"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

There are three general areas of regulatory proposals:

(1) surface area disturbance of State owned lands which includes among other proposals 6NYCRR Part 52.3 which reads:

"Notwithstanding any other provision of this title, surface disturbance associated with the drilling of a natural gas well subject to Part 560 of this Title on State lands is prohibited and no permit shall be issued authorizing such activity. This prohibition shall apply to any pre-existing leases and any new leases issued for oil and gas development on State lands. This prohibition, however, does not include subsurface access to subsurface resources located under State lands from adjacent private areas."

(2)Mineral resources regulation which include permitting requirements providing in part at 6 NYCRR 553:

"Section 553.3 is revised to read:

(a) The department shall issue a permit to drill, deepen, plug back or convert a well, if all applicable requirements are met and the proposed spacing unit conforms to statewide spacing provided in section 553.1 of this Title.

( b) For wells which meet statewide spacing requirements, issuance of a permit to drill, deepen, plug back or convert by the department shall establish the spacing unit for the permitted well.

[(a)] (c) For wells exempt from statewide spacing requirements or wells that do not meet such requirements as provided in Section 553.1 of this Title, an order establishing well spacing may be promulgated by the department to[ To] promote effective development, use or conservation of the natural resources of oil and gas[, an order establishing well spacing may be promulgated by the department]."

(3) Revisions to SPDES Permit regulations including 6 NYCRR Part 750-1.1 which provides:

"High-volume hydraulic fracturing (HVHF) operations, as defined in Section 750-3.2, require a SPDES permit in accordance with Subparts 750-1, 750-2, as well as additional provisions in Subpart 750-3. Provisions applicable to issued HVHF activities are set forth in Subpart 750-1, 750-2 as well as Sub-Part 750-3."

-Steven Silverberg

Petitioner had an existing shopping center which was required to maintain a landscape buffer at an average width of 22 feet. When it applied for a 10,000 square foot addition, Petitioner proposed reducing the buffer to between 4 and 5 feet behind the new building. The Nassau County Planning Commission, as part of its General Municipal Law review, recommended reducing the building to 6,800 square feet in order to maintain the buffer.

When the Town Board implemented the reduction of the building as a condition of approval, the Petitioner brought an Article 78 proceeding. In upholding the condition the Court stated:

"the contested condition was within the Town Board's power to impose and was not affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational. "[A] condition may be imposed upon property so long as there is a reasonable relationship between the problem sought to be alleviated and the application concerning the property" (Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531, 533; Matter of Mackall v White, 85 AD2d 696, 696). Here, the contested condition was a reasonable means of assuring that the existing landscaped buffer, which was designed to screen the adjacent residential neighborhood from the effects of the shopping center, would be preserved (see Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d at 533; Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469, 470). Although the proposed 10,000 square foot building was dimensionally code compliant (see generally Moriarty v Planning Bd. of Vil. of Sloatsburg, 119 AD2d 188, 191), a structure of such size could not be placed into the southwest corner of the lot without encroaching on the existing buffer."

-Steven Silverberg

The Court found that the decision of the Town Board to award the contract to a higher bidder based upon previously unspecified criteria such as training, cleanliness and age of equipment, when there was never a finding that the low bidder was not a responsible bidder, was not supported by the provisions in the General Municipal Law for bidding on municipal contracts.

The Court went on to note:
"[i]f the Town wishes to have these qualitative factors considered, the proper remedy is not to reject the lowest responsible bid, but to reject all the bids submitted and begin the process anew, incorporating whatever reasonable and nonrestrictive requirements it wishes to consider into the bid solicitation (see Matter of Conduit & Found. Corp., 66 NY2d at 149 ["statutory law specifically authorizes the rejection of all bids and the readvertisement for new ones"]; see also General Municipal Law § 103 [1])."

-Steven M. Silverberg

The previous owner of the property at issue had used the property as a summer camp with a "religious curriculum." The claim by the Town was that a contractor, hired to operate the property, not the owner was the "entity" exclusively using the property to operate a camp. However the Court, in upholding the Appellate Division decision finding the exemption should continue, concluded:

"The contract indicated that the contractor was managing the camp on behalf of the plaintiff and the Town stipulated to the fact that plaintiff retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum. Moreover, an economic profit made by a religious corporation "does not by itself extinguish a tax exemption" (Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 216 [2008])."

-Steven Silverberg

After receiving the subdivision approval, the 27 single family homes were developed and a 12 acre parcel was dedicated to the Village as parkland, in accordance with the subdivision approval. However, it was not until 2000 that there was a request for a building permit for the townhouses. In the interim, the zoning had changed making the townhouses non-conforming and the building inspector denied the application for a building permit for townhouses. The zoning board upheld the decision of the building inspector and the Appellate Division upheld the lower court’s decision affirming the zoning board ruling.

The petitioner argued that it had the right to continue the townhouse development as a legal non-conforming use and/or that it had acquired vested rights to the townhouse development. It appears these arguments were based upon both the partial development of the subdivision, albeit for only the single family homes, and the dedication of the parkland to the Village.

The court rejected both arguments, holding that as far as the legal non-conforming use is concerned “the townhouse lot was never developed or used for 14 townhouses as approved in 1979. Rather, that use and construction were merely contemplated.” As for the claim of vested rights the court found:

“The record supports the ZBA's finding that the dedication of the parkland to the Village at the time of the subdivision approval in 1979 conferred a benefit on the petitioner as well as on the Village, and the ZBA reasonably concluded that the dedication of the parkland, standing alone, under the circumstances presented, did not confer vested rights on the petitioner to develop the townhouse lot in accordance with the 1979 approval. Further, although a developer who improves his property pursuant to original subdivision approval may acquire a vested right in continued approval despite subsequent zoning changes, "where the amended zoning ordinance relates only to lot size or other restrictions with respect to development, and the site improvements made under the original subdivision plat would be equally useful or valuable, a vested right in the subdivision as approved could not be claimed on the basis of those improvements" (Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of the Inc. Vil. of New Hempstead, 152 AD2d 365, 373, affd 77 NY2d 114; see Ramapo 287 Ltd. Partnership v Village of Montebello, 165 AD2d 544). Here, the majority of the improvements to the townhouse lot were used for the entire subdivision, and will be useable if the townhouse lot is developed in accordance with the current zoning ordinances.”

It will be interesting to see whether the petitioner here seeks, or obtains leave to appeal to the Court of Appeals, which has appeared to signal what might be argued to be an expanded view of vested rights in its decision in Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127 (which have been discussed previously in this Blog in February 2010). This case may provide an opportunity for the Court of Appeals to clarify whether its ruling in that case was limited to the nature of the specific use or was intended to broaden the application of vested rights in New York.

-Steven Silverberg

In rejecting the argument that there were other similar structures in the area the Court held:
“there is no indication that the members of the ZBA relied on evidence of any specific accessory structures in the neighborhood, or as to the dimensions or uses of any such structures. In addition, although Sabo submitted letters from friends and neighbors asserting that there are several accessory buildings in the vicinity that are similar to the proposed garage, those letters did not detail the locations or dimensions of those structures. Under these circumstances, the ZBA lacked a rational evidentiary basis to support its finding that the proposed garage constitutes a permissible accessory building, within the meaning of the subject zoning ordinance.”

The Court likewise took issue with the manner in which the zoning board calculated the height of the structure and concluded that the finding by the zoning board that no height variance was required is also incorrect.

Steven Silverberg