New York Zoning and Municipal Law Blog

In another in a long line of cases, last week the Appellate Division again deferred to the decision of a zoning board which had denied an area variance. In DiPaolo v Zoning Board of Appeals of the Town//Village of Harrison, the court found the zoning board had engaged in the required balancing test and therefore had acted appropriately in denying a request for a rear yard setback variance.

The court held the findings of the zoning board that the "requested variance was substantial and would produce an undesirable change in the character of the neighborhood, and that the hardship to the petitioner was self-created, were supported by testimony of several local residents and objective and factual documentary evidence. Moreover, evidence was adduced that construction on the subject property might adversely affect protected wetlands and cause drainage problems. Contrary to the petitioner's contentions, the Board's determination was not illegal, had a rational basis, and was not arbitrary or capricious."

In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval. In Matter of Residents Against Wal-Mart v. Planning Board of Town of Greece, the court found that the granting of site plan approval by the planning board was not arbitrary and capricious.

The decision lacks a great deal of detail but in a series of findings the court held: (1) the failure of the planning board to complete parts 2 and 3 of the SEQRA EAF was not fatal, because the planning board discussed “the factors set forth in parts 2 and 3 of the full EAF;” (2) the planning board complied with the referral requirements of General Municipal Law sections 239-m and 239-n, because there was no “substantial difference” between the materials submitted to the county department of planning and those used by the planning board for “final action on the application;” and (3) there was no error in issuing a conditional negative declaration for a Type I action under SEQRA, as “the conditions were not imposed in an attempt to avoid a determination that the project has a significant adverse environmental impact” and it was used only to address “aesthetic aspects of the project.”

Interestingly, the court made these findings after determining that the lower court was correct in holding that the owners of the property at issue were necessary parties and that the lower court was in error in dismissing the matter “without summoning those property owners.”

A court reversed the denial of a wetlands permit based upon the conclusion that the Town Board “succumbed to community pressure.” In Matter of Moy v. Board of Trustees of Town of Southhold, the Appellate Division, Second Department, found the Town Board relied upon various reports and recommendations which were by parties either unqualified to render such reports or who failed to address the criteria required by the Town’s code in determining whether to grant a permit.

The court found that the Town Board “properly noted that when conflicting expert reports are submitted ‘deference must be given to the discretion and commonsense judgments of the board.’” Yet, the court noted that the Town’s outside consultant did not render an opinion about the impacts of the proposed activities but instead stated “it did not know what the impact would be.” The court held that this and other reports and recommendations either not addressing the impacts of the proposal or expressing “concerns” about the proposal were “devoid of scientific data or analysis” and were therefore “insufficient to counter petitioners’ expert’s report and testimony…”

The court did uphold the right of the town to retain an outside consultant and charge the consultant’s fees to the applicant, where the need for the consultant met the criteria of the town’s code for “independent technical professional assistance.”

The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a “hospice” for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v. Town of Smithtown, the court reversed the Supreme Court’s granting of the petition finding that the lower court had improperly “substituted its judgment for that of the Zoning Board.”

The local zoning code specifically states that animal hospitals are not permitted in residential districts and that any use not specifically listed as a permitted use is not permitted. The court held that nonconforming uses “may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance” and therefore “the Zoning Board was not estopped from enforcing the zoning code…by the Town’s apparent acquiescence over a period of approximately 13 years.” In addition, the court noted that comments made at a Town Board meeting by the supervisor and town attorney concerning the operation (apparently supporting the petitioner’s contentions) were outside the record of the zoning board and therefore those comments could neither be considered nor used to prevent the Zoning Board from enforcing the code.

In Matter of O’Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses.

The court held that the owner had proven hardship in “dollars and cents form” by demonstrating that the “property had been substantially vacant for 30 years” that “only 10% to 15% of the space was occupied at the time of the applications and the prospects for expanding occupancy and generating sufficient revenue to cover necessary maintenance, repairs and improvements were marginal.” The court also found that the variance would not “alter the essential character of the neighborhood”, as similar uses “exist in proximity to the property” and the zoning board properly found the hardship was not self created.

Thanks to Alan J. Bozer, Esq. of the Buffalo Office of Phillips Lytle LLP who brought this case to our attention.

In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v. Town of Yorkshire, reversed the judgment after a jury trial finding the Supreme Court should have granted a directed verdict at the close of the plaintiff’s case.

The court noted that prior to adoption of its zoning ordinance the Town prohibited mining, absent a special permit. The plaintiff had obtained a mining permit from the DEC, hauled out 40 truck loads of material for testing, cleared the property of trees and performed a number of other activities.

However, 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.

The court also noted that a directed verdict should have issued finding that the plaintiff did not have a vested right in the mining operation. "In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development" (Town of Orangetown v Magee, 88 NY2d 41, 47 [1996]; see Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]).”

Here the testimony was that a total of $800,000 was spent on the project but that $750,000 of that was to acquire the land and obtain the DEC permit. Therefore, the court found that there was not a substantial expenditure in reliance on the permit. Further, since the paving of the road and construction of a bridge necessary to conduct mining operations had not taken place, plaintiff also failed to prove that it had “effected substantial changes…to further development pursuant to a legally issued permit.”

Absent from the analysis is whether the mining permit from the DEC was the same as the "special permit" required by the town and therefore would have been sufficient to create a legal non-conformity, if the other tests of substantial expenditure and substantial change had been met.

In the emerging area of wind power the Appellate Division upheld the decision of a local zoning board that wind powered generators are a utility. In Matter of Wind Power Ethics Group v. Zoning Board of Appeals of the Town of Cape Vincent, the Court found that the interpretation that wind powered generators fit the definition of utility in the local zoning ordinance was a "rational construction... entitled to deference." The local zoning ordinance defines a utility as "telephone dial equipment centers, electrical or gas substations, water treatment or storage facilities, pumping stations and similar facilities." The court concluded the determination that a wind powered generator is a utility "is neither irrational nor unreasonable, and that the determination is supported by substantial evidence."

A determination of the New York City Board of Standards and Appeals (BSA) to deny a permit renewal was reversed by the Appellate Division as arbitrary, capricious and without a rational basis. In Matter of Menachem Realty Inc. v Srinivasan the court found the denial of a permit renewal to complete construction, after a site had been rezoned, was inconsistent with prior determinations of the BSA.

Petitioner had a permit to construct a six story building but upon audit by the Department of Buildings (DOB) a number of objections to the construction were noted and a notice was sent to Petitioner by DOB. Thereafter, the property was rezoned and the DOB revoked the permit for failure to address two of its objections. Petitioner applied for an extension of the permit in order to complete construction. Before the BSA hearing was held, the DOB restored the permit on the grounds that the objections had been cured. However, upon hearing the application of Petitioner the BSA found that the permit was not valid on the effective date of the rezoning and therefore it could not issue a renewal.

The court found the BSA ruling was inconsistent with previous findings and that the lower court was correct in holding "the BSA's determination was arbitrary and capricious because it treated similarly-situated parties in a nonuniform manner." The court went on to note: "the BSA failed to adhere to its own precedent and to properly distinguish its prior determinations in which it had found that permits were valid on essentially the same facts...".

In a somewhat unusual decision the Appellate Division, in Matter of Tsunis v. Zoning Board of Appeals of Incorporated Village of Poquott upheld the denial of an area variance citing the zoning board's finding of self-created hardship. While self created hardship is one of the statutory criteria a zoning board must use in weighing whether to grant an area variance, Village Law also provides at section 7-712-b (3)(b)(5) that in considering self created hardship such "consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance."

As a result of the limiting language in Village Law, zoning boards are often reluctant to use self created hardship as a basis for denying an area variance. In this case the court held : "the ZBA's determination that the alleged hardship was self-created is supported by the evidence in the record..." and the "determination was not otherwise illegal, arbitrary, or an abuse of the ZBA's discretion...." Thus, it appears, at least from the decision, that the primary basis for the denial in this case was self created hardship.

In August, 2006 we discussed the Court of Appeals decision in the case of Eadie v. Town Board of the Town of North Greenbush (7 N.Y.3d 306[2006]) in a post entitled "Court Holds Challenge to Zoning Law Must Be Brought Within Four Months- Sometimes." A few weeks ago in the case East Suffolk Development Corp. v Town Board of Town of Riverhead, the Appellate Division, Second Department advised that sometimes the challenge can be brought within six years.

The Town sought to have a challenge to a zoning amendment dismissed as untimely because it had not been brought within four months. We can only presume there was no SEQRA challenge involved, as SEQRA is not mentioned in the decision.

In denying the Town's motion the court held the amendment is a legislative act and that : "a declaratory judgment action, not a CPLR article 78 proceeding, is the proper vehicle to challenge the validity of the defendants' action...and the six-year statute of limitations set forth in CPLR 213(1) applies...." Thus, it now appears the statute of limitations for challenging a zoning amendment is six years-sometimes.

The Appellate Division Second Department modified a lower court decision dismissing an action challenging a zoning amendment, where the lower court had held that petitioners all lacked standing to bring the action. In Matter of Bloodgood v. Town of Huntington the court separated the petitioners into several categories in order to analyze the question of standing from the standpoint of the potential environmental harm to each of the petitioners resulting from the rezoning.

The challenge at issue was based upon an alleged failure to take a "hard look" at the environmental impacts of the amendment, as mandated by SEQRA, prior to adopting the zoning amendment. The court held that those owning property within the zoning district that was the subject of the amendment had standing and that "where the challenge is to the SEQRA review undertaken as part of a zoning enactment, the owner of property that is the subject of the rezoning need not allege the likelihood of environmental harm."

Further, the court held that the lower court erred in dismissing the complaint of a property owner whose property was located within fifty to sixty feet of the rezoned district. That property owner had alleged specific adverse impacts upon his property of traffic, sewerage, and groundwater that would result from the zone change. Therefore, the court ruled he had the requisite standing to challenge the SEQRA determination.

However, the court found that the individual petitioners who owned property that was not in close proximity to the rezoned district lacked standing and that "their allegations of environmental impact are in no way different from those of the public at large." Finally, the court found that the local civic association also lacked standing, as its standing claim is based upon the standing of its members. The civic association member upon whom the standing claim rested was one of those individuals found to lack standing himself.

An appellate court upheld a zoning board determination that the owner of a commercial property maintained a legal preexisting nonconforming use of a parking lot. In Matter of Jacobsen v. Town of Bedford Zoning Board of Appeals, the court reiterated the rule that such a decision will not be overturned "if it is rational and is not illegal or an abuse of discretion, even if the reviewing court would have reached a different result."

In denying summary judgment to a property owner who challenged the amortization period during which a non-conforming use must be discontinued under a local law, the court held the property owner failed to demonstrate the law is invalid on its face. In the Matter of Suffolk Asphalt Supply, Inc. v. Board of Trustees of Village of Westhampton Beach, the court noted that “there remains a question of fact regarding whether the amortization period provided in the local law was reasonable and thus constitutional as applied to the plaintiff.”

The property owner purchased an asphalt plant which was a legal non-confirming use. The Village adopted the local law under challenge, which provided that such use must be discontinued within one year but that an additional five year extension of the use could be granted upon application to the zoning board of appeals. The owner sought and the zoning board of appeals granted an application extending the period during which the asphalt plant could be operated for the maximum five year additional term. At the same time the property owner brought this action seeking to declare the local law invalid and unconstitutional on the grounds, among others, that the amortization period was too short.

The court stated the general rule in determining the reasonableness of an amortization period holding that: “[w]hether an amortization period is reasonable is a question which must be answered in light of the facts of each particular case" (Modjeska Sign Studios v Berle, 43 NY2d 468, 479-480, appeal dismissed 439 US 809). "Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use" (Matter of Town of Islip v Caviglia, 73 NY2d 544, 561). Factors to be considered in determining reasonableness include "the nature of the business of the property owner, the improvements erected on the land, the character of the neighborhood, and the detriment caused the property owner" (Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563).”

Noting that determining the reasonableness of the amortization period relates to whether a property owner has an opportunity to recoup its investment, the court went on to say that the amoritization period does not have to be long enough to recoup the entire investment, only sufficiently long, so that the property owner does not suffer a “substantial loss” of investment. Here the court found that the property owner had failed to submit evidence of the amount of its investment in the property and therefore there is a question of fact which precludes summary judgment.

In a related action, the court upheld the decision of the Village zoning board of appeals in limiting the extension of the amortization period to the maximum five year term contained in the local law. The brief decision leaves unanswered why the zoning board could not have granted a variance from the local law permitting a longer period than the five year maximum contained in the law.

The appellate division issued a decision last week which provides a concise summary of the various issues confronted by a zoning board of appeals in deciding area variances. In Matter of Millennium Custom Homes v. Young, the court upheld the zoning board of appeals noting that the decision was rational and supported by evidence in the record.

After reviewing the balancing test in the statute, the court found there was detailed evidence of the adverse impacts on the neighborhood. The court also noted that the board adequately distinguished this application from other similar cases.

The case is a good primer on the various rules applying to review of zoning board decisions. We believe it is particularly astute as it cites two cases successfully argued by Steven Silverberg of this firm, Matter of Fuhst v Foley 45 NY2d 441 and Matter of Byron Assoc. v. Zoning Bd. of Appeals of Town of Mamaroneck, 142 AD2d 643, for rules applying to review of ZBA decisions which supported the zoning board of appeals in this case.

The appellate division dismissed a challenge to the continuation of a condition to a variance on the grounds that the challenge is barred by the doctrine of res judicata. In Matter of Calapai v. Zoning Board of Appeals of the Village of Babylon, the court held that a variance conditioned upon the removal of the building modifications in the event of a change of circumstances was a condition which could have been challenged when the variance was granted in 2000. Therefore, this challenge to a 2007 renewal of the variance, on grounds that could have been raised in 2000, is barred.

The petitioner applied to convert a garage to living space for her disabled son in 2000. The variance was conditioned upon the requirement that the modifications to the structure be removed upon a change of circumstances and at such time that the structure also be restored to a garage use. The petitioner’s son died and in 2006 petitioner applied for a one year extension of time to convert the structure. In 2007, she applied to delete the condition. Instead the zoning board granted a three year extension with the right to renew every three years and further provided that if the property is sold that the garage would be restored.

Petitioner brought this Article 78 proceeding challenging the condition. The court held that administrative res judicata applied finding that: the issues raised on the variance application that is the subject of this appeal were raised in the petitioner’s initial 2000 application to make alterations to her garage, and the change of circumstances that occurred, to wit, the death of petitioner’s son, cannot be viewed as unanticipated.”

The interesting aspect of this decision is not the application of the doctrine of res jusdicata to a zoning board determination. Rather, of interest is that the court did not mention it has held, as recently as June of 2008, that variances tied to a particular user are generally void. In the case Matter of Fowlkes v Zoning Board of Appeals of the Town of North Hempstead, 53 AD3d 711 (2d Dept. 2008) the same court held: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….” Yet, this new decision, involving a variance related solely to the ownership by this petitioner, makes no mention of such any impediment to the underlying variance.

A town zoning ordinance, which established the specific number of residences and the form of ownership of the residences, as well as the size and ownership of recreational facilities for a specific property, was voided by the appellate division in Matter of BLF Associates LLC v Town of Hempstead. In a decision which restates some of the fundamentals of zoning law in New York, the court held the attempt by the Town of Hempstead to control virtually every aspect of the ownership and use of a property exceeded its authority.

The property at issue is a 17 acre parcel previously owned by the United States and used as an army reserve facility. Originally the property was zoned Residence “B” allowing single family or senior housing on 6,000 square foot lots, as well as school, religious, municipal recreational and agricultural uses. The army base was closed in 1996 and Town was given first opportunity to acquire the property. In order to explore the purchase and reuse of the property the Town formed a Local Redevelopment Agency (LRA). The LRA prepared a reuse plan which combined residential uses and recreational uses. Initially the Town contemplated purchasing the property and incorporating the reuse plan in a deed restriction.

Ultimately, the Town did not purchase the property and instead the property was sold through competitive bidding to BLF Associates LLC (BLF) with no reference to the reuse plan in the agreement to purchase the property.

In 2004, while the sale was pending, the Town began looking into legislation that would implement the reuse plan. In April, 2005 the Town adopted a resolution creating the “North Bellmore Planned Residence District” for the property. The new zone established the number and type of permitted housing units. The zone also required specific recreational facilities and provided details on the size of the required facilities down to the minimum number of tennis and shuffleboard courts. It also required that ownership of the facilities be transferred to a homeowner’s association.

The ownership of the property was transferred to BLF in November, 2005 and this action was commenced by BLF seeking a declaration that the enactment was ultra vires, void and unconstitutional. The Supreme Court granted summary judgment to BLF.

In affirming the lower court, the appellate division noted that Town’s may only enact zoning ordinances based upon the authority granted by the State legislature. Pursuant to section 263 of Town Law such enactments must be in accordance with a comprehensive plan. In holding the enactment was ultra vires, the court found that in implementing the reuse plan through the zoning ordinance the Town had intended to control the use of the property in the same manner it would have if it acquired the property but such an action was “not a consideration or purpose embodied in the enabling act.” Further, the court found that while the town can “regulate and restrict lot sizes and permitted uses, there is nothing in these sections which empower the Town to create a zoning ordinance that specifies the exact number and type of dwelling allowed.”

The court also found that the zoning was “unnecessarily and excessively restrictive” in mandating the specific size and types of recreational facilities. Requiring the transfer of ownership of the recreational facilities to the homeowners and requiring that the senior facilities be owned as cooperatives was also declared ultra vires because a “fundamental rule of zoning deals basically with land use and not with the person who owns or occupies it.”

In holding that the zoning was inconsistent with the surrounding area, the court ruled that BLF was not, as the Town claimed, barred from bringing the action because it knew of the zoning before it purchased the property. The court stated that knowledge of zoning prior to purchase “does not bar purchaser from testing the validity of the zoning ordinance.”

A local zoning board’s interpretation of the application of a zoning ordinance provision to a particular property shall be upheld unless that interpretation is “unreasonable or irrational.” In Kennedy v. Zoning Board of Appeals of the Village of Patchogue, the appellate division reiterated this rule while upholding the zoning board’s application of a specific provision of the zoning code to the property in question.

The local code requires that when a variance is granted “improvement, construction or alteration” must be “substantially commenced” within one year of obtaining the variance. In this case a variance had been granted and a neighbor challenged the continuation of the variance because more than a year had passed, a building permit had been granted but only site clearing had begun. The zoning board interpreted the term “substantially commenced” as being met by merely obtaining a building permit.

In upholding the interpretation by the zoning board, the Court noted that judicial review of such decisions is limited to determining whether the decision was “illegal, arbitrary and capricious or an abuse of discretion.” The Court found the interpretation to be reasonable and rational and therefore should be affirmed.

The decision is consistent with precedent, although the application in this case is interesting. Since many ordinances, although apparently not this one, specifically distinguish between issuing a building permit and commencing construction, it seems strained to equate “substantially” commencing construction with issuing a building permit.

A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval.

Planning Boards are authorized to make a determination, under appropriate circumstances, that developers should dedicate parkland for recreational purposes or that the developer should pay a fee in lieu of dedicating parkland. The court found that the practice of the particular planning board to make such determination at the time of final approval, rather than preliminary approval, is not arbitrary and capricious. The decision was also influenced by the fact that the applicant was told prior to preliminary approval that a fee would be fixed and that the same procedure was followed for a nearby development by the same applicant.

Reiterating that “vested rights cannot be acquired in reliance upon an invalid permit” the Appellate Division of the First Department upheld a determination of the New York City Board of Standards and Appeals (“BSA”) in the case In re GRA, LLC v. Srinivasan.

The petitioner owned property in the R6 district which initially permitted buildings of up to 12 stories. The neighborhood consists of mostly one and two family homes. As a result of petitioners proposed project the neighbors lobbied for a rezoning to prohibit such construction. As the court noted “a race ensued” to see whether petitioner could complete enough of the building to obtain vested rights under the existing zoning before the rezoning took effect. Initially it appeared the petitioner had won the race as it was able to complete enough of the foundation to obtain a vested right to complete the building under the old zoning.

However apparently in an effort to save time and win the race petitioner used a “Sanborn Map” stamped by his architect as accurate, as opposed to a survey as required by regulations. It turned out the map was inaccurate and as a result the foundation was placed closer to the property line than is permitted under the regulations. When the petitioner produced an actual survey this error was confirmed. The department of buildings therefore rejected the claim by petitioner of vested rights to complete the building under the old zoning based upon percentage of completion of the structure before the new zoning went into effect.

Thereafter the BSA denied the petitioner’s appeal. In upholding the BSA the court found that the department of buildings and BSA had acted properly and were not being arbitrary. It was noted they were even willing to accept the Sanborn Map, which did not comply with the regulation requiring a survey, if it could be demonstrated that the information in the Sanborn Map was in fact accurate. It was only after the Sanborn Map was demonstrated, by an actual survey, to be in accurate that the department of buildings refused to acknowledge any vested rights.

The BSA noted that it was not the filing of the Sanborn Map, instead of a survey, that was critical to the decision but “the fact that the architect filed for an erroneous street wall setback” albeit based upon the Sanborn Map. Thus, it was ultimately the setback error, not the use of the Sanborn Map, which invalidated the permit and precluded a claim of vested rights. In responding to a vigorous dissent the court stated equitable principles require noting “that Owner created the very condition leading to revocation of the permit by attesting to a Sanborn Map as accurate without verifying whether that assertion was true.”

In a recent decision by the Appellate Division Second Department that Court again reminded litigants that variances run with the land and zoning boards can only place conditions on variances that relate to the property involved and the purpose of zoning. In Fowlkes v Zoning Board of Appeals of the Town of North Hempstead the Court went through the usual balancing test and found that the zoning board had, despite certain conclusory findings, “appropriately considered the other statutory factors and concluded that the detriment to the neighborhood outweighed the benefit to the petitioner.”

However, the petitioner apparently also argued that a balance could be struck in her favor if the variances sought were limited to her term of ownership. In rejecting that argument the Court pointed out: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….”

In upholding the decision of a zoning board denying an area variance, the Appellate Division in Fowlkes v Board of Zoning Appeals of the Town of North Hempstead noted that the variance could not have been limited in time to the term of ownership of the present applicant. Instead the Court noted: “the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it.”

This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage. The property owners applied to the zoning board for the necessary variances, which was opposed by neighbors. Based largely on a statement by the Village attorney that similar applications had been granted in the past, the zoning board granted the application.

The neighbors brought an Article 78 proceeding challenging the variances and for the first time claimed that the lot in question did not have the required lot area. In modifying the decision of the Supreme Court, the Appellate Division held this issue should not have been considered as it was neither a question of law nor “apparent from the face of the record.” The Court noted that in an Article 78 proceeding the court’s review is “limited to the arguments and record adduced before the agency” and that a litigant is require to exhaust all possible relief through administrative review before resorting to the courts.

However the Court still remitted the case to the zoning board noting that it was not clear from the record that the zoning board had considered the five factor balancing test required by Village Law section 7-712 (b) in granting the variances. Further, on the contention that the zoning board was compelled to follow its precedent in granting similar variances, the Court found: “other than the conclusory statement from the Village Attorney, it was never established that applications for area variances involving similar factual circumstances had been granted in the past….”

The case acts as a reminder of two important and related points: (1) the zoning board has to make a clear record of the reasons for its decision and (2) those appearing before a zoning board have to make a clear record of the relevant issues. Absent a well developed record the court will either reject the arguments outright or remit the matter for further proceedings.

A zoning amendment which permitted hot mix asphalt facilities as a special use in all industrial districts in the Town of Babylon was held not to be spot zoning by the Appellate Division this week. In the case, Matter of Little Joseph Realty, Inc. v Town Board of the Town of Babylon, the court found the amendment was not enacted to benefit a single owner for a specific purpose only.

The Court noted that spot zoning is “the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners.” In affirming the decision of the Supreme Court, the Appellate Division found that the lower court had correctly determined that “the zoning amendments did not allow for a use that was different from that allowed in the surrounding area and was in conformity with the comprehensive plan calculated to serve the general welfare of the community.”

Due to a busy litigation schedule, we fell short in reporting a number of SEQRA and zoning cases that came down during March of 2008. So we thought we would provide a brief summary of some of the cases decided by New York appellate courts during March of 2008, in case you missed them also.

Rossi v. Town Bd. of Ballston, 2008 NY Slip Op 02740 (3d Dep’t Mar. 27, 2008). SEQRA-the burden is on the party challenging a SEQRA determination to provide evidence to refute expert testimony.

Muir v. Town of Newburgh Planning Board, 2008 NY Slip Op 02596 (2d Dep’t Mar. 18, 2008). SEQRA-a full review of environmental impacts of a prior proposal that did not proceed was sufficient for a SEQRA “hard look” at a new scaled down proposal for the same site.

Allstate Properties, LLC v. Board of Zoning Appeals of Vill. of Hempstead, 2008 WL 669808; 2008 N.Y. Slip Op. 02412 (Mar. 11, 2008). Area Variances-the five part balancing test before granting an area variance.

Joann London v. Zoning Board of Appeals of Town of Huntington, 2008 WL 740523; 2008 NY Slip Op 02593 (2d Dep’t Mar. 18, 2008). Variance precedent- zoning board properly distinguished prior variance requests in denying a request for a lot area variance.

Red Hook /Gowanis Chamber of Commerce v. NYC Bd. of Standards and Appeals, 2008 WL 740514; 2008 NY Slip Op 02600 (March 18, 2008). Use Variance- what constitutes “dollars and cents” proof.

The Appellate Division, Second Department rejected as unreasonable a condition on an area variance that a parking lot be chained at night to prevent overnight parking. In Matter of Voetsch v. Craven the petitioner sought area variances for a parking lot adjacent to a professional office.

The Zoning Board denied a variance for a 4 foot stockade fence but granted the other area variances for the parking lot, contingent upon petitioner putting a chain at the entrance at night to prevent overnight parking on the lot when the offices were not open. The Court upheld the denial of the stockade fence but reversed that portion of the decision which required the chain across the lot at night to prevent parking.

The Court noted that a zoning board may impose reasonable conditions “directly related to and incidental to the proposed use” but that unreasonable conditions must be annulled. The court found that a condition preventing overnight parking was reasonable to minimize adverse impacts on the neighborhood. However, it held “there was no such rational basis” for also having to chain the parking lot. The decision is silent as to why the court found this condition unreasonable. This writer suspects that other parking lots in the town are not required to be chained to prevent overnight parking and that this was a unique requirement for this specific property.

In upholding the rejection of a draft environmental impact statement submitted pursuant to SEQRA, the appellate division reiterated the long standing rule that when a zoning law is amended, after submission of an application and before a decision, the courts must apply the new law and there is no vested right in development under the old law. In Matter of Jul-Bet Enterprises, LLC v. Town Board of Town of Riverhead, the Appellate Division Second Department also noted that the failure to act, as required, within 45 days of submission of the DEIS did not constitute an automatic acceptance of the DEIS.

Last week the Appellate Division Second Department reversed and remitted for retrial a 42 USC 1983 regulatory takings claim in the case Noghrey v. Town of Brookhaven. Plaintiff had purchased 2 parcels in 1985 that were zoned for shopping plazas with the intention of building shopping plazas. After adopting a moratorium to study the zoning of these parcels and others, the Town rezoned plaintiff’s property to residential use. Plaintiff then brought a regulatory takings claim. A trial was held and the jury found a partial taking based upon the Supreme Court’s ruling in Penn. Cent. Transportation v. City of New York.

The Appellate Division reversed and remanded the case for a new trial finding that the jury charge on the takings issue was inadequate. The Court stated that for there to be even a partial taking, the diminution in value must be “one step short of complete.” Noting that courts have rejected cases where the diminution in value even “approached or exceeded 90% of the pre-regulation value” the Court found the trial court failed to explain to the jury the true standard to be applied.

In remitting the case the Court ordered a new trial and directed that the trial court instruct the jury that “mere diminution in value” is not adequate to prove a taking. Rather the jury should be instructed that the test is whether the regulation has left only a “bare residue” of economic value.

Finding that a zoning board had “improperly succumbed to community pressure,” the Appellate Division, Second Department affirmed the lower court’s reversal of the denial of an area variance. In the case of Schumacher v. Town of East Hampton Zoning Board of Appeals, the Court noted the limited nature of judicial review of zoning board decisions but found that the zoning board’s actions were arbitrary.

In reversing the zoning board, the Court found that the proposed reconstruction of the applicant’s home would actually be an increase of the existing setback from the wetlands at issue and that all of the lots surrounding the property were “nonconforming in terms of the applicable requirements for setbacks from wetlands.” The court concluded that the zoning board’s determination that the house should be decreased in size was “irrational.”

The Appellate Division Fourth Department reversed the granting of a site plan approval where it found that three planning board members had “impermissibly prejudged” an application. In Schweichler v. Village of Caledonia the court dismissed claims of improper spot zoning and violations of SEQRA but remitted the site plan application for further review by the planning board stating “the appearance of bias and actual bias in this case require annulment of the Planning Board’s site plan approval.”

The court noted that three members of the planning board had signed a petition in favor of rezoning the property. Further, the chair had “manifested actual bias” when she wrote to the Mayor supporting the rezoning. Her letter went so far as to state that she would like to see the new housing made available to her so she could sell her home. To further seal the fate of the application, the court found that there were no measurements provided to demonstrate compliance with the Village Code.

How to hold further hearings on an application where the court found three of the members were biased? The court noted that Village Law section 7-718 (16)(b) permits designation by the chair of alternate members and directed that an acting chair perform the duties of the chair pursuant to Village Law section 7-718 (10).

The New York Court of Appeals held today in Haberman v. Zoning Board of Appeals of the City of Long Beach that the attorney representing the zoning board may extend the time to commence construction under the terms of a variance without action by the zoning board. The Court held, absent proof that the attorney had acted in violation of instructions from the zoning board there is no statutory prohibition against the attorney extending the time to begin building.

While action by a zoning board is required to grant a variance, the Court found there was no statutory requirement for a new hearing to extend the time to commence construction permitted by the variance. Therefore, where the variance required that construction commence within a specified time period, the attorney representing the board could grant an extension of time.

The failure to analyze the environmental impacts of a sewerage diversion plan formed the basis for the Appellate Division Second Department voiding a zoning amendment in Matter of ACI Shore Rd., LLC v. Incorporated Village of Great Neck. The Village of Great Neck had proposed a zoning amendment to implement a residential Waterfront Development District in an area which had previously been an industrial zone. At the same time the Village was considering decommissioning two sewerage treatment plants in the area and diverting the sewerage to a plant 16 miles away.

The Court found that the DGEIS for the new zone included a conceptual site plan replacing the sewerage treatment plants with a mixed use development and waterfront park. Yet, except for noting generally that it was anticipated the diversion of sewerage would have beneficial impacts, the Court noted “despite the apparent interrelatedness of the redevelopment plan and sewerage diversion plan, neither the DGEIS nor the FGEIS contained any analysis of potential environmental impacts of the sewerage diversion plan.”

Therefore the Court found that the environmental review had been improperly segmented as the potential impacts of the sewerage diversion plan should have been considered and noted the “record belies” the claim by the Village that “the sewerage diversion plan was speculative, hypothetical, or not part of a larger unified plan.” Finally, the Court held that the Village failed to take a “hard look” at other potential impacts. Rather than analyzing impacts of proposed dredging and soil remediation, which were part of the overall project, the DGEIS, FGEIS and SEQRA findings statement contained no analysis of these issues.

In a comprehensive review of the capacity and standing of one municipality to sue another over local zoning, the Appellate Division, Second Department, in Matter of Village of Chestnut Ridge v. Town of Ramapo, held that villages have the capacity to sue a town over a local law enacting a zoning amendment. Yet the Court also found their standing is limited to SEQRA and General Municipal Law compliance rather than the local law’s consistency with a comprehensive plan.

The Town had adopted a zoning amendment by local law which permitted adult student housing. The law applied to four parcels of land near or adjacent to the boundary of four Villages located in the Town. The four villages and two individuals commenced a combined Article 78/declaratory judgment action challenging the local law, and subsequent actions which incorporated the local law. The lower court dismissed the action on a cross motion by the Town finding lack of capacity to sue and/or lack of standing on each of the causes of action. The Appellate Division modified.

First, the Court noted that Village Law specifically authorizes Villages to sue and be sued. The Town had argued that Town Law Section 264 provides that a village may not challenge a Town’s zoning in court. The Court distinguished a zoning amendment adopted pursuant to Town Law from a case such as this with a local law enacting a zoning regulation under Municipal Home Rule Law. The court found that Municipal Home Rule Law did not similarly restrict a challenge by a village.

More importantly the Court noted that SEQRA had been adopted and implemented after both the provisions of Town Law and Municipal Home Rule Law. The Court held that an abutting municipality as an interested agency (rather than an involved agency which automatically has standing) had the same right to challenge a SEQRA determination as an individual, although the test of standing is somewhat different.

In analyzing the standing of the Villages the Court found that while mere proximity was not enough by itself to create standing, the proposed development on the border of the Villages was substantial and could have a significant detrimental impact. In this case there was a claim that the Villages share much of their infrastructure with the Town. Noting that SEQRA specifically seeks to protect community character the Court held the “power to define community character is a unique prerogative of a municipality acting in its governmental capacity”. Therefore the Court held the Villages had standing under SEQRA to challenge the Town’s actions. In addition the Court found standing to enforce General Municipal Law provisions relating to procedural requirements for adoption of local laws. But the Court found the Villages had no interest in enforcing the procedural requirements related to the adoption of the zoning under Municipal Home Rule Law or with respect to compliance with the Town’s comprehensive plan finding “they are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement. The matter was remitted to the lower court for a determination on the merits of the causes of action that survived.

The Appellate Division found that a site plan approval obtained in the early 1970’s did not create a vested right in the zoning that was subsequently amended, even though 204 of the 330 approved units were constructed and funds were expended on infrastructure that would have served the second phase of development. In the case of RC Enterprises v. Town of Patterson, the Appellate Division, Second Department found the petitioner, who had purchased the property in 1979 from the original developer of the first phase, had abandoned the plan to develop the second phase “as demonstrated by its failure to act over a period of decades.”

In concluding there were no vested rights, the Court restated the rule that in seeking to claim vested rights in a permit after zoning has changed there must be substantial expenditures and substantial construction under the original zoning. Therefore a landowner must demonstrate its actions were: “so substantial that the municipal action withdrawing the permit results in serious loss.” The Court found that although there was a contention that certain improvements for phase 1 of the development were built with extra capacity to serve phase 2, the improvements had been used for nearly 30 years to benefit phase 1 and in the case of a sewerage treatment plant there were additional improvements mandated after construction in order to just serve phase 1.

The rule in New York has long been that if enough work can be completed that may only be used under the proposed permit the rights in the existing zoning have vested. There is now a clear message that the project also has to be completed as vesting does not last forever.

The Second Circuit Court of Appeals overturned a decision by the district court that found a property owner was not bound by a restriction contained in an old subdivision and that the Town had violated the property owners’ rights by refusing to issue a certificate of occupancy for a house on the property (O’Mara v Town of Wappinger). At the heart of the case is whether, under New York law, a notation on a subdivision map that was never recorded in the chain of title to the property binds subsequent purchasers of that property.

The O’Mara’s, as a result of a tax foreclosure, purchased vacant land for which they received a building permit for a house and temporary certificate of occupancy before the Town declared that the land was supposed to be retained as vacant open space and issued a stop work order. The lot in question was part of a 1963 subdivision which contained a notation that the lot was “open space”. Yet there was no other record in the county clerk’s office that would alert a purchaser of any restriction and the map was not recorded in land records in the manner of a deed so that it would appear in a search of the title.

The Circuit Court held that it could find no case law on the issue of whether such an open space restriction, noted solely on a subdivision map, is binding on subsequent purchasers. It therefore certified the question to the New York Court of Appeals. Having concluded there was no clear answer to that question, the Court also reversed the finding of the district court that the refusal by the Town to issue a certificate of occupancy was a violation of 42 U.S.C. section 1983. Instead the Court held that, as the meaning of the law was uncertain, the O’Mara’s had no “clear entitlement”. The Court held that even were the New York Court of Appeals to subsequently determine the 1963 open space restriction is not binding “the uncertainty that leads us to certify this issue means the O’Maras did not have a ‘clear entitlement’ to a certificate of occupancy and therefore no cognizable property interest that would support a violation of their right to substantive due process”.

The Appellate Division Second Department reversed the denial of an area variance where the Zoning Board previously granted a similar variance and gave no reason for a contrary result. In Matter of Aliperti v Trotta, the Zoning Board of Appeals of the Town of Brookhaven denied an area variance for the size of a home after it had previously granted the same variance for the adjoining parcel several years earlier.

The Court found that the Board “articulated no rational basis for reaching a different result on essentially the same facts”. It therefore reversed the determination of the Zoning Board denying the area variance.

A Court held that a challenge to the imposition of fees for the services of engineers and attorneys retained by a town to review and assess the petitioner’s application for approval of a subdivision must be brought within four months of the date the Town unambiguously notified the petitioner that payment was required and the application would not proceed until the petitioner paid the fees.

In an action to recover some of the fees paid, the Appellate Division Third Department, in Properties of New York, Inc. v. Planning Board of the Town of Stuyvesant, noted the Court of Appeals has established a two-part test for when an administrative action is final and binding: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated either by further administrative action or by steps available to the complaining party.”

The petitioner had argued that the charging of the fees was part of the subdivision approval process and would not be complete until the final plat was endorsed. The Court held the endorsement of the plat did not alter the petitioner’s obligation to pay and, therefore, the court found the petitioner suffered the concrete injury when the fees were imposed, rather than when the final approval of the plat was granted. There was no alternative or opportunity for amelioration because there was a definite obligation to pay the fees. Finally, the court held that the petitioner’s demand for an audit and return of fees paid was effectively a request for reconsideration and did not extend the statute of limitations.

Effective January 1, 2007 (Chapter 662 of the laws of 2006) the New York State Legislature has amended the General Municipal Law, Town Law, General City Law and Village Law to require four hours per year of training for each member of a local Planning Board and Zoning Board of Appeals, including the county planning board. Time spent in training in excess of four hours per year may be carried over to subsequent years.

The training may be traditional classroom or other formats, including video. Reappointment to the local board is conditioned upon completion of the required training. The law also provides that each local legislature must approve the training provided to local board members but also permits the local legislative body to modify the training requirements in the “best interests” of the community.

The Appellate Division of the State Supreme Court restored a previously revoked building permit issued to construct a garage, which had been completed prior to revocation of the permit. In Matter of Veece v. Town of Babylon the Court held the combined Article 78 proceeding and declaratory judgment action was not time barred. The Court found the action was not based upon an appeal of the 1994 revocation of the building permit but rather the appeal of the 2003 Zoning Board of Appeals (ZBA) denial of a request for renewal of the permit and area variances. The action was brought within 30 days of the ZBA decision.

The property owner was held to have a protected interest in the permit as it was legally issued, substantial improvements had been performed based upon the permit and the permit was illegally revoked. The Court further found that the zoning as it existed in 1993 should be applied and therefore the only variance needed was for two tenths of a foot which the Court said should have been granted as it is a de minimus variance.

The decision applies long standing rules of vested rights but unfortunately the decision does not disclose the rationale for revoking the permit or why the Court held the permit was improperly revoked if, even under the 1993 zoning, an area variance was required, albeit a de minimus variance.

In an Article 78 proceeding, the Appellate Division Second Department denied an applicant’s petition to compel the Department of Planning of the Town of Brookhaven to place an application for preliminary approval of a subdivision plat on the Planning Board calendar.

In denying the petition, the Court in Matter of Pheasant Meadow Farms, Inc. v. Town of Brookhaven noted that “the time within which a planning board must act upon a preliminary subdivision plat does not commence until the application is deemed complete.” The Court went on to find that the preliminary plat would not be considered complete until either a negative declaration is filed pursuant to the State Environmental Quality Review Act (SEQRA) or until a notice of completion of a draft environmental impact statement (DEIS) is filed pursuant to SEQRA.

Since neither filing had occurred and since there were still unanswered questions regarding storm water drainage, the relevant SEQRA review was continuing. The Court therefore held that the board was not required to place the application on the calendar.

A court may not require a town board to reach a determination on, or even consider an application for a zoning change. In Matter of Richard M. Wolff v. Town/Village of Harrison, the Appellate Division Second Department dismissed petitioner’s request for judgment compelling the town board to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.

The petitioner had applied for a zone change and the town board had refused to make a decision on the request. The petitioner commenced an Article 78 proceeding seeking to compel the town board to make a decision on the requested zone change. The court reasoned that the petitioner’s Article 78 proceeding could only be brought to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (writ of mandamus). Since the amendment of a zoning ordinance is a purely legislative function, a court may not compel a board to consider or decide upon a zoning change by ordering a writ of mandamus. In addition, the court recognized that the statute establishing the procedure for zone changes vests broad legislative power in a town board and does not require the board to vote upon every application for a zoning change.

An appellate court dismissed five consolidated actions challenging New York City’s and the MTA’s use of eminent domain to obtain land for a project on Manhattan’s West Side. In Matter of C/S 12th Ave. LLC v. City of New York, the Appellate Division First Department upheld the City’s approval of property acquisition and easements related to the project, as well as the Determination and Findings generated by the City and the MTA. The court also held that condemnation of an entire parcel is reasonable where the project for which the parcel is sought only requires a portion of the parcel, but partial demolition of the existing structure is not feasible.

Owners of property subject to condemnation for the project, which is known as the No. 7 Subway Extension Hudson Yards Rezoning and Redevelopment Program, challenged the City’s authority to acquire their land. Petitioners’ numerous claims include arguments that the City failed to comply with requirements of the Eminent Domain Procedure Law, engaged in unconstitutional spot zoning, acted ultra vires, and failed to state an adequate public use to be served by the project.

The court held that Eminent Domain Procedure Law 204 does not require “extreme accuracy” in reference to the property to be acquired; rather the procedural requirement is satisfied when the acquiring agency sets forth the approximate location and the reasons for the location selection for the proposed project. In reaching its determination that specificity is not required, the court pointed out that the taking challenged in the EDPL claim is a temporary easement needed to construct and support portions of the project. In addition, the court reasoned, the easements were sought for structural stabilization of the subway tunnel during its construction, and precisely where the stabilization points would be required could not be determined in the planning stage of the project.

Petitioners claimed their property was singled out for a use classification that differs from that of the surrounding areas in violation of the Constitution’s Equal Protection clause. In examining this claim, the court found that there was a rational relationship between the disparate treatment of the parcel and the legitimate government purposes of well-considered development, generating jobs, and increasing the tax base. The court thus upheld disparate treatment of the property and discounted petitioners’ spot zoning claim.

In reviewing petitioners’ argument that the City’s actions were ultra vires, the court held that the actions were within the scope of its authority and further found that the Hudson Yards project constitutes a public use as required by the Constitution, since it serves a public purpose, citing the broad definition of public use upheld in Kelo v. City of New London.

The court also noted because the EDPL provided an adequate mechanism allowing the property owners to seek compensation, the challengers bore the burden of proving beyond a reasonable doubt that the challenged rezoning plan destroyed the economic value of the property. The court held that petitioners did not satisfy the burden and therefore allowed the regulations to stand.

In a CPLR Article 78 proceeding, an appellate court held that where a zoning board provides a rational explanation for denying a variance, the determination will not be viewed as either arbitrary or capricious even if a variance has been granted to another property on similar facts. In Matter of Ronald Berk v .Richard McMahon, the Appellate Division Second Department upheld the Zoning Board of the Village of Southampton’s refusal to grant a wetlands special permit and area variances.

The appellate court considered the zoning board’s reasoning in upholding its action. In determining whether to grant an area variance, the board engaged the required balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community in the event the variance is granted. The board also satisfied a statutory requirement by examining whether (1) an undesirable change in the character of the neighborhood will result, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method, other than an area variance, (3) the required area variance is substantial, (4) the proposed variance will have an adverse impact on environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created.

Supplying a rational explanation for refusing to grant a variance is therefore sufficient to validate the action; the board is not required to grant the variance solely because one has been granted in the jurisdiction in similar circumstances. Judicial review of a board decision is limited in scope to a determination of whether the board’s action violated lawful procedure, was affected by an error of law or was arbitrary and capricious, or an abuse of discretion. In this instance the court upheld the Southampton Board decision based on a finding that it has some objective factual basis in the record and did not entirely rest on subjective considerations.

A zoning board may consider public safety when interpreting a zoning ordinance but must also look at the meaning of the ordinance, noted the Appellate Division, Second Department in Matter of Northern Dutchess Rod and Gun Club v. Town of Rhinebeck. The Rod and Gun Club sought to place trap shooting within 300 feet of a road. The local ordinance provides that if such uses are closer than 500 feet to the “property boundary” a variance is required. The Zoning Enforcement Officer determined that since the property was bisected by a road, the road was not the property boundary. Therefore the proposed use was not within 500 feet of a property boundary and did not require a variance.

On appeal by other property owners to the zoning board of appeals, the board determined that a variance was required and stated: “the issue of public safety takes precedence over the issue of what constitutes a property boundary”. The Appellate Division noted that when an ordinance is ambiguous a zoning board may take into consideration public safety in reaching an interpretation. Yet the Court found that in this instance there was a failure to interpret the term property boundary. The Court remitted the matter to the Zoning Board for further consideration

An appellate court found a zoning board was arbitrary when it refused to hear an area variance application for the same property which had been denied an area variance nearly twenty years earlier. On April 25, 2006 the Appellate Division Second Department, in Matter of Moore v. Town of Islip Board of Appeals, held that while a zoning board may decline to rehear an application in the absence of new facts, it may not refuse to hear an application where there has been a substantial change in circumstances.

In this case there was an application to build a house on a substandard lot and a similar application had been denied previously. Yet, there was a new property owner and more importantly the application sought fewer variances and eliminated a proposed two car garage. The Court remitted the matter to the zoning board for reconsideration in view of the Court’s findings.

Interestingly the Court did not point out that when the original application was made the legal criteria for granting an area variance was much more stringent than the present criteria. Perhaps this factor by itself is a sufficient change in circumstances to warrant a rehearing?

On March 14, 2006 the Appellate Division Second Department rejected the issuance of a Negative Declaration under SEQRA in the case Matter of Avy v. Town of Amenia. In upholding the findings of the State Supreme Court, the Appellate Division found that by approving an amendment to the local zoning ordinance, which would have allowed an automobile repair service on a lot previously zoned residential, the Amenia Town Board, as lead agency, failed to take the required “hard look” at all the potentially significant environmental impacts.

Despite the fact that the Town Board spent about a year and a half “reviewing” this proposal the Court noted that the EAF for the project identified fourteen areas of potentially large impacts including removal of 1.65 acres of vegetation, 3000 cubic yards of material, storm water runoff, odors, noise and endangered flora and fauna. While the Board held public hearings it never required more than a revised Environmental Assessment Form (EAF). The Court found the Board failed to adequately address the potential impacts on a vital aquifer, the removal of substantial vegetation and the potential impacts upon endangered flora and fauna.

In the past courts have held that an EAF can provide sufficient information to allow a negative declaration in some circumstances. Yet, the clear message here is that, when there are multiple areas of potentially large impacts, it is safer to spend a year and a half preparing and reviewing an environmental impact statement than spending a year and a half trying to avoid preparing one. At the end of the day, the requirement of a “hard look” at environmental impacts before issuing a negative declaration is still the rule.

In applying RLUIPA to the decision by the Village of Mamaroneck Zoning Board of Appeals that denied a special permit to the Westchester Day School, the District Court responded to criticism contained in an earlier decision by the Second Circuit Court of Appeals which remanded the District Court’s finding of an RLUIPA violation. Judge Connor found that the Zoning Board not only violated RLUIPA but violated the long standing rule under New York Law favoring both religious and educational uses.

Finding that the denial of the special permit substantially burdened the religious exercise of the Day School, the Court noted that under RLUIPA once there is a substantial burden on religious exercise the burden of proof shifts to the Zoning Board to demonstrate that the denial was in furtherance of a compelling state interest. The Court found that the Zoning Board had based its denial on claims of potential adverse impacts on traffic, parking, local property values and aesthetics. However, the Court determined that the traffic concerns were based upon the lay opinion of members of the Board and particularly the chair who admitted during trial that he had misunderstood several significant portions of the study. The Court repeatedly pointed out that the Board’s own traffic experts had not questioned the traffic study submitted by the school. As to parking it was pointed out by the Court that the School had actually reduced the number of parking spaces based upon recommendations by the Village and could have provided additional spaces if needed. The Court questioned the conclusions regarding property values and aesthetics and determined that even if such impacts existed they did not rise to a compelling state interest, which is required to defeat a RLUIPA claim.

The Second Circuit had remanded the original decision of the District Court on a motion for summary judgment finding that there were questions of fact and also suggesting that the District Court’s application of RLUIPA might be over broad. Therefore the decision was rendered after a seven day bench trial. Apparently in an effort to give the Second Circuit a basis for upholding its decision, even if the Second Circuit questioned the application of RLUIPA, the Court pointed out that New York case law favors both educational and religious uses. It therefore found that under New York Law the Day School qualified for consideration of the recognized beneficial effects as either a religious or an educational use and the Zoning Board had failed to establish a basis for denying the special permit use. It also noted that New York Law favors accommodating such uses and the record demonstrated that even were there concerns with respect to the application the Zoning Board could have approved the application with appropriate mitigating conditions.

The long awaited decision in the case of the Westchester Day School v.The Village of Mamaroneck Zoning Board of Appeals has been issued by Judge Connor of the U.S. District Court of the Southern District of New York. In a 160 page decision Judge Connor found that the Zoning Board had placed a substantial burden on religious exercise by placing restrictions on the enlargement of the school facilities.

The case is reported in the media at http://www.thejournalnews.com/apps/pbcs.dll/article?AID=/20060304/NEWS02/603040340/1026/NEWS10. Counsel to the Village has already expressed an intention to appeal. We will have further comment on the decision, after we have had an opportunity to study the entire decision.

In a December, 2005 decision the Second Circuit Court of Appeals reversed the judgment of Omnipoint Communications against the City of White Plains. Omnipoint had been denied a permit to construct a 150 foot wireless communications tower on a local golf course. The Court noted that if supported by substantial evidence the decision of the local board was entitled to deference from the Court.

In reversing the decision of the district court, the Circuit Court noted that the tower would rise to three times the height of the tallest evergreen tree and “half again as tall as any other tree in the area”. Therefore it was held that the local board could reasonably conclude the tower would be “widely visible”. The Court found the study conducted by Omnipoint was flawed as it was taken only from public areas and not from residential back yards or second story windows of homes.

Perhaps most significantly the Court noted that the local board was free to reject the report of Omnipoint’s “expert” and credit the testimony of local residents and their landscape architect who had “limited qualifications” to address the issue. It noted that in the Second Circuit there was no requirement to use expert studies to support a local decision. Rather the Board could rely on the “aesthetic objections raised by neighbors who know the local terrain and the sightlines of their own homes” in reaching its decision.

Finally on the issue of public necessity for the proposed tower the Court ruled that Omnipoint’s examination of other potential sites was conclusory and lacked documentation as to the availability of other less intrusive structures. It held that since there were other towers in the area, Omnipoint had the burden of demonstrating that other towers in the vicinity were either unavailable to cover the gap in coverage or lacked the capacity for Omnipoint.

The Appellate Division of the New York State Supreme Court decided a trilogy of cases on December 27, 2005 relating to a series of determinations by the City of New Rochelle Zoning Board of Appeals to permit construction of an addition to a local religious institution. The cases, Halperin v. Zoning Bd. of Appeals, Richmond v. Zoning Bd. of Appeals and Halperin v. City of New Rochelle broke little new ground but are significant in that together they cover a number of issues related to variances, the standard of review of determinations by zoning boards, the deference accorded religious uses and standards for review under SEQRA, including cumulative impacts and when a supplemental environmental impact statement is required.

Perhaps the most interesting aspect of the decisions is the holding in Halperin v. City of New Rochelle that a variance for off street parking is an area variance when the proposed uses are otherwise permitted as of right. One argument had been that a variance for off street parking was a use variance requiring the more exacting standards for the granting of use variances. Agreement by the Court with this somewhat novel contention would have made many variance requests, that are otherwise routinely granted, extremely difficult to obtain.

Another potentially significant aspect of the ruling is the Court’s view of cumulative impact review. The Court also held that SEQRA does not mandate a review of cumulative impacts of other nearby developments when those developments are unrelated and not part of a common overall development plan.

The Court of Appeals remanded a case involving New York City’s adult business zoning regulations for further hearings on whether so called 60/40 businesses should be regulated as adult businesses due to adverse secondary impacts on nearby properties and neighborhoods. The action by For the People Theatres of New York, Inc. challenged New York’s 2001 zoning amendments which attempted to control establishments which evaded the regulations on businesses that have a “substantial portion” of the business devoted to adult uses by maintaining so called 60/40 uses with 60 percent allegedly non-adult uses. The Court noted that the information submitted by the Plaintiff’s experts did not resolve the issue but merely shifted the burden to the City to prove secondary adverse impacts. The Court remanded the matter to provide the City with an opportunity to submit evidence of secondary impacts.

On December 5, 2005 the Second Circuit Court of Appeals remanded the case of Brody v. Village of Port Chester back to the District Court on the issue of whether Brody had actual notice of the proceedings and procedures under New York Eminent Domain Procedure Law (“EDPL”) before his property was condemned by the Village. In a case that has been bouncing between the District Court and Second Circuit Court of Appeals since the year 2000, the Second Circuit ruled that the EDPL’s procedure for determining whether a decision to condemn property for public use met constitutional muster. However, the Court determined that the notice provisions that existed prior to 2004 were flawed in that they failed to provide notice of the thirty day time limit for challenging a determination that the purpose of a condemnation was for a public use.

On its face the decision would appear to be limited to the facts of this case, as the Court noted the statute, as subsequently amended in 2004, now meets constitutional due process requirements. Yet, the decision of the Court raises interesting issues for other municipal land use determinations. The Court held “the notice sent to affected property owners must make some conspicuous mention of the commencement of the thirty-day review period to satisfy due process”. Does this mean that other land use determinations that implicate property rights must also contain notice of the commencement of a short statute of limitations in addition to the notice of decision required by statute?

A Long Island jury (Noghrey v. Town of Brookhaven) granted a verdict of 1.6 million dollars against the Town of Brookhaven as a result of the rezoning of two parcels of land. The property, which had been zoned to permit shopping center uses was rezoned and the owner claimed this resulted in a loss of value.

While the presiding judge had ruled that the property owner had not lost all economically viable use of his land, he allowed the jury to reach a verdict on the issue of a regulatory taking based upon a loss of investment backed expectations. The property owner had purchased the two parcels in order to develop the properties for retail uses. The court apparently instructed the jury that it needed to only find by a perponderance of the evidence that there had been a loss of investment backed expectations.

This descision seems to run contrary to a long standing rule in New York that a property owner has no vested right in the potential use of her property. Municipalities have been permited to rezone property as long as the land owner has not established that there has been a substantial expenditure in furtherance of the development of the property for a specific use. In Magee v. Town of Orangetown, which is perhaps the leading case on this issue, the property owner had invested millions in developing the property when its permits were revoked and the property was rezoned. In that case the New York Court of Appeals upheld a judgment against the town for a regulatory taking.

It will be interesting to see how the appellate courts respond to this case.

The Appellate Division of the State Supreme Court ruled this summer that the Legion of Christ, Inc., a religious organization that operates a private college, must comply with local zoning. The court held the Religious Land Use and Institutionialized Persons Act (RLUIPA) was not violated by requiring a religious organization, operating a private college, to follow the same land use application process as a secular organization.

This is similar to the issues being raised in the case presently being heard in the United States District Court for the Southern District of New York involving the Westchester Day School and the Village of Mamaroneck. The non-jury trial revolves around an application that has been pending for approximately four years to allow for the expansion of a day school operated by a religious group. The group claims that the failure to approve the expansion of the school substantially effects religious practice. The Village claims that the school seeks to enlarge in order to deliver secular classes and that these secular activities are not protected by RLUIPA.

Whatever the outcome the matter is likely to find its way to a higher court.