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).


N.D.N.Y. Denies Motion to Dismiss Equal Protection and Conspiracy Claims Against Ex-Wife and Town Officials

Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983, alleging Defendants, his ex-wife and Town of Delhi officials (“Defendants”), violated his Fifth and Fourteenth Amendment rights.  The Court granted Defendants' motions to dismiss with leave to amend certain claims, and Plaintiff filed an Amended Complaint. Defendants then moved to dismiss the Amended Complaint.

Plaintiff's Amended Complaint identifies to two comparators, individuals who allegedly “constructed buildings without first obtaining a permit, and were, after being notified by the Town of the need for a permit ... granted permits with no prosecution.” The first was Plaintiff’s ex-wife. The prior Court concluded that, despite being equally responsible for building the structures but facing no punishment, Plaintiff had not alleged that his ex-wife was a proper comparator because he had failed to allege that any of the Defendants were actually involved in the decision not to prosecute her. Even so, the court held that if the allegations in the Amended Compliant were proven, it would indicate that the decision to only prosecute Plaintiff for violating the zoning ordinances was the result of an agreement between the Defendants, the prosecutor, and the Town Justice. Accordingly, the Court held that Plaintiff alleged a plausible class-of-one equal protection claim, and that his ex-wife was a valid comparator.

As to the state law claims, unlike Plaintiff's earlier allegations, where his ex-wife only reported violations and the other Defendants acted independently to prosecute them, Plaintiff now alleged that she knowingly and actively participated in a careful scheme to bring false allegations against him and played a specific role in ensuring that those allegations damaged him.  The Court found this change was “just enough” to survive the motion to dismiss.

The Court did, however, dismiss Plaintiff’s malicious prosecution claim, finding that the case against him ended when Plaintiff and the Town entered into an agreement to withdraw the appeals. As the law clearly states that a termination is not favorable “if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused,” Plaintiff has failed to prove the favorable termination element of a malicious prosecution. Finally, Plaintiff's conspiracy claim under Section 1983 survived the Defendant’s motion to dismiss when viewed in a light most favorable to the Plaintiff.

The case was Telian v Town of Delhi, 2015 WL 2249975 (N.D.N.Y. May 13, 2015).


Eastern District Holds Law Requiring Utility Pole Warning Signs Violates First Amendment

In 2014, the Town of North Hempstead (“Town”) passed a law requiring warning signs on utility poles in the Town.  As part of a larger project, the Long Island Power Authority (“LIPA”) and PSEG Long Island LLC (“PSEG”) placed new utility poles along existing rights-of-way.  The new poles, like the old poles, were treated with pentachlorophenol (“Penta”), a chemical used to prevent damage to the wood.  In April 2014, opponents of the project discovered EPA information suggesting that Penta was harmful to human health.  The following month, the Town began considering laws to require the posting of warning signs on the poles, and such a bill was approved in September 2014.

In January 2015, LIPA and PSEG commenced an action in federal court, alleging the law violated State and Federal freedom of speech.  Specifically, they claimed that the local law was vague, overbroad, and preempted by state statutes giving the New York State Department of Environmental Conservation (“DEC”) jurisdiction over Penta and other pesticides.

On a motion for summary judgment, the Court held that the warning signs constituted noncommercial speech, for which the government’s ability to compel mandatory disclosures is far more limited.  As the Court wrote, “the warning signs bear no discernible relationship to the Plaintiffs’ products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine.”  The Court also found that the signs were not government speech, as the government was not the speaker on the signs and did not appropriate funds to transmit the message.

Applying strict scrutiny, the Court found that the Town lacked a compelling interest in the warning signs, and accordingly that the law was not narrowly tailored to achieve a governmental interest.  The Court suggested that the Town could have chosen to convey its message through television advertising, public education campaigns, or signs on public property.  The Court also rejected the Town’s claims that placing warning signs on the utility poles was more effective, as the Town did not establish that there was a serious public safety concern, and further failed to provide evidence supporting the efficacy of its chosen method of addressing any such concerns.

The case was PSEG Long Island LLC v. Town of North Hempstead, 158 F.Supp.3d 149 (E.D.N.Y. 2016)


Court Upholds Approval of Special Permit

Petitioner commenced a CPLR article 78 proceeding to challenge Respondent City of Rochester Planning Commission’s approval of the application of Respondent Morgan Management, LLC, for a special permit. The special permit allowed construction of an apartment building on property owned by Respondent Monroe Voiture No. 111 Memorial Home, Inc., La Societe Des 40 Hommes, “in association with the overall redevelopment of the property.” Petitioner is a not-for-profit corporation that owned the adjacent property, including the George Eastman House.

Pursuant to the Municipal Code of the City of Rochester, Chapter 120, Article XVII, the City established Planned Development District No. 14, which includes the Petitioner’s and Monroe Voiture’s properties. The City's intent in creating the District was “to recognize and permit a defined area for the delivery of programs and community services offered by George Eastman House and the Monroe Voiture… and to provide for the orderly growth and development of the properties.” After a hearing, the Planning Commission found that the proposed project met the City's standards for approval of a special permit, including that the proposed project would be in harmony with the goals, standards and objectives of the City's Comprehensive Plan. The Planning Commission also considered that, beyond the construction of a multifamily apartment building, the proposed project included renovation of the clubhouse, allowing for the continuance and expansion of the programs and community services offered by Monroe Voiture. Thus, the Court found the Planning Commission's approval of Morgan's special permit application was not arbitrary and capricious, irrational, or contrary to law.

The case was George Eastman House, Inc. v Morgan Management, 130 A.D.3d 1552 (4th Dep’t 2015).


Appellate Division Dismisses Petition To Vacate Use Variance As Time Barred

On July 18, 2012, Respondent Zoning Board of Appeals of the Town of Oyster Bay (“ZBA”) granted an application Respondent Karen Malamud for a use variance to use a single family home as a parent-child residence, subject to the May 14, 2012 plans. Respondent Town of Oyster Bay Department of Planning and Development (“DPD”) issued a building permit for the rear addition to Malamud’s property based upon revised plans dated July 20, 2012. Petitioners, Malamud’s neighbors, filed an administrative appeal challenging the issuance of the permit, and commenced an Article 78 proceeding on June 13, 2013.  The Supreme Court, Nassau County granted the respondents’ separate motions to dismiss the petition as time-barred, denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Appellate Division, Second Department found that contrary to Petitioners’ contention, the Article 78 challenge to the ZBA’s issuance of the use variance was not timely.  The law provides that the Article 78 proceeding must be instituted within 30 days of the ZBA’s determination being filed in the office of the Town Clerk. Here, the determination as filed on July 18, 2012, and the Article 78 proceeding was commenced on June 13, 2013. The Court also found that Petitioners’ administrative appeal from the issuance of the building permit was untimely.  The Planning Department issued the building permit on August 7, 2012.  It was from that date that the 60–day statutory period began to run, yet Petitioners did not file their appeal until December 20, 2012.  Thus, the filing of the administrative appeal was also untimely.  Accordingly, the Court affirmed the dismissal of the petition, with a bill of costs.

The case was Leitner v. Town of Oyster Bay Planning and Development Dept., 143 A.D.3d 986 (2d Dep’t 2016).


Appellate Court Finds Petitioner Operating A Boarding House Not A Permitted Use

Petitioner applied for a building permit to undertake certain renovations to an existing building on the property so that it could continue to operate as a boarding house. Corporation counsel for Respondent City of Kingston Building Safety Division informed Petitioner that a boarding house was not a lawful preexisting nonconforming use, and denied the petition. Petitioner brought a CPLR Article 78 proceeding to review the determination, but the Supreme court remitted pending a final determination.  Once the denial was official, Petitioner appealed to the City of Kingston Zoning Board of Appeals, which affirmed the denial.  Petitioner again filed an Article 78 proceeding to challenge the determination,  and the Supreme Court partially vacated the decision to the extent it required the nonconforming user to obtain a permit or license to operate, and otherwise upheld the determination.  Petitioner appealed.

On appeal, the Third Department agreed with Petitioner that the Supreme Court acted in error by substituting its judgment for that of the ZBA by basing its decision on a rationale not cited by the ZBA in its determination.  However, the Court found that despite this error, the only issue before it was whether the ZBA’s decision as arbitrary and capricious.

It was not in dispute that the property operated as a boarding house and had previously been used as a nursing home, however the City's zoning law expressly prohibited the substitution of nonconforming uses.  In determining that the boarding house was a change from the prior use, the ZBA relied in part on the affidavit of a relative of the owner and operator of the property from the 1950s through the 1970s, and who also lived on the premises with her family. This woman stated that the property was operated as “Garry's Nursing Home,” which was corroborated by other documents in the record. Nurses assisted residents with dressing, bathing and shaving, and dispensed medication. A 1958 compliance letter also established that the property was subject to the Social Welfare Law, and advised Garry's Nursing Home that it must provide around-the-clock coverage by a licensed nurse, maintain appropriate medical records, and dispose of narcotics properly.

Based on this testimony and accompanying documentation, the Court found there was sufficient evidence in the record for the ZBA to rationally conclude that the property was no longer being used as a nursing home.  The Court also held, without discussion, that Petitioner’s remaining arguments lacked merit.  Accordingly, the Court affirmed the judgment of the lower court.

The case was Tri-Serendipity, LLC v. City of Kingston, 145 A.D.3d 1264 (3d Dep’t 2016).


Court Finds ZBA’s Denial Of Applications To Renew Use And Area Variances Not Illegal, Arbitrary, Or Abuse of Discretion

In 2006, Petitioner applied for a use variance to convert two offices on the first floor of a two-story brick building into three residential apartments.  Petitioner also applied for an area variance from the off-street parking requirements. In 2007, the Board of Appeals of the Town of Hempstead (“ZBA”) granted the applications until 2012, subject to certain conditions. In 2009, Petitioner applied for another use variance to convert the remaining office on the first floor into two residential apartments, together with an area variance from the off-street parking requirements. The ZBA denied both applications. In 2012, Petitioner sought a rehearing on its 2009 application, and renewal of its 2007 variances, all of which were denied.  Petitioner brought an Article 78 proceeding to review the ZBA’s denial of its applications. The Supreme Court annulled the portion of determination that denied the application to renew use and area variances, but upheld portion that denied application for new use and area variances.  The parties then appealed and cross-appealed from the judgment.

On appeal, the Appellate Division, Second Department found that the ZBA's findings of fact did provide a rational basis for denying Petitioner’s application for a renewal of the 2007 variance. The ZBA found that Petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267–b(2)(b), and the fact that the ZBA temporarily approved the same application in 2007 did not relieve Petitioner of its evidentiary burdens for purposes of renewing or seeking an additional use variance. As Petitioner failed to show any financial evidence that it could not obtain a reasonable rate of return absent the requested use variances, the ZBA’s decision to deny Petitioner’s applications was not illegal, arbitrary, or an abuse of discretion.

The Court similarly found that the ZBA’s decision denying Petitioner's applications to for a new area variance and to renew the area variance issued in 2007 was not illegal, arbitrary, or an abuse of discretion. There, the ZBA properly considered the benefit to Petitioner if the variances were granted as weighed against the detriment to the neighborhood.  The ZBA found that the area variances were substantial and would adversely impact the nearby residential neighborhood by creating a “disruptive additional demand for on-street parking in the residential area to the south.”  This finding was rational and supported by the record. Accordingly, the Court held that the Supreme Court should have denied the petition in its entirety.

The case was Monte Carlo 1, LLC v. Weiss, 142 A.D.3d 1173 (2d Dep’t 2016).



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