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An appellate court upheld an award for condemnation of land underwater as well as denial of consequential damages for a partial taking, in a case where part of a residential subdivision was taken for parkland. In Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v Kings Point Hgts., LLC, the Appellate Division Second Department upheld the decision of the lower court noting that if the lower court’s “explanation of its award is supported by the evidence, it is entitled to deference and will not be disturbed on appeal….”

The property at issue was just over 6 acres, including almost an acre of underwater land. The taking was 2.3 acres, including the underwater land. The property owner sought consequential damages claiming that by creating a park the value of the remaining land it owned was reduced, as the park reduced privacy. The park district’s appraiser claimed that the park enhanced the value of the remaining property because it provided an unobstructed view of Long Island Sound as a result of restrictions on the use.

The Court noted in determining damages:

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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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In an action brought to prevent prosecution of members of an Indian nation for failure to collect cigarette sales taxes on sale to non-members of the nation, the Court of Appeals issued judgment in favor of the plaintiffs. In Cayuga Indian Nation v. Cayuga County Sheriff, the court noted that Federal law precludes collection of cigarette sales taxes on sales by Indians to members of their own tribe on reservation lands. The court found that the two parcels in question were qualified reservation land.

Noting that the ultimate responsibility for payment of sales tax rests on the consumer, but that the practice has been for wholesalers to purchase tax stamps from the state and for the cost of those stamps to be passed up the chain to retailers and then consumers the court concluded:

“Thus, the issue in this case is not whether sales taxes are due when non-Indian consumers purchase cigarettes from Indian retailers – they are. The issue is whether Indian retailers can be criminally prosecuted for failing to collect the sales taxes from consumers and forward them to the Department. In the absence of a methodology developed by the State that respects the federally protected right to sell untaxed cigarettes to members of the Nation while at the same time providing for the calculation and collection of the tax relating to retail sales to non-Indian consumers, we answer this question in the negative”.

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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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An appellate court held that a zoning board’s failure to comply with the “precise requirements” of the open meetings law did not rise to a level which required that the matter be remanded for further action in public. In Matter of Cunney v. Board of Trustees of the Village of Grand View the lower court had found that the conditions imposed on the granting of an area variance were reasonable but that the zoning board had failed to comply with the open meetings law when it did not take its vote in public. Therefore the lower court found that the matter had to be remanded for “a formal decision in open session.”

The Appellate Division reversed that portion of the judgment remanding the matter. While it agreed that “the ZBA violated the Open Meetings Law by failing to vote on the application in public session” the court went on to state that an action should only be voided for such a violation upon “good cause shown.” The court held that the petitioner had failed to show good cause and anyway the violation was “mere negligence.” The decision does not explain why the court determined this violation was negligence. However, it would appear that the court likely felt, since the conditions were found to be reasonable, that there was not much purpose in sending the matter back just to go through the formality of voting in public..

-Steven Silverberg

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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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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….”

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The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: “the ZBA’s determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion.”

Unfortunately, the Appellate Division did not discuss the facts of this case. It is necessary to read the lower court decision to fully understand the facts of this unusual and complex case, in which the zoning board concluded that local regulations did not preclude the property owner from using certain underwater lands in calculating the area of the lot and ultimately deciding the size of the permitted structure based upon FAR.

The appellate brief and oral argument on behalf of the zoning board was by our partner Katherine Zalantis.

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The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied. The Court found the amendment involved an additional 3.6 inch setback variance to accommodate a structure that was 6 inches larger on one side and 18 inches larger on the other side and therefore the denial of the amended variance was arbitrary..

In reversing the decision of the Zoning Board the court stated the general rule applicable to such cases:

“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion'” … Nonetheless, a determination of a zoning board of appeals that ‘neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'”

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