Second Department Reduces Wetlands Takings Award

Baycrest Manor, Inc. (“Claimant”) owned two contiguous unimproved lots near the eastern shore of Staten Island. Claimant acquired title in the 1970s, and the majority of the property was later designated as wetlands. In 2006, New York City (“City”) acquired the property as part of a multi-phase stormwater management project. Claimant then commenced a proceeding seeking compensation for the taking. After a nonjury trial, the court awarded Claimant the principal sum of $382,190.25, plus interest, as just compensation.  The City appealed the award.

On appeal, the City argued that Claimant’s compensation should be limited to the $57,000 market value of the property under the wetlands regulations.  The City claimed that no knowledgeable buyer would purchase the property above its regulated value based on a potential takings challenge to the wetlands regulations, as the purchaser takes the property subject to said wetland regulations.  However, the Court rejected this contention and held that a subsequent buyer would not be precluded from bringing a regulatory taking claim. Accordingly, the Court held that the reasonable probability incremental increase rule still could be applied in valuing regulated wetlands properties taken in condemnation.

The City next argued that the lower court erred in finding Claimant established a reasonable probability that the imposition of the wetlands regulations on the property would constitute a regulatory taking. However, the City’s own appraisal showed the wetlands regulations reduced the value of the property by 88%. This diminution in value, together with the effective prohibition on development, established a reasonable probability that the imposition of the wetlands regulations would be found to constitute a regulatory taking.

Finally, the City argued that the lower court should not have used the increment proposed by Claimant’s appraiser, who the record shows chose said increment based solely on instructions from Claimant’s attorneys and a prior case. The Court agreed and found that the lower court should have applied the increment formula proposed by the City’s appraiser, which was based on market data.  Accordingly, the Court held that Claimant should have been awarded the principal sum of $156,987.84, an affirmed the decree as modified to reflect the reduced amount of compensation.

The case was Matter of New Creek Bluebelt, Phase 3, 156 A.D.3d 163 (2d Dep’t 2017).

Appellate Term Reverses Conviction For Violations Of Zoning Provisions

This criminal action was based upon defendant’s alleged violations of the Code of the Village of Pelham Manor.  Defendant allegedly allowed two individuals to reside in a “carriage house” without obtaining a permit or a certificate of occupancy as required under the relevant Code provisions, and by using or occupying the premises for a purpose other than an accessory and/or special accessory building. This was the extent of the factual allegations set forth in the “information” and “supporting deposition.”  After the matter had been transferred to the City Court of New Rochelle, the People moved for “summary judgment,” which the City Court granted.

The court first noted that the three counts in the “information” were “deemed misdemeanors” under § 210-8(B) of the Code.  Accordingly, there was no authority for a criminal court to convict pursuant to a pretrial motion for summary judgment, as the CPLR is inapplicable to criminal proceedings.  Moreover, the Criminal Procedure Law does not include a provision for accelerated judgment.

In addition, the Court found that the counts charged in the accusatory instrument were jurisdictionally defective, and must therefore be dismissed.  Specifically, the factual allegations that two individuals had been residing in the “carriage house” were conclusory, rather than evidentiary, and the instrument’s allegations did not establish the elements of the offenses charged. Accordingly, the judgment of conviction was reversed and the accusatory instrument was dismissed.

The case was People v Cullen, 56 Misc.3d 45 (Sup. Ct., App. Term, 2d Dep’t 2017).

Second Department Holds ZBA Properly Granted Country Club Special Use Permit

Hampshire Recreation, LLC, owned a 216–acre property in which the Hampshire Country Club, a membership golf and tennis club, was located. Pursuant to the Village of Mamaroneck Zoning Code, a membership club must be operated by a not-for-profit corporation or organization. Accordingly, Hampshire Recreation, LLC, incorporated Hampshire Club, Inc. a not-for-profit corporation, and leased it the Hampshire Country Club to operate. Hampshire Club, Inc. later applied for a special use permit to host nonmember events at the Country Club. After a public hearing, the Zoning Board of Appeals (”ZBA”)voted to grant the special use permit. Petitioners commenced an CPLR Article 78 proceeding to review the ZBA’s determination and to annul the special use permit. The Supreme Court denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Court noted that once an applicant shows that the contemplated use conforms to the conditions imposed, a special use permit or exception must be granted absent reasonable grounds for denial, supported by substantial evidence. Here, the evidence showed that Hampshire Club, Inc.’s contemplated use comported with the requirements of Village of Mamaroneck Zoning Code §§ 342–3 and 342–35(B)(9)(a), and that there were no reasonable grounds for denying the special use permit. Accordingly, the Court found that the special use permit to host nonmember events at the Country Club should have been granted. As such, the Court affirmed the decision to deny the petition and dismiss the proceeding.

The case was Mamaroneck Coastal Environment Coalition, Inc. v Board of Appeals of the Village of Mamaroneck, 152 A.D. 3d 771 (2d Dep’t 2017).

Second Department Holds Building Inspector’s Determination That Separate Building Permit Was Necessary For Driveway Work Was Not Arbitrary And Capricious

Petitioners were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown (“Village”) in 1977.  Petitioners planned to renovate and upgrade the property, including by adding an indoor riding area.  After a six-year review process, the Village Board of Trustees approved the application.  However, while Petitioners were in the process of widening and repaving the driveway, the Village Building Inspector issued a stop work order on the basis that Petitioners had failed to obtain a permit.  Petitioners brought an Article 78 proceeding against the Village, Village building department, and related individuals. The Supreme Court, Nassau County, granted the petition, and the municipal parties appealed.

On appeal, the Second Department reversed the lower court’s decision.  The record reflected that the Building Inspector determined that the work being performed on the driveway required a separate building permit. While Petitioners contended the driveway work was approved by the Village Board of Trustees, and the subject work was covered under the broader building permit issued for their other renovations, the Court found that the Building Inspector’s determination that an additional permit was necessary was not made in violation of lawful procedure, was not affected by an error of law, was not arbitrary and capricious, and did not constitute an abuse of discretion. Accordingly, the Court reversed and held that the petition should have been denied and the proceeding dismissed.

The case was Carnelian Farms, LLC v Village of Muttontown Building Dept., 151 A.D. 3d 847 (2d Dep’t 2017). 

Appellate Court Upholds Rejection of Incomplete Building Permit Application for Non-Conforming Use Submitted Shortly Before Expiration of Building Code’s One-Year Restoration Period

Petitioner owned a real property in the Town of Kent (“Town”) with a single-family residence as a pre-existing “nonconforming building” under the Code of the Town of Kent (“Town Code”) § 77–47(A).  On February 3, 2010, a fire destroyed most of the residence, and the Town Code gave Petitioner one year (i.e. until February 3, 2011) to rebuild.  The Fire Inspector advised the building be condemned and demolished, but Petitioner waited nine months to apply for the demolition permit. Demolition was completed on December 26, 2010.  On January 21, 2011, two weeks before the one-year period expired, the Putnam County Department of Health approved what it called plans for a “proposed addition” to the residence, but said its approval was “for the proposed changes only,” and that “any other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” Petitioner applied for a building permit, but the Town Building Inspector required a site survey and plans signed by an architect before review. A surveyor was hired on February 1, 2011, but the survey was not completed until April 2011. On October 26, 2011, nearly 9 months after the one-year rebuilding period expired, Petitioner filed a complete application for a building permit, which was denied on the ground that the one-year rebuilding period had expired.  Petitioner filed an Article 78 proceeding to review the determination of the Towns’ Zoning Board of Appeals (“ZBA”), affirming the denial of Petitioner’s application. The Supreme Court, Putnam County, granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.  The ZBA appeals.

The Second Department found that the Town Code's provision stating that a nonconforming building “shall not be re-established ... unless such restoration is completed within one year from the date of such destruction” did not vest the ZBA with discretionary authority to extend the time limit, as “the word ‘shall’ is always mandatory and not merely directory.” Here, by filing an incomplete application just two weeks before the one-year restoration period expired, the court found that Petitioner could not reasonably have thought a site survey was unnecessary, given that the requirement of a survey was clearly stated in the Town Code and first page of the permit application form. The Court thus held that the ZBA's determination affirming the Building Inspector's rejection of the application was not arbitrary and capricious, illegal, or an abuse of discretion. The Court further held that Petitioner's claim that the application of Town Code § 77–48 to the subject property resulted in an unconstitutional taking without compensation was not ripe for review, as she failed to establish that she exhausted her administrative remedies by applying for a variance.

The case was Warner v. Town of Kent Zoning Bd. of Appeals, 144 A.D.3d 814 (2d Dep’t 2016).

Second Department Upholds Finding That Water District’s Proposed Construction Was A Type II Action Not Subject To Review Under SEQRA

Defendant/Respondent Manhasset–Lakeville Water District (the “Water District”) was a special district of the Town of North Hempstead created to provide and sell potable water to those in its boundaries. To do this, the Water District required water storage tanks to provide water and maintain water pressure, including elevated water storage tanks.  One such storage tank was located on a lot owned by the Water District within Plaintiff Incorporated Village of Munsey Park (“Plaintiff”). As the Village’s zoning code prohibits buildings over 30 feet high, the current tank was not permitted as of right.

In 2014, the Water District made plans to replace the tank.  This included installing an antennae on the replacement tank to provide wireless communication between facilities and for dispatching employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed plans, and the Water District determined that the proposed construction was a replacement-in-kind Type II action not subject to further environmental review under SEQRA. The Village commenced a declaratory judgment action asserting that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment, and Plaintiff appealed.

On appeal, the Court agreed that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment or require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion.  Therefore, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

The case was Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 150 A.D.3d 154 (2d Dep’t 2017).

Second Department Reverses Decision Denying Renewal Of Use Variance Absent Owner-Occupation Condition

Petitioners owned property improved with a two-family residential dwelling in the Town of Hempstead (“Town”). They applied to the Board of Appeals of the Town of Hempstead (“Board”) to renew a use variance allowing the property to be used as a two-family dwelling without the condition that the property be owner-occupied. The Board renewed the variance, but denied the portion of the application that sought to lift the accompanying condition, and instead renewed the variance on the condition that at least one apartment at the subject property must be owner-occupied at all times. Petitioners commenced a CPLR article 78 proceeding to review the determination denying the renewal without the condition. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Court noted that the Board improperly relied upon the doctrine of res judicata to deny Petitioners’ request for renewal without the condition, a point not disputed by the parties, and that as a result, the Board did not analyze the merits of imposing an owner-occupied condition.  It further noted that “if the grounds relied upon by the agency are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Since the Board never reached the merits, the Court held that the lower court erred in analyzing the merits itself, in essence substituting its own judgment for that of the Board.  Thus, the Court reversed the lower court’s decision and remitted the matter to the Board for a determination on the merits.

The case was Rodriguez v Weiss, 149 A.D.3d 842 (2d Dep’t 2017).

Second Circuit Rejects “Class-of-One” Claim Against Town’s Enforcement of Zoning Restrictions

Plaintiff Beard (“Plaintiff”) owned five acres in the Town of Monroe (“Town”), subject to dwelling size and use restrictions, which he used to operate numerous businesses including excavation, trucking and hauling, salvage, loam manufacturing, demolition, and plowing.  Plaintiff also stored the associated heavy vehicles on site.  Plaintiff sued under § 1983 alleging that the Town violated his Fourteenth Amendment rights by enforcing zoning restrictions against him and not others who were allegedly similarly situated. The trial court granted summary judgment for the Town, its Planning and Zoning Commission, and Zoning Enforcement Officer Joseph Chapman (“ZEO”).

Plaintiff’s alleged an Equal Protection claim under a “class-of-one” theory, arguing the Town violated his Fourteenth Amendment rights by prohibiting loam manufacturing on his property while allowing others to do so. However, the record indicated that Plaintiff engaged in a number of non-conforming activities that the other properties did not, such as storing heavy vehicles and conducting excavation, trucking and hauling, salvage, demolition, and snow plowing businesses. Moreover, while the alleged comparable sold compost and mulch, he did so with a permit. Finally, Plaintiff generated significantly more local opposition. In the same vein, while the other comparable was also subject to complaints, they were far fewer in number.

Accordingly, the record demonstrated the properties were not sufficiently similar to find that the Town improperly denied Plaintiff pre-existing use status. As the court failed to find that Plaintiff established a cognizable claim under the Fourteenth Amendment, it did not reach the issue of causation.

The case was Beard v Town of Monroe, 666 Fed.Appx. 62 (2d Cir. 2016).

Fourth Department Holds Finding That Commercial Use of Mansion Would Not Yield Reasonable Return Without A Variance Lacked A Rational Basis

Petitioners, residents of the City of Jamestown (“City”), challenged the determination of Respondent City of Jamestown Zoning Board of Appeals (“ZBA”) to grant a use variance to Respondents Jamestown Community College (“JCC”) and Lynn Development, Inc. (“Lynn”), to permit the commercial use of a mansion known as Sheldon House. The Supreme Court dismissed the petition, holding that JCC and Lynn had “presented substantial evidence, especially regarding the four-pronged hardship test, providing the ZBA with a rational basis upon which to issue a variance.”  Petitioners appealed.

On appeal, Petitioners argued that JCC and Lynn failed to satisfy the four requirements for the issuance of a use variance based on unnecessary hardship, and that the court erred in deferring to the ZBA.  The Fourth Department agreed, finding that JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship: “that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence.”  Absent any evidence in dollars and cents form, the Court held there was no rational basis for the ZBA’s finding that the premises would not yield a reasonable return without the requested use variance.  Accordingly, the Court held that the ZBA’s determination should be annulled, reversing the lower court’s judgment and granting the petition.

The case was Leone v. City of Jamestown Zoning Bd. of Appeals, 151 A.D. 3d 1828 (4 Dep’t 2017).

Third Department Reverses Decision Denying Special Use Permit for Dog Training Business

Petitioner owned property on which she operated a dog training and handling business in the Town of Hoosick. Following a noise complaint from a neighbor, the Code Enforcement Officer of the Town of Hoosick (“CEO”) determined Petitioner’s use of the property violated the Town’s Land Use Law and that a special use permit and site plan approval were needed. Petitioner submitted the required applications, but the ZBA denied them both, citing the current and foreseeable impact of dog noise on the neighbors. Petitioner then commenced a CPLR Article 78 proceeding to review the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

On appeal, Petitioner first argued that the Supreme Court erred in holding that she was required to obtain a special use permit and site plan approval, as her business involved operating a boarding kennel and breeding kennel, both uses permitted by right. However, the application for site plan approval described the intended use as a “training + handling center for show dogs.”  Thus, the Court found that since Petitioner’s use of the property did not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit.

Petitioner next argued that site plan review was not required because the use began in 2006, predating both the 2009 enactment of the Land Use Law and 2014 version of the site plan review law. The Court found that this argument was also without merit, as having a protected interest when the 2009 Land Use Law was enacted required petitioner to have received site plan approval under the 2001 Site Plan Review Law. Here, Petitioner never applied for or received site plan approval, and thus her use was not a lawful nonconforming use.  In addition, her proposal would expand the scope of the use, in terms of both staff and number of dogs, thus triggering the requirement for site plan approval.

Despite these holdings, the Court still reversed the lower court’s decision.  The ZBA found that Petitioner had failed to offer sufficient mitigation for the dog noise from her business.  However, Petitioner offered scientific measurement of the noise level, while there was no other objective measurement offered at the public hearing.  Moreover, the neighbor’s recording could be subjectively interpreted due to the ability to control the volume of the recording, making reliance on it unreasonable. Absent evidence rebutting Petitioner’s measurement of the sound level and offer to address any noise concerns, the Court found that there was no basis in the record to find that Petitioner did not comply wtih the Land Use Law. Accordingly, the judgment was reversed and the matter was remitted to the ZBA to grant a special use permit and site plan approval.

The case was Blanchfield v Town of Hoosick, 149 A.D.3d 1380 (3d Dep’t 2017). 

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