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The Appellate Division Second Department recently ruled that, under the procedure followed by objecting neighbors, the local Zoning Board of Appeals (“ZBA”) lacked jurisdiction to rule on the neighbors’ objection. In  Matter of Capetola v. Town of Riverhead, the Petitioners/Plaintiffs (“Petitioners”), who owned a property nearby the property in contention, had raised an issue as to whether the proposed development required a lot area variance, but had failed to follow the proper procedure for raising such an objection.

The owner of the property seeking a building permit, Edward Hocker, received a denial from the Town Building Inspector, indicating that Hocker needed four area variances in order to obtain a building permit.   “At the public hearing concerning Hocker’s application, the petitioners…, who own a house close to the subject parcel, complained that, among other things, Hocker needed a lot size area variance to build on the subject parcel. After the hearing, the ZBA granted Hocker’s application for the four variances. The ZBA also determined that Hocker did not need a lot size area variance.”

Despite Petitioners’ objection at the hearing, claiming that a lot area variance was required, Petitioners had never directly appealed the determination of the building inspector, which determination did not include a finding of  the need for a lot area variance.

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The Appellate Division restated the requirement that all interested parties must be named in an action challenging a site plan approval and that a property owner and prospective developer are not necessarily united in interest. In Matter of Mensch v Planning Bd. of the Vil. of Warwick, the Court found that the failure of the Petitioner/Plaintiffs (“Petitioners”) to name the owners in the original Petition/Complaint was not cured by the filing of an amended pleading, subsequent to the passage of the thirty day statute of limitations.

The developer, 116 Elm Street Realty LLC (“the Developer”), sought permission to develop a parcel owned by Frank D. Petrucci, Lynn Crane, and Glenn Petrucci (“the Owners”). The Village Planning Board conducted a SEQRA review and issued a negative declaration. Thereafter, the Planning Board granted site plan approval to the Developer, permitting construction of a restaurant/catering facility on the property at issue. The Petitioners, who own property that borders the  site in question, then brought this hybrid Article 78/Declaratory Judgment Action, challenging the actions of the Planning Board, seeking a determination from the Building Inspector that the approval was for a use not permitted in the Zoning Code and a declaration that the use was not permitted. Initially, Petitioners failed to name the Owners  of the property. When Petitioners filed an amended Petition/Complaint, it was filed and served subsequent to the expiration of the statute of limitations. The lower court dismissed the case.

In upholding the lower court decision, the Appellate Division held:

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The Appellate Division determined that the failure to provide “dollars and cents” proof of the inability to use a property for any permitted use required denial of a use variance.  In Matter of Dean v. Town of Poland Zoning Board of Appeals, the owners of approximately 17 acres of land had agreed, subject to obtaining a use variance, to sell two acres of the property for construction of a retail store. Initially, the Zoning Board of Appeals (ZBA) issued the use variance without making any findings. Upon challenge by the Petitioners, who own property nearby, the lower court upheld the issuance of the variance. On appeal, the Appellate Division remanded the matter for the ZBA to make proper findings and held the appeal pending the making of such findings. Thereafter, the ZBA made findings based upon the criteria set forth in Town Law section 267-b [2]. The Appellate Division then reversed the lower court and granted the petition to overturn the determination of the ZBA granting the use variance.

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The Second Circuit affirmed in part and reversed in part a district court decision finding actions by the Village of Pomona in adopting four land use laws violated the rights of a proposed religious use. In Congregation Rabbinical College of Tartikov, Inc. V. Village of Pomona, the Court summarized  the situation stating:

“This case poses difficult and in some respects subtle questions. Educational and religious institutions, as owners and users of real estate, are generally subject to local land use regulation. But they play unique roles in our society. Hence, our laws afford them some special treatment with respect to such regulation. Moreover, religious institutions enjoy the protection of the First and Fourteenth Amendments and federal legislation, each of which, in appropriate circumstances, trumps local land use law.

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Last week the Eighth Circuit Court of Appeals denied an action pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) challenging a local law that resulted in a religious school being denied the right to install specific lighting and a sound system for its baseball field. In Marianist Province of the United States; St. John Vianney High School, Inc.  v. City of Kirkwood, the Court held that the local regulations prohibiting spillage of light and sound, beyond certain levels,  into the adjacent neighborhood did not violate RLUIPA.

The high school, which provides religious teachings, has a sports program with a football stadium that contains lighting and a sound system. The baseball stadium did not contain lighting or a sound system.  The local public high school likewise has both football and baseball fields, with the football field having lighting and a sound system and the baseball field lacking both. In 2012 the City adopted local regulations that limited such systems so as to avoid disturbances cause by light spillage and loud sounds into adjacent neighborhoods.

“Vianney began the process of installing lights on its baseball field in late 2014. In 2015, contractors told the school that no lighting configuration could both comply with the lighting regulations and be bright enough to play baseball safely at night. Vianney therefore applied for a variance from the regulations. Kirkwood’s city planner told Vianney it did not need a variance, mistakenly thinking the baseball field already had lights. In October 2015, Vianney submitted a site plan for its improvements to the baseball field, which Kirkwood approved. Vianney then installed the lights at a cost in excess of $235,000. In January 2016, Vianney also installed an updated sound system on its baseball field.

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The Appellate Division upheld an area variance for zero lot frontage that permitted the merger of two lots for the purpose of constructing a single family house, where the merged lots are also non-conforming in other respects. In Matter of Nowak v. Town of Southampton. the applicant (Insource) sought to merge two preexisting nonconforming lots that together failed to meet the lot area requirements and lacked any road frontage, as required under the local zoning code. The access to the road would be solely over an existing easement.

After the Zoning Board of Appeals issued the frontage variance, the neighbor brought an Article 78 proceeding challenging the Zoning Board of Appeals’ determination. The lower court upheld the determination and the petitioner appealed to the Second Department.

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The U.S. District Court for the Middle District of Tennessee held that a local church may proceed with most of its claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  In Layman Lessons Church v. Metropolitan Government of Nashville, the Court sustained several of the Plaintiff’s claims, denying most of the Defendant’s motion to dismiss.

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In upholding the grant of an area variance, the Appellate Division rejected a challenge to the adequacy of the hearing notice. In the Matter of deBordenave v. Village of Tuxedo Bd. of Zoning Appeals, the Court found that the Zoning Board had properly conducted the balancing test required to grant an area variance. The Court also addressed the more unusual issue of proper notice for one of the variances granted.

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The Appellate Division found that a local law providing that ten percent of building permits could be withheld pending completion of infrastructure required for a subdivision was ultra vires and void. In Joy Builders v. Town of Clarkstown, the Second Department reversed the lower court and granted summary judgment to the Plaintiff holding that ” Town of Clarkstown Code § 254-18B is null and void as ultra vires”.

The case arises out of two subdivision approvals obtained by the Plaintiff. In each instance, the Town utilized the provisions of §254-18B to require that, before building permits were issued for a portion of the lots, the Plaintiff was required to complete all construction of required infrastructure.  Here the builder was required to install roads, sidewalks, street lights and other infrastructure, which were to be completed and dedicated to the Town. While the Plaintiff was made to post bonds and letters of credit to ensure completion of the infrastructure work, the Town also used the provisions of §254-18B, which provided that up to ten percent of the building permits in each subdivision could be withheld pending completion and dedication of the infrastructure.  Plaintiff challenged that provision of the local law.

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The Sixth Circuit Court of Appeals held that  a zoning ordinance that limited permitted uses, based upon potential tax revenue generated by the uses, did not violate the Religious Land Use and Insttutionalized Persons Act (RLUIPA).  In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, the Court held that the School had failed to establish a prima facie RLUIPA claim.

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