What Is Required By The “In Writing” Requirement of the TCA?

Defendant City of Roswell (“Defendant”) denied a cell tower application submitted by T Mobile, a “personal wireless service provider” under the Telecommunications Act of 1996 (TCA).  Defendant informed Plaintiff of the rejection by letter, telling Plaintiff it could find the reasons for the denial in the City Council minutes. The TCA provides a 30-day window to appeal; however, the City’s draft minutes were only approved four days before the 30 days ended.  Even so, Plaintiff challenged the decision in federal court based upon the TCA’s “in writing” requirement.  Plaintiff further alleged that the denial was not supported by substantial evidence. The trial court ruled for Plaintiff but the Eleventh Circuit, following a majority of circuits, found the letter and reference to the minutes to be sufficient. The Supreme Court granted certiorari.

Justice Sotomayor, writing for the court, found the “in writing” and “substantial evidence” requirements necessitated that reasons for the decision be given, as their absence would make the judicial review much more difficult. The use of “substantial evidence” in the TCA was a “term of art” for how an administrative record was to be reviewed by a court under the TCA. The court inferred that Congress required findings to be derived from the administrative process.  The Court rejected Defendants’ claim that this would deprive it of its local zoning authority, finding that Congress meant to interfere with local zoning processes to this extent, but stressing that the reasons provided need not be elaborate – merely sufficiently clear as to enable judicial review.

In addition, the TCA did not require that the reasons be stated in the decision or in any particular form, as the TCA stated it did not otherwise affect the authority of a local zoning authority.  While it may be a plausible interpretation of the TCA for the reasons to be in the decision, the Act did not specifically require this to occur and the court would not infer it. However, the court did require that the reasons be given either in the decision or essentially contemporaneous with the decision’s issuance. By waiting until 26 days after its decision to issue detailed approved minutes, Defendant failed its statutory obligations.  Accordingly, the Court reversed the decision of the Eleventh Circuit.

Justice Alito concurred, adding it would have been sufficient for the City to simply state that the proposal was “aesthetically incompatible with the surrounding area.”  He further wrote that Plaintiff was not injured by the City’s delay (he deemed it a harmless error), and that this procedural error can easily be corrected.

Chief Justice Roberts, joined by Justices Ginsburg and Thomas, dissented, stating that, while findings or reasons for the decision were required, they need not be issued “essentially contemporaneously” with the decision.  This requirement was not in the TCA, noting that Congress has in other legislation, such as the Administrative Procedures Act and elsewhere in the TCA itself, included such a requirement. The dissent also observed that the “sole issue” before the court was the “in writing” requirement, not the timing of the findings. While agreeing that findings were implicitly required by the “substantial evidence” standard, if they were not given or are inadequate, remand would be justified, rejecting the contention that plaintiff needed to see the reasons in order to decide whether to appeal. As the Chief Justice wrote:

This concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods. Almost invariably… the relevant local authority has held an open meeting at which the applicant was present and the issues publicly aired. In this case and others, T-Mobile has brought its own court reporter, ensuring that it has a verbatim transcript of the meeting well before the town is likely to finalize its minutes. I strongly doubt that a sophisticated, well-lawyered company like T-Mobile – with extensive experience in these particular types of proceedings – would have any trouble consulting its interests and deciding whether to seed review before it had received a written explanation from the town.

Finally, the dissent claims that the impact of this case on local governments will be “small,” suggesting that the delay in making the final version of the minutes available may be harmless error.

The case was T-Mobile South, LLC v. City of Roswell, 135 S. Ct. 808 (2015).


Second Department Holds Environmental Control Board Was Not Estopped from Rejecting Owner’s Contention Regarding Sign Validity

In 2011, the Department of Buildings of the City of New York (“Department”) issued multiple violation notices to Petitioner/Appellant (“Petitioner”) for an advertising sign painted on the wall of Petitioner’s four-story apartment building in Astoria, Queens. The sign was a nonconforming advertising sign governed by New York City Zoning Resolution (“NYCZR”) § 52–731. Petitioner commenced an Article 78 proceeding to review city environmental control board’s (“ECB”) determination affirming an administrative law judge’s (“ALJ”) finding that the advertising sign painted on the building violated the City administrative code and zoning resolution. The Supreme Court, Queens County, denied the petition, and Petitioner appealed.

On appeal, the Second Department reviewed whether the ECB decision “was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”  In its decision, the ECB noted that NYCZR § 52–731 expressly set forth a 10–year time restriction for any nonconforming advertising sign such as the sign at issue, which had long since expired. The Court found that the ECB was thus within its discretion to reject Petitioner’s equitable estoppel argument, which claimed that the Department’s issuance of a sign permit in 1981 exempted the sign from the time limitation in NYCZR § 52–731, and that Petitioner had purchased the subject property in reliance on the validity of the 1981 permit. The Court noted that “vested rights cannot be acquired in reliance upon an invalid permit,” and that such invalidly issued permits can be vacated by a municipality at will.  As such, the Court held that the ECB had a rational basis for its decision, and affirmed the holding of the Supreme Court that denied the petition.

The case was Astoria Landing v NYC Environmental Control Board, 148 A.D. 3d 1141 (2 Dept. 2017).


Appellate Court Holds Plaintiffs’ Challenges to SEQRA and Rezoning Determinations Were Moot

In 2012, defendant PCP Watervliet, LLC, a subsidiary of defendant Nigro Companies, purchased property in the City of Watervliet from the Roman Catholic Diocese of Albany County.  The property contained an unused church, school and rectory. Nigro petitioned the City Council to rezone the parcel from residential to commercial and, following public hearings, the City issued a negative declaration and amended its zoning map.  Individuals then brought this challenge alleging that the City failed to comply with SEQRA, engaged in illegal spot zoning, and violated the Open Meetings Law.  The trial court granted defendants' motions for summary judgment and dismissed the amended complaint, and Plaintiffs appealed.

As a preliminary matter on appeal, the Appellate Division, Third Department found that plaintiffs Carol and Patrick Falaro presumptively established their standing to challenge the City's determinations.  As their residence is immediately across the street from Nigro's parcel, they will suffer direct harm different from the general public, even absent allegations of individual harm.  Despite this, the Court held that the Plaintiffs' challenges to the SEQRA and rezoning determinations were moot.  Plaintiffs failed to seek any injunctive relief from the Court during the pendency of their appeal, and because of this the church buildings had already been demolished, and the proposed grocery store was fully constructed and operational. Furthermore, the rezoning determination was superseded by the City's adoption of a new zoning code in which Nigro's use of the parcel is permitted as a right, and Plaintiffs did not challenge that code. Accordingly, the Court dismissed Plaintiff’s claim as moot.

The case was Citizens for St. Patrick's v City of Watervliet City Counsel, 126 A.D.3d 1159 (3d Dep’t 2015).


Fourth Department Holds Petitioners Fell Within The Zone Of Interest Protected by SEQRA And Did Not Need To Plead Or Prove Special Damage To Have Standing

Petitioners, Rochester Eastside Residents for Appropriate Development, Inc. and Igatopsfy, LLC, commenced an Article 78 proceeding seeking to annul the negative declaration issued by Respondent City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act (“SEQRA”) with respect to the proposed construction of an ALDI supermarket. The Supreme Court, Monroe County denied the petition after finding the Petitioners lacked standing.  Petitioners appealed. 

On appeal, the Appellate Division, Fourth Department, found that the record established that Petitioner Igatopsfy, LLC, which owned property less than 300 feet from the property line of the proposed project, was “arguably within the zone of interest to be protected by SEQRA,” and had standing to seek judicial review without pleading and proving special damage.  The Court further found that Petitioner Rochester Eastside Residents for Appropriate Development, Inc. had “associational or organizational standing,” as two of its members owned property less than 500 feet from the property line of the proposed project.  Having met the other requirements for associational standing, the standing of these two members was deemed sufficient to grant standing to the organization.

Turning to the merits, the Court agreed with Petitioners’ claim that the negative declaration lacked a “reasoned elaboration of the basis for the determination.”  The record showed that despite undisputed evidence of preexisting soil contamination, the negative declaration set forth no findings with respect to that contamination.  Moreover, the document providing the purported reasoning for the lead agency’s determination of significance was prepared after the negative declaration was issued, violating the statutory mandate, and did not fulfill the statutory mandate.  As strict compliance with SEQRA’s procedures is mandatory, these failures mandated annulment of the lead agency’s determination. Finally, the Court noted that developer’s promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA.

Accordingly, the Court reversed, annulled the negative declaration, vacated the variances granted by the City’s ZBA, as well as the special use permit granted by respondent Rochester City Planning Commission.

The case was Rochester Eastside Residents for Appropriate Development, Inc. v City of Rochester, 150 A.D.3d 1678 (4th Dep’t 2017).


Second Department Finds Insufficient Evidence In Record For Board’s Denial of Petitioner’s Site Plan Application To Have Rational Basis

Petitioner owned a medical office building in the Village of Airmont, with a single means of ingress and egress on the premises’ south side. Petitioner applied for approval of an amended site plan to add additional parking, improve drainage, and add a second means of ingress and egress on the north side of the premises. The Planning Board of the Village of Airmont denied the application on April 24, 2014, but upon reconsideration on May 8, 2014, the Board approved the amended site plan after removing the additional access point for ingress and egress. Petitioner commenced the instant CPLR Article 78 proceeding to review the April 24, 2014, determination or, alternatively, the May 8, 2014 to the extent it eliminated the new access point. The Supreme Court denied the petition and dismissed the proceeding.  Petitioner appealed.

The Appellate Division, Second Department found that the only evidence in the record addressing the traffic and safety issues cited by the Board’s determination was the conclusory opposition of neighbors.  This view was not supported by any of the Village's consultants, and was contradicted by the negative SEQRA declaration adopted by the Board.  As such, the Court held that the record lacked sufficient evidence to support the Board’s determinations as having a rational basis to deny the application, and remitted the matter to the Board for the approval of Petitioner's amended site plan, with the condition that it would provide an amended site plan with a one-way, entrance-only access via DeBaun Avenue.

The case was Ramapo Pinnacle Properties, LLC v. Village of Airmont, 145 A.D.3d 729 (2d Dep’t 2016).


Appellate Court Reverses Summary Judgment Grant Voiding Village Comprehensive Plan and Parts of the Zoning Amendments

Petitioners/Plaintiffs commenced an Article 78 proceeding to review resolutions adopting the Comprehensive Plan for the Village of Woodbury (“Comprehensive Plan”) and Local Law Nos. 3 and 4 of 2011 of the Village of Woodbury (“Zoning Amendments”).  Petitioners also sought a judgment declaring that the Comprehensive Plan and the Zoning Amendments were void and unenforceable, alleging that the Village of Woodbury Board of Trustees failed to strictly comply with the procedural and substantive mandates of the State Environmental Quality Review Act (“SEQRA”) and with General Municipal Law § 239–m. Finally, as their fourth cause of action, Petitioners alleged that the Comprehensive Plan and the Zoning Amendments amounted to unconstitutional exclusionary zoning.  Respondents/Defendants Village of Woodbury, the Board of Trustees, the Planning Board, and Gary Thomasberger moved to dismiss the fourth cause of action. The Supreme Court converted the motion to dismiss into one for summary judgment, and granted petitioners/plaintiffs summary judgment on the fourth cause of action. The court also granted the petition to annul the Comprehensive Plan and Zoning Amendments. Respondents/Defendants appealed.

On appeal, the court first noted that 6 NYCRR 617.6(a)(4) permits an agency to waive the requirement for an environmental assessment form (hereinafter EAF) if a draft environmental impact statement is prepared. As a draft environmental impact statement was prepared here, the failure to prepare an EAF did not amount to a failure to comply with SEQRA's procedures. Also, the Board of Trustees satisfied SEQRA's substantive requirements by analyzing a reasonable range of alternatives. Thus, the Court found that the Supreme Court should have denied the petition to annul the Comprehensive Plan and Zoning Amendments with respect to the Board of Trustees’ compliance with SEQRA.

As to the alleged failure to comply with General Municipal Law § 239–m, the Court found no evidence in the record contradicting the Village Planner's claim that the final action report was submitted after the Comprehensive Plan and Zoning Amendments were enacted.  Furthermore, the revisions to the Comprehensive Plan and Zoning Amendments after referral were “embraced within the original referral.” The Court therefore held that the Supreme Court should have denied the petition to annul the Comprehensive Plan and Zoning Amendments for noncompliance General Municipal Law § 239–m.

Finally, the Court found triable issues of fact existed as to whether the Comprehensive Plan and Zoning Amendments amounted to unconstitutional exclusionary zoning. Thus, the Supreme Court properly denied the appellants' motion for summary judgment as to the fourth cause of action, but erred in awarding summary judgment to the petitioners/plaintiffs.

The case was Village of Kiryas Joel v. Village of Woodbury, 138 A.D.3d 1008 (2d Dep’t 2016).


Third Department Holds Owner Did Not Abandon Nonconforming Use

In 2012, Respondent North High Realty Holdings, Inc.  (“NHRH”) purchased real property in the Town of Queensbury, Warren County, within a commercial intensive zoning district that prohibited single-family residences. The property consisted of a commercial building and a single-family dwelling as a lawful preexisting nonconforming use. After purchasing the property, NHRH sought a variance to continue using the single-family dwelling as a residence. Respondent Town of Queensbury Zoning Administrator determined that a variance was unnecessary as NHRH had submitted evidence that the single-family dwelling had been used as a residence without an interruption of more than 18 consecutive months.  Thus, the preexisting nonconforming use had not been discontinued. Petitioner, a neighboring property owner, appealed the decision to the ZBA, which affirmed the ruling, and then filed suit to review the ZBA determination.  The Supreme Court reversed, finding the wrong legal standard has been applied, and Respondents appealed.

On appeal, the Third Department noted that the language of the Town Code unambiguously set forth that cessation of the preexisting nonconforming use, not the use itself, must occur continuously and without interruption for 18 months.  Thus, the determination was factual and owed deference, and was not, as the lower court held, pure legal interpretation of the Code. The Court found that the ZBA's decision was neither irrational nor unreasonable, as conflicting evidence was presented at public hearings as to whether the preexisting nonconforming use had been discontinued and abandoned. For example, evidence was presented that the owner's son stayed at the dwelling with the apparent intent to retain it as a residence with at least some degree of permanency. This finding provided evidence that a complete cessation of the use had not occurred. Accordingly, the Court found no basis to disturb the ZBA's determination, and reversed the Supreme Court’s decision.

The case was Lumberjack Pass Amusements, LLC v. Town of Queensbury, 145 A.D.3d 1144 (3d Dep’t 2016).


Third Department Holds That BZA’s Tie Vote On Special Use Permit Constitutes A Non-Action

Respondent Rock Solid Development, LLC (“Rock Solid”) applied to Respondent Town of Copake Zoning Board of Appeals (“ZBA”) for a special use permit in connection with the proposed construction of a resort hotel on land owned by Respondent Catamount Development Corporation (“CDC”) and located in the Town of Copake.  While the application was pending, a vacancy opened on the five-member ZBA.  In September 2014, the four remaining members split 2-2 on whether to grant Rock Solid’s application.  As there was no majority vote, the ZBA was deemed not to have acted.  In November 2014, after the vacancy was filled, the ZBA granted Rock Solid's application in a 3-2 vote.  Petitioners, who own and operate an inn and restaurant on the adjacent property commenced this CPLR article 78 proceeding claiming, among other things, that the September 2014 tie vote was a default denial of Rock Solid's application. The Supreme Court dismissed the petition, and Petitioners appealed.

On appeal, the Appellate Division, Third Department affirmed the lower court’s ruling.   Writing that it could find no fault with the Supreme Court’s decision, the Court noted that the lower court correctly determined that under the 2002 amendments to Town law § 267-a, “a tie vote of a zoning board of appeals only results in a default denial when, among other things, it is exercising its appellate jurisdiction.”  Furthermore, the Court confirmed that it is the Town Law, and not the ZBA by-laws, which control under these circumstances. 

Here, the ZBA was exercising its original jurisdiction.  Thus, the tie vote constituted a non-action.  The Petitioner’s remaining claims, which included that the new ZBA member was not adequately informed and that the ZBA’s interpretation of the Town Code was irrational, were rejected as without merit.

The case was Matter of Alper Restaurant Inc. v. Town of Copake Zoning Bd. of Appeals, 149 A.D.3d 1337 (3d Dep’t 2017).


Court Holds All Property Owners Not Automatically Necessary Parties To Rezoning Challenge

Respondent Town Board of the Town of Coeymans passed Local Law No. 4, which reclassified the permitted use of nine contiguous parcels from residential-agricultural use to industrial use.  Petitioners commenced a hybrid Article 78 / declaratory judgment action to annul the local law based on, among other things, allegations that the procedures to adopt the ordinance violated the State Environmental Quality Review Act (“SEQRA”).  Respondents moved to dismiss on the grounds Petitioners failed to join necessary parties, specifically all property owners of rezoned parcels who had their rights affected by the law. The trial court denied the motion, but held that the property owners were necessary parties and ordered they be served with a notice of petition and petition, and Petitioners filed an amended petition adding the owners as respondents (“newly-added respondents”). Afterwards, Respondents and some newly-added respondents separately moved to dismiss on the grounds that the amended petition was time-barred as to the newly-added respondents under CPLR § 217(1), which provides a four-month statute of limitations. Petitioners conceded untimely service, but reserved their right to challenge on appeal the prior determination that the newly-added respondents were necessary parties. The trial court then dismissed the amended petition as time-barred.

On appeal, the Appellate Division, Third Department reversed, finding the newly-added respondents were not necessary parties simply because the ordinance affected their property rights, writing “it is notable that the Court of Appeals and this state's appellate courts, including this Court, have long entertained challenges to municipalities' legislative actions in regard to zoning ordinances without requiring the joinder of every property owner whose rights are affected by the ordinance at issue.” The Court continued that “[a]lthough this Court has, in limited cases, found property owners to be necessary parties in regard to legal challenges to municipal ordinances that affect the property owners' rights, it has only done so in cases where the owners had obtained an actual approval pursuant to the challenged zoning ordinance that would be adversely impacted by a judgment annulling that ordinance.” Here, the Court found that the newly-added respondents did not fall into that previously recognized category, and further declined to adopt a new rule stating that those affected by an ordinance are necessary parties when that ordinance is challenged.  Accordingly, the Court reversed the trial court’s decision to dismiss the amended petition on the grounds that the the newly-added respondents were not necessary parties, and thus the amended petition was not time-barred.

The case was Hudson River Sloop Clearwater, Inc. v. Town Board of the Town of Coeymans, 144 A.D.3d 1274 (3d Dep’t 2016).


Appellate Court Upholds Denial of Petitions Due to Lack of Standing

Petitioners leased and operated a gas station and convenience store on a piece of property adjacent to the property owned by Respondent R & D Hotel. Respondent R &D proposed a redevelopment project on its property to remove the existing hotel structures and create and lease four new buildings, along with new parking and utilities, for a fast food restaurant, a fueling station with a kiosk for staff, a bank/retail building, and a three-story hotel. Petitioners commenced two proceedings challenging determinations made by Respondents Town of Poughkeepsie Planning Board (“Board”) and Town of Poughkeepsie Zoning Board of Appeals (“ZBA”) with regard to the proposed project. The Supreme Court denied the petitions and dismissed the proceedings on the ground that Petitioners lacked standing. Petitioners appealed.

On appeal, the Appellate Division, Second Department affirmed the dismissal due to lack of standing. Petitioners alleged that they hand standing “on the basis of proximity, issues and interests within the zone of interests, and adverse impacts including: traffic impacts, impacts arising from issues of compliance with the land use laws, rules, regulations, and procedures of the town, community character impacts, and access issues related to an interconnection between the subject property and the petitioners’ property.” However, the Court found Petitioners failed to establish that they would suffer any harm that was distinct from that of the community at large. Furthermore, Petitioners did not have standing on the basis of any alleged access issues related to an interconnection between the subject property and their own, as they failed to establish any right of access and failed to allege any potential adverse impact of the interconnection's closure. Accordingly, the Court held that the Supreme Court properly denied the petitions and dismissed the proceedings.

The case was CPD NY Energy Corp. v. Town of Poughkeepsie Planning Bd., 139 A.D.3d 942 (2d Dep’t 2016).



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