by the Town that the Church could have addressed the concerns of the Town and ultimately received approval of a scaled back project. First, the Court noted that the Church had already agreed to every mitigation measure proposed by the Town and that the Town’s own findings statement concluded “no mitigation is possible.” But the Court went on to note:

“While the Town’s past treatment of the Church’s application strongly suggests that the
Town would not act in good faith in considering a modified proposal, the Court need look no
further than the admissions of Town Board members themselves to be certain that the Town would not act in good faith….Given the overwhelming evidence of Defendants’ intentional delay, hostility, and bias toward the Church’s application, the Court finds that any purported willingness by the Town Board to consider a modified proposal is insincere. Under such circumstances, the Church is not required to file a modified application and the Court finds that the Church’s religious exercise was substantially burdened by the Town’s arbitrary and unlawful denial of its application.”

In analyzing the effect of the denial, the Court noted that the Plaintiff has the burden of proving that there is a substantial burden by demonstrating that the actions denying the construction of the church building were arbitrary and capricious and there is no readily available alternative. The Court held that the Church had demonstrated a nexus between the denial and its religious exercise through testimony which proved that the Church currently lacks adequate facilities and the inability to construct the new building interferes with its religious practices. The Court held that the actions of the Town in issuing the SEQRA findings lacked validity and concluded that neither the use of the Church’s current facilities nor a further application to the Town provided a “satisfactory alternative.” The Court further held that even were the Town willing to give fair consideration to another proposal the time and expense that would be incurred are not “quick, reliable and financially feasible.”

Next the Court turned to what constitutes a compelling government interest in the context of RLUIPA, noting that the Supreme Court has held that such interests are those which “protect public health, safety and welfare.” The Town had argued that the proposed project implicated compelling government interest because (1) it impacted traffic, (2) provided inadequate parking, (3) violated the Town’s steep slope ordinance, (4) created retaining walls that were a public nuisance, (5) impacts police and fire resources and (6) “created concerns among the project’s neighbors.”

In a detailed analysis of each of these “interests” the Court concluded: “this Court finds that Defendants have not demonstrated any compelling governmental interests sufficient to justify the Town’s denial of the Church’s SEQRA application. To the contrary, the evidence presented at trial established that Defendants’ purported concerns were contrived for the sole purpose of rationalizing the Town’s denial of the SEQRA application.”

After determining that the Church had established a substantial burden and the Town had failed to demonstrate a compelling government interest the Court declined to address the other RLUIPA claims raised by the Church. The Court also addressed the constitutional issues raised by the Town and concluded that the application of RLUIPA is constitutional under the commerce clause because of the impact on interstate commerce. The Court rejected the other constitutional claims of the Town based upon the holding in the Westchester Day School case decided by the Second Circuit after the trial of this case.

On the issue of liability pursuant to 42 USC 1983 the Court held:

(1) The Town Board and the members of the Town Board are liable in their official capacity; and
(2) It considered the claims of individual liability against the Supervisor to be withdrawn

The Court also concluded that the Plaintiffs First Amendment Free Exercise rights were violated and that other similarly situated applicants were treated differently without rational justification, thus demonstrating a violation of Plaintiffs’ Fourteenth Amendment right to equal protection. The Court also found equivalent violations of the New York Constitution.

In fashioning relief, the Court annulled the positive declaration and SEQRA findings statement and ordered that the site plan be processed without further SEQRA review. The Court further ordered that all approvals be granted within sixty days (site plan, variances etc.) with reasonable and customary conditions and that within ninety days a building permit shall be issued. Defendants were enjoined from taking any action “that unreasonably delays or interferes with any of the foregoing directives.”

The Court did however conclude that RLUIPA is ambiguous on the issue of whether relief can include damages and therefore concluded there can be no monetary damages under RLUIPA. However, it did conclude that there are compensatory damages available under 42 U.S.C. 1983 and instructed Plaintiffs to submit information on increased construction costs, attorneys’ fees, consultants’ fees and other potential compensatory damages. Finally, the Court sanctioned the Defendants $10,000 for their discovery violations.

Thank you to Nick Ward-Willis, Esq., one of the attorneys representing the Plaintiffs, for bringing this decision to our attention.

-Steven Silverberg

The Appellate Division upheld two lower court decisions which dismissed challenges to the SEQRA findings, site plan and subdivision approval for a shopping center in the Town of Newburgh. In Matter of Save Open Space v. Planning Bd. Of the Town of Newburgh the court noted judicial review is limited to finding whether an action is arbitrary, an error of law or was taken in violation of lawful procedure.

In this case there was an application for site plan approval for a shopping center. The planning board completed a full environmental review, which included a Draft Environmental Impact Statement (DEIS), public hearings and a Final Environmental Impact Statement (FEIS) as well an Environmental Findings Statement (EFS). However, after the FEIS was submitted, but before the EFS was issued, the applicant submitted an application to subdivide the property into four lots to allow for separate ownership. The application was rejected as incomplete and thereafter the planning board did issue its EFS.

The applicant subsequently resubmitted its subdivision application. Shortly thereafter the planning board granted site plan but not subdivision approval. The next step taken by the planning board was to issue an amended EFS in which it found that the subdivision would not have any significant adverse environmental impacts. After holding a public hearing on the subdivision the planning board granted preliminary and final subdivision approval.

The petitioner brought two proceedings, the first challenging the EFS and the site plan approval and in the second challenging the preliminary and final subdivision approval. The lower court dismissed both cases and the Appellate Division affirmed.

Addressing the SEQRA issues the Court found that the planning board had considered a “reasonable range of feasible alternatives.” The Court then went on to state that the planning board was not required to consider the alternatives proffered by the petitioners. “Consideration of a smaller scale alternative is permissive, not mandatory and alternatives are to be considered in light of the developer’s objectives (see 6 NYCRR 617. 9[b][5][v]).”

Finally, the court held that the separate consideration of the subdivision was not segmentation under SEQRA , as the subdivision made no physical change to the development and conditions imposed on the subdivision ensured that the requirements of the site plan would be observed.

-Steven Silverberg

The New York Legislature has adopted several amendments to portions of New York’s Open Meetings Law (sections 103 and 107 of the Public Officers Law) in order to provide for more transparency in the conduct of governmental activities, as set forth in three recently adopted chapters.

Chapter 40 took effect in April, 2010. This Chapter adds a new subsection (d) to section 103 of the Public Officers Law which states in pertinent part:
“Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which adequately accommodates members of the public who wish to attend such meetings.”

It will be interesting to see how some municipalities, that hold meetings in rooms slightly larger than closets but keep the door open, will address this new provision.

Chapter 43 which takes effect in April 2011, and also purports to add a new section (d) to Public Officers Law section 103, provides for permitting photographing, broadcasting, webcasting and recording by audio or video any public meeting. This is consistent with prior court decisions and goes on to provide in section 2:

“A public body may adopt rules, consistent with recommendations from the committee on open government, reasonably governing the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a meeting so as to conduct its proceedings in an orderly manner. Such rules shall be conspicuously posted during meetings and written copies shall be provided upon request to those in attendance.”

Finally, Chapter 44 amends section 107 of the Public Officers Law. This Chapter, which became effective on June 14, 2010, deletes the previous provision which stated that if a court finds a violation of the law it can declare an action void and substitutes a provision which states that if a court finds that “a public body failed to comply with this article” the court may:

“declare that the public body violated this article and/or declare the action taken in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with his article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session concerning obligations imposed by this article conducted by the staff of the committee on open government.”

Section 107 retains the exemption from reversal if the violation is found to be only an unintentional failure to “fully comply with the notice provisions” and also exempts from reversal actions approving bond issue or notes.

-Steven Silverberg

In a rebuke to the Appellate Division First Department, the New York Court of Appeals today held that the condemnation of land on the upper west side of Manhattan to benefit Columbia University may go forward. In Matter of Kaur v New York State Urban Dev. Corp., the Court of Appeals reversed the Appellate Division rejection of the proposed condemnation and, in reliance on its recent holding in Matter of Goldstein v. New York State Urban Development Corporation, held that the findings of (1) blight, (2) that the petitioner's property qualified as a "land use improvement project" and (3) the finding of a "civic purpose" to the project, were "rationally based and entitled to deference."

The proposal is for development of a new 17 acre campus for Columbia University. Over the last decade Columbia has acquire a majority of the parcels in the area, however, a number of property owners have held out and this challenge is to the proposal by the Empire State Development Corporation (ESDC) to utilize its authority under the Eminent Domain Procedure Law (EDPL) to acquire the balance of the parcels within the area covered by ESDC's General Project Plan (GPP) to implement the Columbia proposal. After reviewing the history of the case, the Court reviewed and struck down each of the holdings of the Appellate Division.

The Court noted that the main argument in opposition was that the condemnation is not for the purpose of putting the properties to a "public use" within the meaning of the New York Constitution and that the findings of blight were arrived at in bad faith. The Court noted that in "Matter of Goldstein, we reaffirmed the longstanding doctrine that the role of the Judiciary is limited in reviewing findings of blight in eminent domain proceedings...Thus, given our precedent, the de novo review of the record undertaken by the plurality of the Appellate Division was improper. On the "record upon which the ESDC determination was based and by which we are bound" (id. at 517, citing Matter of Levine v New York State Liq. Auth., 23 NY2d 863, 864 [1969]), it cannot be said that ESDC's finding of blight was irrational or baseless. Indeed, ESDC considered a wide range of factors including the physical, economic, engineering and environmental conditions at the Project site. Its decision was not based on any one of these factors, but on the Project site conditions as a whole. Accordingly, since there is record support — "extensively documented photographically and otherwise on a lot-by-lot basis" (id. at 526) — for ESDC's determination that the Project site was blighted, the Appellate Division plurality erred when it substituted its view for that of the legislatively designated agency."

The Court then went on to discount the claim of bad faith by ESDC, noting that the ESDC had undertaken multiple studies of the area and, in rejecting any findings by the Appellate Division to the contrary, found no support in the record for any finding of bad faith.

The next claim discussed was that the term used to define a blighted area "substandard or insanitary area" is void for vagueness. In likewise rejecting that claim the Court stated: "blight is an elastic concept that does not call for an inflexible, one-size-fits-all definition (see Berman v Parker, 348 US 26, 33-34 [1954]). Rather, blight or "substandard or insanitary areas," as we held in Matter of Goldstein and Yonkers Community Dev. Agency, must be viewed on a case-by-case basis. Accordingly, because the UDC Act provides adequate meaning to the term "substandard or insanitary area," we reject petitioners' argument that the statute is unconstitutionally vague on its face."

Then in dismissing the finding by the Appellate Division, which seemed (at least to some) the most likely to separate this case from others and form a basis for upholding that decision, the Court of Appeals reversed the lower court's finding that the area was not blighted before the majority of the properties were acquired by Columbia and that Columbia, in effect, caused the current blighting condition by vacating and neglecting the properties it had acquired.

"In determining that Columbia created the blighted conditions in West Harlem, the plurality of the Appellate Division disregarded the Urbitran blight study commenced in 2003. That study, made at EDC's request and not ESDC's, was based on a survey of the Project site and surrounding neighborhood at a time when Columbia was only beginning to purchase property in the area. Indeed, the Urbitran study unequivocally concluded that there was "ample evidence of deterioration of the building stock in the study area" and that "substandard and unsanitary conditions were detected in the area." Moreover, Earth Tech found that, since 1961, the neighborhood has suffered from a long-standing lack of investment interest. Thus, since there is record support that the Project site was blighted before Columbia began to acquire property in the area, the issue is beyond our further review."

In further rejecting the Appellate Division determination that this is a private project, the Court concluded that this project fell with the UDC Act definition of a a "civic project." It noted that this is an educational institution and that "education and the expansion of knowledge are pivotal government interests." Further, the Court noted other civic benefits from the project such as open space, transit infrastructure improvements and job growth.

Finally, the Court rejected the claim that there was a deprivation of due process because of a FOIL violation, which was later remedied in favor of the property owners. Noting first that there is no discovery permitted in this phase of a condemnation proceeding, the Court held that the release of substantial numbers of documents (8,000 pages) as well as the lengthy submission made by the objectors demonstrated that they had a fair opportunity to present their case.

"Here, petitioners have not met their burden, neither explaining how they were deprived of a meaningful opportunity to be heard during the administrative process nor demonstrating the materiality of the records sought through FOIL."

The Court therefore conclude:

"In sum, we give deference to the findings and determination of the ESDC that the Project qualifies as both a land use improvement project and as a civic project serving a public purpose under the UDC Act. We further conclude that petitioners were not deprived of procedural due process."

-Steven Silverberg

The Court of Appeals ruled today that owners of a landfill had a vested right to use all 50 acres of their property as a landfill, even though they had only used 3 acres before more restrictive zoning was implemented. In Matter of Jones v Town of Carroll the court found that landfill operations were similar to mining operations and therefore the Court's recent holding in Glacial Aggregates LLC v. Town of Yorkshire, in which the Court concluded that for mining operations the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area, was applicable to this case and warranted a finding of vested rights (see our 2/18/10 Blog on the Glacial Aggregates case).

Originally the Plaintiffs had received a variance to operate a landfill from the Town as long as they obtained permits from the DEC to operate the landfill. Plaintiffs later received a permit from the DEC to operate a landfill on only 3 of the 50 acres. In 2005 the Town changed the zoning and prohibited the expansion of any landfill. Plaintiffs challenged the law and won in the Supreme Court. The Appellate Division reversed finding that, since a condition of the variance was obtaining DEC permits and the permit was limited to 3 acres, there was no vested right to use the remaining 47 acres as a landfill, as such use was merely contemplated.

The Court of Appeals reversed finding that the owner had a vested right to use the entire 50 acres as a landfill. The Court held: "the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time. Additionally, the owner of landfill property can reasonably be expected to hold a portion of the land in reserve for future expansion of that activity, just as a quarry operator may find necessary. The fact that the DEC permit covered only a limited area is not determinative of plaintiffs' rights over the remaining 47 acres of the parcel (see Buffalo Crushed Stone, 13 NY3d at 101-102). Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs' activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose."

In finding that the use was legal when established and that the owner had manifested the requisite intent to utilize the entire property the Court stated:

"In 1989, the Town had acknowledged that there was no other reasonable use for the property and granted plaintiffs a variance that covered all 50 acres. This not only established that the landfill was a lawful use, it also gave plaintiffs a measure of security that they would be able to use additional acreage for the landfill operation as the need arose so long as DEC continued to issue the appropriate permits for expanded operations. The evidence also shows that plaintiffs manifested an intent before 2005 to devote the 50-acre parcel to use as a landfill since they dedicated substantial areas around the actual landfill site for related purposes, purchased necessary heavy equipment (such as a bulldozer, a backhoe, an excavator, a loader and a dump truck), employed a dozen people, developed plans for multi-stage enlargement of the landfill and engaged in discussions with investors regarding future operations. On these facts, plaintiffs adequately demonstrated that they acquired a vested right to operate a C & D landfill on their entire parcel, subject to regulation by DEC, and that the 2005 local law could not extinguish their legal use of the land for that purpose.["

This decision, while placing emphasis again on the uniqueness of the use, would appear to open the door, once again, to further interpretation of the law regarding vested rights.

-Steven Silverberg

An appellate court upheld an award for condemnation of land underwater as well as denial of consequential damages for a partial taking, in a case where part of a residential subdivision was taken for parkland. In Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v Kings Point Hgts., LLC, the Appellate Division Second Department upheld the decision of the lower court noting that if the lower court's "explanation of its award is supported by the evidence, it is entitled to deference and will not be disturbed on appeal...."

The property at issue was just over 6 acres, including almost an acre of underwater land. The taking was 2.3 acres, including the underwater land. The property owner sought consequential damages claiming that by creating a park the value of the remaining land it owned was reduced, as the park reduced privacy. The park district's appraiser claimed that the park enhanced the value of the remaining property because it provided an unobstructed view of Long Island Sound as a result of restrictions on the use.

The Court noted in determining damages:
"[t]he measure of damages for a partial taking of real property is the difference between the value of the whole property before the taking and the value of the remainder after the taking...Consequential damages are measured by the difference between the before and after values of the property, less the value of the land and improvements appropriated...The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time..." and where a partial taking enhances the value of the remaining land "the Supreme Court was precluded from taking that enhanced value into account in rendering the award."

The Court concluded the determination by the lower court that the park actually enhanced the value of the remaining land was supported by the evidence and therefore the lower court was correct in not modifying the award based upon the effect of the taking on the remaining land. As for the issue of land underwater, the Court noted there were letters patent granting title to that land and therefore the property owner was entitled to damages for the taking.

-Steven Silverberg

The District Court ruled in Withers v. The Village of Airmont that the Village of Airmont sign ordinance violated a political candidate’s First Amendment right to free speech. There, plaintiff was a candidate running for office of the 12th Legislative District of the County of Rockland in the 2007 election and in connection with his campaign, he posted hundreds of signs. The Airmont deputy mayor and trustee Joseph Meyers was also a candidate for the same position. On August 14, 2007, another trustee Maureen Schwarz, who identified herself as campaign manager for “Friends of Joe Meyers,” sent plaintiff a letter requesting that he remove his signs from the Wal-Mart shopping center claiming that Meyers had the exclusive right to post signs there. Plaintiff also claimed that 60-70 signs were stolen and Plaintiff alleged that the Ramapo police department was directed by Meyers to remove the signs from the Wal-Mart property. On September 25, 2007, the Building code Enforcement Officer issued a violation notice to plaintiff on the basis that he had allegedly violated the Village Code by posting a political sign in excess of the size limitations.

The Court ruled that the Village Code was unconstitutional as it “impermissibly regulated speech based on content and was not narrowly tailored to serve a compelling government interest.” As a threshold matter the Court determined that the Village Code is content-based as political signs “are in their own section of the Code with different limitations than those that apply to other temporary signs.” As an example, the Court noted that other temporary signs (such as historical markers, flags, numbers, private for-sale signs, etc) were exempt from permit requirements. Thus, the Court ruled that since the Village Code was a content-based regulation, “strict scrutiny” applies.

Applying the strict scrutiny standard, the Court ruled that the durational limits on political signs while exempting other signs altogether, the size limitations on political signs and the requirement to post a security deposit (albeit a fully-refundable security deposit) for political signs did not serve a compelling state interest and therefore, the Village Code was unconstitutional.

Relying upon the United States Supreme Court case Monell v. Dep’t of Social Services, 426 U.S. 658 (1978), which held that a municipality may be liable in a § 1983 suit for unconstitutional or illegal policies, the Court found that the Village was liable under Monell for the unconstitutionality of its Code and its policy of content-based regulation.

Nonetheless, applying the doctrine of privileged immunity, the Court dismissed the claims against defendants Meyers and Schwarz arising from their actions as Village Board member in connection with upholding the current code as the Court ruled they were entitled to legislative immunity. But these defendants would not be entitled to legislative immunity for actions falling outside of their legislative activities – like for example, Schwarz’s threat while acting as campaign manager for Meyer to remove his signs from Wal-Mart. Thus, the Court did not dismiss these non-legislative action claims.

Finally, the Court ruled that the Code enforcement officer was entitled to qualified immunity and dismissed the action as against the Code enforcement officer.

By Katherine Zalantis

Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church's proposed expansion.

Significantly, the County had a long standing comprehensive plan which sought to maintain the rural character of the County. The legislation which implemented the comprehensive plan required a special permit for any project with an occupancy of 100 or more people in an Agricultural District. The criteria for the special permit had both objective (height requirements) and subjective (compatibility) criteria. The proposed application met the threshold requirements for a special permit and ultimately sought "a 28,000 square foot gymnasium, a 6,500 square foot chapel, expanding the school building by 57,500 square feet, gallery space connecting the buildings,and an expansion of the main worship building’s seating capacity by 150 seats." The review by the County staff found compliance with the objective criteria but also found the project to be "incompatible with the surrounding area, an over-intensive use of the land, likely to cause undue traffic congestion, and likely detrimental to the welfare of the residents of Boulder County."

The Circuit Court found that the staff had modified its methodology for determining if a proposal was over-intensive. The usual criteria was based upon a calculation of whether the expansion resulted in 50% or more of the property being covered by buildings and parking. The Court noted, in this case the coverage was only 35%, yet there was a determination by staff that the proposal was "over-intensive." However, rather than using the coverage criteria, County staff determined the proposal was over-intensive because it doubled the church's square footage and significantly increased parking. In reciting the facts, the Circuit Court made a point of noting that one of the Commissioners greeted a consultant for the Church privately before the public hearing stating "you can bring in your Christians now." The final decision permitted the 150 seat expansion and 10,000 square foot building to replace the modular building but denied the balance of the application.

The Church sued under RLUIPA. A jury found for the Church on the substantial burden, equal terms and unreasonable limitations claims but failed to award any damages. The District Court then issued a permanent injunction directing issuance of the special permit.

The County appealed the decision, including the injunction and further argued that if the Court found the substantial burden provisions of RLUIPA had been violated that the law should be declared unconstitutional both on its face and as applied in this case.

On the issue of equal terms the County argued that evidence of a similar application of the Dawson School, which was approved, was not really a similar application. The Court however found that while the projects were not identical "the many substantial similarities allow for a reasonable jury to conclude that RMCC and Dawson School were similarly situated." The County argued in the alternative that it had an affirmative defense that "a generally applicable law that is rationally related to a legitimate governmental interest cannot violate the equal terms provision." The Court rejected that defense in this case and found: "evidence at trial was sufficient to demonstrate the County applied the zoning ordinance non-neutrally. As noted above, the Church was treated less favorably than Dawson School, a similarly situated comparator. Further, there was evidence the County singled out the Church for adverse treatment in “processing” and “determining” its application. For example, the County applied a less advantageous method to calculate whether the Church’s proposed use was over-intensive, and treated the Church’s application as a new application, even though it was an existing use. .... As a result, if an affirmative defense to the equal terms provision exists, only a strict scrutiny defense would apply here. The County has not argued that it should enjoy a strict scrutiny defense to the equal terms provision, and thus the argument is waived."

The Court then went on to review evidence as to whether the County placed unreasonable limitations on religious uses. Included in the evidence was information about other religious groups that either had been discouraged to not apply or, in one case, a group that ran out of money during the review process. The Court also found evidence of "disparate treatment" of the Church in the application process and concluded that there was adequate evidence to support the jury's verdict. The Court went on to decline to address the substantial burden issue in view of its findings upholding the determination on the basis of equal terms and unreasonable limitations.

The Court also found that the County had not adequately preserved its constitutional challenges on the issues of equal terms and unreasonable limitations. Therefore, the Court held it was not necessary to address the constitutional challenge to the substantial burden provisions of the statute, finding instead that the "district court based the permanent injunction on all three RLUIPA counts. Because the jury’s verdicts on the equal terms and unreasonable limitations claims are sufficient to support the injunction, we do not address the constitutionality of RLUIPA’s substantial burden provision."

Finally, the Court concluded that the permanent injunction granting the entire application was not overly broad. This is rather interesting because the proposal by the Church was based upon a projection of potential needs over the next twenty years and the County argued it was therefore not necessary to approve the entire application. Yet, the Court concluded that not granting the relief would require the Church to address its expansion in a "piecemeal fashion."

-Steven Silverberg

In an action brought to prevent prosecution of members of an Indian nation for failure to collect cigarette sales taxes on sale to non-members of the nation, the Court of Appeals issued judgment in favor of the plaintiffs. In Cayuga Indian Nation v. Cayuga County Sheriff, the court noted that Federal law precludes collection of cigarette sales taxes on sales by Indians to members of their own tribe on reservation lands. The court found that the two parcels in question were qualified reservation land.

Noting that the ultimate responsibility for payment of sales tax rests on the consumer, but that the practice has been for wholesalers to purchase tax stamps from the state and for the cost of those stamps to be passed up the chain to retailers and then consumers the court concluded:

"Thus, the issue in this case is not whether sales taxes are due when non-Indian consumers purchase cigarettes from Indian retailers — they are. The issue is whether Indian retailers can be criminally prosecuted for failing to collect the sales taxes from consumers and forward them to the Department. In the absence of a methodology developed by the State that respects the federally protected right to sell untaxed cigarettes to members of the Nation while at the same time providing for the calculation and collection of the tax relating to retail sales to non-Indian consumers, we answer this question in the negative".

Noting that the State Tax Law provision for collection of such taxes from the Indian Nations required implementation of regulations which were never put in place, the court held:

"restrictions that limit the state's efforts to collect cigarette taxes from Indian nations or their members in this context are derived from federal law and this prompted the Legislature to address the need for a specialized tax collection scheme by adopting Tax Law § 471-e. Since section 471-e was never operative, and no other comparable statutory or regulatory scheme has filled that gap, the Nation is entitled to declaratory relief."

-Steven Silverberg

The appellate division found that a zoning board properly denied an area variance after engaging in the required balancing test. In Matter of Monroe Beach Inc. v. Zoning Board of Appeals of City of Long Beach the court determined that the zoning board had made findings that:

"the requested variances were substantial, would result in a detriment to nearby properties, and would have an adverse effect on the physical and environmental conditions in the surrounding neighborhood were supported by hearing testimony and documentary evidence .... Moreover, its finding that the alleged difficulty was self-created had a rational basis, as the applicable zoning regulations were in effect when the petitioner purchased the property."

Furthermore the court noted: "the petitioner's contention that the ZBA granted another area variance application for the construction of a nearby multistory residential building is insufficient to establish that the ZBA's conduct in denying its application was arbitrary and capricious, since the petitioner failed to demonstrate that the ZBA "reach[ed] a different result on essentially the same facts" (Matter of Arata v Morelli, 40 AD3d at 993 [citation and internal quotation marks omitted]; see Matter of Gallo v Rosell, 52 AD3d at 516)."

-Steven Silverberg

An appellate court held that a zoning board's failure to comply with the "precise requirements" of the open meetings law did not rise to a level which required that the matter be remanded for further action in public. In Matter of Cunney v. Board of Trustees of the Village of Grand View the lower court had found that the conditions imposed on the granting of an area variance were reasonable but that the zoning board had failed to comply with the open meetings law when it did not take its vote in public. Therefore the lower court found that the matter had to be remanded for "a formal decision in open session."

The Appellate Division reversed that portion of the judgment remanding the matter. While it agreed that "the ZBA violated the Open Meetings Law by failing to vote on the application in public session" the court went on to state that an action should only be voided for such a violation upon "good cause shown." The court held that the petitioner had failed to show good cause and anyway the violation was "mere negligence." The decision does not explain why the court determined this violation was negligence. However, it would appear that the court likely felt, since the conditions were found to be reasonable, that there was not much purpose in sending the matter back just to go through the formality of voting in public..

-Steven Silverberg