At the time that the property owner began the process of obtaining a DEC permit for mining the Town had no zoning ordinance. It was only after the DEC permit was issued that the Town enacted zoning which prohibited the use. The property owner then claimed it had obtained vested rights to the non-conforming use. The trial court found in favor of the property owner and the Town appealed.

We previously reported on the decision of the Appellate Division in this case noting in an April 27, 2009 post that the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.

In reversing the Appellate Division, the Court of Appeals noted both the nature of the situation in this case and the unique nature of mining and that little actually needed to be built for mining to take place. "When applying our vested-rights jurisprudence to the facts in this case, there are two significant considerations that must be kept in mind. First, the Town had no zoning laws when Glacial acquired the property in 1996 — or, for that matter, when Glacial applied for the DEC mining permit in 1996, or even when DEC issued Glacial a mining permit in 1999 (cf. Preble Aggregate, supra). Relatedly(sic), mining is a unique land use, which colors our analysis of vested rights and nonconforming use."

Perhaps most significantly, to our knowledge, for the first time the Court added the cost of permitting to the test of substantial expenditure in obtaining vested rights and further expanded the concept of vesting through a validly issued permit to include "unqualified permission." "Put another way, the issue is not whether Glacial gained a vested right by way of its DEC mining permit, but whether Glacial acquired a vested right by way of the unqualified Town permission it once enjoyed to mine its property. And when deciding whether a landowner has made substantial expenditures in reliance upon such local permission, we see no reason for the factfinder to disregard DEC permitting costs. Indeed, in light of the stringent requirements imposed by the Mined Land Reclamation Act, such costs frequently, if not invariably, run into the hundreds of thousands of dollars or more, and represent a significant portion of the investment necessary for a landowner to devote real property to quarrying."

While the current case involves mining, which the Court noted has unique elements, it will be interesting to see how broadly the Court applies these revised criteria in the future.

-Steven Silverberg

In the World Outreach case the district court had dismissed the action. The building at issue contains mainly recreational and living quarters with some space for religious service. However, the circuit court found that the building's uses were all in furtherance of the religious mission of the organization. Before being purchased the building had been operated as a YMCA for many years and included renting out 168 single room occupancy (SRO) units. During the 80 years of operation by the YMCA the City never required a special permit. Rather the building's use was considered legal nonconforming as it was legal when established and subsequent changes in zoning regulations requiring a special permit for such use did not change its status. Under the Chicago zoning code the legal nonconforming status runs with the land and is not changed by changes in ownership.

However, World Outreach was required to apply for a license to operate the SRO units and the City took the position that it would not issue the SRO licenses without World Outreach first obtaining a special permit. This was despite the fact that the YMCA was issued SRO licenses without being required to apply for the special permit, even after the zoning was changed to require a special permit for the use.

At the instigation of an alderman who was seeking to help a developer acquire the property, the City then rezoned the property to a district which did not even permit SRO as a special permit use. The City continued to insist that a special permit was needed and brought a suit claiming the special permit was required but could not be issued due to the new zoning. The City then voluntarily discontinued the lawsuit but continued, without giving a reason, to deny the SRO license. When Hurricane Katrina struck FEMA contracted to rent 150 of the rooms for a year but the City continued to refuse the SRO licenses.

In April, 2006 World Outreach commenced this action and in August, 2006, without requiring the special permit, the City issued the SRO licenses. The court noted "World Outreach was impeded in its religious mission of providing living facilities to homeless and other needy people and incurred substantial legal expenses as well. It seeks damages, having abandoned its claim for injunctive relief when the City finally issued the SRO license that it had applied for two years earlier."

While the district court dismissed the action on what is essentially as exhaustion of administrative remedies ground-failure to seek the special permit from the zoning board- the circuit court points out the futility of such an application under all of the circumstances and disposes of that argument. Instead the circuit court held the "burden imposed on a small religious organization catering to the poor was substantial (for burden is relative to the weakness of the burdened) ...and there was no possible justification for it."

Interestingly, the court found that the discrimination against World Outreach was not motivated by religious views but rather an attempt by a Chicago alderman to help a developer, who supported the alderman, to acquire the property. The court found that anyone, irrespective of religion would have been discriminated against because of the intent to aid the developer to acquire the site. Yet, the court still held that the equal protection clause is also implicated stating "a deliberate, irrational discrimination, even if it is against one person (or other entity) rather than a group, is actionable under the equal protection clause. . ...That is one of the claims that World Outreach alleges; the claim is supported by the allegations of the complaint; and so it should not have been dismissed. It has nothing to do with religion, but so what?"

The second case, decided as part of the same decision, involves a RLUIPA claim by Trinity Evangelical Lutheran Church against the City of Peoria regarding a parcel the church purchased next to its existing church. A neighborhood group later applied to the City to have the building on the adjacent property designated a landmark. The landmark designation was granted. When the church sought to demolish the building to build a new center it was denied permission, due to the landmark status.

The Church brought a RLUIPA action claiming a substantial burden, The district court granted summary judgment to the City. The circuit court noted that the issue of substantial burden is a factual question "substantiality is a relative term—whether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question."

The court then went on to affirm the dismissal noting that the burden on the church is modest not substantial. The court found that the burden would only be substantial if the church had no alternative. But, in this case there is a market for the property and the church can sell the property and use the proceeds to construct its center on other property owned by the church. The court went on to note that the City conceded that the center could be built on the empty lot owned by the church and the court went on to state:

"We imagine that the real purpose of this litigation is to extract a commitment from the City to allow Trinity to build the family-life center on the empty lot, and so viewed the suit has succeeded."

-Steven Silverberg

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

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

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

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

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.

Initially the court addressed the issue of timeliness of the action. As previously noted in this Blog the EDPL sets forth a two part process for condemnation in New York. The first step is a determination under Article 2 of the EDPL that a site would serve a public purpose and is appropriate for condemnation. Once such a determination has been made a challenge must be brought in the Appellate Division within 30 days pursuant to EDPL section 207. However, in this case the petitioners initially brought an action in federal court and raised federal constitutional issues as well as state claims. The federal action was decided against the petitioners and the state claims dismissed without prejudice. The Court of Appeals therefore concluded that since the state claims were raised in federal court and dismissed without prejudice CPLR 205 (a), which allows a tolling of the statute of limitations under certain circumstances, tolled the statute of limitations in this case.

In a concurring opinion, Judge Read invokes what appeared to be the conventional wisdom prior to this decision. Judge Read argues that EDPL section 207 confers exclusive jurisdiction on the Appellate Division in an EDPL Article 2 challenge and therefore starting the action in another forum, even a federal court, does not toll the statute.

On the merits of the case, as outlined by the court, the petitioners argued "the State Constitution's takings clause, unlike its federal counterpart, has been consistently understood literally, to permit a taking of private property only for "public use," and not simply to accomplish a public purpose." The dissent by Judge Smith seems to view this statement as the position of the majority of the court as well. Yet, the next sentence of the majority opinion appears to reject this premise by stating: "...if this gloss on this State's takings laws and jurisprudence were correct — and it is not...." Thus, the majority appears to adopt the broader holdings of the federal courts in condemnation actions which reject the proposition that there may only be a taking for a public use "and not simply to accomplish a public purpose."

However, the court decides this case on other grounds holding "it is indisputable that the removal of urban blight is a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain. It has been deemed a "public use" within the meaning of the State's takings clause at least since Matter of New York City Housing Authority v Muller (270 NY 333 [1936]) and is expressly recognized by the Constitution as a ground for condemnation." The court's analysis continues finding that, while the area in question may not meet the classic description of a slum, the ESDC made findings that the area was substandard and insanitary and those terms have evolved over time to have a broader application than when the statutes were adopted for slum clearance purposes.

Further, the court limits the scope of judicial review of such findings. "It is important to stress that lending precise content to these general terms has not been, and may not be, primarily a judicial exercise. Whether a matter should be the subject of a public undertaking — whether its pursuit will serve a public purpose or use — is ordinarily the province of the Legislature, not the Judiciary, and the actual specification of the uses identified by the Legislature as public has been largely left to quasi-legislative administrative agencies. It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies..."

The court then goes on to state that it is possible that in determining blight "the bar has now been set too low" but declines to act stating that this is something for legislative determination.

The other argument raised by the petitioner is that the proposed condemnation violates Article XIII section 6 the State Constitution which provides that projects which receive state loans or subsidies must be for low income housing. The court distinguishes this provision of the Constitution finding that the project at issue is not one of large scale slum clearance where there will be a large displacement of low income families requiring relocation. Therefore the court concludes that low income housing is a "worthy objective" but not mandated for a project "that does not entail substantial slum clearance."

In a dissent, Judge Smith argues that the court has given too much deference to the "self-serving" determination of the ESDC. He concludes: "I think it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use."

-Steven M. Silverberg

The Appellate Division Third Department denied the application relying upon the holding in Matter of 49 WB, LLC v. Village of Haverstraw in which the Appellate Division Second Department concluded that no reimbursement was available under similar circumstances. As previously discussed on this Blog in a June 23, 2007 post the Second Department in the Haverstraw case held that the petitioner was not entitled to attorney’s fees and costs under EDPL 702 (B) as no acquisition procedure had been commenced. EDPL has a two step process (1) determining public purpose and (2) acquisition. As Haverstraw had only identified the public purpose but no actual acquisition procedure had been commenced, the Court determined there was no right to recover fees and costs.

In reliance on the Haverstraw case the Town of Ticonderoga argued that EDPL 702 only provides for reimbursement during the vesting stage of a condemnation proceeding. The Court of Appeals, however, disagreed with that prior holding and concluded that under these circumstances the property owner is entitled to recover certain fees and costs. The Court held in the first stage of the eminent domain process, prior to an actual vesting procedure has been commenced, "reimbursement for attorney's fees and other costs incurred by a condemnee may be sought pursuant to EDPL 702 (B) after it is determined in an EDPL article 2 proceeding that the condemnor lacked authority to pursue the proposed acquisition." The Court concluded that this first stage was part of the "acquisition" process contemplated by the language in EDPL 702.

The Court qualified the extent of available reimbursement by stating reimbursement is available for "fees and costs incurred by a condemnee after a condemnor makes a determination and findings that are adverse to the condemnee pursuant to EDPL 203 and 204... However, we take no view here as to whether fees incurred before such an adverse determination may be said to be incurred "because of the acquisition procedure" within the meaning of EDPL 702 (B)." Thus, once a municipality makes a determination that a particular property would serve a public purpose, if a property owner successfully challenges that determination the property owner can seek reimbursement. Yet, whether the costs of preparing for the hearing conducted by the municipality in reaching its public purpose determination are also reimbursable is still an open question.

-Steven M. Silverberg

Under the New York City zoning code, a use variance may be granted only if: 1) use of the property for permitted uses would impose practical difficulties or unnecessary hardship because of the unique physical conditions of the property, 2) the owner cannot realize a reasonable financial return from use of the property for permitted uses because of such unique physical conditions, 3) use of the property for non-permitted uses would not alter the essential character of the neighborhood, and 4) the owner did not create the practical difficulties or unnecessary hardship.

The property at issue is a corner lot located in a residentially-zoned district on Staten Island abutting a six-lane wide street. The owner purchased the property for $275,500 and then demolished the existing house located on the land, all for the purpose of constructing a photography studio accessory to its catering hall located directly across the street in a commercially-zoned district. An appraisal was obtained seven months following purchase which showed that the vacant land could be sold for $375,000 for residential use. The land is similar in size to other residential properties located in the neighborhood.

The Court of Appeals cited its 2004 holding in Matter of Pecoraro v Board of Appeals of Town of Hempstead (2 NY3d 608 – 2004) that “(a) local zoning board has broad discretion when reviewing an application for a zoning variance, but its determination may be set aside if the record reveals that ‘the board acted illegally or arbitrarily, or abused its discretion,’” and found that “the zoning board’s decision to grant a use variance for the construction of a commercial structure in a residentially-zoned area was an abuse of discretion. The physical conditions of the parcel relied on by the board did not establish that the property’s characteristics were ‘unique’ … Proof of uniqueness must be ‘peculiar to and inherent in the particular zoning lot’ … rather than ‘common to the whole neighborhood’…The fact that this residentially-zoned corner property is situated on a major thoroughfare in a predominantly commercial area does not suffice to support a finding of uniqueness since other nearby residential parcels share similar conditions.”

-Bernis E. Shapiro

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other "rare or unusual species...Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad." The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder's Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is "'likely to occur in the same places as Karner blue butterflies'; that the plants on which it is known to feed 'are absent or rare in the Albany Pine Bush'; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad." Thereafter the FEIS was accepted and the zone change was approved.

Petitioners then brought this action under SEQRA. While several causes of action were dismissed, and the Petitioners did not appeal dismissal of those causes of action, on the remaining cause of action, which alleged that he City failed to take a hard look at the potential impacts on species other than the Karner Blue butterfly, both the Supreme Court and Appellate Division found Petitioners had standing and that the City had failed to take a "hard look" at the potential impacts.

The City argued that under the Court's prior holding in Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d 761 [1991]) that Petitioners lacked standing because the closest of them lives half a mile from the project. Petitioners argued that the Court should either abandon or modify the holding in Society of Plastics. Instead, the majority of the Court reached the conclusion that the prior holding in Society of Plastics supported its finding of standing for the Petitioners.

In an interpretation which appears to differ from that of many courts and commentators since Society of Plastics was decided the Court stated "...Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case."

In finding that Petitioners in this case had standing the Court held "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development — the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury."

The Court went on to say: " we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face...while we decline to erect standing barriers that will often be insuperable, we are also conscious of the danger of making these barriers too low...Striking the right balance in these cases will often be difficult, but we believe that our rule — requiring a demonstration that a plaintiff's use of a resource is more than that of the general public — will accomplish that task better than the alternatives."

Yet, on the merits the Court held that the City had complied with the mandate of SEQRA. Pointing out that while the Karner Blue butterfly had been of major concern and impacts on its habitat had been addressed, with respect to the other species the Court found that while the "DEC did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the DEIS neither DEC nor anyone else called attention to the omission....While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too....That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A "rule of reason" (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation."

Thus, the Court's decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

-Steven M. Silverberg

The Village, which was defended by Silverberg Zalantis LLP, argued that the building inspector had acted properly but that, irrespective of that fact, a precondition to a suit challenging the actions of a building inspector's interpretation of the zoning ordinance is that an appeal must be submitted to the zoning board of appeals to review the determination of the building inspector. Further, such an appeal must be made to the zoning board of appeals within 60 days of the challenged decision pursuant to Village Law section 7-712-a (5)(b). The lower court dismissed the action and the appellate division affirmed simply stating "the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756)."

The brief on appeal was written by Katherine Zalantis and the appeal was argued by Steven Silverberg.

The Petitioner had originally applied to the Town for site plan approval for a retail furniture store. The plans submitted designated a cellar area as storage. This was significant as otherwise the proposed structure would have exceeded the permitted floor area ratio (FAR) by almost 100% and would have had significantly less parking than would be required if the cellar was not used for storage. During construction the building inspector questioned the location of partitions, molding and carpeting in the cellar and he was again assured it would only be used for storage. To that point “Caspian provided, further revised plans dated September 25, 2003, that expressly designated the cellar for "storage."

Thereafter, Caspian operated its business using the cellar for retail and an offsite location for storage. Caspian was issued a violation and appealed to the Town Zoning Board of Appeals for area variances. During the hearings Caspian produced reports stating that the variances would not impact the neighborhood. Neighbors testified about noise, overnight parking and trucks backing into the property causing a problem on a busy road. The Zoning Board denied the variances finding inter alia:

“Caspian had continuously deceived the Town as to the intended use of the cellar, such that the benefit of granting the variances was outweighed by the detriment that would be caused to the Town by allowing a diminution of respect for its planning, building, and tax laws. The ZBA found that the retail use of the cellar burdened neighboring property owners in terms of noise, truck movement, and traffic tie-ups; that the variance requests were substantial, as they represented a 100% increase in permissible FAR and a 50% decrease in permissible parking; and that Caspian's need for the variances was self-created by its deceptive conduct.”

The lower court reversed finding that, while it agreed that Petitioner had been deceitful, the Petitioner’s deceit was not one of the criteria to be considered by a zoning board under Town Law section 267-b (3). The Appellate Division reversed the lower court.

The court’s findings set forth in detail the evidence in the record of the deceitful conduct of Caspian including: “after the store opened to the public, evidence of continuing deception exists from Caspian's submission on August 8, 2006, of a floor plan on which a revision changing the cellar's use to "retail" has apparently been back-dated to "4/7/03." As explained by the Town's Building Inspector, the floor plan submitted on August 8, 2006, does not bear his approval stamp, as do earlier uncontested plans submitted by Caspian. The alleged 4/7/03 revision is listed out of chronological order in the lower left-hand corner of the document after a revision containing the notation "9/25/03," an indication that the purported 4/7/03 revision was actually added sometime after September 25, 2003. Also, we note that the revised floor plans dated September 25, 2003, submitted to the Town by Caspian, do not show the "4/7/03" revision, and clearly delineate the cellar as merely "storage."

The court acknowledged that with respect the argument by Caspian that a zoning board cannot add criteria to the criteria established for area variances in Town Law “Caspian correctly argues that the standards set forth in Town Law § 267-b(3) are exclusive, thereby precluding zoning boards of appeal from considering any factors not recited in the statute… Pursuant to Town Law § 267-b(3), when making determinations on applications for area variances, zoning boards of appeals "must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted"

While lengthy, due to the unique nature of this case, the court’s findings are worth quoting extensively, as the court went through each of the criteria to be considered and how each relates to the facts of this case and the issue of the Petitioner’s deceitful conduct:

“We find that the ZBA considered and balanced the factors of Town Law § 267-b in denying Caspian's application for an area variance.

As to the primary consideration of the statute, regarding the benefit of the applicant weighed against any adverse impact upon the community, the ZBA noted that site plan approval was received from the Planning Board, permits were issued by the Building Department, and tax assessments were levied by the Tax Assessor, all based upon plans showing Caspian's cellar to be used for storage only. The ZBA concluded, in its written Certification of Decision, that Caspian "never intended use [of] the basement for storage," and that Caspian "concealed from the Town the actual intended use of the basement of this property from the very first day of operation." The ZBA concluded, in broad fashion, that any benefit to Caspian in permitting it to use the cellar as a retail showroom was outweighed by the detriment to the Town, its citizens, and its commercial operations, that would result from permitting Caspian to successfully mislead planning, building, and tax authorities. We take no issue with the ZBA on this point.

To the extent that Town Law § 267-b(3) requires consideration of whether the requested area variance is substantial, the ZBA properly noted that the requested increase in FAR was 100%, and the requested decrease in parking was 50%. These requested variances are substantial and support the denial of the variance application…

Town Law § 267-b(3) also requires consideration of whether the applicant's need for variances is self-created. While the self-imposed nature of a hardship is fatal to a use variance application… the self-imposed nature of a hardship is significant, but not determinative, to an area variance… We agree with the ZBA that under the peculiar circumstances of this matter, Caspian's self-created difficulties represent a particularly compelling statutory factor, given its repeated and documentable misrepresentations to the planning board, building department, tax assessor, and zoning board, both prior to and after the issuance of the Town's site plan approval and certificates of occupancy, as to its true intended use of the cellar….

Town Law § 237-b(3) requires that the variance applicant consider feasible alternatives that might alleviate the need for the variance (see Matter of Chandler Prop. Inc. v Trotta, 9 AD3d at 409; Johnson v Town of Queensbury Zoning Bd. of Appeals, 8 AD3d 741, 743). The benefit of the variance sought by Caspian is a furniture showroom that can compete, in terms of square footage, with those of competitors. The Supreme Court held that the ZBA failed to consider whether the same benefit could be obtained by alternate means. The ZBA did, however, address this factor of Town Law § 267-b(3) to the extent of finding that the cellar could be put to an alternative use, as storage, which is consistent with the plans that were originally approved by the Town.

The ZBA's recognition that the alternative uses of the cellar were limited, essentially, to being a showroom or a storage area, "merely stated the obvious" (Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d at 930) as to this factor. Nevertheless, the factor was considered. A showroom use of the cellar cannot be achieved without significant area variances as to FAR and parking, as noted. Moreover, Caspian provided no evidence of the square footage of competitor showrooms or the effect that additional showroom space might have on its profitability….

Not all of the statutory factors favor the denial of Caspian's area variance application. To the extent that Town Law § 267-b(3) requires consideration of whether there would be an undeniable change in the character of the neighborhood or detriment to nearby property created by the granting of an area variance, and whether the proposed variance would adversely affect the physical or environmental conditions of the neighborhood (see e.g. Matter of Matherson v Scheyer, 20 AD3d 425; Matter of Johnson v Town of Queensbury Zoning Bd. of Appeals, 8 AD3d at 743), the ZBA relied upon complaints from neighbors regarding noise and trucks backing into Caspian's parking lot, landscaping, garbage pickups, and the overnight storage of commercial vehicles. However, generalized or unsubstantiated complaints from neighbors, unsupported by empirical or expert evidence, are generally insufficient for a zoning board to base its decision…. In contrast, a zoning board's reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition….

Here, based upon complaints from members of the community, the ZBA determined that the particular size and placement of the buildings on the lot required delivery trucks to maneuver into Caspian's parking lot backwards, tying up traffic on Central Avenue, and that this factor was among those that warranted a denial of the requested area variance. The ZBA's determination in this regard is wholly unsupported by the record…

Contrary to the determination of the Supreme Court, we also find that the ZBA adequately distinguished other cases in the Town of Greenburgh where area variances had been granted…
The application to the ZBA raised some statutory factors of Town Law § 267-b(3) that favor the grant of Caspian's requested area variances, and other factors that negatively affect the application. …

In weighing these competing factors, which were each addressed in some form or fashion by the ZBA, we are mindful that our judicial responsibility is to review zoning decisions to assure that the statutory factors have been considered, but not, absent proof of arbitrary or irrational action, to make the decisions for the zoning boards …Local zoning boards have discretion in considering variance applications, particularly given their "familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community" (Cowan v Kern, 41 NY2d at 599).

Under the circumstances of this case, we find that the determination of the ZBA denying Caspian's requested area variances was neither arbitrary or irrational. In doing so, we are guided by two analagous cases from this Court, Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals (43 AD3d 926) and Matter Becvar v Scheyer (250 AD2d 842). Both cases involved homeowners who constructed second stories to their homes in violation of applicable local regulations and without obtaining prior area variances. In both cases, while some factors may have favored the grant of area variances that were later sought, this Court upheld the ZBA's denial of the variances on the grounds that, principally, the applicants' requests were significant and their difficulties self-created.”

The case has a complex history. The Village had denied the property owner the right to use the third floor of its commercial building because there is only one useable exit from the third floor and the Village claims this violates the State of New York Uniform Fire Prevention and Building Code . Underlying the dispute are several factors. The second means of egress from the third floor is blocked by a fence constructed on the adjoining property owned by a company which is Act controlled by the sons of the former Village Building Inspector, one of whom had also been a Village official, including Mayor from 2001 to 2003. The Village had indicated it would not intervene as this is a private matter between property owners. However, the fence is apparently in violation of the local code but no action was taken to cause it to be removed. Second, the Village has taken the position that the single exit does not comply with the State Uniform Fire Prevention and Building Code Act. Yet, there is an advisory opinion from the State indicating that where a property pre-exists the code, which is the case here, and there has been no substantial additional construction, none of which was proposed here, the current requirement of two exits is not applicable. Complicating the situation more is the fact that the use at issue is non-conforming and the third floor has been vacant for several years. The Village code provides that where a non-conforming use has ceased for more than 6 months it may not be re-established.

In an effort to resolve the issues an agreement was negotiated with the adjoining property owner to put a “panic bar’ in the fence, which would have permitted egress from the second exit in an emergency. In addition, as the fence was eight feet high and not in compliance with the local code a variance was obtained for the fence. However, the variance was issued for only two years. As a result the owner complained to Village officials that the two year variance was “useless.” Clearly the concern was that the variance for only two years limited the ability to rent the third floor space. Ten days later the property owner was issued several violations by the Village. During the litigation the Village claimed that this was coincidence and the violations issued were part of a “sweep” of the Village to clean up the downtown of the Village, based upon the Mayor telling the Code Enforcement Officer that there were “a lot of places downtown he’d like to see me pay a visit”. However, the court notes that there was only one other property issued a violation on that date and it appears the violation was based upon a review of the Village files not a “sweep.”

The Plaintiff commenced this action alleging various causes of action. There was discovery and then the Plaintiff moved for summary judgment and Defendants cross moved seeking either dismissal or summary judgment in their favor. The lower court denied both motions and the Appellate Division modified dismissing some causes of action and allowing others to stand.

The Appellate Division opinion first notes the different criteria in deciding a motion to dismiss under CPLR 3211 and a motion for summary judgment under CPLR 3212.

Noting the very limited scope of review on a motion to dismiss the court stated:
“A motion to dismiss a cause of action pursuant to CPLR 3211(a)(7) should not be granted [*4]"if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88). In making such a determination, evidentiary material may be considered to "remedy defects in the complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 636; Leon v Martinez, 84 NY2d at 88), "and, unless it can be shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it," dismissal may not be predicated on such evidentiary material (Guggenheimer v Ginzburg, 43 NY2d 268, 275; 511 W. 223rd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151).”

The Court then reviewed the basic criteria in determining whether to grant summary judgment stating:
“When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "Once this showing has been made . . . the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562).”

Examining the claim for a violation of substantive due process the court addressed the application of 42 USC 1983 in the context of land use disputes:
“"In the land use context, 42 USC § 1983 protects against municipal actions that violate a property owner's rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 626; Town of Orangetown v Magee, 88 NY2d 41, 49). However, "42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations" (Bower Assoc. V Town of Pleasant Val., 304 AD2d 259, 263). In order to establish a deprivation of a property right in violation of substantive due process, the claimant must establish (1) a cognizable or vested property interest, not the mere hope of one, and (2) that the municipality acted " without legal justification and motivated entirely by political concerns'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 627, quoting Town of Orangetown v Magee, 88 NY2d at 53). "As for the second element of the test, only the most egregious official conduct can be said to be arbitrary in the constitutional sense'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 628, quoting City of Cuyahuga Falls v Buckeye Community Hope Found., 538 US 188, 198; St. Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139, 144).”

Finding that the Village Officials had relied on an incorrect interpretation of the applicable codes the court nevertheless dismissed the cause of action for violation of substantive due process in failing to issue a certificate of use because: “despite these infirmities, the defendants' conduct in denying the plaintiffs' applications for certificates of use based upon an apparent misinterpretation of Village code provisions did not constitute egregious official conduct. Accordingly, the plaintiff does not state a cause of action sounding in the deprivation of property rights in violation of 42 USC § 1983 as alleged in her first cause of action, and that cause of action should have been dismissed pursuant to CPLR 3211(a)(7).”

The Plaintiff also sought a declaratory judgment that the provisions of the Fire Code do not apply because the structure was built prior to enactment of the Fire Code and no major renovations are planned. The Village contends that the Plaintiff failed to exhaust her administrative remedies by failing to seek a variance from the code provisions. The court noted however that the exhaustion of administrative remedies doctrine is not inflexible and in this case the State advised that no variance was necessary.

The court went on to find: “the defendants took the position that the plaintiff should have challenged each of its determinations in proceedings pursuant to CPLR article 78. However, at issue was the Village's classification of the subject property as subject to the current provisions of Fire Code, depriving the plaintiff of the use of her property in alleged violation of vested property rights, not the denial of a particular application for a certificate of use. Thus, a cause of action for a declaratory judgment, not a proceeding pursuant to CPLR article 78, was the proper vehicle to seek relief (see Matter of Huntington Hills Assoc. v Town of Huntington, 49 AD3d 647). The plaintiff's sixth cause of action states a cause of action for declaratory relief in her favor, and the defendants failed to establish as a matter of law that she is not entitled to such relief.”

The court next examined the claim of violation of equal protection of the laws based upon the alleged selective enforcement of the Village Code against Plaintiff. In holding that Plaintiff had adequately pleaded her claim the court held:

“"[A] violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations . . . intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; see Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693). In determining whether persons are similarly situated, "the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent. Exact correlation is neither likely nor necessary" (Penlyn Dev. Corp. V Incorporated Vil. Of Lloyd Harbor, 51 F Supp 2d 255, 264).
The person must be singled out for an impermissible motive not related to legitimate governmental objectives (see Bizzarro v Miranda, 394 F3d 82, 87; Gallo v Suffolk County Police Dept., 360 F Supp 2d 502, 511), which could include personal or political gain, or retaliation for the exercise of constitutional rights (see Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d at 693). In the instant case, the plaintiff is asserting that her building was singled out from other downtown buildings similarly situated because she exercised her rights to free speech under the First Amendment to the United States Constitution when she complained about the treatment of her application for a variance for the fence. In so doing, she adequately pleaded her causes of action. “

The court did dismiss her claim of violation of the right of free speech finding it duplicative of the claim for violation of equal protection finding: “the plaintiff does not allege how the defendants' actions actually chilled her exercise of her First Amendment Rights (id). However, she does allege that the defendants retaliated against her exercise of her First Amendment Rights. She contends that the defendants' retaliation resulted in selective enforcement of code provisions, constituting punishment for the exercise of the constitutional right to free speech, in violation of her right to equal protection of the laws.”

On the issue of failure to file a notice of claim the court held: “[a] cause of action asserted pursuant to 42 USC § 1983 does not require service of a notice of claim (see Rapoli v Village of Red Hook, 41 AD3d 456). However, the plaintiff's fifth cause of action sounding in the common-law tort of wrongful interference with prospective economic advantage required the service of a notice of claim as a condition precedent for maintaining it (see Montano v City of Watervliet, 47 AD3d 1106; Clemens v MTA N.Y. City Tr. Auth., 19 AD3d 636). Since the plaintiff failed to allege service of a notice of claim, the fifth cause of action should have been dismissed for failure to state a cause of action

Finally, there was a defense of qualified immunity raised on behalf of the individual defendants and the court ruled:
“Conlee was an employee of the Town of Ramapo performing duties for the Village pursuant to a contract between the Town of Ramapo and the Village. He established as a matter of law that, although he may have mistakenly violated the plaintiff's rights under the Village of Suffern Code in a good faith attempt to enforce Village policy, he did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The plaintiff, in opposition, failed to raise a triable issue of fact. However, the remaining defendants failed to establish their entitlement to judgment as a matter of law on this issue. ”

Unless it is settled we will no doubt see this case again.

In the Matter of Lackawanna Community Development Corporation v. Frank E. Karkowski et al, 12 NY3d 578, 883 NYS2d 168 (June 11, 2009).

Issue: Is property leased out by a Local Development Corporation for for-profit manufacturing activities taxable or exempt from taxation?

Holding: Local Development Corporations are special not-for-profit corporations organized under Section 1411 of the Not-For-Profit Corporation Law for “…charitable or public purposes of relieving and reducing unemployment…bettering and maintaining job opportunities, instructing or training individuals to improve or develop their capabilities for such jobs…and encouraging the development of, or retention of, an industry in the community or area….”

Section 420-a of the Real Property Law exempts real property owned by a corporation and used exclusively for charitable purposes from real estate taxation. However, the Court of Appeals in affirming the decision of the Appellate Division, Fourth Department, (50 AD3d 1469, 856 NYS2d 405) which reversed the Supreme Court, Erie County, held that since the manufacturing use of the property was not exclusively devoted to the charitable purposes outlined in Section 1411 of the Not-For-Profit Law, but rather also generated profit for the tenant, that the property was not exempt from taxation.

The Court of Appeals differentiated property owned by a Local Development Corporation, devoted to for-profit manufacturing use, from property owned by an Industrial Development Agency devoted to the same use, since Section 874 of the General Municipal Law specifically exempts land and improvements owned by an Industrial Development Agency from real property taxation regardless of the use of the property.

Buffalo Crushed Stone Inc. v. Town of Cheektowaga, 13 NY3d 88, ____NYS2d___, 2009 WL 1850964 (June 30, 2009).

Issue: Does the prior nonconforming use status of portions of a quarry property extend to other portions of such property on which quarrying activities were not conducted prior to change of zoning?

Holding: This issue was visited previously in 1980 in Matter of Syracuse Aggregate Corp. v. Weiss, 51 NY2d 278, 434 NYS2d 150 which held that “…where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.” at 286.

The Court of Appeals in Buffalo Crushed Stone , in affirming and expanding the decision of the Appellate Division, Fourth Department (55 AD3d 1228, 864 NYS2d 598), placed the burden of proof on the quarry to “…establish specific actions constituting an overt manifestation of its intent to utilize the property for the ascribed purpose at the time the zoning ordinance became effective; a mere contemplation of purpose, lacking supportive evidence of undertakings to effectuate such intentions, will not suffice” at 98. The Court held that the unique nature of quarrying in which portions of property are intentionally not mined and are held in reserve until initial portions have been depleted of their resources, would normally meet this burden unless the initial quarrying activities were insubstantial.

Chief Judge Lippman dissented in part from Judge Ciparick’s decision, opining that the “intent to mine” and the “lawful ability to mine” under prior zoning should be differentiated . In other words, in his opinion, all portions of a property for which prior nonconforming use status are sought should have permitted such use prior to change of zoning.

In the Matter of John Gebbie v. David Mammina et al, ___ NY3d ___, ___ NYS2d ___, 2009 WL 2762152 and 2009 WL 2633702 (August 27, 2009).

Issue: May the Appellate Division make a de novo determination of whether area variances should have been granted by a zoning board?

Holding: The Court of Appeals summarily reversed the Appellate Division, Second Department (57 AD3d 544, 868 NYS2d 740), thereby dismissing the Appellate Division’s review of whether the area variances in question should have been granted. The Appellate Division had relied upon the dual facts that there had been no community opposition to the variances and that the variances sought had been insubstantial, but the Court of Appeals concluded that the denial of the variances “…had a rational basis and was not arbitrary and capricious…and the Appellate Division erroneously substituted its judgment for that of the agency (zoning board).”

The Court of Appeals cited its prior ruling in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004) which held that “(t)his Court has often noted that local zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one. Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure (citations omitted). A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence (citations omitted).” at 613.

Town of Riverhead v. Gezari, 63 AD3d 1042, 881 NYS2d 172 (2nd Dept. June 23, 2009).

Issue: Was it proper for the Supreme Court to issue a preliminary injunction enjoining the regular use of property for the takeoff and landing of a private helicopter without a special permit as required for airports under the zoning code?

Holding: The Appellate Division affirmed Supreme Court, Suffolk County, in holding that the municipality showed a likelihood of success on the merits and the equities were balanced in its favor, because the use of the property met the definition of “airport”, the property was used for no other purpose that the takeoff and landing of a private helicopter, and the property owner could demonstrate no hardship in losing use of the property for such use.

Matter of Zaniewski v. Zoning Board of Appeals of Town of Riverhead, 64 AD3d 720, 883 NYS2d 279 (2nd Dept. July 21, 2009).

Issue: Was is proper for the zoning board to deny area variances for the construction of a house on a substandard lot?

Holding: The Appellate Division reversed Supreme Court, Suffolk County, by affirming the decision of the zoning board which denied the area variances, refusing to disturb the broad discretion of the zoning board as upheld by the Court of Appeals in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004). This was the second time that variances had been denied, the first being 7 years before when the applicant and her husband had sought area variances to subdivide an improved property to create a new vacant lot. Following that initial denial, they had conveyed the house and the major portion of the lot to the husband and a smaller portion of the lot to the wife who then attempted a second time to obtain the area variances.