Second Department Upholds Finding That Addition Of Comfort Stations During Post-Sandy Boardwalk Reconstruction Was Not Prohibited Use Of A Public Street

Petitioners are the owners of a condominium adjacent to the boardwalk in the City of Long Beach (“City”). After the destruction of the boardwalk and restroom facilities by Superstorm Sandy, the City awarded contracts for construction of comfort stations along the boardwalk as part of its reconstruction plan. The comfort station at issue would be installed adjacent to Petitioners’ condominium complex. Petitioners filed a hybrid Article 78 proceeding / declaratory judgment action to challenge the contract awards, alleging that the City had violated the State Environmental Quality Review Act (“SEQRA”), Article 17 of The Charter of the City of Long Beach, and interfered with Petitioners’ easement of light, air, and access. The Supreme Court, in denying the petitioners' motion for a preliminary injunction, in effect determined that the construction is not a prohibited use of a public street. The Court then denied the petition and dismissed the case. Petitioners appealed.

As a preliminary matter, the Second Department found that Petitioners lacked standing under SEQRA. To establish standing under SEQRA, “a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” Here, the Court found Petitioners' alleged environmentally related injuries too speculative and conjectural to show an actual and specific injury.

Turning to Petitioners’ easement claim, the Court found that the proposed construction would neither completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. The construction would only shorten the length of the dead-end street, and remove several public parking spaces. In addition, the turnaround on the street would still be intact (albeit moved 23 feet to the north), and access to the petitioners’ driveway and building’s entrance would not be impeded. Accordingly, the Supreme Court’s determination that the construction was not a prohibited use of a public street, was upheld, with the modification that it include a declaration that the construction is a permitted use of a public street.

The case was Shapiro v Torres, 153 A.D.3d 835 (2d Dep’t 2017).


Second Circuit Dismisses Equal Protection and Retaliation Claims From Recreational Club

Plaintiff is a recreational club located on 116 acres in Defendant Village of Mamoroneck. The full details of the case can be found in lower court’s decision at 2016 WL 1181727.  On appeal, the Second Circuit Court of Appeals affirmed, by summary order, the decision of the Southern District of New York to dismiss the Plaintiff’s selective prosecution, equal protection, and retaliation claims.

The Second Circuit held that the lower court properly dismissed the selective enforcement claim made by Hampshire Recreation LLC (“Hampshire”) because it was not similarly situated to its alleged comparators. Specifically, the Court noted that Hampshire was subject to different zoning regulations than the three alleged comparators, and that it initially did not have a Special Permit.  The Court found that these facts “explain why it is not entitled to equal treatment with respect to its property use.” 

This issue of inapposite comparators was also cited as a basis to uphold the dismissal of Hampshire’s Equal Protection claim.  However, in dismissing this claim, the Court wrote that “[e]ven if Hampshire were able to establish a class of similarly situated comparators, the District Court offers numerous reasons why the Village's decision to award a probationary permit was not discriminatory under both ‘selection enforcement’ and ‘class-of-one’ theories.”

Finally, with respect to Hampshire’s retaliation claim, the Court agreed that the violation notice was too remote from the Village’s enforcement actions (the only plausible retaliatory conduct) based on the 18 month gap between said enforcement actions and Hampshire’s protected speech.  As such, the Court affirmed that Hampshire could not sustain a retaliation claim under the First Amendment.

The case was Hampshire Recreation, LLC  v Village of Mamaroneck, 664 Fed.Appx. 98 (2d Cir. 2016).  Please note that as a summary order, this decision does NOT have precedential effect.


Firm Obtains Reversal Of Area Variance Denial Based On Changed Economic Circumstances After Hurricane Sandy Recovery

On December 18, 2017, the firm obtained a reversal of a decision by the Zoning Board of Appeals of the City of Long Beach (“ZBA”) that denied an area variance application that would permit the owner to subdivide the property into two lots. The Supreme Court, Nassau County held that the ZBA decision was arbitrary, reversed , and directed the ZBA to issue the variance. Of particular note, the Court rejected an argument by the ZBA that a prior variance from the aftermath of Superstorm Sandy was not comparable because the economic situation in Long Beach had improved.

The property is located in the City of Long Beach (“City”). After Petitioner purchased the property, the City directed that its dilapidated house be razed. Petitioner sought variances that would permit him to subdivide the property into two lots, and build a house on each. The ZBA denied the application, and indicated it would issue findings at a later date. Petitioner then retained the firm to file an Article 78 petition challenging the denial. The ZBA published its reasoning one month after the petition was filed.

In reversing the ZBA, the Court held its decision was arbitrary. First, the Court rejected the assertion that the curb cut would adversely affect parking, calling it “rank speculation” that “one large structure would cause less parking problems than two smaller ones.” The Court similarly found no support in the record for any of the ZBA’s other concerns, including increased traffic, the reduction of “green spaces and view corridors,” and an alleged Zoning Code preference for preserving larger lots.  In fact, the only evidence supporting denial “were the generalized complaints of community members,” none of which were supported by factual evidence the record. 

However, the most notable argument was the ZBA’s novel claim that a variance for a similarly situated lot was distinguishable because it was granted in the aftermath of Superstorm Sandy. The ZBA argued that when that variance had been granted, the belief was that people might not return to live in the City, but current economic circumstances did not require such incentives. The Court rejected this argument, holding that not only did the record lack support for this view, but that it fell outside the criteria the ZBA was required to consider, i.e. “the benefit to the application against the potential detriment to the community.”


Second Department Reverses Dismissal Against Individual Parties in Building Permit Matter

Petitioners/Plaintiffs brought an hybrid Article 78/declaratory judgment action to review a determination of the Zoning Board of Appeals of the City of Long Beach that revoked a previously-issued building permit, and for a declaration that they were entitled to the building permit. In a September 2010 order, Supreme Court, Nassau County granted the branch of defendants’ motion to dismiss relating to the sixth cause of action, finding that Petitioners did not allege sufficient facts that Defendants’ alleged actions effected a deprivation of their constitutional rights.  The Supreme Court also found that that the individual defendants, who were members of the Zoning Board of Appeals of the City of Long Beach, were immune from suit for monetary damages.

Petitioners took a limited appeal with respect to order dismissing the sixth cause of action. The appeal was granted and the order reversed.  However, the Supreme Court, in a subsequent 2015 order, stated that it was “unclear” as to whether the Second Department’s determination “impacted” the Supreme Court’s finding in that order that the individual defendants had qualified immunity from claims seeking damages under 42 USC § 1983. In light of this uncertainty, the Supreme Court granted the individual defendants leave to move to “be let out of the case” as to the fourth and sixth causes of action.  Petitioners again appealed to the Second Department.

On appeal, the Second Department found that Petitioner’s notice of appeal from the September 2010 order specifically encompassed that part of the order which “granted Defendants’ motion to dismiss Count ... Six.” As such, the September 2010 order to dismiss the sixth cause of action insofar as asserted against the individual defendants was properly before the Court. The Court further found that its decision and order on the appeal from the September 2010 order clearly reversed the order granting the defendants’ motion to dismiss the sixth cause of action insofar as asserted against all of the defendants. Accordingly, the court held that the reversal of the September 2010 order necessarily rejected the individual defendants’ claims of qualified immunity. The order dismissing the sixth cause of action against the individual defendants was therefore reversed.

The case was Haberman v ZBA of Long Beach, 152 A.D.3d 685 (2d Dep’t 2017).


Second Department Upholds Denial of Area Variances

Petitioner owned vacant property in the Town of Brookhaven (“Town”) that contained two tax lots that shared a rear boundary and abutted two parallel streets. Petitioner applied for area variances to build two houses on the property, one abutting each street, arguing it was entitled to the variances because the property consisted of two single and separate tax lots.  After a hearing, the Town’s Board of Zoning Appeals (“BZA”) denied the application, determining that the property consisted of two merged tax lots, and that Petitioner would have reasonable use of the property by developing one house instead.  Petitioner filed an Article 78 proceeding seeking to annul the BZA’s determination, but the Supreme Court, Suffolk County denied the petition and dismissed the proceeding. Petitioner appealed.

On appeal, the Second Department held that despite Petitioner’s contention that the property consisted of two separate lots, the record showed that the lots had been held in common ownership since 1948, and Petitioner offered no evidence that the lots were separate.  The record also had evidence that the proposal did not conform to the surrounding development pattern, and was a substantial deviation from the zoning requirements.  Finally, the BZA denied an identical application for a property in the immediate area in 2007.  As such, the Court concluded that the BZA properly weighed the relevant factors in denying Petitioner the requested relief, and that the BZA's determination was not illegal, arbitrary and capricious, or an abuse of discretion.  Thus, the decision of the lower court was affirmed.

The case was Harn Food, LLC v Dechance, 159 A.D.3d 819 (2d Dep’t 2018).


N.D.N.Y. Holds City’s Unreasonably Delay Acting On Application Violated the Telecommunications Act

Plaintiff Upstate Cellular Network (“Plaintiff”), d/b/a Verizon Wireless, filed suit alleging defendants, the City of Auburn (“City”), and its City Council, Planning Board, Zoning Board of Appeals, and Code Enforcement Officer (collectively “Defendants), improperly failed to act on its application to construct and operate a wireless telecommunications site in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332 et seq. ( “TCA”) and the Federal Communications Commission’s (the “FCC”) orders, rules and regulations.  The instant decision came upon competing motions for summary judgment.

Under the provisions of the TCA and related FCC Orders, a municipality has 150 days to review an application and make its final determination, consistent with local law, the TCA and federal rules and regulations.  Defendants argue that the City could not accept Plaintiff’s application as it was received during a moratorium on the acceptance and review of applications for telecommunication facilities while the Town revised its regulations.  Thus, Defendants claim the application was never “duly filed,” and the TCA’s 150-day timeframe never began to run.  However, the Court held that while the FCC recognizes the need of local municipalities to update their zoning regulations, a 2014 FCC Order expressly provided that the 150-day time “runs regardless of any moratorium.”  Thus, the City failed to rebut the presumption that its failure to review the application within 175 days of receipt was unreasonable, and the Court held that this constituted a violation of the TCA.

Conversely, Plaintiff demonstrated that Defendants’ actions prevented it from closing a significant gap in service, and effectively prohibited service. Plaintiff’s application had significant information, including Radio Frequency propagation maps, that demonstrated a gap in its service in the City and related capacity deficiencies, including major thoroughfares, residences, businesses and schools. Furthermore, the application established that there was no less intrusive means to fill the significant gap in coverage other than to construct and operate a wireless facility at the Site.

As such, the Court found that plaintiff was entitled to summary judgment. The Court found Defendants’ persistent and affirmative violation of the text and spirit of the TCA should result in its relinquishment of its right to obtain further review of Plaintiff’s application, and the Court issued a mandatory injunction directing Defendants to approve Plaintiff’s application and issue all applicable permits and approvals.

The case was Upstate Cellular Network v City of Auburn, 257 F.Supp.3d 309 (N.D.N.Y 2017).


Town of Southold Plans Crackdown On Short-Term Rentals

Citing safety concerns, the Town of Southold is mulling a crackdown on violators of its short-term rental law. While the law, passed in August of 2015, banned homeowners from renting their property for less than 14 days, the Town reports that last year it received more than 20 complaints about violations of the law.  More troubling, however, have been  several fires in residences that had been illegally used as short-term rentals. As a result, the Town is considering hiring additional code enforcement officers and more aggressively prosecuting violators.

The Town is also considering proposals to strengthen its short-term rental laws.  Among the proposals under consideration is a plan to require rental occupancy permits for all rentals in the Town. This proposal would also require code inspectors to ensure compliance with safety regulations, including proper entrances and exits, working carbon monoxide detectors and sufficiently wide hallways.  However, to address the short-term rental issue more broadly, the Town is considering loosening the building restrictions that limit accessory apartments, as well as promoting more affordable rental housing.  Taken together, these two proposals would allow for a more holistic approach to the Town's short-term rental issue.


Second Department Holds Planning Board Failed To Adequately Articulate Its Basis For Determining A Second SEIS Was Unnecessary For Proposed Changes

In 2004, a developer, Davies Farm, LLC, applied for site plan approval and a zoning amendment in connection with proposed residential and commercial development of a 53.3–acre parcel of land in the adjacent towns of Haverstraw and Ramapo. The Town of Haverstraw Planning Board, issued a positive declaration under SEQRA and required the preparation of a draft environmental impact statement (“DEIS”). After the DEIS was submitted in 2006, Davies Farm changed the proposed plan by eliminating the residential development in the Town of Haverstraw to avoid needing a zoning amendment. As a result, the Planning Board required a Supplemental Environmental Impact Statement (“SEIS”). In 2009, the Planning Board accepted a final SEIS and adopted a findings statement under SEQRA certifying that the development plan minimized or avoided adverse environmental impacts to the maximum extent practicable.

The property was later sold, and in 2012, the property’s new owner, Mt. Ivy Partners, LLC, applied to the Planning Board for preliminary and final site plan approval for the project, which included a deli/coffee shop with gas pumps. The Planning Board determined a second SEIS was not required, and granted the preliminary and final site plan approval subject to certain conditions. The owners of properties near the site of the supplemental proposed development commenced an Article 78 proceeding to review the Planning Board’s determination, and the Supreme Court granted the petition, annulled the SEQRA determination and site plan approval, and remitted the matter to the Planning Board.  The Planning Board appealed.

On appeal, the Second Department found that while a lead agency’s determination to require a SEIS is discretionary, the lead agency must “consider the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact.” Here, the proposed changes for the project included the construction of a large convenience store with 16 gas pumps. Mt. Ivy’s representatives asserted that the gas station did not necessitate a second SEIS because it would be constructed to meet New York State requirements and would need permits from the Rockland County Department of Health during the building permit process.  However, the Planning Board did not mention the gas station or petroleum storage in its determination that a second SEIS was not required. As such, the Court held that the Planning Board “failed to take the requisite hard look” at the project change adding the gas station, and “did not make a reasoned elaboration” of its basis for determining that a second SEIS was not necessary. Accordingly, the decision of the lower court was affirmed.

The case was Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 153 A.D.3d 823 (2d Dep’t 2017).


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).



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