Articles Posted in Zoning and Land Use Law

The Appellate Division held that an assisted care facility did not have standing to challenge a change in definition under local zoning that permitted a competitor to open a facility nearby. In Matter of VTR FV, LLC v Town of Guilderland, the Court held the:

“allegations distill to a claim of ‘the threat of increased business competition, which is not an interest protected by the zoning law[]’ (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 415). Thus, notwithstanding the proximity of petitioners’ property to the phase IV site affected by the amendment to Local Law No. 1, the economic harm they allege is insufficient to confer standing on them (see id. at 409-410, 414).”

In addition, the Court noted there was no allegation of a specific noneconomic environmental harm. As for other claims raised by the Petitioner, the Court found that the change did not constitute spot zoning, nor did it result in a taking.

The Appellate Division affirmed the denial of summary judgment in an action by a town, seeking to enjoin the use of a property as being in violation of the local zoning ordinance. In Matter of Town of Huntington v. Braun, the court explained the zoning ordinance permits florist shops and nurseries with accessory greenhouses that are defined “as ‘[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit.'” The Town claims the business is not in compliance because it sells products that are not “field-grown.”

The Court concluded:

“Possible ambiguities in zoning ordinances are to be construed against the municipality which has enacted them and seeks to enforce them (see Town of Riverhead v Gezari, 63 AD3d 1042; Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 527; Town of Huntington v Barracuda Transp. Co., 80 AD2d 555). Construction of ambiguous language is an issue of fact that cannot be decided on a motion for summary judgment (see DiLorenzo v Estate Motors, Inc., 22 AD3d 630, 631; Leon v Lukash, 121 AD2d 693, 694).

The Appellate Division held that a trial is required to determine whether Rockland County properly determined the costs that must be prepaid before it will comply with a FOIL request. In Matter of Weslowski v Vanderhoef, the Second Department concluded there were triable issues of fact as to whether the County had used the proper criteria in requiring the prepayment of over $ 156,000.00 before complying with a large FOIL request.

The Court reviewed the statutory provisions for recovery of the costs of complying with a FOIL request:

“Public Officers Law § 87 sets limits on the costs which an agency may charge those who have requested records: “fees for copies of records . . . shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record” (Public Officers Law § 87[1][b][iii]). Section 87(1)(c) of the Public Officers Law defines the term “actual cost.” Under that provision, an agency may only recover the “actual cost” of reproducing the record, including “an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record” (Public Officers Law § 87[1][c][i]). However, the statute provides that “preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested” (Public Officers Law § 87[1][c][iv]).”

The Appellate Division restated the rule that when challenging a land use approval the challenger must seek a preliminary injunction in order to maintain the status quo. In Matter of Papert v. Zoning Board of Appeals of the Incorporated Village of Quogue, the Court upheld dismissal of the petition challenging the zoning board’s issuance of a coastal zone erosion permit to reconstruct an existing house as academic. The motion to dismiss was made claiming substantial completion of the project and the lower court granted the motion after construction was completed and a certificate of occupancy was issued.

Holding that “the petitioner failed to move in the Supreme Court for a preliminary injunction to preserve the status quo during the pendency of this litigation, he did not timely do all he could have done to safeguard his interests, and thus, he failed to preserve his rights pending judicial review,” the Court noted that as a result the property owner “would suffer substantial prejudice if the petitioner prevailed….”

However, the Court also indicated that this rule is not without exception when, in upholding the dismissal, it also found that the property owner “did not proceed with the construction in bad faith or without authority” and further, “this proceeding did not present ‘novel issues or public interests such as environmental concerns’ that warranted retention of jurisdiction (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173).”

A Court found that the rezoning of a single parcel, although different from the designation in the comprehensive plan, was still consistent with that plan. However, the Court held the town board did not fully comply with SEQRA. In Matter of Bergami v. Town Board of the Town of Roterdam, the Appellate Division reversed the lower court finding that the Town Board, as lead agency, had failed to take the requisite “hard look” under SEQRA.

The Town Board had previously adopted and then amended a comprehensive plan that ultimately called for rezoning the area of the town including the subject property to a professional office zone. Yet, the Town Board never adopted those modifications to the local zoning law. In 2009 the property owner applied for a rezoning to the business district. Ultimately, the town board issued a SEQRA negative declaration and amended the zoning of the parcel to business.

Neighboring property owners challenged the action as spot zoning. However the Court found the action was not spot zoning noting:

The Appellate Division found that a zoning amendment adopted “primarily” to assist one property owner is not spot zoning. In the Matter of Marcus v. Bd. of Trustees of the Village of Wesley Hills, the Court found that while ” there is no doubt that the Local Law was adopted primarily for the benefit of the plant nursery and arborist business operated by Ira Wickes and Rockland Tree Expert, Inc., doing business as Ira Wickes Arborist (hereinafter together Wickes), zoning changes are not invalid merely because a single parcel is involved in or benefitted by said changes (see Rodgers v Village of Tarrytown, 302 NY at 124).”

In upholding the local law the Court found that the use was compatible with other uses in the area and the Village’s comprehensive plan. Significantly, the Court noted that two other properties in the Village could meet the requirements under the challenged amendment. Further the, Court held: “there is no evidence in the record that Wickes’s use of the property in compliance with the Local Law and a special permit issued thereunder would be detrimental to owners of other properties in the area…”

In addressing SEQRA issues, the Court found that the issuance of a negative declaration was In conformity with the regulations and also noted, “the Board’s deferral of site-specific review of certain environmental issues to the Village’s Planning Board, upon its consideration of individual special permit applications, was no less protective of the environment (see 6 NYCRR 617.3[g][1]).”

The Appellate Division reversed the Supreme Court’s decision to uphold the granting of a use variance and related area variances to permit expansion of a non-confirming adult entertainment night club. In Matter of Edwards v. Davison, the Mount Vernon City Council, in light of legislation adopted several years ago to ban such uses from the City’s downtown business district, took the unusual step of suing the Zoning Board of Appeals to challenge the approval of the variances, which allowed the expansion of the non-conforming club.

The Appellate Division held:

“As the record was devoid of any evidence, in dollars and cents form, of Veronica Realty’s inability to realize a reasonable return under the existing permissible uses, there was no rational basis for the ZBA’s finding that the premises would not yield a reasonable return in the absence of the requested use variance….”