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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

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The Appellate Division held this week that by failing to obtain a preliminary injunction the challenge to a preliminary subdivision approval was ultimately rendered academic. In Matter of Sherman v.Planning Board of Village of Scarsdale, the Court found that while the challenge to a preliminary subdivision was pending the property owner obtained final approval and proceeded with substantial work.

The Court held:

“The appellants failed to move in the Supreme Court for a preliminary injunction to enjoin the Gelboims from undertaking the steps needed to obtain final plat approval. In addition, the appellants failed to move in this Court for a preliminary injunction to preserve the status quo pending the determination of this appeal. Consequently, the appellants failed to preserve their rights pending appellate review, and the appeal must be dismissed as academic…”

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The Appellate Division (Fourth Department) issued a decision in early February, 2009 upholding a denial by the Town of Ellicottville of site plan and special permit approval to construct a cogeneration plant using wood chips as fuel, as part of a larger development proposal. In Matter of Laidlaw Energy and Environmental Inc. v Town of Ellicottville, the court found that the conclusion contained in the State Environmental Quality Review Act (SEQRA) findings that “serious increases in harmful emissions” from the plant would result in an “unacceptable adverse impact” was not arbitrary and should be upheld.

For a detailed discussion of the case see our other Blog, ClimateChangeAttorney.com.

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A court recently reversed a zoning board determination and held that sections of a city zoning ordinance which excluded schools from commercial districts was unconstitutional, because educational institutions enjoy special treatment regardless of what zoning district they seek to build in.

In Albany Preparatory Charter School v. City of Albany, the Appellate Division Third Department rejected the City of Albany’s attempt to distinguish cases relied upon by the School in the lower court decision. The Appellate Division held that general principals announced in earlier decisions apply “with equal force to areas zoned commercial as well as those zoned residential.” In so holding, the court noted that since educational institutions are “inherently beneficial,” they receive special treatment and are permitted to enter neighborhoods where nonconforming uses would otherwise not be allowed. The court further held that since an ordinance excluding educational uses from a zone deprives an applicant of any opportunity to demonstrate that its proposed educational use is consistent with the public good, provisions of the City of Albany Zoning Ordinance that cause an exclusion of educational uses from the commercial districts at issue are unconstitutional.

In his concurring opinion, Justice Spain wrote about his concern that the existing law does not support a holding that excluding private schools from non-residentially zoned districts can never be upheld, since the precedent only specifies that schools and churches should enjoy preferred treatment in residential districts.

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A court held that a four month statute of limitations period applies to an action challenging the validity of a local law on the ground that due notice of the law’s consideration was not given.

In P & N Tiffany Props., v. Village of Tuckahoe, the Appellate Division Second Department affirmed the lower court decision, which reasoned that since Plaintiff’s claim related to the procedures followed in adopting a local law the challenge could have been brought as an article 78 proceeding. Therefore the action was required to have been commenced within four months of the enactment of the local law Plaintiff sought to invalidate.

The question arose when the Village adopted a local law amending the fines and penalties for local code violations. Plaintiff was fined under the new law and alleged that it was invalid because it was enacted in violation of the notice provision of Village Law § 21-2100.

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A Federal Court has determined that the City of New York’s licensing provisions for tow truck operators violates the interstate commerce clause of the United States Constitution. In the case of Automobile Club of New York, Inc. v. Dykstra, Judge Owen of the United States District Court for the Southern District of New York found that the City failed to provide any statistics or other proof that it actually achieved its goal of increased owner safety through its licensing requirements for operators from outside the City.

For almost two decades, New York City has enjoyed an informal reciprocal agreement with other States and surrounding counties within New York State which allowed a tow truck operator from outside the City to operate within the City. On March 31, 2004, this changed when New York City seized 21 tow trucks from other States or New York Counties. New York City seized these trucks on the sole ground that they were not properly licensed to operate within the City limits. The Federal Court found that these seizures impeded both interstate and intrastate commerce, and therefore were prohibited by the Commerce Clause of the Constitution.

Upon review of New York City’s licensing procedure, the Court invalidated the withholding of licenses based upon a required criminal background check of an out of City operator’s individual drivers. New York City justified the seizures by claiming that this criminal background check was necessary to provide increased safety for automobile owners but failed to provide statistical evidence supporting this rationale. Therefore, the Court ruled that New York City cannot preclude an otherwise qualified driver from another state or county from operating within the city.

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Effective as of July 1, 2006 the New York State General Municipal Law requires that notice be provided to adjacent municipalities in the case of many applications for special permits, use variances, subdivisions and site plans. The new section 239nn of the General Municipal Law is based upon a provision in the Westchester County Charter which has been in place for a number of years.

The new law applies to any city, town or village, except for a city with a population of one million of more. The law requires that in the case of applications for use variances, special permits, subdivisions and site plans, within 500 feet of a municipal boundary, a notice of hearing must be sent to any adjacent municipality within 500 feet of the property which is the subject of the application. The law further specifically provides that the municipality may appear and be heard at the hearing.

This new provision is a potential land mine for municipalities that fail to follow the notice requirements.