September 26, 2015

Zoning Board Need Not Support Every Finding With Evidence If Determination Has A Rational Basis

The Appellate Division reversed the Supreme Court and reinstated the determination by a Zoning Board of Appeals (ZBA) to deny area variances for an accessory structure in a front yard. In Matter of Kramer v. Zoning Board of Appeals of the Town of Southampton, the Court upheld the denial of area variances sought by the Petitioners, after they had completed construction.

Petitioners had constructed a barbecue, sink, cabinets, counter top and refrigerator in their front yard. When they subsequently applied for a building permit they were told they needed variances to permit what was essentially an accessory kitchen in the front yard. The ZBA denied the application finding: "...granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b[3][b])."

In reversing the lower court and upholding the decision of the ZBA the Court noted:

"In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Town Law § 267-b[3][b]; .... The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational...."

Petitioners also argued that three prior variances issued to other applicants create a binding precedent that mandated the issuance of the variance to Petitioners. The Court disagreed finding: "...petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application...."

-Steven Silverberg

July 31, 2015

U.S. Supreme Court Ruling on Local Sign Laws

At the end of June, lost among the headlines about other rulings, the U.S. Supreme Court held that a local sign law was unconstitutional. In Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) the Court broke new ground in interpreting permissible sign regulations.

In our article, published in the August 2015 edition of the New York Real Estate Law Reporter, we discuss the decision;and some of its implications.

-Steven Silverberg

May 27, 2015

Court Finds Zoning Board Interpretation a Reasonable Exercise of Discretion

In a case primarily dealing with the authority of a Zoning Board of Appeals (ZBA) to interpret a zoning provision, the Court also addressed the issue of late filing of the ZBA decision. In the Matter of Stone Industries, Inc. v. Zoning Board of appeals of the Town of Ramapo, the Appellate Division held that the ZBA properly interpreted the ordinance as prohibiting the production of asphalt from recycled material where the language of the ordinance prohibited "the primary production of asphalt from raw materials."

The Court noted:

"As a general rule, zoning ordinances are in derogation of the common law and must be strictly construed against the municipality....This rule is subject to the limitation that where, as here, it would be difficult or impractical for a legislative body to promulgate an ordinance which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the ordinance may be delegated to an administrative body or official....The interpretation of the zoning board of appeals or the official governs unless such interpretation is unreasonable or irrational...."

While it appears that the argument here was that recycled material is not raw material, apparently the Court believed that the intent was to prohibit all asphalt production. "Based on the record evidence, it was neither unreasonable nor irrational for the Board to conclude that the processing of recycled asphalt was not a permitted use under the subject sections of the zoning law."

Another aspect of the decision dealt with the provision in New York Town Law § 267-a[9] that requires the filing of a ZBA decision in the office of the Town Clerk, within five business days of being rendered. The Court found that the ZBA's failure to comply with this rule was not fatal to the ZBA's determination.

"Town Law § 267-a(9) does not specify a sanction for the failure to comply with the five-day filing requirement (see generally Nyack Hosp. v Village of Nyack Planning Bd., 231 AD2d 617, 618). While the Board offered no explanation for its delay, the petitioner was unable to demonstrate that it was prejudiced by the late filing."

-Steven Silverberg


May 16, 2015

One Legal Nonconforming Use Does Not Permit Another Nonconforming Use

The Appellate Division upheld a zoning board determination that the existence of a legal nonconforming use did not give the property owner the right to maintain a different nonconforming use. In Bradhurst Site Construction Corp. v Zoning Board of Appeals of the Town of Mount Pleasant, the Court found the Zoning Board of Appeals properly upheld the determination of the Code Enforcement Officer who had found that the use of the property for a maintenance garage and truck storage was not a permitted use.

"The Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, i.e., a sand and gravel operation, which use was discontinued in or around 1950, and that the petitioner's subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. The ZBA's determination was not irrational and is supported by evidence in the record.... Furthermore, the petitioner's contention that the respondents/defendants (hereinafter the respondents) are equitably estopped from prohibiting it from operating a maintenance garage and truck storage facility on the subject lot is without merit, as the evidence submitted by the petitioner did not establish that there were "exceptional circumstances" here involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision...."

In addition, the Petitioner had argued that the Town violated the Freedom of Information Law (FOIL) in failing to respond to a FOIL request for additional information concerning the property. The Court ruled the Petitioner failed to produce proof that it had followed the administrative appeal procedure and had made a timely written appeal of the denial of its FOIL request. Therefore, Petitioner had failed to exhaust its administrative remedies and was precluded from appealing to the courts.

-Steven Silverberg

April 30, 2015

Court Reverses Denial of Special Permit

The denial of a special permit was found to be arbitrary when unsupported by empirical evidence. In Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola, the Appellate Division reversed the Village Board and the lower court and remanded the matter for the Board of Trustees to issue a special permit.

The Court noted that during the hearing process neighbors and some board members expressed concerns over traffic and the clientele of the 7-Eleven. However, as part of its application process 7-Eleven submitted expert reports that there would be no adverse impacts upon traffic and offered to set conditions regarding the timing of deliveries and size of trucks used for deliveries.

Noting that there was no contrary expert evidence produced by either the Village or the opponents of the proposal, the Court outlined the criteria that should be applied in considering a special permit application.

""A special exception, commonly known as a special use permit, 'gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right'... By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. 'The significance of this distinction is that the inclusion of the permitted use in the ordinance 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'...Here, the Board's conclusion that the proposed convenience store would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioners' application, was arbitrary and capricious. The claims of Board members and nearby property owners that the granting of the special use permit application would, among other things, exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners..."

-Steven Silverberg

April 24, 2015

Uncertified Zoning Board Record is Not Fatal to Defense of Article 78 Proceeding

The Appellate Division overturned the lower court reversal of a zoning board of appeals (ZBA) decision for failure to certify the record filed in response to an Article 78 proceeding. In Matter of Robert E. Haveli Revocable Trust v.Zoning Board of Appeals of the Village of Monroe, the Appellate Division found that the lower court was in error by reversing the ZBA merely because the record of proceedings filed with the court was not certified.

"Since there was no allegation or indication that a substantial right of the petitioner was prejudiced by the lack of a certification, the Supreme Court should have disregarded the defect, and decided the matter on the merits (see CPLR 2001..."

The Court then went on to decide the merits of the case which involved a question of whether the use proposed by the petitioner was a permitted use or, as determined by the ZBA, a conditional use. The Petitioner proposed to operate a business offering tire sales and service. The schedule of uses listed retail sales and automotive repairs as a permitted use but sale and service of tires as a conditional (special permit) use. The Court noted the ordinance provides that in case of a conflict the more restrictive provisions govern and held:

"'A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance'.... Construing the Zoning Code with its schedules as a whole, it provides that tire sales and related services are conditional uses."

-Steven Silverberg

April 11, 2015

Grant of Use Variance Reversed

The difficulty of meeting the burden of proof for a use variance was demonstrated again this week. In Matter of Nemeth v. Village of Hancock Zoning Board of Appeals, the Appellate Division reversed the lower court and the Zoning Board of Appeals (ZBA), holding that a use variance to expand a nonconforming manufacturing use in a residential district should not have been granted. In previous litigation it was determined that the facility had been illegally expanded in 2001, through an addition that expanded the manufacturing facility. Thereafter, the owner applied for and obtained a use variance. A neighboring property owner brought this Article 78 proceeding but lost in State Supreme Court.

The Appellate Divison found that both the ZBA and lower court erred. The property at issue had been used as a manufacturing facility prior to a zoning amendment in 1983, that rezoned the property to residential use. While the existing facility could continue as a legal nonconforming use, the Court found that the owner had failed to demonstrate by the required "dollars and cents proof" that the property could not provide a "reasonable return" either as a manufacturing facility, without the addition or be converted to a permitted residential use.

The Court found:
"the evidence presented at the hearing established that the addition is used to house older equipment that has been replaced by more advanced, efficient equipment. While the record is unclear as to whether the older machinery stored in the addition is still being put to productive use and contributing to the manufacturing process, no financial evidence was presented as to the profitability, if any, generated from those machines in relation to the business as a whole. Perry Kuehn's bare conclusory statements that an additional '10 to 20 percent' of revenue would be needed to find a similarly sized location to house the older manufacturing equipment, and that 'we [would] go out of business' without the addition, are simply insufficient to constitute the requisite "dollars and cents" proof necessary to demonstrate an inability to realize a reasonable return..."

The Court went on the address the fact that the record was inadequate to determine if the property could be converted to a permitted residential use. The Court further noted that the question of conversion to a residential use related to the entire property, not just the addition.

" no evidence was presented as to the financial implications of converting the entire property to residential use, which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use...The fact that respondents' application for a use variance was limited to the addition is of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner's property rights subject to a regulatory regime..."

-Steven Silverberg

January 30, 2015

Court Upholds Denial of Area Variances

The Appellate Division upheld the denial of area variances to permit the legalization of an addition to an accessory structure. In the Matter of Sacher v. Village of Old Brookville, the Court and the Zoning Board appear to have been influenced by the fact that the applicant had constructed the addition without benefit of a permit.

After stating the general rule that judicial review of the decisions of a zoning board are limited to "whether the action taken by the board was illegal, arbitrary, or an abuse of discretion," the Court then reviewed the balancing test the zoning board must consider.

" A zoning board must also consider "(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance" (Village Law § 7-712-b[3][b])."

Noting that the members of the zoning board may also rely upon there own observations, the Court analyzed the conclusions of the Zoning Board, finding:

"The evidence before the Board and the Board's visual inspection of the property supported its conclusion that granting the proposed variances would be a detriment to nearby properties and produce an undesirable change in the character of the neighborhood. Additionally, the Board rationally concluded that the requested variances were substantial in nature and that the petitioners had a feasible alternative to increasing the size of the accessory building, since there were other structures on the petitioners' property which could provide additional storage space. Likewise, the petitioners' hardship was self-created in that they completed the additions to the accessory building without obtaining a building permit (see Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 77; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 930-931; Matter of Becvar v Scheyer, 250 AD2d 842, 843). Contrary to the petitioners' contention, the Board "was entitled to consider the effect its decision would have as a precedent" (Matter of Gallo v Rosell, 52 AD3d 514, 516)."

-Steven Silverberg

January 5, 2015

Zoning Board Improperly Applied the Abandoned Practical Difficulty Test to Area Variance

The Appellate Division had to once again remind a Zoning Board of Appeals that practical difficulty is no longer the test for an area variance. In Matter of Mimassi v. Town of Whitestown Zoning Board of Appeals, the Appellate Division reversed, in part, the lower court's dismissal of the petition to review the Zoning Board's denial of an area variance.

There were two parts to the Petitioner's claims. The first was that the Zoning Board failed to follow precedent. The Court denied that portion of the claim. "Petitioner failed to establish that respondent's determination on another application was based on essentially the same facts as petitioner's present application (see Matter of 194 Main, Inc. v Board of Zoning Appeals for Town of N. Hempstead, 71 AD3d 1028, 1030; see generally Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93; Knight v Amelkin, 68 NY2d 975, 977)."

However, the Court reversed the lower court on the second prong of the Petition and remitted the matter for further findings, noting that the Zoning Board had failed to apply the appropriate balancing test to the area variance application.

"Here, respondent based its determination upon factors and other criteria relevant to the former "practical difficulty" test, which is no longer followed, rather than on the factors set forth in Town Law § 267-b (3) (b) (see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 402; Matter of Sasso v Osgood, 86 NY2d 374, 384). Inasmuch as respondent failed to engage in the necessary balancing test, we vacate the determination, and we remit the matter to respondent for a de novo determination (see Matter of Nye v Zoning Bd. of Appeals of Town of Grand Is., 81 AD3d 1455, 1456; Matter of Fusco v Russell, 283 AD2d 936, 936). We have considered petitioner's remaining contentions and conclude that they are without merit."

-Steven Silverberg

October 17, 2014

N.Y. Court of Appeals "Clarifies" Whether a Parking Variance is a Use or Area Variance

This week the New York Court of Appeals clarified that a parking variance is an area variance, except when it is not. In Matter of Colin Realty Co. v. Town of North Hempstead, the Court concluded that, in most instances, a parking variance is an area variance. However, at the very end of the decision, the Court inserted a line that appears to open the door for further interpretation and possible confusion.

The case involves a commercial use in an older building that does not have adequate off-street parking under the more modern requirements of the amended zoning ordinance. The local zoning board granted an area variance. A neighboring property owner challenged the decision arguing, in part, that it should be a use variance. The Petitioner relied on language in Matter of Offshore Rest. Corp. v. Linden, 30 NY2d 160 (1972).

In Offshore the Court stated:

"To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem...."

Noting that the statute governing variances was amended in 1994 to more clearly define both use and area variances and the criteria applicable to each, the Court seem poised to make an unequivocal statement that parking variances are area variances when it held:

"Finally, and whether dictum or not, Off Shore's declarations about use variances for off-street parking requirements have effectively been superseded by statute. Off Shore requested a building permit to make alterations in connection with a proposed change from one use permitted in the zoning district (delicatessen and restaurant) to another (cocktail lounge and restaurant). But as of July 1, 1994, General City Law § 81-b (1) has defined a 'use variance' as an authorization for the use of land for a purpose 'otherwise not allowed or . . . prohibited' in the zoning district; and an 'area variance' as an authorization to use land 'in a manner which is not allowed by the dimensional or physical requirements' of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions."

Then the Court added language this writer views as creating the potential for confusion by noting:

"Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295)."

Thus, it appears that if you merely require a parking variance for two additional parking spaces, where off-street parking is a permitted accessory use, the balancing test for an area variance applies. However, does the Court mean to say that if you also require a use variance, the zoning board should apply the dollars and cents proof standard to that portion of the use that also seeks two fewer parking spaces than are permitted? This could result in some interesting decisions.

-Steven Silverberg

August 31, 2014

Court Upholds Denial of Special Permit

The Appellate Division, in a somewhat rare instance, upheld the denial of a special permit to expand an existing day care center. In Matter of Smyles v. Board of Trustees of Incorporated Village of Mineola, the Court found there was sufficient expert evidence that the expansion of the facility would have an adverse impact on traffic, parking and available emergency services.

"A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection (see Matter of Green 2009, Inc. v Weiss, 114 AD3d 788; Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731). However, where evidence supporting the denial exists, deference must be given to the discretion of the authorized board, and a court may not substitute its own judgment for that of the authorized board, even if a contrary determination is supported by the record...
Here, evidence in the record, including testimony by experts in traffic and real estate and by neighboring property owners, supports the findings of the Board of Trustees of the Incorporated Village of Mineola (hereinafter the Board) that the proposed expansion of the subject day care facility into vacant retail space would result in a dangerous traffic situation, an over-intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services. Contrary to the petitioners' contention, the Board was entitled to base its decision upon, among other things, its members' personal knowledge and familiarity with the community (see Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 67 AD3d 1019; Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d 1068). Accordingly, the Board's determination to deny a special use permit on the ground that it would not be in the best interests of the health, safety, and welfare of the community was supported by the record, and was not arbitrary and capricious."

-Steven Silverberg

July 31, 2014

Court Restates Standard of Review for Zoning Board Decisions

The Appellate Division restated the limited nature of judicial review of the decisions of a Zoning Board of Appeals (ZBA). In Matter of Slonim v. Town of E. Hampton Zoning Bd. of Appeals, the Court noted that the ZBA properly upheld the determination of the building inspector finding that a particular retail use was pre-exisiting.

"In a CPLR article 78 proceeding to review a determination of a Zoning Board of Appeals (hereinafter the Zoning Board), which was made after a quasi-administrative proceeding, judicial review is limited to considering only whether the Zoning Board's discretionary determination was arbitrary, capricious, an abuse of discretion, or irrational... Thus, the Zoning Board determination at issue in this proceeding may be set aside only if the Zoning Board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community opposition, and must be sustained if the determination has a rational basis... To the extent the phrase "substantial evidence" arises in cases involving challenges to Zoning Board determinations made after a quasi-administrative proceeding, in this context that standard is limited to examining 'whether the record contains sufficient evidence to support the rationality of the determination' ...."

-Steven Silverberg

June 30, 2014

Town Zoning Law May Ban Hydrofracking in New York

A divided New York Court of Appeals validated local zoning laws of two towns that banned hydrofracking in that Town. In Matter of Wallach v. Town of Dryden, the Court held that state law did not preempt the right of local municipalities to ban certain mining activities.

The Court noted that as "... a fundamental precept, the Legislature has recognized that the local regulation of land use is '[a]mong the most significant powers and duties granted . . . to a town government' (Town Law § 272-a [1] [b])." Nonetheless, municipalities may not adopt laws that are inconsistent with State laws of general applicability. Therefore, the Court stated "... we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a 'clear expression of legislative intent to preempt local control over land use'...".

The parties challenging the local laws relied upon specific provisions in State law that provide "'... provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law' (ECL 23-0303 [2] [emphasis added])."

The Court stated that the relevant inquiry is that the "... scope of section 23-0303 (2) must be construed in light of our decision in Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]), which articulated the analytical framework to determine whether a supersession clause expressly preempts a local zoning law. There, we held that this question may be answered by considering three factors: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. The goal of this three-part inquiry, as with any statutory interpretation analysis, is to discern the Legislature's intent."

While the Court went into a much more detailed analysis than can be repeated here, applying the tests established by the Court in the Frew Run case, the Court held:

"...the distinction we drew in Frew Run applies with equal force here, such that ECL 23-0303 (2) is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries....

it is readily apparent that the OGSML is concerned with the Department's regulation and authority regarding the safety, technical and operational aspects of oil and gas activities across the State. The supersession clause in ECL 23-0303 (2) fits comfortably within this legislative framework since it invalidates local laws that would intrude on the Department's regulatory oversight of the industry's operations, thereby ensuring uniform exploratory and extraction processes related to oil and gas production. Similar to the scope of the MLRL in Frew Run, we perceive nothing in the various provisions of the OGSML indicating that the supersession clause was meant to be broader than required to preempt conflicting local laws directed at the technical operations of the industry....

In 1978, the State Legislature amended the OGSML to modify its policy by replacing the phrase 'to foster, encourage and promote the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste" with "to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste' (ECL 23-0301, as amended by L 1978, ch 396, § 1 [emphasis added]). The legislation also transferred the task of encouraging and promoting the prudent development of New York's energy resources to the Energy Law (see Energy Law § 3-101, as amended by L 1978, ch 396, § 2) for the purpose of establishing 'the Energy Office as the State agency primarily responsible for promoting the development of energy resources" and removing 'such promotional responsibilities from the Department of Environmental Conservation which would, however, retain regulatory responsibilities over such resources" (Governor's Program Bill Mem, Bill Jacket, L 1978, ch 396)....

In sum, application of the three Frew Run factors — the plain language, statutory scheme and legislative history — to these appeals leads us to conclude that the Towns appropriately acted within their home rule authority in adopting the challenged zoning laws. We can find no legislative intent, much less a requisite 'clear expression,' requiring the preemption of local land use regulations."

The court noted that the policy determination of whether hydrofracking is beneficial or not was not before the Court and only the narrow issue of whether local zoning was preempted by the State Environmental Conservation Law.

-Steven M. Silverberg

May 25, 2014

Takings Claim Ripe Despite No Final Determination

The Second Circuit Court of Appeals held there was a claim that was ripe for adjudication, in view of the ten years of delay in processing the Plaintiffs application, even though there was no final determination on Plaintiff's subdivision application. In Sherman v. Town of Chester, the Court's summary of the background, drawing an analogy to the novel "Catch 22," is worth reading verbatim:

"Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But things were not so simple on Catch‐22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of missions to 30, forcing Hungry Joe to unpack his bags and rewrite his happy letters. At the time, Yossarian had flown 23 missions.The Colonel later increased the number to 35. When Yossarian was just three away from that mark, the number was increased to 40, and then to 45. When Yossarian had 44 missions under his belt, the Colonel made the number 50. And later 55. When Yossarian reached 51 missions, he knew it was no cause to celebrate: 'He’ll raise them,' Yossarian understood. He appealed to squadron commander Major Major to be exempted from flying his four remaining missions. 'Every time I get close he raises them,' Yossarian complained. Major Major responded, 'Perhaps he won’t this time.' But of course Yossarian was right. Colonel Cathcart raised the number to 60, then 65, then 70, then 80, with no end in sight.

Plaintiff Steven M. Sherman must have felt a lot like Yossarian in his decade of dealing with defendant Town of Chester. In 2000, Sherman applied for subdivision approval while he was in the process of buying a nearly 400 acre piece of land for $2.7 million. That application marked the beginning of his journey through the Town’s ever‐changing labyrinth of red tape. In 2003, the Town enacted a new zoning ordinance, requiring Sherman to redraft his proposed development plan. When he created a revised proposal in 2004, the Town again enacted new zoning regulations. When he created another revised plan in 2005, the Town changed its zoning laws once more. And again in 2006. And again in 2007.

On top of the shifting sands of zoning regulations, the Town erected even more hurdles. Among other tactics, the Town announced a moratorium on development, replaced its officials, and required Sherman to resubmit studies that he had already completed. When the Town insisted that Sherman pay $25,000 in consultants’ fees before he could obtain a hearing, he might have thought,'The Colonel will just raise it again.' And he would have been right. After paying the $25,000, he was told he owed an additional $40,000, and that he would also have to respond to a lengthy questionnaire.

By the time this lawsuit was filed, over ten years had passed. In that time, Sherman became financially exhausted – forced to spend $5.5 million on top of the original $2.7 million purchase. The District Court (Edgardo Ramos, Judge) ruled that Sherman’s claim under the Takings Clause was not ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because Sherman had not received a final decision on his property and seeking a final decision would not be futile. The court reasoned that while Sherman may have to jump through more hoops in the future, he had not established that his application would definitely be denied in the end. To Sherman, this must have sounded a lot like: 'Perhaps he won’t raise the number this time.'

We conclude that under these circumstances, Sherman was not required to obtain a final decision from the Town. Sherman’s takings claim was ripe and adequately alleged. Accordingly, we REVERSE that part of the District Court’s decision that dismissed the takings claim, and we REMAND for further proceedings consistent with this opinion."

The Court concluded that the Williamson decision establishes a two prong test for ripeness of a takings claim that includes a final decision by the state authorities and pursuit of relief in the state courts. First addressing finality, the Court also noted the requirement of finality is"prudential" rather than jurisdictional. Citing several other decisions, the Court stated that a municipality cannot merely throw up one hurdle after another in order to avoid a final determination. In finding that the District Court had used too narrow a test by determining that the Plaintiff had failed to establish that the Town had placed a proverbial brick wall in his path, the Court held:

"This analysis does not account for the nature of the Town’s tactics. The Town will likely never put up a brick wall in between Sherman and the finish line. Rather, the finish line will always be moved just one step away until Sherman collapses. In essence, the Town engaged in a war of attrition with Sherman. Over ten years, Sherman was forced to spend over $5.5 million on top of the original $2.7 million purchase. As a result, he became financially exhausted to the point of facing foreclosure and possible personal bankruptcy. Moreover, at no point could Sherman force the Town to simply give a final 'yay or nay' to his proposal."

The Court therefore concluded:

"Unfortunately, it is no simple task to distinguish procedures that are merely frustrating from those that are unfair or would be futile to pursue. But when the government’s actions are so unreasonable, duplicative, or unjust as to make the conduct farcical, the high standard is met. And it was met in this case. Seeking a final decision would be futile because the Town used – and will in all likelihood continue to use – repetitive and unfair procedures, thereby avoiding a final decision. Sherman is therefore not required to satisfy the first prong of Williamson County."

The Court found that as a result of the procedural history, the second prong of the Williamson test had also been met.

"Under the second prong of Williamson County. a plaintiff's claim is ripe only if the 'plaintiff has sought just compensation by means of an available state procedure.' Dougherty, 282 F.3d at 88.

While Williamson County prevents a plaintiff from bringing his takings claim in federal court before first seeking compensation from the state, it 'does not preclude state courts from hearing simultaneously a plaintiff’s request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the [Takings Clause of the] Fifth Amendment of the Federal Constitution.' San Remo Hotel, L.P. v. City and Cnty. of S.F., 545 U.S. 323, 347 (2005). This is because '[r]eading Williamson County to preclude plaintiffs from raising such claims in the alternative would erroneously interpret [the Supreme Court’s] cases as requiring property owners to ‘resort to piecemeal litigation or otherwise unfair procedures.’ Id. (quoting MacDonald, 477 U.S. at 350 n.7).

Sherman first brought suit against the Town in federal court in 2008. The Town argued that the takings claim was unripe in part because Sherman had not alleged that he sought and was denied just compensation by an available state procedure. Sherman voluntarily dismissed the case, and followed San Remo by filing his federal takings claim and his state law claim for compensation in state court. The Town then removed the case from state court to federal court, where it argued once again that the takings claim must be dismissed because it can be heard only in state court under Williamson County.

In Sansotta v. Town of Nags Head, 724 F.3d 533 (4th Cir. 2013), the Fourth Circuit concluded that when the defendant removes a takings claim to federal court, the state procedures prong of Williamson County does not apply. We agree with that court’s reasoning that 'refusing to apply the state‐litigation requirement in this instance ensures that a state or its political subdivision cannot manipulate litigation to deny a plaintiff a forum for his claim.' Id. at 545.

The removal maneuver prevents Sherman from litigating his federal takings claim until he finishes litigating his state law claim for compensation. In other words, it prevents Sherman from pursuing both claims simultaneously, no matter what forum they are brought in. This runs against San Remo, which allows plaintiffs to do just that. In other words, the removal tactic can 'deny[ ] a plaintiff any forum for having his claim heard,' or at least force the plaintiff into the kind of piecemeal litigation that, under San Remo, cannot be required. See id. at 547."

The Court went on to discuss several other issues, including the Town's claim that the takings claim was barred by the three year statute of limitations. While declining to reach the ultimate issue raised by the Town, the Court held that where the action arises out of the cumulative actions of a government agency, so long as one act occurred within three years of commencing the action the statute of limitation had not run.

-Steven Silverberg

April 5, 2014

Court Reverses Zoning Board Definition of Auditoriun

The Appellate Division overturned a determination by the Albany Board of Zoning Appeals (BZA) that found an event at which the audience stands is not a permitted use of an auditorium. In Matter of Albany Basketball & Sports Corp. v. City of Albany, the Court held, since the issue was one of "pure legal interpretation", the determination of the BZA was not entitled to deference.

"The BZA correctly noted that certain dictionaries define an 'auditorium' as 'the area of a concert hall, theatre, school, etc, in which the audience sits' (Harper Collins Online Dictionary, auditorium [accessed Feb. 28, 2014] [British English Dictionary]) or as 'the part of a public building where an audience sits' (Merriam-Webster Online Dictionary, [accessed Feb. 28, 2014]). Based on these definitions, the BZA determined that petitioner's use of the Armory for a 'Rave' party, nightclub, dance club, or other similar event' was inconsistent with the permitted use of an auditorium, because such events did not provide for 'actual fixed seating.'... However, the BZA ignored alternative definitions of an auditorium — set forth in the same dictionaries it used — as 'a building for public gatherings or meetings' ( [accessed Feb. 28, 2014]) or 'a large room or building where people gather to watch a performance, hear a speech, etc.' ( [accessed Feb. 28, 2014]), which make no reference to an audience sitting .... Even if petitioner's proposed uses of the Armory are inconsistent with the definitions relied on by the BZA, they are entirely consistent with the commonly used alternative definitions. Resolving, as we must, any ambiguity in favor of petitioner, we conclude that the BZA's determination that the proposed use was impermissible — based solely upon its limited interpretation of the definition of auditorium as requiring fixed seating, to the exclusion of other commonly accepted definitions — was irrational and unreasonable ... and must be annulled.."

-Steven Silverberg

March 31, 2014

State "Cemetery Law" Does not Preempt Local Zoning

In a case where the claim is the Not For Profit Corporation Law Article 15 (cemetery law) preempts local zoning, the Appellate Division held a local prohibition on crematories was not invalid. In Matter of Oakwood Cemetery v. Village/Town of Mt Kisco, the local cemetery claimed that a new zoning provision that prohibited a crematory could not be enforced as it was inconsistent with provisions of the Not for Profit Corporation Law that include crematories within the definition of cemetery.

In dismissing the claim, the Court found:

"although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent...The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village's more restrictive definition of "cemetery" under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code's definition of "cemetery," which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of "cemetery" are addressed to differing purposes, they are not in direct conflict..."

-Steven Silverberg

March 30, 2014

SEQRA Challenge Not Ripe Absent Approvals

The Appellate Division dismissed a challenge to SEQRA Findings where no approvals had actually be granted. In the Matter of Patel v.Board of Trustee of Village of Muttontown, the Court found the " position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party...".

In this case the applicant was seeking special permit and site plan approval. The SEQRA Findings were issued, but no approvals were granted for the special permit or site plan.

"Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication...".

-Steven Silverberg

February 14, 2014

Conditional Site Plan Approval Not Enough to Create Vested Right in Prior Zoning

The Appellate Division Second Department concluded that a conditional site plan approval, without more, was insufficient to create vested rights in the prior zoning of a parcel. In Matter of Exeter Building Corp. v. Town of Newburgh, the Appellate Division reversed the Supreme Court holding that the Newburgh Zoning Board was incorrect in determining the property owner had no vested rights.

While the property owner was processing its application, obtaining a subdivision and conditional approval of a site plan that required a compliance with a number of conditions, the property was rezoned. In an earlier litigation, it was determined that because part of the property owner's application process included a subdivision the property had the benefit of Town Law § 265-a, which grants a three year exemption from a rezoning for property that has been subdivided. During that three year period a single family home on the property and water tanks were removed, there was some grading and clearing done and a sign announcing the availability of town homes on the site was erected, pursuant to permits. However, all the conditions to the site plan were not fulfilled and the chair of the planning board was not authorized to sign the site plan until all of the conditions were fulfilled.

Upon the expiration of the three year exemption period, the property owner sought a declaration from the ZBA that it had vested rights. The ZBA disagreed and this lawsuit ensued.

The Court summarized the law on vested rights in New York as follows:

" 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; see Matter of RC Enters. v Town of Patterson, 42 AD3d 542, 544; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 218, affd 32 NY2d 796, cert denied 414 US 1004; Matter of Fox Lane Corp. v Mann, 216 App Div 813, 813, affd 243 NY 550). "Neither the issuance of a permit . . . nor the landowner's substantial improvements and expenditures, standing alone, will establish the right. The landowner's actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless" (Town of Orangetown v Magee, 88 NY2d at 47-48; see Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d at 136; People v Miller, 304 NY at 109; Matter of RC Enters. v Town of Patterson, 42 AD3d at 544; People ex rel. Publicity Leasing Co. v Ludwig, 172 App Div 71, 73-74, affd 218 NY 540, 542)."

In concluding the property owner lacked vested rights in this case the Court held:

"Whether a planning board's final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York (cf. Figgie Intl. v Town of Huntington, 203 AD2d 416, 418-419; but cf. 202 Devs. v Town of Haverstraw, 175 AD2d 473), and it is not before us now....Even if a property owner may claim vested rights in reliance on an unconditional final approval of a site plan, it is undisputed that the Planning Board never granted unconditional approval of the plaintiffs' site plan.

Further, the plaintiffs may not ground a claim of common-law vesting upon reliance on the limited permits that were issued to them. None of those permits—which authorized demolition of the single-family house and the water tanks, erection of a sign, and regrading and clearing—either singly or together amounted to the Town's approval of Madison Green. Thus, the plaintiffs' expenditures and construction in reliance on those limited permits could not satisfy the prerequisite for common-law vesting of the right to construct the entire project. At most, the limited permits authorized the plaintiffs to complete the work described in the permits themselves, which, if undertaken, would leave the subject property in a condition amenable to development under the new, more restrictive R-1 zoning regulations."

-Steven Silverberg

February 13, 2014

Condition Set by ZBA Negated by Subsequent Zoning Amendment

An appellate court held that a restriction on the height of buildings fixed by a zoning board of appeals did not survive a later change of zoning for the parcel at issue. In Matter of Livingston Parkway Assn., Inc. v. Town of Amherst Zoning Board of Appeals, the Third Department held: " the language of Condition No. 4 specifically and unambiguously applied the height restriction only to new buildings proposed by a developer in June 1968. That development never came to fruition, and the subject parcel was rezoned in 1976. We therefore conclude that the Amherst Town Board annulled Condition No. 4 when it rezoned the property in 1976 (cf. Matter of D'Angelo v Di Bernardo, 106 Misc 2d 735, 737, affd 79 AD2d 1092, lv denied 53 NY2d 606)."

The Petitioner in the case had claimed that a saving clause in the amendment that stated prior regulations of the Town survived the amendment meant that the ZBA condition on height also survived, In rejecting that argument the Court noted that a condition fixed by a zoning board is not a Town regulation.

The Court also rejected the Petitioner's argument that the ZBA decision, holding the prior height restriction no longer applied, was fatally defective for failure to make findings of fact. The Court noted that, while generally findings of fact are required to permit intelligent judicial review, when there is a pure question of law:

"we have the power to conduct an independent review of the applicable law (see Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 160; see also Matter of Emmerling v Town of Richmond Zoning Bd. of Appeals, 67 AD3d 1467, 1467-1468), and petitioners correctly concede that this case involves only an issue of legal interpretation. Under the circumstances, we conclude that the record "contain[s] sufficient facts to permit intelligent judicial review of the . . . determination" (Matter of Iwan v Zoning Bd. of Appeals of Town of Amsterdam, 252 AD2d 913, 914..."

-Steven Silverberg

January 3, 2014

Court Upholds Denial of Use Variance for a Ski Lift

The Appellate Division upheld a Zoning Board's denial of a use variance to extend a ski lift over a currently unused parcel. In Matter of Holimont, Inc. v Village of Ellicottville Zoning Board of Appeals, the Court noted that the applicant failed to meet the criteria for obtaining a use variance. Although, the applicant submitted expert evidence on the issue of why it could not obtain a reasonable return without the use variance, the Court held:

"...the "sole province of the ZBA . . . as administrative factfinder" to resolve issues of credibility (Matter of Supkis v Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 781). Additionally, petitioner failed to establish that its proposed development would not alter the essential character of the surrounding neighborhood (see Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147). Indeed, the record establishes that permitting petitioner to maintain an active ski lift and snowmaking equipment on its parcel will alter the quiet residential area surrounded by nature in which that parcel is located because of the increased use of the parcel. Finally, the record establishes that petitioner's hardship was self-created inasmuch as petitioner previously had stipulated to restrictions calling for an "undisturbed green area" in the location petitioner now seeks to develop..."

-Steven Silverberg

December 27, 2013

Proximity of Neighborhood Access Road to Project Site Not Sufficient for Standing to Challenge Site Plan

The Appellate division determined that mere proximity of a neighborhood access road was not sufficient to create standing for individuals who reside 1,300 to 2,000 feet from a proposed regional mall. In Matter of Riverhead Neighborhood Preservation Coalition v. Town of Riverhead Town Board, a local neighborhood association challenged the site plan approval for a regional mall that would have its main entrance directly across from the access road that serviced a specific neighborhood that included members of the group challenging the site plan approval. Noting that the standing of the association was dependent on whether individual members of the association would have had standing on their own, the Court held:

"Contrary to the petitioners' contention, the Supreme Court properly concluded that they lacked standing. " [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large'" ...Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone (see Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420, 1421-1422; Matter of Harris v Town Bd. of Town of Riverhead, 73 AD3d 922, 924; Matter of East End Prop. Co. # 1, LLC v Town Bd. of Town of Brookhaven, 56 AD3d 773, 777-778; Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17 AD3d 590, 595). Further, the individual petitioners' allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course...."

-Steven Silverberg

December 22, 2013

Extension of Grandfather Clause to Allow Development Consistent With Comprehensive Plan

The Appellate Division found multiple extensions of a grandfather clause that permitted a specific development to proceed to final approval, despite local regulations that would have otherwise prevented it, is consistent with the Town's comprehensive plan. In Matter of Birchwood Neighborhood Association v. Planning Board of the Town of Colonie, the Court noted that legislative acts carry a presumption of validity.

"Petitioners primarily argue that the repeated renewals of the first grandfathering provision were unlawful because they did not comport with the Town's comprehensive plan, rendering approval of the developer's subdivision plan invalid. We disagree. "A town's zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, 'beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'" (Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018, 1019 [2012], quoting Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [1988]). While "[z]oning laws must be [*3]enacted in accordance with a comprehensive land use plan" (Rocky Point Drive-In, L.P. v Town of Brookhaven, 21 NY3d 729, ___, 2013 NY Slip Op 07513, *2 n 1 [2013]; see Town Law § 263), to establish compliance, "respondents need only show that the zoning amendment was adopted for 'a legitimate governmental purpose'" and the amendment will not be considered arbitrary unless "'there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'" (Matter of Rossi v Town Bd. of Town of Ballston, 49 AD3d 1138, 1144 [2008], quoting Fred F. French Inv. Co. v City of New York, 39 NY2d 587, 596 [1976], appeal dismissed, cert denied 429 US 990 [1976])."

In this case, the application at issue was initially submitted in 2002. Thereafter, the Town adopted a comprehensive plan in 2007 and provided for a conservation overlay zone. It also grandfathered any inconsistent application that had already received concept approval, so long as it met certain deadlines for final approval. The deadline was subsequently extended several times by local law allowing the development at issue to receive final approval. The Court found that allowing the particular development to proceed, despite enactment of zoning provisions that would have limited such development, was reasonable under the circumstances.

"As set forth in the comprehensive plan, the Town's primary concerns included "ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area's natural resources and remaining open spaces." The adoption of the initial grandfathering provision clearly evidenced and furthered the Town's interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements (see Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 AD3d 1384, 1387 [2011], lv denied 17 NY3d 705 [2011]).

Petitioners have not shown that, under the circumstances here, the challenged extensions — amounting to a 2½-year period from the beginning of 2010 to the middle of 2012 — were inordinately lengthy as to render them "arbitrary and unreasonable or otherwise unlawful" (Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at 1362; see Boyles v Town Bd. of Town of Bethlehem, 278 AD2d 688, 690 [2000]). In our view, such extensions were consistent with the comprehensive plan and were reasonably adopted to further the purposes of the original grandfathering provision. This is particularly true considering that Local Law No. 2 (2012), which created the final six-month extension for filing final subdivision plans, was tailored to apply exclusively to development proposals in which significant steps had been taken to advance through the approval process during the previous year."

-Steven Silverberg

December 19, 2013

ZBA Failed to Accommodate Religious Use by Denying Special Permit and Variance

The Appellate Division upheld the lower court's reversal of the denial of a special permit and a parking variance for a church use. In the Matter of Gospel Faith Mission International, Inc., v. Weiss, the Court found the ZBA was arbitrary in denying the application due to the fact that "greater flexibility" is to be applied to applications by religious organizations. This rule is based upon New York law not the often cited Religious Land Use and Institutionalized Persons Act (RLUIPA) which does not appear to have been raised in this case.

In reversing the ZBA the Court stated:

"Here, the record reflects that the Board voted to deny the petitioner's applications without making any attempt to accommodate the proposed religious use (see Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572, 573). The petitioner suggested conditions for the limitation of its use in order to mitigate the impact on the surrounding community. However, despite the conditions proposed by the petitioner, the Board denied the petitioner's applications in their entirety, even though the proposed religious use could have been substantially accommodated..."

-Steven Silverberg

November 1, 2013

Municipality Has No Jurisdiction Over Site Plan in State Owned Navigable Waterway

The Appellate Division held a town planning board has no jurisdiction to review a site plan for construction of a dock in a state owned navigable waterway, unless such authority is specifically delegated by the State pursuant to Navigation Law section 46-a. In Matter of Hart Family, LLC. V. Town of Lake George, the Court first addressed the issue of whether the question of the planning board's jurisdiction had been preserved. The Court noted that while the issue was not discussed at the hearings, counsel for the Petitioner had questioned the authority of the planning board in a letter to the planning board's attorney. Moreover, the Court held:

" even assuming that the issue had not been thus preserved, 'a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent...'"

Then turning to the issue of jurisdiction, the Court noted that the proposed dock was to be constructed in the waters of Lake George and the state "holds title to the lands under Lake George in its sovereign capacity (see People v System Props., 2 NY2d 330, 344 [1957]) and, thus, has sole jurisdiction over construction in the lake's navigable waters provided it has not delegated this authority to a local government...the Town is not included among the local governments enumerated in Navigation Law § 46-a (2), and we find no such delegation in any other source. Contrary to respondents' claim, Town Law § 130 (17) (1) (b) pertains to "the anchoring or mooring of vessels" and does not address the construction of docks, boathouses or other structures covered by Navigation Law § 46-a. "

-Steven Silverberg

July 8, 2013

Court Upholds Denial of Two Lot Subdivision

The Appellate Division upheld a determination to deny the subdivision of an approximately three acre parcel containing two vacant buildings into two lots, each containing one of the two existing buildings. In a Matter of Center of Deposit, Inc. v. Village of Deposit, the Court held:

"the Board identified a variety of reasons for its denial, including, among others, that the subject property lacked a legal means of ingress and egress and that the proposed subdivision would endanger 'the health, safety, welfare and comfort' of the Village at large ....Inasmuch as the Board's conclusions — that there were significant safety issues surrounding the property and that petitioner had not established compliance with the relevant zoning laws — provided a rational basis to support its denial of petitioner's application, such denial must be upheld (see Matter of MLB, LLC v Schmidt, 50 AD3d at 1434-1435)."

In addition, the Court rejected the claim that the planning board failed to act within the time required by Town Law. Initially, after holding a public hearing, the planning board had issued a SEQRA positive declaration, that was successfully challenged by the Petitioner. On remand the Board issued a negative declaration and held a further public hearing before denying the application. The Petitioner claimed that the hearing held prior to issuance of the positive declaration started the 62 day period for the board to issue a decision, in order to avoid a default subdivision approval. This claim was rejected by the Court.

"Petitioner contends that, because the Board held a public hearing on the application in October 2009, it lacked any authority to conduct additional hearings, and the time within which the Board was required to issue a determination on the subdivision application began to run when this Court set aside the initial positive declaration. We do not agree. Pursuant to Village Law § 7-728 (6) (c), a public hearing on the subdivision application must follow the filing of the negative declaration under SEQRA (accord Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1340 [2008]; see Town Law § 276 [6] [c]). Thus, the hearing held in October 2009 — prior to the issuance of the negative declaration — could not satisfy the hearing requirement under the Village Law, and the Board had 62 days after the issuance of the negative declaration in March 2012 to hold a public hearing, and an additional 62 days after the hearing to render a decision on the application."

-Steven M. Silverberg


July 4, 2013

SEQRA Conditional Negative Declaration Supported by the Record

The Appellate Division upheld a SEQRA conditional negative declaration, as well as variances and site plan approval to construct a hotel. In Matter of Schaller v. Town of New Platz Zoning Board of Appeals et. al., the Court found the determinations of both the planning board and zoning board of appeals were fully supported by the record and findings of the boards.

"Here, a review of the record establishes that the Planning Board conducted a two-year coordinated SEQRA review of the application which included, among other things, consultation with traffic engineers; review of the expanded long form environmental assessment form, visual assessment form, traffic studies and related submissions; compliance with the comprehensive master plan, an architectural study, a water system and sewage report, and drainage and storm water impact studies; consideration of input from various interested agencies, as well as public comments and concerns received from public hearings and Planning Board meetings, and submissions by interested parties. The Planning Board conditioned the negative declaration on the applicant's compliance with various mitigating measures designed to minimize potential environmental impacts, including constructing turn lanes, upgrading traffic signals, adding traffic signage, retention of certain trees for aesthetic purposes and construction of a previously approved water line loop/extension for water supply and sewer purposes. The Planning Board specifically noted the various environmental impacts it considered in reaching its determination and it took a hard look before concluding that the project would not have a significant impact on the environment. The Planning Board also provided detailed reasoning and elaboration for its determination in the negative declaration with regard to the lack of significant impacts on traffic and transportation, aesthetics resources, water and sewage resources, endangered species, historic resources, community character and services, and energy resources. "

Likewise, the Court found the zoning board had properly weighed and balanced the issues before it determined to grant the requested height variance.

"Here, the ZBA addressed the requisite statutory factors in approving the proposed six-foot height variance after a review of various qualified recommendations, studies and public input. In balancing the benefits to the applicant against the possible detriment to the community, the ZBA specifically referred to documentation in support of its conclusions that, among other things, the variance was not substantial when compared to the nearby buildings, would improve the physical and environmental condition and character of the neighborhood, and was the minimum variance required to promote energy efficiency for both the applicant and the community. As substantial evidence in the record supports the rationale for the ZBA's determination granting the variance, it will not be disturbed (see Matter of Sarat v Town of Preble Zoning Bd. of Appeals, 93 AD3d 921, 922 [2012]; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d 715, 724-725 [2005])."

-Steven M. Silverberg

June 27, 2013

Special Permit For Wind Farm Reversed Even Though Board Complied With SEQRA

The appellate division sustained a SEQRA negative declaration, but nonetheless reversed the grant of a special permit for failure to address all the criteria required for the issuance of a special permit. In the Matter of Frigault v. Town of Richfield Planning Board, the Court found that the Board took a hard look at potential environmental issues prior to issuing a negative declaration and complied with the Open Meetings Law. However, it failed to address each of the standards required for issuing a special permit.

The lower court found the Town had violated the Open Meetings Law and therefore annulled the SEQRA negative declaration and the special permit. In modifying the determination of the lower court, the appellate division held:

"the Board's negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project's impact on bats and birds, "shadow flicker," noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project's environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets."

The claimed Open Meetings Law violation was raised because the crowd attending the public hearing was too large for the meeting room. as a result, the meeting was removed to a larger space, a block away, and a notice was posted on the door to advise any late comers of the relocated meeting. The appellate division disagreed with the lower court finding that this violated the law.

"Here, when it became clear that the space in the Town Hall was not large enough for the number of people who wished to attend the meeting, the Board notified everyone present — including the media — that the meeting was being relocated, and took steps to make certain that anyone arriving late would be aware of the change. In our view, the Board's efforts in relocating the meeting were aimed at accommodating the large crowd and ensuring public access, and were entirely reasonable under the circumstances...."

However, the Court still reversed the issuance of the special permit as the Board did not address each of the standards contained in the local code that must be met before a permit maybe granted.

"Town of Richfield Ordinance § 7.3 (e) provides that special use permits may only be granted if each of eight enumerated conditions are met. While the Board's resolution granting the special use permit states that it "considered and addressed each of the matters referred to in [the ordinance]," the resolution itself does not provide any explanation or elaboration thereof. Instead, the resolution refers to the document issued by the Board explaining its rationale for the negative declaration under SEQRA. Indeed, some of the issues relevant to the negative declaration under SEQRA and to the special use permit overlap. However, the Board's explanation of its rationale for the negative declaration does not directly address each of the conditions set forth in the ordinance. We are, therefore, unable to undertake intelligent review of whether the Board's determination that the project complied with the ordinance was rational and supported by substantial evidence...."

In addition, the Court found that all the proper notices were not issued prior to taking action.

-Steven M. Silverberg

May 3, 2013

Municipalities May Ban Hydrofracking

The Appellate Division ruled that the New York Environmental Conservation Law (ECL) does not prevent a Town from enacting zoning that prohibits hydrofracking. In Matter of Norse Energy Corp. USA v. Town of Dryden, the Court held that provisions of the ECL that regulate mining did not conflict with the ability of municipalities to enact zoning codes that prohibit certain mining activities.

Noting that "[A]mong the powers delegated to local governments is the authority to regulate the use of land through the enactment of zoning laws (see Municipal Home Rule Law § 10 [1] [ii] [a] [11]; Statute of Local Government § 10 [6], [7]; Town Law § 261" the Court found the ECL language and legislative history did not evidence an intent by the state legislature, either explicitly or by implication, to preempt local zoning authority to prohibit mining operations.

Therefore, the Court concluded: "respondents' decision to amend the Town's zoning ordinance to prohibit the activity of hydrofracking does not conflict with the Legislature's intent to ensure that, where oil or gas drilling occurs, the operations are as efficient and effective as possible."

-Steven Silverberg

April 3, 2013

Racing Pigeons Are Not Customary Household Pets

The Appellate Division ruled that a zoning board correctly interpreted the zoning code when it held that keeping 40 racing pigeons was not what was intended in a zoning code that permits "customary household pets" as accessory to a residence. In Matter of LaRusso v. Neuringer the court found:

"the petitioner's proposed use of a coop in his backyard to keep and raise 40 or more racing pigeons, or 'racing homers,' did not qualify as keeping 'a reasonable number of customary household pets' within the meaning of section 342-21(B)(7) of the Code. In reaching this determination, the ZBA considered record evidence that these pigeons would be specially bred, trained, and handled to compete in races, at least some of which may result in cash prizes. "

In analyzing the criteria applicable to interpreting the zoning code the Court noted that generally

"zoning ordinances are in derogation of the common law and must be strictly construed against the municipality.... 'However, this rule is subject to the limitation that where, as here, it would be difficult or impractical for a legislative body to promulgate an ordinance which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the ordinance may be delegated to an administrative body or official'..." The interpretation of the zoning board of appeals or the official governs unless such interpretation is unreasonable or irrational..."

Our partner Kathy Zalantis argued this case on behalf of the ZBA.

-Steven Silverberg

February 20, 2013

Court of Appeals Reaffirms Zoning Relates to Use Not the User

The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land "not the identity of the user." In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town's zoning code that prohibited check cashing establishments were invalid.

The Court noted that the basis for the prohibition was a memorandum produced by one of the Town's attorneys who, among other things, concluded the prohibition would be beneficial because it :

"...encourages young and lower income people to open up bank accounts, save their money, and develop a credit rating" and "also removes a seedy type of operation, akin to pawnshops and strip clubs, from the commercial areas of the Town."

In rejecting this analysis as the basis for adoption of zoning regulations the Court held:

"It is clear from the memorandum of the deputy town attorney that section 302 (K) was directed at the perceived social evil of check-cashing services, which were thought to exploit the younger and lower income people who are their main customers. Whatever the merits of this view as a policy matter, it cannot be implemented through zoning."

The Court concluded that, while there may be uses, such as adult entertainment uses, that have negative secondary effects on the surrounding community, "the Town has not tried to show and does not argue that check cashing services are in a similar category."

Instead, the Town argued that the purpose of the law was related to health and safety, specifically by preventing armed robberies. But the court noted that this was not advanced as a basis for adopting the law when it was enacted. Therefore, the Court found, irrespective of whether or not that might be a valid argument for such a prohibition, perceived threats of armed robbery was not the basis for the adoption of this prohibition.

-Steven Silverberg

January 22, 2013

Court Vacates Conditions Fixed By Zoning Board

The Appellate Division Second Department vacated conditions fixed by a zoning board as part of the grant of a permit to operate a farm stand. In The Matter of Edson v. Southold Town Zoning Board of Appeals, the Court reversed the lower court's dismissal of the petition.

The Petitioner has a Christmas tree farm and wanted to also open a farm stand in its building. However, the building is 7,826 square feet, where the Town Code limits farm stands to 3,000 square feet. The Petitioner proposed to partition the building and limit the area used for the farm stand to 3,000 square feet. After the building inspector denied the permit the Petitioner applied to the zoning board. The zoning board found that the application met the requirements of the code but fixed conditions not agreed to by the Petitioner. The conditions limited the operations to only certain months and prohibited the storage of incidental items, not raised on the farm, within the balance of the building outside the stand.

In reversing the lower court and vacating the conditions the Court held:

" the board could have acted within its authority to rationally interpret the Town Code so as to require that all farm stand inventory be stored within the 3,000 square-foot area limitation of the proposed farm stand (see generally Matter of Ferraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710, 711). However, it did not have the authority to attach a condition to its approval of the petitioner's farm stand application that arbitrarily distinguishes between the types of inventory to be offered for sale, by permitting the storage of farm stand inventory produced on the petitioner's farm in the partitioned area adjacent to the proposed farm stand, while prohibiting the similar storage of incidental accessory items that are not produced on the petitioner's farm. Likewise, there is no authority in the Town Law or the Town Code, or any evidentiary basis, for the imposition of the condition limiting the operation of the proposed farm stand to a particular season or to specific dates. Accordingly, the judgment must be reversed, the petition reinstated and granted, and so much of the determination as imposed the challenged conditions annulled."

-Steven M. Silverberg

December 31, 2012

Court Holds Nearby Business Lacks Standing to Challenge Zone Change

The Appellate Division held that an assisted care facility did not have standing to challenge a change in definition under local zoning that permitted a competitor to open a facility nearby. In Matter of VTR FV, LLC v Town of Guilderland, the Court held the:

"allegations distill to a claim of 'the threat of increased business competition, which is not an interest protected by the zoning law[]' (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 415). Thus, notwithstanding the proximity of petitioners' property to the phase IV site affected by the amendment to Local Law No. 1, the economic harm they allege is insufficient to confer standing on them (see id. at 409-410, 414)."

In addition, the Court noted there was no allegation of a specific noneconomic environmental harm. As for other claims raised by the Petitioner, the Court found that the change did not constitute spot zoning, nor did it result in a taking.

-Steven M. Silverberg

October 25, 2012

Interpretation of Ambiguous Language in Zoning Ordinance a Question of Fact

The Appellate Division affirmed the denial of summary judgment in an action by a town, seeking to enjoin the use of a property as being in violation of the local zoning ordinance. In Matter of Town of Huntington v. Braun, the court explained the zoning ordinance permits florist shops and nurseries with accessory greenhouses that are defined "as '[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit.'" The Town claims the business is not in compliance because it sells products that are not "field-grown."

The Court concluded:

"Possible ambiguities in zoning ordinances are to be construed against the municipality which has enacted them and seeks to enforce them (see Town of Riverhead v Gezari, 63 AD3d 1042; Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 527; Town of Huntington v Barracuda Transp. Co., 80 AD2d 555). Construction of ambiguous language is an issue of fact that cannot be decided on a motion for summary judgment (see DiLorenzo v Estate Motors, Inc., 22 AD3d 630, 631; Leon v Lukash, 121 AD2d 693, 694).

Here, the Supreme Court properly determined that triable issues of fact regarding ambiguities in the definitions of permitted uses of the premises existed, precluding the award of summary judgment"

-Steven M. Silverberg

September 28, 2012

Court Remands Issue of Costs of FOIL Request For Trial

The Appellate Division held that a trial is required to determine whether Rockland County properly determined the costs that must be prepaid before it will comply with a FOIL request. In Matter of Weslowski v Vanderhoef, the Second Department concluded there were triable issues of fact as to whether the County had used the proper criteria in requiring the prepayment of over $ 156,000.00 before complying with a large FOIL request.

The Court reviewed the statutory provisions for recovery of the costs of complying with a FOIL request:

"Public Officers Law § 87 sets limits on the costs which an agency may charge those who have requested records: "fees for copies of records . . . shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record" (Public Officers Law § 87[1][b][iii]). Section 87(1)(c) of the Public Officers Law defines the term "actual cost." Under that provision, an agency may only recover the "actual cost" of reproducing the record, including "an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record" (Public Officers Law § 87[1][c][i]). However, the statute provides that "preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested" (Public Officers Law § 87[1][c][iv])."

The Court then found that the County Records Access Appeals Officer applied the wrong criteria in merely concluding that he should give the County Records Access Officer "the benefit of the doubt" as to his calculation of the chargeable costs for document recovery. Noting, based upon e-mails from the County, that while it appeared some of the costs were properly recovered, remand and immediate trial are required because:

"the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL (see Public Officers Law § 87[1][c]). If an agency imposes fees which are not authorized by FOIL, the determination requiring the prepayment of such fees must be deemed to have been "affected by an error of law or . . . arbitrary and capricious" (CPLR 7803[3]). ...The Access Officer's e-mails indicate that the petitioner may have been improperly charged for the time it would take County employees to search for paper documents, as those e-mails make reference to time spent retrieving "32,400 pages that would need to be located in the Archives," the retrieval of "files [that] would have to be located," "a manual search of numerous files at the Department of Personnel," and the retrieval of "the hard copy of each employee packet." The Access Officer's e-mails also indicated that, even where electronic copies were maintained, it would be necessary to check the accuracy of those copies by comparing them with hard copies and, thus, the County charged the petitioner for time that employees would spend locating those paper documents. The Access Officer's e-mails, therefore, revealed the existence of a triable issue of fact as to whether and to what extent the County sought to impose fees associated with the time its employees would spend searching for paper documents (cf. Public Officers Law § 87[1][c][iv])."

-Steven Silverberg

August 26, 2012

Neighbors Have Standing to Challenge SEQRA Determination

The Appellate Division reversed a lower court holding that neighbors of the controversial Patrick Farm development in the Town of Ramapo lacked standing to challenge the approval of changes to the Town's comprehensive plan and zoning ordinance. In Matter of Shapiro v. Town of Ramapo, the Appellate Division Upheld dismissal of the challenge to the Town's transfer of the site to a developer but reinstated the causes of action challenging the zoning amendments and the SEQRA review.

Holding the claim that the Town illegally transferred park land to the developer is time barred the Court noted the action was commenced in 2010 to challenge the 2001 transfer of the property, well outside the six year statute of limitations. However, the Court found the lower court erred when it held that the Petitioners, who live "across the street" from the proposed development, lacked standing.

The Court stated:

"the petitioners live in close proximity to the portion of the site that is the subject of the challenged determinations, they did not need to show actual injury or special damage to establish standing (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410, 413-414; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74, 89-90; Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego Planning Bd., 77 AD3d 1465, 1466). Further, the injuries alleged by the petitioners fell within the zone of interests to be protected by SEQRA (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 687; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-775; Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 94)."

The Court also reversed the finding by the lower court on the motion to dismiss that there was no merit to the Petitioners' claims. Noting that the decision was made on a pre-answer motion, before either an answer or record of proceedings had been submitted to the court below, the Appellate Division held:

"Moreover, it was error for the Supreme Court to reach the merits of the petitioners' SEQRA claims prior to service of the respondents' answers and the filing of the full administrative record (see CPLR 7804[e], [f]). On the appellate record before us, it cannot be said that "the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer" (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101..."

-Steven Silverberg

August 11, 2012

Completion of Construction Precludes Challenge When No Preliminary Injunction Sought

The Appellate Division restated the rule that when challenging a land use approval the challenger must seek a preliminary injunction in order to maintain the status quo. In Matter of Papert v. Zoning Board of Appeals of the Incorporated Village of Quogue, the Court upheld dismissal of the petition challenging the zoning board's issuance of a coastal zone erosion permit to reconstruct an existing house as academic. The motion to dismiss was made claiming substantial completion of the project and the lower court granted the motion after construction was completed and a certificate of occupancy was issued.

Holding that "the petitioner failed to move in the Supreme Court for a preliminary injunction to preserve the status quo during the pendency of this litigation, he did not timely do all he could have done to safeguard his interests, and thus, he failed to preserve his rights pending judicial review," the Court noted that as a result the property owner "would suffer substantial prejudice if the petitioner prevailed...."

However, the Court also indicated that this rule is not without exception when, in upholding the dismissal, it also found that the property owner "did not proceed with the construction in bad faith or without authority" and further, "this proceeding did not present 'novel issues or public interests such as environmental concerns' that warranted retention of jurisdiction (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173)."

-Steven M. Silverberg

July 22, 2012

Rezoning Consistent With Comprehensive Plan But Failed to Comply With SEQRA

A Court found that the rezoning of a single parcel, although different from the designation in the comprehensive plan, was still consistent with that plan. However, the Court held the town board did not fully comply with SEQRA. In Matter of Bergami v. Town Board of the Town of Roterdam, the Appellate Division reversed the lower court finding that the Town Board, as lead agency, had failed to take the requisite "hard look" under SEQRA.

The Town Board had previously adopted and then amended a comprehensive plan that ultimately called for rezoning the area of the town including the subject property to a professional office zone. Yet, the Town Board never adopted those modifications to the local zoning law. In 2009 the property owner applied for a rezoning to the business district. Ultimately, the town board issued a SEQRA negative declaration and amended the zoning of the parcel to business.

Neighboring property owners challenged the action as spot zoning. However the Court found the action was not spot zoning noting:

"The Exit 25A study area was identified as appropriate for commercial and industrial growth and designated for future industrial growth which, under the Town's amended comprehensive plan that was adopted after exhaustive studies, represented the Town's position as to the highest and best use for this area. The subject property is located on Route 7, within 500 feet of the on-ramps of an interstate highway at its intersection with the Thruway, directly across from property zoned B-2 — containing a truck stop and fast-food restaurants — and surrounded on three sides by business and commercial zones. Thus, although the fourth side adjacent to the subject property — where petitioners' properties are located — is zoned for agricultural use and includes single family residential parcels, petitioners have not demonstrated that the Town has impermissibly "singl[ed] out a small parcel of land for a use classification totally different from that of the surrounding area" (Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at 1362 [internal quotation marks and citations omitted].... The mere fact that the Exit 25A map proposed that the subject property be zoned POR does not render the Town Board's determination inconsistent with the overall scheme as evidenced in the comprehensive plan....Accordingly, on this record, we cannot say that petitioners have met their heavy burden of showing that the determination was improper due to a conflict with the comprehensive plan."

Yet, the Court reversed the adoption of the rezoning because the Court found the Town failed to comply with SEQRA. The Court stated:

"... the Town Board failed to comply with the substantive requirements of SEQRA in that it did not identify the relevant areas of environmental concern, take a hard look at them and make a reasoned elaboration of the basis for its determination..."

-Steven Silverberg

June 30, 2012

Zoning Amendment to Aid One Property Is Not Spot Zoning, Nor Did It Violate SEQRA or GML

The Appellate Division found that a zoning amendment adopted "primarily" to assist one property owner is not spot zoning. In the Matter of Marcus v. Bd. of Trustees of the Village of Wesley Hills, the Court found that while " there is no doubt that the Local Law was adopted primarily for the benefit of the plant nursery and arborist business operated by Ira Wickes and Rockland Tree Expert, Inc., doing business as Ira Wickes Arborist (hereinafter together Wickes), zoning changes are not invalid merely because a single parcel is involved in or benefitted by said changes (see Rodgers v Village of Tarrytown, 302 NY at 124)."

In upholding the local law the Court found that the use was compatible with other uses in the area and the Village's comprehensive plan. Significantly, the Court noted that two other properties in the Village could meet the requirements under the challenged amendment. Further the, Court held: "there is no evidence in the record that Wickes's use of the property in compliance with the Local Law and a special permit issued thereunder would be detrimental to owners of other properties in the area..."

In addressing SEQRA issues, the Court found that the issuance of a negative declaration was In conformity with the regulations and also noted, "the Board's deferral of site-specific review of certain environmental issues to the Village's Planning Board, upon its consideration of individual special permit applications, was no less protective of the environment (see 6 NYCRR 617.3[g][1])."

Finally, in interpreting the requirements of General Municipal Law, the Court held:

"There is no merit to the petitioners' contention that the Local Law should be annulled due to the Board's failure to timely file a report of the final action it had taken in connection with the Local Law with the Rockland County Department of Planning within 30 days after the final action pursuant to General Municipal Law § 239-m(6). Under the circumstances of this case, where the Board otherwise complied with the referral provisions of General Municipal Law § 239-m and there is no claim of prejudice, the Board's failure to timely file a report of the final action with the Rockland County Department of Planning after adopting the Local Law was a mere procedural irregularity (cf. Matter of Zelnick v Small, 268 AD2d 527, 529; Matter of Ernalex Constr. Realty Corp. v City of Glen Cove, 256 AD2d 336, 338)."

-Steven Silverberg

April 26, 2012

Court Reverses Dismissal of SEQRA Challenge By Adjoining Municipality

The dismissal of a challenge, by an adjoining Village, to a Town's rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law § 239-m to proceed. In Village of Pomona v. Town of Ramapo, the Appellate Divisions upheld the dismissal of of a cause of action claiming failure to comply with General Municipal Law §239-nn, which requires notice to abutting municipalities, holding that the statute does not create a separate right of action. The Court also upheld dismissal of the claim that the zoning enactment failed to comply with the Town's comprehensive plan noting:

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

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

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

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

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

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

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

- Steven Silverberg

April 22, 2012

Appellate Division Reverses Grant of Use Variance

The Appellate Division reversed the Supreme Court's decision to uphold the granting of a use variance and related area variances to permit expansion of a non-confirming adult entertainment night club. In Matter of Edwards v. Davison, the Mount Vernon City Council, in light of legislation adopted several years ago to ban such uses from the City's downtown business district, took the unusual step of suing the Zoning Board of Appeals to challenge the approval of the variances, which allowed the expansion of the non-conforming club.

The Appellate Division held:

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

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

-Steven Silverberg

March 19, 2012

Court Reverses Denial of Special Permit

While upholding the denial of some area variances and a special permit, finding the evidence in the record supported that determination, the Appellate Division also reversed the denial of a special permit for a refuse enclosure, as well as a variance for placement of a sign. In Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, the Court noted:

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

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

-Steven M. Silverberg

February 28, 2012

Congress Limits Municipal Authority To Deny Modification of Telecommunications Facilities

Last week President Obama signed the ‘‘Middle Class Tax Relief and Job Creation Act of 2012’’ which included provisions limiting municipal authority over modification of existing telecommunications facilities.

The new provisions read as follows:

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

-Steven M. Silverberg

February 4, 2012

Court Reverses Denial of Special Permit

The Appellate Division Fourth Department reversed the denial of a special permit when it found the denial to be based upon "generalized community objections." In Matter of Young Development, Inc. v. Town of West Senaca, the Court held:

"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

January 14, 2012

Law Requiring Inspection Of Residential Units Held Unconstitutional

A Local village's law requiring occupancy applications and inspection of rental units, before permiting occupancy, was held to be unconstitutional by the Appellate Division this week. In ATM One, LLC v. Incorporated Village of Hempstead, the Court noted that the local law:

"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

December 28, 2011

Court Holds Change of Comprehensive Plan to Permit Rezoning of One Parcel Was Not Spot Zoning

The Appellate Division held that despite the fact that a parcel had been zoned for industrial use for fifty years, and that the Town's comprehensive plan designated the parcel for industrial use, a rezoning and change of the comprehensive plan to residential use of the parcel was a proper exercise of discretion. In Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, the Court found the property in question had been used as a multifamily residential property for the period in question and the rezoning was consistent with the transitional nature of the site between an industrial use and a residential neighborhood.

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

December 16, 2011

Failure to Challenge Zoning Board Action Within Thirty Days of Filing Minutes Ruled Fatal

The Appellate Division held that the filing of a zoning board's minutes, rather than the subsequent filing of the zoning board's formal decision, commenced the running of thirty day statue of limitations for challenging that decision. In Matter of 92 MM Motel, Inc. v. Zoning Board of Appeals of the Town of Newburgh, the court found that, as the minutes of the meeting reflected the vote of each member of the zoning board, the filing of the minutes commenced the running of the statute of limitations. The court therefore concluded that the commencement of an Article 78 proceeding within 30 days of the filing of the formal decision was time barred when the minutes were filed with the Town Clerk more than thirty days prior to the commencement of the action.

-Steven Silverberg

October 31, 2011

Special Permit Improperly Denied Based Upon Generalized Community Objections

The Appellate Division, Third Department, reversed the denial of a special permit for 48 affordable apartment units as being based solely on generalized community objections and unsupported by empirical evidence. In Matter of Kinderhook Development, LLC v. City of Gloversville Planning Board the Court found that, after the planning board issued a SEQRA negative declaration in which it concluded that the stormwater management plan for the site was adequate, the planning board then denied the special permit based upon objections from the neighbors, who expressed concern over stormwater runoff, but provided no expert opinion to support their concerns.

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

October 21, 2011

Second Circuit Holds Zoning Provision Unconstitutionally Vague

The Second Circuit Court of Appeals held a local zoning provision, relating to the measurement of the height of a building, to be unconstitutionally vague and remanded the matter for consideration of the Plaintiff's substantive due process claim. In Cunney v. Bd. of Trustees of the Village of Grand View, the court reversed the granting of summary judgment on behalf of the Village and upheld the void for vagueness claim of Plaintiff. The court noted that the Village officials had several varying interpretations of the ordinance themselves, originally granting a building permit, then interpreting the construction as compliant with the ordinance and finally reversing themselves and finding the construction violated the ordinance.

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

September 28, 2011

New York DEC Releases Proposed High Volume Hydraulic Fracturing Regulations

This morning the New York DEC released proposed regulations for hydraulic fracturing for review and public comment. Hydrofracking, the process used to extract gas from shale, has been controversial due to the claimed adverse environmental effects of the process.

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

September 23, 2011

Town May Reduce Size of Structure as Condition to Site Plan Approval

An appellate court held that a reduction in the size of a structure by over 30% was a proper condition to site plan approval. In Matter of Greencove Associates LLC v. Town Board of the Town of North Hempstead, the appellate division found that the reduction in the size of the proposed building was appropriate to preserve a landscape buffer between the shopping center and a residential neighborhood.

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

June 2, 2011

No Vested Rights In Non-Conforming Townhouse Subdivision

The Appellate Division upheld a zoning board determination that a property owner had not acquired vested rights in the portion of a subdivision, which would have allowed a now non-conforming townhouse development. In the Matter of Mar-Vera Corporation v Zoning Board of Appeals of the Village of Irvington, the petitioner challenged the denial of a building permit to complete the townhouse portion of a subdivision that had been approved for 27 single family homes and 14 attached townhouses in 1979.

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

May 31, 2011

Eight Car Garage Not Customary Accessory Use

The Appellate Division overturned the decision of a zoning board which upheld the granting of a building permit to construct an eight car garage on the same property as a single family home. The court in Matter of Witkowich v. Zoning Board of Appeals of the Town of Yorktown found that the proposed eight to nine car garage, which was approximately twice the size of the house on the same lot, was not, as the zoning ordinance provided, a "subordinate building . . . the use of which is customarily incidental to that of a main building on the same lot."

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

May 9, 2011

Court Overturns Recreation Fee For Senior Housing

The Appellate Division overturned the requirement that a recreation fee be paid as a condition of site plan approval for a senior housing community. In Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd. the court held that the planning board failed to make the requisite findings to justify imposing a recreation fee and remitted the matter to the planning board for further consideration.

The Court found:

"The Planning Board for the Town of Carmel (hereinafter the Planning Board) has the authority to impose a recreation fee as a condition to site plan approval as long as certain findings are made prior to the imposition of such a fee (see Town Law § 274-a[6]... Here, however, the Planning Board made no "individualized consideration" prior to imposing the recreation fee and made no specific findings as to the recreational needs created by the petitioner's improvements"

As the statute requires a determination that the proposed use will impact recreational needs before a fee can be imposed, the Court remitted the matter to the planning board for additional findings.

-Steven Silverberg

May 1, 2011

Court Upholds Zoning Board Interpretation of Permitted Accessory Use

The Appellate Division upheld a zoning board's determination that recreation facilities open to the public is a permitted accessory use for a school. In the Matter of East Hampton Indoor Tennis Club, LLC v. Zoning Board of Appeals of Town of East Hampton, the Court found that the zoning board correctly affirmed the determination of the building inspector.

The petitioner, which operates a commercial tennis facility, had requested an interpretation by the building inspector when it learned a local school intended to build a recreational facility, which includes a tennis facility that would be open to the public for a fee after school hours and in the summer. The Court noted that the building inspector made inquiry of public schools in the area and determined they had made similar use of their recreational facilities and, absent a specific provision in the zoning ordinance, finding this to be a permitted accessory use was a reasonable application of the ordinance.

First, addressing the issue of standing of the petitioner to bring the challenge, the Court held:

"petitioner established that it held a legal interest in properties located in close proximity to the subject property, including properties required to receive notice of the administrative hearing, and demonstrated that certain alleged injuries, aside from the threat of increased business competition, were within the "zone of interest[s]" protected by the zoning laws..."

Then noting that generally the interpretation of a zoning ordinance, while given great deference, is subject to an exception when there is a purely legal question, "this exception does not apply in the instant case, as the analysis of whether the proposed accessory use is incidental to and customarily found in connection with the principal use of the property is, to a great extent, fact-based...".

In upholding the zoning board, the Court found:

"the petitioner does not dispute that recreational facilities, such as playing fields and tennis courts, are, in general, customary and incidental to the educational purpose of a school (see Town of Islip v Dowling Coll., 275 AD2d 366). Instead, the petitioner contends that the subject facilities should be treated differently because the school intends to use the facilities to conduct year-round, fee-based programs for the general public. The ZBA considered this proposed use, inquired into the customary practices at other local schools, and reasonably determined that the subject facilities would still constitute uses accessory to the primary educational purpose of the school so long as any public use was restricted to hours when school was not in session. Affording the ZBA's determination appropriate deference, we cannot say that its classification of the subject facilities as an accessory use was illegal, arbitrary and capricious, or an abuse of discretion...".

-Steven Silverberg

April 2, 2011

Town May Not Use Zoning To Mandate Construction of Specific Use

The Appellate Division upheld dismissal of an action by a Town seeking to mandate construction of a pool as part of a private community recreation facility. In Matter of Town of Huntington v. Beechwoord Carmen Bidg. Corp,the Court reviewed the history of the development, which included a zoning amendment to permit construction of a senior residential community and a number of single family homes.The final approval of the subdivision included a lot reserved for community recreation facilities, which was developed.

However, the Town brought an action claiming that the recreation facility was mandated to include a pool. After reviewing a number of procedural issues, the Court dismissed the case, holding:

"While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99)."

-Steven Silverberg

March 14, 2011

Notation On Subdivision Map Inadequate To Preclude Development of Lots

The Appellate Division concluded that a notation on a subdivision map "not approved for building lots" was inadequate to place a purchaser on notice that there was an intention to maintain the two lots in question as undeveloped space. In Matter of Fuentes v. Planning Board of the Village of Woodbury, the petitioner had purchased two lots in a tax sale, with the only notation on the filed subdivision map being " not approved for building lots." Thereafter, petitioner sought permission to build on the lots. The planning board denied the application finding that the original subdivision was a cluster layout and that the two lots in question were intended to be maintained as permanent open space.

The Court noted that the minutes of the original subdivision approval reflected the intended restriction on the lots. However, the Court found that statements in the minutes were inadequate because they did not place the restriction in any document that would appear in the chain of title.

As a result the Court found:

"Thus, although the Planning Board could properly enforce the language recorded on the plat map (see O'Mara v Town of Wappinger, 9 NY3d 303, 309; Patten Corp. v Association of Prop. Owners of Sleepy Hollow Lake, 172 AD2d 996, 999; Town of Brookhaven v Dinos, 76 AD2D at 562), the language contained thereon does not adequately convey a perpetual restriction on development of these lots (see generally Patten Corp. v Association of Prop. Owners of Sleepy Hollow Lake, 172 AD2d at 999-1000). Accordingly, the Planning Board's conclusion that the plat map contained a perpetual restriction on the development of the subject lots lacked a rational basis."

The Court also found that there was insufficient support in the record for the conclusion of the planning board that removing the restriction would be detrimental to the neighborhood.

-Steven Silverberg

February 27, 2011

Planning Board Must Make Individualized Analysis Before Imposing Recreation Fee

The Appellate Division held that a planning erred in imposing a recreation fee without first doing an analysis of the recreation needs created by approving a site plan. In Matter of Dobbs Ferry Development Associates v. Bd. of Trustees of the Village of Dobbs Ferry, the court found that in granting site plan approval for development of a single family home on a vacant lot, the planning board failed to undertake "individualized consideration" by making findings as to the recreational needs created by development of the lot.

However, the court modified the lower court's judgment which directed that the site plan approval be granted without the recreation fee. Instead, the Appellate Division remitted the matter: "for further consideration as to whether a recreation fee is appropriate, the amount, if any, and the specific findings which support such a fee..."

-Steven Silverberg

February 19, 2011

Court Upholds Planning Board On Location Of Property Access

The Appellate Division upheld a local planning board on a challenge to the location of access for a retirement community. In Matter of Fairway Manor, Inc. v. Bertinelli, an adjacent retirement community challenged the site plan approval based upon the proximity of the new access for the proposed development to the access for petitioner's property.

Previously, the property at issue, which is near the Sunrise Highway, had been occupied by a multiplex cinema. After ramps from the Sunrise Highway were relocated, the New York State Department of Transportation (DOT) required that any future access to the site had to be located at the western edge of the property (where petitioner's property is located) because of safety concerns relating to the relocated Sunrise Highway ramps. In order to develop the property as a retirement community it was necessary to obtain a rezoning and as part of the zoning approval the Town Board also placed restrictions on the location of any access for the property.

When the proposal for the new development came before the planning board it was determined that the existing access should be relocated to the western edge of the property in order to address the safety issues. The petitioner rejected a suggestion that the new development share access with petitioner's property and brought this challenge to the location approved by the planning board.

In upholding the decision of the planning board and affirming the lower court, the appellate division noted the general rule applicable to judicial review of planing board decisions:

" A local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary, or an abuse of discretion..."

The court then held:

"In evaluating the proposed site access road, the Planning Board considered the need to mitigate the dangerous traffic condition posed by the nearby highway exit ramp, the limited access point options in light of the covenants and restrictions imposed by the Town Board and the NYSDOT, and the expert opinion of the Town of Brookhaven Director of Planning."

-Steven Silverberg

November 28, 2010

Zoning Board Properly Applied Balancing Test In Denying Area Variance

The Appellate Division found that a request for an area variance to park in the front yard of the petitioner's property would produce an undesirable change in the neighborhood and therefore the zoning board properly denied the requested variance. In Matter of Russo v. City of Albany Zoning Board, the Appellate Division Third Department held that the zoning board had properly applied the statutory balancing test (Town Law 267-b(3)) in reviewing the area variance application and therefore the decision should not be overturned.

The petitioner initially claimed that he was parking in his front yard pursuant to a previously issued variance or permit. The City could find no record of any such permit or variance and since petitioner began using the space after the zoning ordinance prohibited parking in the front yard it could not be a legal non-conforming use.

As for the requested variance, the court found that "although other houses in the surrounding area had front-yard parking, this constituted the overwhelming minority of the properties. Furthermore, ...compared to those few properties, petitioner's use drastically differed in that his parking area is in the very middle of the lot, as opposed to on the side of the residence, and caused his vehicle to be parked over the City sidewalk." The court noted that parking over the sidewalk created a public safety hazard. These factors, coupled with the finding that the petitioner had available alternatives and that the condition was self created as "petitioner constructed a driveway on his front lawn and began parking there with full awareness of the applicable zoning regulations prohibiting such use," the court found the actions of the zoning board were reasonable.

-Steven Silverberg

November 18, 2010

Town Entitled to Injunction To Enforce Zoning

A court granted summary judgment to the Town of Southold enjoining continued violation of the local zoning ordinance. In Town of Southold v. Estate of Edson, the court restated several basic principles relating to enforcement of local zoning:

"plaintiff was entitled to injunctive relief to enforce its zoning laws...and estoppel is generally unavailable to prevent a municipality from discharging its statutory duties... Moreover, a building permit issued due to a misrepresentation by the applicant or an error by the municipal agency cannot confer rights in contravention of the zoning laws, and is subject to corrective action, even where the results may be harsh (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 282; Town of Putnam Val. v Sacramone, 16 AD3d 669, 670; McGannon v Board of Trustees for Vil. of Pomona, 239 AD2d 392, 393; Baris Shoe Co. v Town of Oyster Bay, 234 AD2d 245; Welland Estates v Smith, 109 AD2d 193, 196, affd 67 NY2d 789)."

-Steven Silverberg

November 6, 2010

Eighty Year Old Attempted Subdivision Did Not Create Second Lot

The determination by the local building inspector that a 1928 "subdivision" did not create two lots was upheld by the Appellate Division. In Matter of Rusciano v. Ross the court noted that the lot in question was originally a single lot but in 1928 the then owner sold off a portion of the property. However, a subdivision map was never filed and the lots created in 1928 were not zoning compliant.

The court found that by 1948 the two lots, known as 6 and 6A, were again in single ownership. The petitioner then acquired the lots by deed with a single description in 1971, but the deed also referred to lots 6 and 6A. Although, the lots continued to be designated as lot 6 and lot 6A and they were taxed separately by the assessor, they continued in single ownership with lot 6 containing a house and lot 6A containing an accessory storage shed. The court upheld the determination that the lots were merged, finding that there was a rational basis for the determination of the zoning board in upholding the building inspector's interpretation.

-Steven Silverberg

October 12, 2010

Property Owner Found To Be Within Zone Of Interest For Standing To Challenge Development

An appellate court reversed a lower court decision dismissing, for lack of standing, a challenge brought by a nearby property owner to a development over 1,000 feet from his property. In Matter of Ontario Heights Homeowners Association v. Town of Oswego Planning Board, the Appellate Division Fourth Department held that the property owner was within the "zone of interest" under the Environmental Conservation Law and therefore had standing to raise a challenge to a proposed development on environmental grounds.

The lower court had dismissed the action by the property owner across the street whose property is 697 feet from the property line of the development and 1,242 feet from the actual development. However, the Appellate Division held:

"Supreme Court erred in determining that he lacks standing to bring this proceeding. Dunsmoor, who resides across the street from the proposed development, has alleged that he may suffer environmental harm as a result of the Planning Board's decision to permit the developer to utilize a private sewage treatment plant on the proposed development, rather than utilizing the City of Oswego's public sewer system.... he is " arguably within the zone of interest to be protected by [article 8 of the Environmental Conservation Law]' . . . and [has] standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity' "

-Steven Silverberg

August 11, 2010

Court Upholds SEQRA Determination and Subdivision for 850,000 Square Foot Shopping Center

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

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

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

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

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

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

-Steven Silverberg

June 17, 2010

Another Vested Rights Decision From The N.Y. Court of Appeals

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

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

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

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

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

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

-Steven Silverberg

May 27, 2010

District Court Ruled that Airmont Political Sign Law Violates Free Speech

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

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

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

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

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

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

By Katherine Zalantis

May 17, 2010

Court Upholds Denial Of Area Variance Based Upon Balancing Test

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

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

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

-Steven Silverberg

May 5, 2010

Court Finds that 82 Year Old Filed Map Does Not Vest Rights to Subdivision

An attempt to circumvent planning board approval of a subdivision using a subdivision map filed in the county clerk’s office 1928 was rejected by the Appellate Division. In Matter of Atlantic Development LLC v. Town/Village of Harrison the court found that a 1923 provision of the local town code, still in effect in 1928, required town board approval for any subdivision and therefore the 1928 map, which had not received such approval, did not create a valid subdivision. The appellant had argued that the provisions of New York State Town Law section 276(2) grandfathered development of the 45 lot subdivision shown on the 1928 map. The cited provision permits continued development of a property which has at least 80% of a site developed and is shown on a subdivision map filed with the county clerk’s office prior to the appointment of a planning board by the town. Since the 1928 map predates the creation of a planning board in the Town/Village of Harrison, the appellant claimed the provisions of Town Law 276(2) applied and the property was exempt from the requirement of subdivision approval by the planning board.

In rejecting this argument, the court noted that the property was undeveloped and since 80% of the property was not improved the grandfathering provisions of Town Law section 276(2) did not apply. Further, in an interesting interpretation of the statute, the court also found that Town Law section 276(2) did not apply because in 1928 the town board was the "functional equivalent of a planning board." The court held:

“…while the 1928 Map was filed prior to the creation of the Planning Board, the 1923 Town Code, as previously noted, required Town Board approval of any subdivision plat. As of 1928, the Town Board was, for the purposes of the current version of Town Law § 276(2), also the functional equivalent of a planning board for the Town (see e.g. Matter of Russell Oaks, Inc. v Planning Bd. of Inc. Vil. of Russell Gardens, 28 AD2d 569, affd 21 NY2d 784), and the 1928 Map was filed at a time when approval was required by the functional equivalent of a planning board, that is, the Town Board.”

-Steven Silverberg

April 17, 2010

Failure to Meet A Zoning Code's Special Permit Conditions Is Grounds For Denial

An appellate court reiterated the requirement that every precondition to granting a special permit must be met before a zoning board is required to grant such a permit. In Navaretta v Town of Oyster Bay, the Appellate Division Second Department upheld the denial of a special permit by an attorney seeking to operate an office from a residence.

Holding there was a rational basis for the zoning board's decision the Court held:

"...the record supports the ZBA's findings that the petitioner's home business failed to comply with several conditions in the special use ordinance, in that his proposed use exceeded the maximum square footage allowed, retained the services of more than one nonresident employee, failed to provide sufficient off-street parking, displayed a sign which exceeded the maximum size allowed, failed to maintain the character of the dwelling as a residence, and created hazardous or detrimental conditions, including glare from lighting...."

-Steven Silverberg

April 10, 2010

Court Upholds ZBA Decision Including Land Under Water in Lot Area

The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: "the ZBA's determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion."

Unfortunately, the Appellate Division did not discuss the facts of this case. It is necessary to read the lower court decision to fully understand the facts of this unusual and complex case, in which the zoning board concluded that local regulations did not preclude the property owner from using certain underwater lands in calculating the area of the lot and ultimately deciding the size of the permitted structure based upon FAR.

The appellate brief and oral argument on behalf of the zoning board was by our partner Katherine Zalantis.

-Steven Silverberg

April 1, 2010

Minimal Change In Structure With Approved Area Variance Does Not Justify Denial Of Amended Variances

The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied. The Court found the amendment involved an additional 3.6 inch setback variance to accommodate a structure that was 6 inches larger on one side and 18 inches larger on the other side and therefore the denial of the amended variance was arbitrary..

In reversing the decision of the Zoning Board the court stated the general rule applicable to such cases:

"Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion'" ... Nonetheless, a determination of a zoning board of appeals that 'neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'"

The Court went on to hold:

"Under the facts of this case, the requested amendments to the variance are de minimis (see Matter of Stapen v Siegel, 105 AD2d 841). Since the ZBA did not explain its reasons for reaching a different result on essentially the same facts as it had faced when making its prior decision, under the specific circumstances of this matter, its determination to deny the application for an amended variance was arbitrary and capricious, and must be annulled."

-Steven Silverberg

March 29, 2010

Village May Not Use Broad Reading Of Restrictive Covenant To Prevent Use

An appellate court upheld a decision finding that a proposed in-ground swimming pool does not violate a restrictive covenant. In Kemp v. Village of Scarsdale the Appellate Division held "the plaintiff established her prima facie entitlement to judgment as a matter of law, as the plain language of the restrictive covenant at issue did not reveal an intent to preclude her proposed use of the property."

The Court noted:
"Since the law favors the free and unobstructed use of real property, a restrictive covenant must be strictly construed against those seeking to enforce it, and may not be given an interpretation extending beyond the clear meaning of its terms (see Witter v Taggart, 78 NY2d 234, 237-238; Wechsler v Gasparrini, 40 AD3d 976; Liebowitz v Forman, 22 AD3d 530, 531; Kaufman v Fass, 302 AD2d 497, 498, cert denied 540 US 1162 )."

-Steven Silverberg

March 27, 2010

Variance For One Nonconfirming Use Does Not Require Grant Of A Variance For Another Nonconfirming Use

A court denied a use variance to conduct a motorcycle sales operation at a location which previously obtained a use variance to operate an antique furniture store. In Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead, the Appellate Division affirmed the denial of a use variance, finding that the property owner had a self created hardship due to the fact that he purchased the property for a commercial use when he knew it was zoned for residential use. Further, the court held "the fact that a use variance was granted to the prior owner for the use of an antique furniture store could not have lead to a reasonable expectation by the petitioner that it could operate a motorcycle sales, storage, and display store under the prior use variance."

The court, in quoting the case of Matter of Miller Family Ltd. Partnership v Trotta (23 AD3d 389, 389-390) reiterated the criteria for obtaining a use variance in New York stating:

"there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created."

Finally, the Court found that the grant of a use variance for the antique store did not create a precedent requiring the Zoning Board to grant the current variance application as "the evidence at the hearing established that the circumstances of the prior variance granted by the Zoning Board were distinguishable from the petitioner's application, and, therefore, the Zoning Board was not bound by its earlier determination."

-Steven Silverberg

February 18, 2010

N.Y. Court of Appeals Broadens Test For Vested Right to Non-Conforming Use

In a decision issued today, the New York Court of Appeals reversed the Appellate Division and found that a non-conforming mining operation had attained vested rights in that use. In Glacial Aggregates LLC v. Town of Yorkshire, the Court concluded that the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area.

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

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

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

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

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

-Steven Silverberg

December 25, 2009

Determination to Deny Area Variance Does Not Require Justification in Each of the Five Statutory Factors

The Appellate Division ruled that a zoning board of appeals need not justify the denial of an area variance under all five factors in the balancing test established by Town Law. In Matter of King v/ Town of Islip Zoning Board of Appeals the court upheld the denial of an area variance for a swimming pool finding that there was a rational basis for the decision of the board. The case involved a request to place a pool on a lot which did not meet the Town's zoning requirement that a lot have at least 12,000 square feet before a pool can be constructed.

In reversing the Supreme Court decision the Appellate Division found the Supreme Court had erred. Quoting its own recent deciion in Matter of Genser v Board of Zoning and Appeals of Town of N. Hempstead, 65 AD3d 1144 (2d Dept. 2009) the court noted "'the Zoning Board is not required to justify its determination with supporting evidence with respect to each of the five [statutory] factors, so long as its ultimate determination balancing the relevant considerations was rational....'"

Most significantly the court rejected the argument that the variance should be granted because even though the lot did not meet the minimum 12,000 square foot lot area the pool could still be placed in a manner which meets the set back requirements of the ordinance. The court found "petitioners' primary argument was that, because the proposed pool would meet the relevant property setback requirements, it would have no greater impact than would a pool on a standard lot. However, the ZBA properly rejected this argument, as granting the application on this basis alone would render meaningless the Town Board's legislative decision to limit above-ground swimming pools as of right to lots not less than 12,000 square feet...."

-Steven M. Silverberg

November 22, 2009

New York Court of Appeals Finds Zoning Board Abused Its Discretion in Granting Use Variance

The New York Court of Appeals in In the Matter of Edward J. Vomero v City of New York, et al has unanimously held that the City of New York Board of Standards and Appeals abused its discretion in granting a use variance to use residentially-zoned property for commercial use. The Court reversed the decision of the Appellate Division, Second Department in which two justices had dissented, and reinstated the original judgment of the Supreme Court, Richmond County.

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

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

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

-Bernis E. Shapiro

October 11, 2009

Failure to Exhaust Adminstrative Remedies Bars Claim for Certificate of Occupancy

In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies. In Matter of Vinrus v. the Village of Pelham Manor Building Inspector, the building inspector had issued a notice that the property owner was required to obtain a certificate of occupancy for a new tenant. The property owner brought an article 78 proceeding challenging the direction of the building inspector on various grounds.

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

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

October 5, 2009

Deceitful Conduct May be a Basis for Denial of an Area Variance

The Appellate Division held that under certain circumstances a zoning board may consider deceitful conduct by an applicant in reaching a determination to deny an area variance. In Matter of Caspian Realty, Inc. v Zoning Board of Appeals of the Town of Greenburgh, the court reiterated that a zoning board of appeals may only apply the five criteria set forth in Town Law section 267-b (3) for granting or denying an area variance but “an applicant's deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law § 267-b(3).”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 4, 2009

Court Allows Some Causes of Action Under 42 USC 1983 to Stand Against the Village of Suffern

The Appellate Division Second Department decided a complex appeal involving cross motions on whether a property owner had sufficiently stated causes of action sounding in violations of constitutional rights under 42 USC 1983 and related causes of action resulting from the denial of a certificate of use. In the case of Sonne v. Board of Trustees of the Village of Suffern, the court dismissed some but let stand several causes of action resulting from a long standing dispute over whether a property owner could use and occupy the third floor of a 100 year old commercial building.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

September 28, 2009

Summer 2009 Zoning and Municipal Law Round Up

The following is a summary of New York zoning and municipal law cases decided since June that we have not yet covered. The summary has been prepared by Bernis Shapiro of our office.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 27, 2009

Town May Prohibit Use of Land Solely for Access to Abutting Parcel

The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use.

The petitioner argued "the "entranceway" or "access road" was not a principal use, an accessory use, or a "driveway;" rather, it was an "infrastructure improvement" pursuant to Town of Kent Zoning Code former § 77-6(F)." On the basis of that interpretation, the petitioner claimed that the zoning board should be reversed.

While the matter was pending the Town amended its zoning ordinance to specifically address this issue and argued that the court should apply the rule which requires that in making its decision a court must apply the law as it exists on the date of the court's decision. The petitioner argued that the so called "special facts exception" should apply and the law in effect at the time of the application should be applied. The court noted that the special facts exception "may be applied if the municipality unduly delayed proceedings and acted in bad faith." However, the court declined to reach that issue.

Instead, the court upheld the zoning board based upon its interpretation of the law in effect at the time the zoning board rendered its decision. The court noted the zoning board had determined the improvement at issue was an infrastructure improvement and that part of its decision was not challenged. In addition, the zoning board determined such an improvement was not a permitted use.

The court explained that generally "[u]se of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they had been located in the first zoning district" but "this principle would not apply to a public way. The general rule is that the use of a public way is not restricted by local zoning regulations." However, "in the instant case, since the proposed road is not a mapped street and was never approved by the Town of Kent Planning Board, it cannot be considered a public way. Therefore, the proposed road is subject to local zoning regulations."

The court therefore concluded the decision of the zoning board was not arbitrary.

May 18, 2009

Courts Continue to Defer to Zoning Boards

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."

May 11, 2009

Appellate Court Discounts Procedural Missteps by Planning Board in Granting Site Plan Approval

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.”

May 7, 2009

Denial of A Permit Cannot Be Based Upon Community Pressure Rather Than Expert Opinion

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.”

May 4, 2009

Acquiescence to Nonconforming Use Does not Render It Legal

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.

April 29, 2009

Vacancy Rate Is An Appropriate Criteria In Determining To Issue A Use Variance

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.

April 27, 2009

No Vested Rights In Nonconforming Sand and Gravel Mine

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.

March 23, 2009

Court Upholds Finding That Wind Powered Generators are a Utility

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."

March 22, 2009

Court Voids Denial of Permit Renewal For Failure to Adhere to Administrative Precedent

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...".

March 19, 2009

Court Upholds Denial of Area Variance Due to Self Created Hardship

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.

March 15, 2009

Court Holds Challenges to Zoning Amendments Do Not Alway Have to Be Brought Within Four Months

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.

March 2, 2009

Property Owners Within the Modified Zoning District Have Standing to Challenge Amendment

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.

February 28, 2009

Zoning Board Determination of Preexisiting Nonconfroming Use Upheld

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."

February 7, 2009

Challenge to a Local Law Requiring Discontinuance of a Nonconforming Use

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.

January 26, 2009

Appellate Court Summarizes Rules for Area Variances

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.

January 5, 2009

Zoning Board’s Quasi-Judicial Administrative Decision is Subject to Res Judicata Dismissal

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.

December 29, 2008

Town Zoning Ordinance Voided

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.”

December 8, 2008

Court Reiterates Authority of Zoning Board to Interpret Local Zoning Code

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.

September 12, 2008

Planning Board May Require Recreation Fee at Time of Final Subdivision Approval

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.

September 9, 2008

An Invalid Permit Cannot Confer Vested Rights

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.”

July 31, 2008

Variance May Not Be Conditioned Upon Term of Ownership of Current Owner

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….”

June 22, 2008

Zoning Variance May Not Be Limited To The Term of Ownership of the Applicant

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.”

June 15, 2008

A Complete Record is the Key in Zoning Board Applications

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.

June 7, 2008

Allowing Hot Mix Asphalt Plant as Special Use is Not Spot Zoning

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.”

May 13, 2008

Belated March Madness-SEQRA and Zoning Cases from March, 2008

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.

February 26, 2008

Conditions on Zoning Variance Must Be Reasonable

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.

February 24, 2008

Courts Must Apply a Zoning Law as Amended Following Submission of an Application

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.

February 19, 2008

Court Reverses Determination that Rezoning Constituted an Unconstitutional Taking

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.

January 6, 2008

Denial of Area Variance Due to Community Pressure Reversed

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.”

November 21, 2007

Site Plan Application Annulled Due to Prejudging By Planning Board Members

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).

November 19, 2007

City Attorney May Extend Time to Act Under Variance Without Zoning Board Action

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.

August 26, 2007

Local Law Annulled Due to Improper Segmentation of SEQRA Review

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.

August 19, 2007

Appellate Court Holds Adjoining Municipalities May Sue Under SEQRA To Protect Community Character

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.

July 28, 2007

Thirty Year Old Site Plan Approval Does Not Create Vested Rights

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.

April 16, 2007

Second Circuit Rejects Section 1983 Property Rights Claim

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”.

January 8, 2007

Zoning Board Bound by Precedent Unless It States a Reason for a Different Result

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.

December 16, 2006

Court Establishes Statute of Limitations for Challenge to Municipal Review Fees

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.

October 18, 2006

New York Legislature Provides for Training of Planning Board and Zoning Board Members

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.

October 3, 2006

Court Finds Vested Rights in 1993 Building Permit

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.

September 25, 2006

Subdivision Application Not Complete Until Filing of Either a SEQRA Negative Declaration or a Notice of Completion of a Draft Environmental Impact Statement

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.

June 12, 2006

Court May Not Compel Town Board To Consider Zone Change Application

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.

June 5, 2006

Court Upholds New York City’s Use of Eminent Domain for Hudson Yards Project

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.

June 1, 2006


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.

May 6, 2006

Zoning Board May Not Use Public Safety As Sole Basis for Interpretation

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

April 29, 2006

Changed Circumstances Warrant Area Variance Rehearing Before Zoning Board

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?

March 18, 2006

Court Rejects SEQRA Negative Declararion

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.

March 6, 2006

Summary of Westchester Day School RLUIPA Decision

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.

March 4, 2006

RLUIPA Applied in Westchester Day School Case

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 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.

January 16, 2006

Second Circuit Reverses Judgment for Denial of Wireless Telecommunications Tower

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.

January 2, 2006

Appellate Division Decides Trilogy of New Rochelle Zoning Challenges

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.

December 19, 2005

Court of Appeals Remands Adult Zoning Case

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.

December 12, 2005

Eminent Domain Case Remanded to District Court on Notice Issue

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?

December 5, 2005

Jury Awards 1.6 Million for Rezoning of Property

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.

December 2, 2005

When Does RLUIPA Prevent Review of Land Use Applications?

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.