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

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

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

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

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

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

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

- Steven Silverberg

The Appellate Division held:

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

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

-Steven Silverberg

The Court noted that while there is an exemption for "pre-decisional inter-agency or intra-agency materials" (Public Officers Law § 87(2)(g)) the term agency has a specific definition and under FOIL

"'[a]gency' means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature' (Public Officers Law § 86 [3])"

The Court thus concluded that the EPA, as a Federal Agency, is not included within the definition of agency for purposes of FOIL and therefore does not fall within the exemption. In addressing the Town's arguments that there have been cases where the intra-agency exemption has been applied to outside parties, the Court drew a clear distinction:

"We have held that the purpose of the intra-agency exception is to allow individuals within an agency to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]; Matter of Xerox Corp. v Town of Webster (65 NY2d 131, 132 [1985]). In Xerox, we determined that real estate appraisal reports prepared by a private consulting firm at the agency's request were exempt from disclosure as intra-agency material (see 65 NY2d at 133). We observed that '[i]t would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies' (Xerox, 65 NY2d at 133)."

While the court noted that the DEC and EPA were working in a collaborative manner on the particular matter at issue, this was not the same as an outside consultant, as the EPA was not retained by the DEC and was not an employee or agent of DEC.

-Steven M. Silverberg

"'Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right'.... Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The owner is required only to show compliance with legislatively imposed conditions pertaining to the intended use.... 'Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception'."(citations omitted)

Here the Court found that the denial of the special permit was not supported by the record and the matter was remanded for the zoning board to grant the special permit with appropriate conditions.

-Steven M. Silverberg

However, in what appears to be somewhat of a departure from the standard for the findings of a lead agency to contain a "reasoned elaboration" supporting the negative declaration, the Court found:

"The negative declarations – adopted by resolutions of the Town Board – satisfied the requirement for "a written form containing a reasoned elaboration" for the determination and references to supporting documentation (6 NYCRR 617.7 [b] [4]). Although the resolutions themselves do not contain sufficient elaboration, they specifically refer to the EAF [FN1]. The EAF here consists of more than just checked boxes; the expanded additional comments on the EAF constitute a reasoned elaboration for the areas identified as potentially being affected by the floodplain laws (compare Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379; Matter of Bauer v County of Tompkins, 57 AD3d 1151, 1153 [2008]). Because those comments relate to beneficial impacts, with no adverse impacts having been raised, the Town Board complied with its obligations under SEQRA."

-Steven M. Silverberg

The new provisions read as follows:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—
(1) IN GENERAL.—Notwithstanding section 704 of the Tele-
communications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST.—For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves—
(A) collocation of new transmission equipment; (B) removal of transmission equipment; or
(C) replacement of transmission equipment.

-Steven M. Silverberg

"Contrary to respondents' contention, petitioners established that the sewer system of respondent Town of West Seneca would have sufficient capacity to support the project and, in any event, petitioners agreed to engage in remediation efforts recommended by the [*2]New York State Department of Environmental Conservation. There is no expert evidence in the record that the remediation proposed by petitioners is unsatisfactory. With respect to the comprehensive plan issue, it is well settled that the inclusion of a permitted use in a zoning code "is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243). Given the absence of support in the record for the Board's determination, we conclude that the Board impermissibly based its determination on "generalized community objections" (Matter of Ifrah v Utschig, 98 NY2d 304, 308). "

There is, however, one aspect of the decision which this writer finds puzzling. The Town raised the issue that the Article 78 proceeding was untimely because it was commenced more than thirty days after the decision denying the special permit. The Court found:

"Preliminarily, we reject respondents' contention that the petition was not timely filed within 30 days of the Board's determination pursuant to Town Law § 274-b (9). Rather, we conclude that, "[b]ecause the petition seeks to review the determination of the . . . Board, the four-month limitation period of CPLR 217 applies" (Matter of Sucato v Town Bd. of Boston, 187 AD2d 1045), thus rendering the petition timely filed."

Yet, Town Law 274-b states with regard to special permit applications:

"9. Court review. Any person aggrieved by a decision of the planning board or such other designated body or any officer, department, board or bureau of the town may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk."

-Steven M. Silverberg

"required registration of each rental dwelling unit in the Village and a "rental occupancy permit" for each rental dwelling unit...the law (hereinafter chapter 106) requires a site inspection of "each rental dwelling unit": "The Superintendent of the Building Department or his or her delegate shall review each application for completeness and accuracy and shall make an on-site inspection of the proposed rental dwelling unit or units" (Village Code § 106-6)."

While noting that there is a strong presumption of constitutionality of legislative actions, the Court stated :

" In Sokolov v Village of Freeport (52 NY2d 341), the Court of Appeals examined a local ordinance that required rental permits similar to those required by the Village here. That ordinance, like the one at bar, required site inspections and certifications before a permit or renewal could be issued. The Court declared that "[i]t is beyond the power of the State to condition an owner's ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution" (id. at 346), and it held that the ordinance was unconstitutional "insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential real property" (id.)."

Based upon the decision in Sokolov, the Court held that the Hempstead local law suffered from the same defect and was therefore unconstitutional.

-Steven M. Silverberg

As the Court noted:

"the defendants established, prima facie, that, inasmuch as there were building code violations on the property that needed to be corrected, which the plaintiff conceded, any delays in issuing the certificate of occupancy did not amount to egregious conduct so as to amount to a deprivation of the plaintiff's property interests without due process (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 628-629; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192, 202)."

The Court found the balance of Plaintiff's claims without merit.

-Steven Silverberg

The Petitioner owns an industrial site which was part of an army depot that also included the parcel in question that had been used to house military families. When the Respondent SYNC acquired the site in 2008 it first sought a variance, which was denied and then petitioned for a rezoning, which was granted. The Town issued a SEQRA negative declaration finding that the rezoning was consistent with the current use of the property and would have fewer impacts than the potential use as an industrial site under the existing zoning.

The Court upheld the SEQRA determination and found that the rezoning did not, as Petitioner claimed, constitute spot zoning. Rather, the court found the fact that prior revisions to the comprehensive plan did not suggest a residential use of the property was not proof of spot zoning, because "although the property abuts a portion of petitioner's industrial park, it also projects into an area of predominantly residential use. The Town, including its senior planner, concluded that rezoning the property so as to permit its continued use for residential purposes would benefit the community by retaining a transitional area between residential/commercial and industrial zones, whereas industrial use of the property would create an incongruity with the character of the existing neighborhood. Petitioner's reliance on the Town's failure to rezone the property as part of the 2001 and 2009 revisions of the comprehensive plan is misplaced, as the studies that supported that revision did not include an evaluation of SYNC's property. According to the Town's senior planner who oversaw the revisions, the industrial zoning classification for this property was simply continued without discussion or analysis."

Thus, the Court concluded that Petitioner had failed to prove the rezoning and change in the comprehensive plan was unlawful.

-Steven M. Silverberg

This case involves an application for site plan and a special permit that has been going on since 2001. In 2003 the Town denied the application and thereafter the Supreme Court remitted the matter for the Town to comply with SEQRA. The Town then issued a positive declaration, a Draft Environmental Impact Statement (DEIS) was prepared and a hearing held in January 2007, with the public comment period being closed on January 31, 2007. Costco made three submissions of a proposed FEIS, the last being in April 2009 and then started this Article 78 proceeding, seeking to compel the Town to complete the SEQRA process and make a decision on the special permit and site plan applications.

In upholding the lower court's direction that the Town complete SEQRA and issue a determination on the applications, the Court held:

"Contrary to the Town's contentions, the Supreme Court properly determined that the Town's failure to act pursuant to the applicable local code provision (see Code of the Town of Oyster Bay § 110-9 [I]), as well as the applicable SEQRA provision (see 6 NYCRR 617.9[a][5]) requiring it to "prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later," warranted mandamus relief (id.; see Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, 24 AD3d 669, 671; Matter of 2433 Knapp St. Rest. Bar v Department of Consumer Affairs of City of N.Y., 150 AD2d 464, 465)."

-Steven M. Silverberg

-Steven Silverberg

Noting that one of the planning board members stated: "people living in a particular neighborhood know more about the physical conditions of where they live than any experts brought in by an applicant," the Court concluded:

"There is no dispute that petitioner met its initial burden of demonstrating that the proposed project 'compli[ed] with any legislatively imposed conditions on an otherwise permitted use' ... While respondent thereafter remained free to evaluate the application and reject it '[i]f there [were] specific, reasonable grounds . . . to conclude that the proposed special use [was] not desirable at the particular location,' its determination in that regard must be supported by substantial evidence in the record...the engineering evidence submitted established that the project would reduce the preexisting runoff problems and, indeed, respondent relied upon that evidence in issuing its negative declaration for purposes of SEQRA. Even assuming, as respondent argues, that its own negative declaration was not binding upon it in rendering its ultimate determination, the fact remains that the only evidence respondent thereafter received on the runoff issue consisted of the conclusory opinions of neighbors opposed to the project."

The Court went on to note that the empirical evidence that there would be no increase in runoff remained unchallenged, except by the general concerns of neighbors opposed to the project.

-Steven M. Silverberg

Here the request was for a list of names and business addresses of veterinarians in the County. The County refused to produce the list because it did not differentiate between residential and business addresses and therefore disclosure might constitute an invasion of privacy by releasing some residential addresses.

The Court held:

"an agency responding to a demand under the Freedom of Information Law (FOIL) may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information....In responding to petitioner's FOIL request, the Department had the choice of producing the existing record in full or removing the information that it did not want to produce and that petitioner did not demand. It cannot refuse to produce the whole record simply because some of it may be exempt from disclosure."

-Steven Silverberg

The matter involves construction of a house along the Hudson River in New York, at a point where the land drops down below the height of the adjacent roadway. The ordinance, adopted to preserve views of the river, provides that no building may rise more than 4 1/2 feet above the easterly side of River Road. Initially, the Plaintiff sought variances and an interpretation of the provision from the local zoning board. The issue is that the property borders the road for 149 feet and the height of the road varies by 6 feet. The Plaintiff requested that the zoning board interpret the point or points from which the height of the road should be measured.

The zoning board declined to issue a finding on that issue, although three of the members gave two different interpretations of the provision. Thereafter, the Plaintiff, through his surveyor, provided various measurements of the road height and applied for and obtained a building permit. However, after the house was constructed the Village engineer was asked to confirm the heights based upon complaints by the neighbors. He at first found the structure to be compliant but later applied a different calculation to the manner of determining height and concluded the structure was not compliant. Based upon that determination the Plaintiff was denied a certificate of occupancy.

The Plaintiff then went back to the zoning board seeking alternatively an interpretation that the house was compliant or variances. The zoning board found that the house was not compliant but granted the variance with significant conditions. Plaintiff brought an action to review in state court and the matter was removed to the District Court.

Reviewing the law on vagueness the Court noted:

"a law violates due process "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." Hill v. Colorado, 530 U.S. 703, 732 (2000). "Animating this first vagueness ground is the constitutional principle that individuals should receive fair notice or warning when the state has prohibited specific behavior or acts." Thibodeau v. Portuondo, 486 F.3d 61,65 (2d Cir. 2007); Smith v. Goguen, 415 U.S. 566, 572 (1974) ("The doctrine incorporates notions of fair notice or warning."). Second, a law is unconstitutionally vague "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732. Statutes must "provide explicit standards for those who apply" them to avoid "resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)."

The Court then went on to hold:

"In arriving at this decision, however, the ZBA declined to address the question placed squarely before it by Cunney and his engineer at the design stage of the project-from what adjacent point or points on River Road the ordinance required the height of the house to be measured. For these reasons, we agree with the district court that "the Village's actions-its measurement procedure at the Property-and its own admissions [by ZBA members], demonstrate that no explicit standards exist regarding the method with which to measure from the easterly side of River Road. Thus, [section E] could encourage potentially arbitrary or ad hoc enforcement." Cunney, 675 F. Supp. 2d at 400....We recognize that "[ w ]here an ordinance provides insufficient general guidance, an as applied vagueness challenge may nonetheless fail if the [ordinance's] meaning has a clear core."Farrell, 449 F.3d at 493; Brache v. Cnty. of Westchester, 658 F.2d 47,51 (2d Cir. 1981)...we do not see how section E's imprecise core meaning-the preservation of river views-translates into the precise construct laid out by the district court. While there is no question that the ordinance could have been drafted to do exactly what the district court suggests, or could have been interpreted by the ZBA to call for this result, the ZBA refused to provide such guidance, and the ordinance's statement of core purpose is not so explicitly demanding....Based on the record before us, because a reasonable enforcement officer could find that Cunney's house does comply with the ordinance, we conclude that the height of Cunney's house does not constitute a "hard-core" violation of section E, and thus does not fit squarely within the ordinance's core prohibition. See Goguen, 415 U.S. at 577-78. Our review of the record gives us substantial concern that the ordinance was arbitrarily applied to Cunney's property. We therefore reverse the district court's dismissal of this claim."

The Court went on to direct that the District Court issue judgment in favor of the Plaintiff on the claim of unconstitutional vagueness.

In remanding the substantive due process claim the Court stated:

"[i]n the land use context, an action for violation of substantive due process rights is "intended to be a tool capable of measuring particular applications to determine if the applicant had a legitimate claim of entitlement based on the likelihood that without the due process violation that application would have been granted." Sullivan v. Town of Salem, 805 F .2d 81, 85 (2d Cir. 1986). The record is clear that the only reason provided by the Village for the denial of Cunney's CO application was that his house exceeded section E's height restriction....In light of our holding today that section E is unconstitutionally vague, and thus may not be applied as a basis for denying Cunney a CO for the house that has been erected on his property, we will leave it to the district court to decide in the first instance the viability and merits of Cunney's substantive due process claim. See City of Chicago v. Morales, 527 U.S. 41, 64 n.35 (1999)."

-Steven Silverberg