New York Zoning and Municipal Law BlogThe determination by the local building inspector that a 1928 “subdivision” did not create two lots was upheld by the Appellate Division. In Steven Silverberg
Articles Posted in Zoning and Land Use Law
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Property Owner Found To Be Within Zone Of Interest For Standing To Challenge Development
An appellate court reversed a lower court decision dismissing, for lack of standing, a challenge brought by a nearby property owner to a development over 1,000 feet from his property. In Matter of Ontario Heights Homeowners Association v. Town of Oswego Planning Board, the Appellate Division Fourth Department held that the property owner was within the “zone of interest” under the Environmental Conservation Law and therefore had standing to raise a challenge to a proposed development on environmental grounds.
The lower court had dismissed the action by the property owner across the street whose property is 697 feet from the property line of the development and 1,242 feet from the actual development. However, the Appellate Division held:
“Supreme Court erred in determining that he lacks standing to bring this proceeding. Dunsmoor, who resides across the street from the proposed development, has alleged that he may suffer environmental harm as a result of the Planning Board’s decision to permit the developer to utilize a private sewage treatment plant on the proposed development, rather than utilizing the City of Oswego’s public sewer system…. he is ” arguably within the zone of interest to be protected by [article 8 of the Environmental Conservation Law]’ . . . and [has] standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity’ ”
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Court Finds Westchester Town Violated RLUIPA and Overturns SEQRA Findings
In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.
The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”
The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.'” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.
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Court Upholds SEQRA Determination and Subdivision for 850,000 Square Foot Shopping Center
The Appellate Division upheld two lower court decisions which dismissed challenges to the SEQRA findings, site plan and subdivision approval for a shopping center in the Town of Newburgh. In Matter of Save Open Space v. Planning Bd. Of the Town of Newburgh the court noted judicial review is limited to finding whether an action is arbitrary, an error of law or was taken in violation of lawful procedure.
In this case there was an application for site plan approval for a shopping center. The planning board completed a full environmental review, which included a Draft Environmental Impact Statement (DEIS), public hearings and a Final Environmental Impact Statement (FEIS) as well an Environmental Findings Statement (EFS). However, after the FEIS was submitted, but before the EFS was issued, the applicant submitted an application to subdivide the property into four lots to allow for separate ownership. The application was rejected as incomplete and thereafter the planning board did issue its EFS.
The applicant subsequently resubmitted its subdivision application. Shortly thereafter the planning board granted site plan but not subdivision approval. The next step taken by the planning board was to issue an amended EFS in which it found that the subdivision would not have any significant adverse environmental impacts. After holding a public hearing on the subdivision the planning board granted preliminary and final subdivision approval.
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Another Vested Rights Decision From The N.Y. Court of Appeals
The Court of Appeals ruled today that owners of a landfill had a vested right to use all 50 acres of their property as a landfill, even though they had only used 3 acres before more restrictive zoning was implemented. In Matter of Jones v Town of Carroll the court found that landfill operations were similar to mining operations and therefore the Court’s recent holding in Glacial Aggregates LLC v. Town of Yorkshire, in which the Court concluded that for mining operations the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area, was applicable to this case and warranted a finding of vested rights (see our 2/18/10 Blog on the Glacial Aggregates case).
Originally the Plaintiffs had received a variance to operate a landfill from the Town as long as they obtained permits from the DEC to operate the landfill. Plaintiffs later received a permit from the DEC to operate a landfill on only 3 of the 50 acres. In 2005 the Town changed the zoning and prohibited the expansion of any landfill. Plaintiffs challenged the law and won in the Supreme Court. The Appellate Division reversed finding that, since a condition of the variance was obtaining DEC permits and the permit was limited to 3 acres, there was no vested right to use the remaining 47 acres as a landfill, as such use was merely contemplated.
The Court of Appeals reversed finding that the owner had a vested right to use the entire 50 acres as a landfill. The Court held: “the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time. Additionally, the owner of landfill property can reasonably be expected to hold a portion of the land in reserve for future expansion of that activity, just as a quarry operator may find necessary. The fact that the DEC permit covered only a limited area is not determinative of plaintiffs’ rights over the remaining 47 acres of the parcel (see Buffalo Crushed Stone, 13 NY3d at 101-102). Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs’ activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose.”
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District Court Ruled that Airmont Political Sign Law Violates Free Speech
The District Court ruled in Withers v. The Village of Airmont
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Circuit Court Finds Boulder County Violated RLUIPA
Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church’s proposed expansion.
Significantly, the County had a long standing comprehensive plan which sought to maintain the rural character of the County. The legislation which implemented the comprehensive plan required a special permit for any project with an occupancy of 100 or more people in an Agricultural District. The criteria for the special permit had both objective (height requirements) and subjective (compatibility) criteria. The proposed application met the threshold requirements for a special permit and ultimately sought “a 28,000 square foot gymnasium, a 6,500 square foot chapel, expanding the school building by 57,500 square feet, gallery space connecting the buildings,and an expansion of the main worship building’s seating capacity by 150 seats.” The review by the County staff found compliance with the objective criteria but also found the project to be “incompatible with the surrounding area, an over-intensive use of the land, likely to cause undue traffic congestion, and likely detrimental to the welfare of the residents of Boulder County.”
The Circuit Court found that the staff had modified its methodology for determining if a proposal was over-intensive. The usual criteria was based upon a calculation of whether the expansion resulted in 50% or more of the property being covered by buildings and parking. The Court noted, in this case the coverage was only 35%, yet there was a determination by staff that the proposal was “over-intensive.” However, rather than using the coverage criteria, County staff determined the proposal was over-intensive because it doubled the church’s square footage and significantly increased parking. In reciting the facts, the Circuit Court made a point of noting that one of the Commissioners greeted a consultant for the Church privately before the public hearing stating “you can bring in your Christians now.” The final decision permitted the 150 seat expansion and 10,000 square foot building to replace the modular building but denied the balance of the application.
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Court Upholds Denial Of Area Variance Based Upon Balancing Test
The appellate division found that a zoning board properly denied an area variance after engaging in the required balancing test. In Matter of Monroe Beach Inc. v. Zoning Board of Appeals of City of Long Beach the court determined that the zoning board had made findings that:
“the requested variances were substantial, would result in a detriment to nearby properties, and would have an adverse effect on the physical and environmental conditions in the surrounding neighborhood were supported by hearing testimony and documentary evidence …. Moreover, its finding that the alleged difficulty was self-created had a rational basis, as the applicable zoning regulations were in effect when the petitioner purchased the property.”
Furthermore the court noted: “the petitioner’s contention that the ZBA granted another area variance application for the construction of a nearby multistory residential building is insufficient to establish that the ZBA’s conduct in denying its application was arbitrary and capricious, since the petitioner failed to demonstrate that the ZBA “reach[ed] a different result on essentially the same facts” (Matter of Arata v Morelli, 40 AD3d at 993 [citation and internal quotation marks omitted]; see Matter of Gallo v Rosell, 52 AD3d at 516).”
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Court Finds that 82 Year Old Filed Map Does Not Vest Rights to Subdivision
An attempt to circumvent planning board approval of a subdivision using a subdivision map filed in the county clerk’s office 1928 was rejected by the Appellate Division. In Matter of Atlantic Development LLC v. Town/Village of Harrison the court found that a 1923 provision of the local town code, still in effect in 1928, required town board approval for any subdivision and therefore the 1928 map, which had not received such approval, did not create a valid subdivision. The appellant had argued that the provisions of New York State Town Law section 276(2) grandfathered development of the 45 lot subdivision shown on the 1928 map. The cited provision permits continued development of a property which has at least 80% of a site developed and is shown on a subdivision map filed with the county clerk’s office prior to the appointment of a planning board by the town. Since the 1928 map predates the creation of a planning board in the Town/Village of Harrison, the appellant claimed the provisions of Town Law 276(2) applied and the property was exempt from the requirement of subdivision approval by the planning board.
In rejecting this argument, the court noted that the property was undeveloped and since 80% of the property was not improved the grandfathering provisions of Town Law section 276(2) did not apply. Further, in an interesting interpretation of the statute, the court also found that Town Law section 276(2) did not apply because in 1928 the town board was the “functional equivalent of a planning board.” The court held:
“…while the 1928 Map was filed prior to the creation of the Planning Board, the 1923 Town Code, as previously noted, required Town Board approval of any subdivision plat. As of 1928, the Town Board was, for the purposes of the current version of Town Law § 276(2), also the functional equivalent of a planning board for the Town (see e.g. Matter of Russell Oaks, Inc. v Planning Bd. of Inc. Vil. of Russell Gardens, 28 AD2d 569, affd 21 NY2d 784), and the 1928 Map was filed at a time when approval was required by the functional equivalent of a planning board, that is, the Town Board.”
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Failure to Meet A Zoning Code’s Special Permit Conditions Is Grounds For Denial
An appellate court reiterated the requirement that every precondition to granting a special permit must be met before a zoning board is required to grant such a permit. In Navaretta v Town of Oyster Bay, the Appellate Division Second Department upheld the denial of a special permit by an attorney seeking to operate an office from a residence.
Holding there was a rational basis for the zoning board’s decision the Court held:
“…the record supports the ZBA’s findings that the petitioner’s home business failed to comply with several conditions in the special use ordinance, in that his proposed use exceeded the maximum square footage allowed, retained the services of more than one nonresident employee, failed to provide sufficient off-street parking, displayed a sign which exceeded the maximum size allowed, failed to maintain the character of the dwelling as a residence, and created hazardous or detrimental conditions, including glare from lighting….”