Third Department Finds Road Run-Off Contaminating Property Owner’s Well Constituted Taking

Property owner plaintiffs commenced this action after snow plows operated by defendant Town of Shandaken (“Town”) allegedly damaged part of a privacy fence installed along Fox Hollow Road in the front of their property. Plaintiffs alleged trespass and negligence for damage to the fence, and a third cause of action alleging that the Town widened Fox Hollow Road in 2010, taking their property without compensation and altering the drainage such that run-off from the road contaminated their well.  The Supreme Court, Ulster County, granted the Town’s motion for summary judgment, and Plaintiffs appeal.

On the first two causes of action, Plaintiffs argued that the Town’s easement was limited to the width of the paved portion of Fox Hollow Road prior to the 2010 expansion because that is the only portion of the road that had been used by the Town for the statutory period of 10 years.  However, the Third Department noted that under Highway Law § 189, once a roadway is established as a highway by use, a town may maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Here, it was undisputed that Plaintiffs’ fence and the widening of the roadway were within the three-rod width that defendants were statutorily authorized to open. As the Town was engaging in permissible uses of its easement, the lower court’s judgment was affirmed

On the third cause of action, however, the Court held that the lower court erred in granting the Town’s motion to the extent that it alleged a de facto taking based upon the contamination of plaintiffs’ well.  The Court found that the record established that the Town proffered no proof and, accordingly, did not meet its initial burden concerning this claim.  Thus, the Third Department reinstated this claim.

The case was Hoffman v. Town of Shandaken, 147 A.D.3d 1275 (3d Dep’t 2017).


District Court Rejects Constitutional Challenge To Hours of Operation Limits On Restaurant/Bar

Plaintiff Obsession Sports Bar & Grill, Inc. (“Plaintiff”) alleged that the City of Rochester (“City”) violated its due process rights and improperly restricted its hours of operation because Section 120-34(O) of the Rochester Municipal Code was “an impermissible exercise of municipal zoning power” that conflicted with the New York State Alcoholic Beverages Control Law (“ABC Law”).  Under the ABC Law, establishments with liquor licenses can sell alcohol from 8:00 a.m. until 2:00 a.m. Monday through Saturday, and from 12p.m. to 2:00 a.m. on Sundays.  Plaintiff commenced an Article 78 proceeding to challenge the regulation, and both the Supreme Court and Fourth Department agreed the City law was preempted by the ACB Law.  Plaintiff then filed the instant action in federal court.  

The District Court for the Western District of New York first held that while the Complaint did not specify whether the claim was for procedural or substantive due process, the Court interpreted the pleading as asserting a substantive due process claim, as it alleged the City injured Plaintiffs’ property rights to operate their business during all hours allowed by the ABC Law through an “illegal ordinance.”  Such claims require both “a valid property interest” and that “defendants infringed on the property right in an arbitrary or irrational manner.”  However, a plaintiff cannot maintain a substantive due process claim merely because he was deprived of property pursuant to a statute or ordinance that is later found to be contrary to, or preempted by, state law.  Here, it was undisputed that the City acted under color of state law when it enacted § 120-34(O), which had the effect of restricting the hours in which Plaintiff could remain open and sell alcohol.

Thus, even assuming Plaintiff had a sufficient constitutionally-protected property interest in their New York State Liquor License, the Court found Plaintiffs failed to show that the City lacked the authority to enact this zoning provision. Furthermore, Plaintiff did not challenge the City’s authority to enact zoning provisions generally, or that any type of “fundamental procedural irregularity” occurred during the process by which Defendant enacted § 120-34(O). Finally, Plaintiffs did not produce any evidence that in enacting § 120-34(O), Defendant was motivated by any personal animosity towards Plaintiffs, or that Defendant acted for an improper purpose. As such, the court held Plaintiff’s failed to state a claim and dismissed the action.

The case was Obsession Sports Bar & Grill, Inc. v. City of Rochester, 235 F.Supp.3d 461 (W.D.N.Y. 2017).


Court Overturns Planning Board’s Denial of Site Plan Based On Traffic Study and Community Opposition As Arbitrary and Capricious

In July of 2012, 7-Eleven filed a site plan application (“Application”) with the Town of Babylon (“Town”) Planning Board for a proposed store in West Babylon, New York.  7-Eleven subsequently revised the site plan to incorporate comments from the Town, and submitted expert evidence addressing the Town’s other concerns.  In particular, the Town Traffic Division issued a memo noting that all of its concerns and objections were met.  In December of 2013, the Planning Board held a public hearing on the application.  During the public hearing, community members, including a nearby 7-Eleven store owner, opposed the new store.  The Planning Board left the record open for the submission of a traffic study by 7-Eleven, and additional public comment.  After this public hearing, the Town’s Traffic Division issued a new memo outlining objections to the Application, including the number of on-site customer truck parking spaces and whether the delivery zone could accommodate a tractor-trailer.  This memo began a two-year back-and-forth between applicant and the Town, as 7-Eleven attempted to address each comment.  When pushed for an “up or down” vote on the Application, the Planning Board finally voted to deny it in August of 2016.  Both 7-Eleven and the property owner appealed to the Supreme Court, Suffolk County.

As an initial matter, the Court undertook a ripeness analysis, rejecting the Town’s claim that petitioners were required to seek a variance approval from the zoning board, even though the planning board had issued a denial. “Petitioners sought both site plan review and for a permit to commence demolition and new construction on their intended site.  Respondents granted neither application, with the practical import of each denial being that petitioners cannot move their project forward.  Thus, to conclude as respondents seek that petitioners have not yet been injured, or rather, that respondents’ determination is not yet in final form contorts logic.”

The Court the noted the similarities to 7-Eleven’s Article 78 proceeding against the Village of Mineola over its denial of a special use permit.  Here, the Town’s Planning Board, like the Board of Trustees in the Mineola case, denied the applications partly because of perceived traffic impacts from tractor-trailer deliveries and perceived noise problems from overnight deliveries, even though 7-Eleven supported both applications with affidavits stating that delivery times would be restricted, and that only box trucks would deliver to the stores.  Relying upon the Appellate Division’s decision in that case, the Court concluded that it is arbitrary and capricious for a municipality to deny a 7-Eleven store application on the grounds of tractor-trailer delivery concerns or overnight delivery concerns where 7-Eleven had filed an affidavit stating that those two events will not occur.

The Court also found that the Planning Board’s decision was irrational, arbitrary and capricious in light of the “empirical data” submitted “evidencing that the proposed use would not carry deleterious impact or effects on the adjacent residential neighborhood as far as increased traffic or public safety.”   The Court wrote that the Planning Board could not point to any contradictory “objective, factual or scientific support” to credit the concerns of the community opposition.  In sum, the Court held, “Even after giving respondents’ due deference in its expertise in local planning matters and site plan review, this Court finds that respondents did not attempt to counter petitioners’ scientific and factual evidence, but instead rather relied upon conclusory and speculative concerns to justify denial of petitioners’ application.”   Thus, the Court held municipalities could not base their decisions on the community’s political pressure or its unsubstantiated objections, or ignore traffic and engineering studies or an affidavit of the applicant in favor of its own opinions.

The case was 7-Eleven and Louhal Properties v. Town of Babylon, 2017 NY Slip Op 31467(U) (Sup. Ct. Suffolk County, July 7, 2017).


Appellate Court Finds Action Did Not Meet Exception To The Mootness Doctrine And That Town Violated Open Meetings Law

In 2011, respondent New York Safety Track LLC applied for site plan approval from respondent Town of Harpersfield Planning Board to convert a former airport property to a motorcycle safety training facility.  The Planning Board’s minutes show that the Board conditionally approved the proposed site plan, and that the facility was completed thereafter. After receiving numerous complaints from neighbors that the facility was hosting large, high-speed racing events, respondent Town of Harpersfield Code Enforcement Officer (“CEO”) advised Safety Track that its advertised racing and large events were not authorized uses under the site plan that had been approved by the Planning Board.  A few weeks later, the CEO, Planning Board, Town of Harpersfield and Safety Track executed an “Agreement for Operation of New York Safety Track” (“2013 agreement”) and an events calendar for the 2013 facility's season, which purported to outline Safety Track's approved land uses for May 1, 2013 to December 31, 2013.  A group of concerned landowners brought a CPLR Article 78 proceeding challenging the agreement, and the Supreme Court issued a judgment holding that Petitioners' challenge to the then-expired 2013 agreement was not moot, annulled it, and made declarations regarding the scope of Safety Track's permissible land uses.  Respondents appealed.

The Appellate Division, Third Department began by noting that where the passage of time or a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy, the claim must be dismissed.  Here, the 2013 agreement pertained solely to Safety Track's land uses and events that occurred during the 2013 track season and expired at the end of that year, thus rendering the challenges to the 2013 agreement moot.  Furthermore, the Supreme Court did not err in finding that the Town violated the Open Meetings Law several times leading up to the execution of the 2013 agreement, nor in awarding Petitioners reasonable attorneys’ fees and costs. This reflects that the Town's conduct denied Petitioners “any meaningful participation” in the process leading to the final adoption of the 2013 agreement, in clear contravention of Public Officers Law § 103(e). For these reasons, the court dismissed the appeal and modified the underlying judgment to the extent that it annulled the 2013 agreement.

The case was Ballard v New York Safety Track, LLC, 126 A.D.3d 1073 (3d Dep’t 2015).


Third Department Upholds ZBA Determination That Property Used By Church To House Homeless Qualified As A House Of Worship Under Zoning Code

Respondent Bethany Reformed Church (“Church”) owned property within zoning district R-1B, for single family medium density residencies, that was adjacent to Petitioner’s home.  Permitted uses include single family detached dwellings and houses of worship, defined by the Code of City of Albany as “a structure or part of a structure used for worship or religious ceremonies.” The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals, and based upon the apparent non-religious use, the Church was informed that a use variance and/or special use permit would be required.  Following the church’s application and public hearings by the Board of Zoning Appeals (“ZBA”), the ZBA found that the “proposed use is consistent with mission and actions of a house of worship,” and that no zoning exemptions were necessary. Petitioner filed an Article 78 proceeding to annul the Board’s determination. The Supreme Court granted the petitioner’s application, annulling the Board’s determination, and this Respondents appealed.

On appeal, the Appellate Division, Third Department noted the well-established standard that a ZBA’s interpretation of a zoning provision is afforded great deference, except where there is an issue of pure legal interpretation.  While the Court noted Respondents and the Supreme Court took different views on whether the issue was factual or legal, the Court determined that this issue did not affect the ultimately outcome, namely that the Board’s determination should be upheld under either standard.

While the term “house of worship” often is synonymous with a structure where formal, organized religious services take place, the Court recognized that “the courts of this [s]tate have been very flexible in their interpretation of religious uses under local zoning ordinances.” Noting that religious uses and activities are more than prayer and sacrifice, and that the concept of acts of charity as an essential part of religious worship is a central tenet of all major religion, “services to the homeless have been judicially recognized as religious conduct.”  Accordingly, the Court concluded that the plain and ordinary meaning of the term “house of worship” included the instant circumstances, reversed the decision of the Supreme Court, and reinstated the decision of the ZBA.

The case was Sullivan v Board of Zoning Appeals City of Albany, 144 A.D.3d 1480 (3d Dep’t 2016), leave to appeal denied, 29 N.Y.3d, 901 (2017).


Fourth Department Finds Denial Of District Boundary Appeal Was Arbitrary And Capricious

Petitioner owned property in the Woodlot Overlay Protection District in the Town of Irondequoit. Section 235–44 Irondequoit Town Code provides that the “Town Department of Planning and Zoning shall be responsible for interpreting EPOD boundaries based on an interpretation of the Official Town of Irondequoit EPOD Maps, as well as the use of various criteria set forth in this article for determining such district boundaries.” It further provides that “appeals… regarding boundaries of overlay districts shall be made to the Town Planning Board in accordance with the public hearing procedures.” Petitioner appealed to Respondent Town Planning Board regarding the boundaries of the Woodlot EPOD that encompassed his property, and submitted evidence that his property did not meet the criteria for a Woodlot EPOD set forth in section 235–53(B). Respondent denied the appeal, and Petitioner commenced an CPLR article 78 proceeding.  The Supreme Court granted Respondent’s motion to dismiss, and Petitioner appealed.

On appeal, the Court agreed with the lower Court that the Town Code’s plain language did not prohibit Respondent from changing the boundary lines shown on the EPOD maps, and that Respondent’s authority to make such changes extended beyond situations in which the property was located near the existing boundary as shown on the EPOD map. However, the Court rejected Respondent’s claim that the appeal was untimely, as the Town Code did not set any time limit for when property owners could seek an interpretation of overlay district boundaries. Thus, the motion to dismiss should not have been granted, and the lower court’s decision was accordingly reversed, and the petition reinstated.

The case was Gilbert v Planning Board of Town of Irondequoit, 148 A.D. 3d 1587 (4 Dep’t 2017).


Second Department Dismisses Claim Over Town Board’s Approval Of Wireless Communications Tower As Moot

Petitioners brought a hybrid Article 78 / declaratory judgment action seeking review of two resolutions passed by the Town Board of the Town of Kent authorizing the construction and operation of a 150–foot monopole wireless communications tower by Defendant/Respondent Homeland Towers, LLC.  The lower court denied the petition, dismissed the proceeding, and declared that the resolutions are not null and void.  Petitioners appealed, and Respondent moved to dismiss the appeal as academic in light of the completion of the tower.

The Appellate Division, Second Department noted that “typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.”  For cases involving a construction project, the court must consider how far the work has progressed, however a “race to completion cannot be determinative.” As such, other factors, such as whether the plaintiff sought a preliminary injunction to prevent construction from commencing or continuing during the pendency of the litigation, must also be weighed.  Here, Petitioners never requested a preliminary injunction, and the Court found their claim that they did not do so due to monetary constraints “unavailing under the circumstances of this case.”  As Respondent “established that the construction of the tower was not performed in bad faith or without authority, that the work could not be readily undone without substantial hardship,” the Court held that “this appeal does not present any recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise.”   As such, the Court granted Respondent’s motion to dismiss the appeal.

The case was Bruenn v. Town Bd. of Town of Kent, 145 A.D.3d 878 (2d Dep’t 2016).


Third Department Upholds Denial of Special Use Permit For Quarry

This dispute is a recurring theme on our blog, as this is the parties’ seventh appearance before the Appellate Division since 2003. The dispute arose when Petitioner Troy Sand & Gravel Company, Inc. (“Petitioner”) applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau in Rensselaer County (“Town”), and for a special use permit and site plan approval from the Town.

In 2006, DEC issued a positive declaration as lead agency under the State Environmental Quality Review Act (“SEQRA”), and Petitioner prepared a draft environmental impact statement (“EIS”). After a public comment period, Petitioner prepared a final DEIS in 2007, and DEC issued its SEQRA findings approving the project and granting the mining permit.  The Town then began its own review of the environmental impact of the proposed quarry as part of its zoning determination, however, this review was limited to information collected during the SEQRA process (note: this is an over-simplification of decisions on two separate appeals in this dispute). The Town Board then denied Petitioner’s application, and Petitioners commenced an Article 78 proceeding to annul the Town Board's determination. The Supreme Court dismissed the petition and upheld the Town Board's denial of a special use permit. Petitioners appealed.

Petitioners challenged almost every aspect of the Town Board's decision as arbitrary and capricious, as it was contrary to the final EIS and not based on the SEQRA record.  However, while the Court did find that the Town Board's determinations on the general land use standards were either founded on information outside of the SEQRA record or entirely inconsistent with the final EIS, the Court nevertheless found that the Town Board's denial of Petitioner’s application was properly based upon three of the four special use permit standards in the final EIS.

The Court found there was ample evidence in the SEQRA record that Petitioner’s proposed quarry would be a sizable operation and create a highly intensive industrial land use where only one small commercial entity currently existed. The Court also found that the Town Board was justified in concluding that the probability of decreased property values associated with the proposed land use rendered the second special use standard unsatisfied. On this issue, the Town Board relied on a property value impact analysis prepared by an expert whose qualifications had not been challenged. The Town Board also rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land. Accordingly, the lower court’s ruling in favor of the Town was affirmed.

The case was Troy Sand and Gravel Co., Inc. v Fleming, 156 A.D. 3d 1295 (3 Dep’t 2017).

Prior cases in this dispute include Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170 [2015]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1188 [2015]; Troy Sand & Gravel Co., Inc. v. Town of Nassau, 101 A.D.3d 1505 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 89 A.D.3d 1178 [2011], lv dismissed 18 N.Y.3d 920, 941 N.Y.S.2d 554 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377 [2011]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 80 A.D.3d 199 [2010] ).


WDNY Holds Case Unripe Where No Final Decision Was Issued Over Sawmill

Plaintiff Carney, appearing pro se, alleged Defendants (the Town Code Enforcement Officer, Town Supervisor, four Town Councilmen, and Town Assessor) sent him a letter that informed him that “the use of his sawmill is prohibited” by the local zoning ordinances.  Plaintiff claimed this letter denied him “the use of his property and interferes with his freedom to contract.”  Plaintiff also alleged Defendants violated due process when they did not “respond to Plaintiff’s reply dated October 15, 2015 asking for discovery of definitions and statutory authorization of zoning codes.” Defendants moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction, and the District Court for the Western District of New York  granted their motion and dismissed the claim.

In so holding, the Court noted that ripeness was a “jurisdiction prerequisite” for determining that an injury is not speculative.  Here, the Complaint failed to allege that Plaintiff appealed Defendants’ initial allegation that he violated the Town Building and Zoning Codes by operating an illegal saw mill. Plaintiff also failed to allege that he requested a variance applied for a building permit for the structure, thus legalizing the activity. As Defendants demonstrated that Plaintiff had not appealed these issues, and that the Town’s Zoning Board of Appeals had not taken any action, the Court held that there was no “final decision” giving the court jurisdiction to adjudicate Plaintiff’s claims.

As to the futility exception, the Court found no basis to believe that the ZBA had “dug in its heels” or has otherwise prevented Plaintiff from appealing. Accordingly, the Court held Plaintiff’s claims were not ripe until he obtained a final decision from the ZBA, and dismissed the case.

The case was Carney v. Swanson, 2016 WL 7450459 (W.D.N.Y. December 28, 2016).


First Department Reverses Lower Court And Upholds Denial Of Application to Install Advertising Sign

Petitioner Skyhigh Murals – Colossal Media Inc. (“Petitioner”) owns property in the City of New York.  The New York City Department of Buildings (“DOB”) denied of Petitioner’s application to install an advertising sign on its property, and that decision was later affirmed by the Board of Standards and Appeals of the City of New York (“BSA”) on May 17, 2016.  Petitioner challenged brought a CPLR Article 78 proceeding to challenge the determination, and the Supreme Court, New York County annulled the BSA’s determination.  The BSA appealed.

On appeal, the Appellate Division, First Department held that the BSA rationally found that the proposed sign was prohibited by New York City Zoning Resolution § 42–561.  The proposed sign was located within 100 feet of the boundary of a Special Mixed-Use District superimposed on a Residence District, and the record showed that the 1997 resolution of the City Planning Commission of the New York City Department of City Planning that created the first Special Mixed Use District indicated that restrictions governing Residence Districts could apply to Special Mixed Use Districts, depending on the regulations at issue. Thus, the Court found that the BSA’s determination that the DOB properly denied Petitioner’s application had a rational basis and was supported by substantial evidence.  It concluded that the lower court should have deferred to BSA’s determination instead of applying a de novo standard of review, reversed the lower courts decision, and affirmed the ruling by the BSA.

The case was Skyhigh Murals - Colossal Media, Inc.  v Board of Standards and Appeals of the City of New York, 162 A.D.3d 446 (1st Dep’t 2018).



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