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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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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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The New York Court of Appeals restated the rule that construction pursuant to a permit issued in error does not bestow any rights to maintain the structure or use. In Matter of Perlbinder Holdings, LLC v. Srinivasan, the Court held, because the permit on which the property owner relied was invalid, no common law vested rights could be obtained.

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The Appellate Division affirmed the reversal of the grant of a use variance for failure to provide evidence of entitlement to the variance. In the Matter of DeFeo v. Zoning Board of Appeals of the Town of Bedford, the Court found that the applicant had failed to provide any financial information to support the claim for a use variance. Once the use variance was overturned,the other approvals for the area variances, site plan and special permit were likewise vacated.

In addressing the deficiencies in the record with respect to the use variance, the Court noted to obtain “‘…a use variance premised upon unnecessary hardship 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…'”

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The New York Court of Appeals reversed a lower court determination that a petitioner did not have standing to challenge an action because others were also impacted by train noises that formed a basis for his objections. In Matter of Sierra Club v. Village of Painted Post, the Court noted that while, in order to have standing to challenge a SEQRA determination a party must demonstrate they suffer a harm different from the public at large the “number of people who are affected by the challenged action is not dispositive of standing”.

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The Appellate Division reversed the lower court and upheld the denial of an application for area variances to construct an apartment building in a neighborhood largely consisting of single family homes. In the Matter of People, Inc. V. City of Tonawanda Zoning Board of Appeals, the Court held that the lower court was in error in granting the petition

The Court restated the standard applicable to reviewing determinations of a zoning board of appeals noting the limitation placed upon a court to determine if there was a rational basis for the challenged decision.

“, when reviewing the denial of an application for an area variance, ‘review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’…”

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The Appellate Division found that issuance of a demolition permit for an historic structure, where there was no specific proposal for a redevelopment plan was not improper segmentation under SEQRA. In the Matter of Saratoga Springs Preservation Foundation v. Boff, the Court upheld the issuance of a demolition permit that was challenged on a number grounds. The Court found that the local board was not arbitrary in its reliance on the conclusions by a building official that the structure was unsafe, despite contrary expert evidence submitted by the Petitioner, who opposed the demolition.

The Court further found that in light of the uncertain real estate market, it was reasonable to accept the statement by the applicant that he had no immediate redevelopment plans and. currently was seeking only to level the site, plant grass and erect a fence. In concluding these actions did not constitute improper segmentation of the SEQRA review the Court held:

“Such division is impermissible when the environmental review of an action is divided into smaller stages in order to avoid the detailed review called for under SEQRA (see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22). Conversely, segmentation is “allowed when the agency conducting environmental review clearly sets forth the reasons supporting segmentation and ‘demonstrate[s] that such review is clearly no less protective of the environment'” (Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 634 [2002], quoting 6 NYCRR 617.3 [g] [1]; see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22).

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The Appellate Division reversed the Supreme Court and upheld the denial of an area variance for a rear yard setback to an in ground pool, despite prior approvals of rear yard setback variances for in ground pools at other properties. In Matter of Blandeburgo v Zoning Board of Appeals of Town of Islip, the Court held that the Zoning Board of Appeals (ZBA) had conducted the proper balancing test and had concluded that the variance from 18 feet to 8.8 feet was substantial, adversely impacted the neighborhood and was self created.

Perhaps the fact that the pool was installed without a permit had something to do with the ZBA determination. But the Court went through the criteria to be applied to a ZBA’s decision and concluded there was a rational basis for the decision. As for the argument that other variances had been granted for rear yard set backs to pools and therefore the ZBA was bound by precedent unless it distinguished the present case from the prior approvals, the Court concluded:

“Contrary to the petitioner’s contention, the ZBA’s granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA….”

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This week, the U.S. Supreme Court reversed the Federal Circuit decision finding that temporary flooding of property instituted by the government could not be a taking and remanded the matter for further findings.In Arkansas Fish and Game Commission v United States (11-597), the Court reversed the Circuit’s conclusion that there can only be a taking if the flooding were permanent or inevitably reoccurring. Instead, the Court determined that “recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.”

Here, the Commission owns timber land upstream of a dam controlled by the Army Corps of Engineers (Corps). Between 1993 and 2000 the Corps modified and slowed the release of waters, so that downstream farms would have a longer growing season. However, this deviation from the adopted plan caused recurrent flooding of the upstream timber lands owned by the commission. As a result the Commission claims significant damage to those timber lands.

In reversing the decision finding that there could be no taking under these circumstances, the Court remanded the matter for further findings and limited its decision as follows:

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The Appellate Division dismissed a challenge to a special permit, when the petitioner delayed bringing an Article 78 proceeding while the recipient of the special permit continued with construction. in Matter of Miner v. Town of Duanesburg Planning Board, The Court held:

“Petitioners were present and spoke at the March 2011 Planning Board meeting at which Long Energy’s application was considered and the special use permit was granted. Nonetheless, petitioners did not commence this proceeding until June 2011, by which time Long Energy had already expended over $200,000 and construction of the facility was very near completion. Additionally, inasmuch as petitioners’ negotiations with Long Energy centered around their viewshed concerns, respondents were not on notice that petitioners would commence this proceeding challenging the use of the property. Thus, although petitioners’ effort to resolve their concerns through negotiations directly with Long Energy is commendable, their failure to pursue any legal remedy while construction of the facility proceeded to near completion right before [*3]their eyes must result in dismissal of this proceeding (see Matter of Clarke v Town of Sand Lake Zoning Bd. of Appeals, 52 AD3d 997, 999-1000 [2008], lv denied 11 NY3d 707 [2008]; Marlowe v Elmwood, Inc., 34 AD3d 970, 971-973 [2006], lv denied 8 NY3d 804 [2007]).”

Steven Silverberg