New York Zoning and Municipal Law BlogAn attempt to cure the failure to name a property owner in an Article 78 proceeding challenging a site plan and special permit approval was found barred by the statute of limitations. In Matter of Sullivan v. Planning Board of the Town of Mamakating, the Appellate Division dismissed an Article 78 proceeding challenging an approval for AT&T to construct a wireless telecommunication tower on property it was to lease from the property owner, Hart. Continue reading →
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Portion of Former Shea Stadium Site May Not Be Converted To Retail And Other Non-Park Uses
The New York Court of Appeals held, the legislation permitting the development of Shea Stadium and related facilities on park land does not extend to development of retail businesses and other uses not related to a stadium. In Matter of Avella v. City of New York, the Court strictly construed the legislation permitting the stadium and found that the proposal, to construct a retail mall on the parking field that formerly held the stadium, would violate the public trust doctrine against alienation of parkland.
“Summarizing the longstanding history of the public trust doctrine in Friends of Van Cortlandt Park v City of New York, we explained that ‘our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes’ (95 NY2d 623, 630 [2001]).”
The area of New York City known as Willets Point was found to be in need of redevelopment. As part of a redevelopment plan, the developer proposed construction of a large-scale retail complex on a part of the parkland, which it labeld Willets West. The theory was that “the creation of a retail and entertainment center at Willets West w[ould] spur a critical perception change of Willets Point, establishing a sense of place and making it a destination where people want to live, work, and visit.”
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Replacement Water Tank By Water District Is Not Subject to Village Zoning
Construction of a replacement water tank by the local water district was found to be a SEQRA Type II Action and not subject to the zoning of the Village in which the property is locted. In Incorporated Village of Munsey Park v. Manhasset-Lakeville Water District, the Court held the Water District (Defendant) properly determined its replacement water tank was not subject to local zoning and the project was a Type II Action that did not require any environmental review.
Since 1929, the Defendant had maintained a water tank on property it owned in the Village. In 2014 it was determined the tank needed to be replaced. The proposed replacement tank would have a 250,000 gallon greater capacity and would be shorter and squatter than the existing tank. The Defendant determined it did not require zoning review by the Village and the tank would be a SEQRA Type II Action as it constituted a replacement in kind. The Village commenced this action claiming that local zoning applied and that an environmental review is required.
The Court agreed with the Defendant holding:
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Tie Vote By Zoning Board Members Was Not An Automatic Denial
The Appellate Division held that a 2-2 vote by members of a Zoning Board of Appeals (ZBA) regarding a special permit application, unlike a tie vote for other applications, was not an automatic denial of the special permit application. In Matter of Alper Restaurant, Inc. v. Town of Copake Zoning Board of Appeals, the Court found, due to the fact that approval of a special permit is original as opposed to appellate jurisdiction of a ZBA, the rule that a tie vote constitutes an automatic denial is not applicable in this case.
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DEC Proposes New SEQRA Regulations
The New York State Department of Environmental Conservation (DEC) has proposed the first major changes in the implementing regulations for the State Environmental Quality Review Act (SEQRA) in two decades. The proposed amended regulations, if adopted, will bring about a number of procedural changes intended to streamline the SEQRA process.
Most significant is the increase in “Type II Actions” that are exempt from environmental review. The additions to the Type II list include, among other activities:
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Zoning Violations Preclude Property Tax Exemption for Religious Corporation
The Appellate Division upheld a Supreme Court determination granting summary judgment against a not for profit religious corporation seeking a real property tax exemption on property it owns and uses for religious purposes. In Congregation Ateres Yisroel v. Town of Ramapo, the Court held that the failure of the religious corporation to obtain permits for the occupancy of structures on the property precluded the granting of a tax exemption.
The property at issue was originally granted a certificate of occupancy as a single family residence in 1954. Sometime thereafter, the property was acquired by the not for profit religious corporation. From 2008 through 2011 the property was granted a real estate tax exemption by the Town. The decision does not explain why the exemption was issued or exactly what changed. However, in 2012 when an application for renewal of the exemption was submitted, the Town denied the renewal of the tax exemption. The Corporation commenced this action challenging the denial and the Supreme Court granted the Town’s motion for summary judgment dismissing the claim.
In upholding the decision of the lower court, the Appellate Division determined, despite the fact that the Corporation met the criteria for a not for profit religious corporation and owned the property at issue, the lack of zoning compliance precludes a tax exemption.
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Challenge to Approval of Telecommunications Tower Held Moot
The Appellate Division found the challenge to the approval of a 150 foot tall wireless telecommunications tower had been rendered moot due to completion of construction. In the Matter of Buren v. Town Board of the Town of Kent, the Court found the Petitioner had failed to seek a temporary restraining order prior to the applicant’s completion of construction and therefore the appeal was moot.
Homeland Towers LLC. applied for permission to construct a 150 foot tall tower for wireless telecommunications. The Town Board granted approval and the Petitioner brought an Article 78 proceeding to appeal the approval. Thereafter, the lower court denied the Article 78 petition. Petitioner appealed the dismissal of the Article 78 proceeding to the Appellate Division. While the appeal was pending, Homeland Towers LLC. moved to dismiss the appeal as academic, in light of the fact that the tower had been completed while the litigation was pending. The Appellate Division deferred action on the motion until the appeal was heard.
In its decision the Court reviewed the status of the law on the question of mootness.
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Homeless Shelter Operated by Church Complies With Zoning
The Appellate Division determined that a homeless shelter operated by a church complies with zoning that limited permitted uses to single family homes and houses of worship. In Matter of Sullivan v. The Board of Zoning Appeals of the City of Albany, the Appellate Division, Third Department, reversed the Supreme Court and held that operating a shelter for the homeless in a church parsonage meets the definition of house of worship, as a use permitted in the local zoning code.
The subject church and the Petitioner, who resides on an adjacent parcel, are in a zoning district permitting single family detached homes and houses of worship. A house of worship is defined in the zoning code as “[a] structure or part of a structure used for worship or religious ceremonies.” The term worship is not defined in the zoning code. The church inquired of the City if providing housing for up to 14 homeless individuals in the parsonage, which shares a parcel with the church, would be permitted. An opinion was issued stating that the use is not permitted. The church appealed to the zoning board seeking an interpretation of the zoning code.
After holding hearings, the zoning board concluded that the proposed use is “consistent” with a house of worship. Petitioner then brought this article 78 proceeding challenging the determination. The Supreme Court concluded “the proposed use of the parsonage could not reasonably be interpreted as a ‘house of worship’ as such term is defined in the Code…”.
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Takings Claim Dismissed for Failure to be Ripe for Judicial Review
The Second Circuit Court of Appeals issued a summary order denying an appeal from a decision dismissing the claim of regulatory taking, by a property owner whose property was not placed in any zoning district. In the case of BT Holdings, LLC v Village of Chester, the Circuit Court found that the District Court properly dismissed the claim, pursuant to 42 USC §1983, as there had not been a final determination with respect to whether the property owner could utilize its property.
Plaintiff’s property had been annexed from the Town of Chester to the Village of Chester. After the annexation, the Village of Chester failed to place the property in a zoning district. Due to the lack of zoning designation, the Plaintiff could not apply for site plan or other approvals necessary to develop Plaintiff’s property. As a result, Plaintiff commenced this action claiming a regulatory taking.
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Zoning Board Lacks Authority to Place Time Limit on Approval
The Appellate Division held that a zoning board exceeded its authority when it placed a five year term limit on a permit. In Matter of Citrin v. Board of Zoning and Appeals of the Town of North Hempstead, the Court overturned the lower court, finding that the Board of Zoning and Appeals (“Zoning Board“) lacked specific authority in the Town Zoning Code to place time limits on permits issued by the Zoning Board.
Section 70-225 of the local Zoning Code provides:
” E. Permit a use authorized on a portion of a lot in a lower restricted district to extend to the entire lot, but not more than 50 feet beyond the boundary line of the higher restricted district in a case where a use district boundary line divides a lot in a single ownership at the effective date of this chapter.”