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The Appellate Division determined that the challenge to a proposal for a telecommunications facility (cell tower) on State land was not yet ripe for review. In Village of Pelham Manor v. Crown Communications N.Y., Inc. the Appellate Division found that, where Crown Communications had a contract with the State to construct cell towers on state land, the failure of the State to take final action on the proposal had, under the specific circumstances of this case, neither triggered a default provision in the contract that would have constituted an approval, nor otherwise resulted in a “final” action that was ripe for judicial review.

The agreement between the State and Crown provided in part, under Section 2(E): “prior to any proposed installation of a telecommunications tower, Crown is required to provide to the State a schedule that contains the information set forth in that section, which includes, among other things, an environmental assessment, drafts of any documents required by the State Environmental Quality Review Act (hereinafter SEQRA), draft site plans and design specifications, a description of State action required, and local approvals, if any, required. Section 2(E) further provides that the State shall review the schedule, and within 30 days of receipt, the State shall notify Crown in writing of its approval or disapproval of the project. Failure to do so ‘shall constitute approval of such installation for purposes of [the] Agreement.'”

Effectively, Plaintiff argued in its August, 2020 pleadings that since more than 30 days had passed from the time of the submission of an Environmental Assessment Form by Crown (in July 2020), without action by the State, the project had been approved by default. The court disagreed noting:

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The New York Court of Appeals, in an action challenging the issuance of a use variance, clarified the application of the “relation back doctrine” to allow an amended petition adding a necessary party, after expiration of the statute of limitations. In Matter of Joseph Nemeth v. K-Tooling https://www.nycourts.gov/reporter/3dseries/2023/2023_05349.htm the Court found, omitting the owner of the property at issue from the initial petition in the Article 78 challenge to the use variance could be cured through the relation back doctrine in CPLR 203 (C).

Outlining the general rule at issue, the Court explained that with: “the relation back doctrine, claims against a party mistakenly omitted from the initial filing and then added after the expiration of the limitations period may be treated as interposed when the action was timely commenced against the originally named respondents. The relation back doctrine applies when (1) the claims arise out of the same conduct, transaction or occurrence; (2) the new party is ‘united in interest’ with an original defendant and thus can be charged with such notice of the commencement of the action such that a court concludes that the party will not be prejudiced in defending against the action; and (3) the new party knew or should have known that, but for a mistaken omission, they would have been named in the initial pleading (see Buran v Coupal, 87 NY2d 173, 178 [1995]).

The doctrine focuses on the notice and prejudice to the added party. However, the doctrine does not apply when a plaintiff ‘intentionally decides not to assert a claim against a party known to be potentially liable’ or when the new party was omitted ‘to obtain a tactical advantage in the litigation’ (id. at 181). These exceptions minimize gamesmanship and manipulation of the CPLR (see id.).'”

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Recently, the Second Circuit Court of Appeals upheld the District Court determination that the City of Kingston had the right to prohibit the public from displaying signs at a City Council meeting and that such restriction did not, as claimed by the Plaintiffs, violate their First Amendment rights. In the case of Tyler v. City of Kingston, the Court held:”[t]he district court concluded that Plaintiffs had not adequately alleged that the City’s sign prohibition was unreasonable in light of the potential disruption or distraction that signs at Common Council meetings might pose. We AFFIRM the judgment of the district court.”

The Plaintiffs are nine citizens of the City who are active regarding various community issues. The City proposed to purchase an armored  rescue vehicle. The Plaintiffs intended to protest the proposal by appearing in City Hall at the Council meeting. They intended to carry large signs objecting to the proposed action. Several days before the scheduled hearing the City had adopted a rule prohibiting the carrying of signs in City Hall, where the hearing was scheduled to take place.

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In a decision that reiterated the need for there to be other than economic impacts to a property owner to serve as a basis for challenging the environmental review of a local law or ordinance, the Appellate Division affirmed the lower court dismissal of a challenge to a zoning amendment. In the case, Matter of 1160 Mamaroneck Avenue Corp. v City of White Plains, the Appellate Division Second Department upheld the lower court decision dismissing the challenge to an amendment of the local zoning regulations and modified the lower court decision by affirmatively stating that the local law is valid.

Petitioner/Plaintiff (hereafter “Petitioner”) in this hybrid proceeding owns property in a residential district of the City of White Plains.  Petitioner maintains a non-conforming use on its property consisting of a nursery. As part of the nonconforming use, Petitioner processes various materials such as soil, wood chips and mulch.  The City undertook a review of those uses which included a proposed amendment to the City’s zoning regulations. The amendment was subject to review under the State Environmental Quality Review Act   (SEQRA) as a Type I action. After conducting an environmental review, the City issued a negative declaration. The City Council “upon determining that processing activities had various harmful effects that were incompatible within residential districts, adopted amendments to the City’s zoning ordinance (hereinafter the zoning amendments) which ban processing activities by nurseries located within a residential district.”

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On May 2. 2022, the U.S. Supreme Court ruled on the refusal of the City of Boston to permit the flying of a Christian flag, on a flag pole located at Boston’s City Hall Plaza. In Shurtleff v City of Boston Massachusetts, the Court ruled that the City had violated the First Amendment right of free speech in denying permission to fly the flag at issue.

The Boston City Hall Plaza has been used for various public events and the City has acknowledged the space is a “public forum”. The Plaza contains three flag poles, one flying the American Flag, one flying the flag of the Commonwealth of Massachusetts and the third either flying the Boston Flag or, with permission from the City, the flag of a group holding a ceremony in the plaza. Between 2005 and 2017, 284 ceremonies, flying 50 different flags were held in the Plaza.

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The Appellate Division reversed a determination of the Supreme Court that had upheld the granting of a special permit and site plan, where the proposal failed to fully comply with the zoning ordinance. In the Matter of Marcus v. The Planning Board of the Village of Wesley Hills, the appellate division found that the lower court had erred in allowing the Planning Board to vary certain requirements for both the special permit and site plan.

The Respondent, Rockland Tree Expert, Inc., which does business in the Village as Ira Wickes, Arborist (hereinafter “Wickes”) had made an application, pursuant to the Village of Wesley Hills zoning ordinance, for a special permit to operate its nursery, landscaping and arborist business and for a site plan approval for the operation of the business within a primarily residential (R-35) zoning district.  As this was a business within a residential zone, the proposal needed review and approval of both a special permit, as well as for the site plan proposed by the applicant. The determinations  of the Planning Board were challenged and the Supreme Court upheld the decisions of the Planning Board.

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The Appellate Division Second Department found that challenges to requirements of two  Zoning Board of Appeals decisions and the conditions to a site plan approval issued by a Planning Board should stand. In the Matter of Florida Historical Society v. the Zoning Board of Appeals of the Village of Florida, the Court held that the challenges to the two determinations by the Zoning Board of Appeals (“ZBA”) were not timely, as they failed to be commenced within thirty days of the filing of the determinations and further upheld the determination of the Planning Board, fixing  conditions with which the Petitioner failed to comply.

The Petitioner, Historical Society, was the beneficiary of the Estate of Raymond F. Green, who left his home and approximately fourteen surrounding acres of property to the Petitioner. The Petitioner sought to establish its headquarters, a meeting space and  museum at the location of the home and walking trails, with educational markers, on the remainder of the property.

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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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