Building A Better Club Without A Permit

New York is home to all kinds of membership clubs, whether at the beach or the golf course. Today’s case looks at a beach club in the City of New Rochelle, which ran into a bit of stormy weather when it built walls to enclose some outdoor porches for use as storage and office space. Though the club argued this was a “renovation” allowed under the City Code, the City issued a violation for the failure to obtain a building permit. It was later ruled that the enclosure was not a “renovation,” and subsequent requests for a building permit and with the Zoning Board for a use variance were both denied. The club’s owners then filed an Article 78 proceeding.

As always, Article 78 reviews of zoning board of appeals determinations are limited to “whether the action was illegal, arbitrary and capricious, or an abuse of discretion.” Looking to the Code, the court noted its restrictions on beach clubs renovations regarding maximum size and coverage area of structures, noise levels, the number of cabanas, etc. At trial, testimony showed that the enclosure did not extend the club’s “footprint” by modifying existing structures, nor allow for an expansion of membership capacity. It also caused no harms to neighboring lots. The trial court thus overturned the zoning board’s decision and ordered a permit be issued. The appeals court upheld.

The case was Greentree Country Club, Inc. v City of New Rochelle, 2014 WL 2958423 (NYAD 2 Dept. 2014) and it can be found here: http://www.nycourts.gov/reporter/3dseries/2014/2014_04931.htm


In This Story, Peace Doesn’t Win Out

Plaintiff was fined $800 for placing an illuminated peace symbol in the window of her condo, located on the 17th Floor in a building on the Upper West Side, in violation of N.Y.C. Zoning Resolution §32-655. This resolution prohibits illuminated signs from greater than 40 feet above the curb. Plaintiff brought suit alleging the ordinance violated the First Amendment by placing a content-based restriction on speech. The lower court granted summary judgment for the City, and the decision was affirmed on appeal. The present case focused on Plaintiff’s alternate argument that “irrespective of content” the zoning regulation was “an unduly restrictive time, place, and manner” limitation on speech.

Examining this argument, the Second Circuit rejected Plaintiff’s contention that the City had failed to show a sufficiently real and significant governmental interest. Multiple courts have upheld the interest of preserving the character and aesthetic of a city in the land use context. In addition, the Court found the ordinance to be narrowly tailored because it allowed other signs to be displayed more than 40 feet above the curb, prohibiting only illuminated or commercial signs. Thus the Court upheld the ordinance as not placing a substantially greater burden on speech than necessary to further the government’s legitimate interests.

Finally, the Court noted that the ordinance left plenty of other avenues by which the Plaintiff could spread her message of peace and love. Plaintiff’s sign already fit the size requirements, and thus an un-illuminated version would be acceptable. Similarly, a banner with a picture of a peace sign or the actual word “Peace” would also have been allowed. The complaint was thus dismissed.

The case was Vosse v City of New York, 2015 WL 7280226 (S.D.N.Y.)


Court Reinstates ZBA Finding That Den Was An Addition And Not An Accessory Building

Homeowner in Yorktown was issued a building permit to construct an attached den and garage to his house. Neighbor brought a challenge before the Zoning Board of Appeals that the expansion was not an addition but an “accessory building.” ZBA affirmed the permit as valid, and Neighbor commenced an Article 78 proceeding. The Supreme Court annulled the ZBA determination, and Homeowner appealed.

On appeal, the Appellate Division reversed the lower court’s finding that the ZBA’s decision was “unreasonable and irrational.” According to the ordinance, an accessory building can be attached or separate, but the primary consideration is that its use is “incidental” to the main building. Here, the ZBA considered evidence that the proposed add-on was going to be used as a “conventional living space” rather than a “breezeway” or “connecting corridor.” Based on that, the Court found the ZBA’s determination that the permit was in fact for an addition, not an accessory building.

The case was Witkowich v Zoning Board of Appeals of Town of Yorktown, 2015 WL 6982380 (NYAD 2 Dept. 2015).


Adult Business Found to Lack Standing to Bring First Amendment Suit Against City Ordinance

Plaintiff owns an adult-oriented business in the City of Milford, which passed an ordinance requiring such businesses to publicly post the names of their officers, operators, and owners. Plaintiff brought suit alleging this ordinance violated the First Amendment right to free speech and the Due Process Clause due to vagueness. At trial, the Plaintiffs deposed the City, represented by a former municipal attorney, and received an affidavit from the Chief of Police who was chiefly responsible for administering the ordinance. Based on the deposition and affidavit, the US District Court for Connecticut granted Plaintiff summary judgment, and the City appealed.

On appeal, the Second Circuit zeroed in on the issue of standing. Plaintiffs argued that prudential standing issues were irrelevant as “courts have generally dispensed with the rule that a party must assert its own legal rights and not the rights of third parties when First Amendment free speech rights are at stake” for cases alleging overbroad restrictions. Even so, the Court found that here the Plaintiffs owners and officers had already been publicly identified in the course of the litigation and the Plaintiffs had failed to demonstrate how they would face “threats, harassment, or reprisals” from bringing a case in their own names, nor how the loss of anonymity had infringed upon their rights or harmed them economically. Thus the Court found the plaintiffs lacked standing to challenging a public-posting law based on the right of anonymous expression, vacated the district court’s decision, and remanded for dismissal.

The case was Keepers, Inc. v City of Milford, 2015 WL 73252120 (2d Cir.)


Court Overturns Zoning Board’s Interpretation of “Auditorium”

The Washington Avenue Armory, once literally an armory, is now a prominent venue in Albany. Zoned as an auditorium in a commercial zone, the Armory has hosted concerts, sporting events, and even the World Wide Wrestling Federation (decades before its current incarnation as the WWE). Following multiple cease and desist orders regarding events held at the Armory, the owners of the armory (“petitioners” ) entered into a memorandum of understanding the with City under which it would submit an application for a clarification on the acceptable uses of the property. As part of that determination, the Board of Zoning appeals ruled the "use of the facility for a 'Rave' party, nightclub, dance club or other similar event is excluded from the definition of an '[a]uditori[um]' and thus [is] an illegal use." The petitioner then commenced an Article 78 proceeding against the Zoning Board of Appeals. The Supreme Court ruled for the Board, but the Appellate Division, Third Department reversed.

Reviewing the decision, the Appellate Division noted that the petitioners had applied to use the venue for “musical entertainment,” a category which includes events in which those attending are standing for the entire event. The Court ruled that denying this use based solely upon the word “auditorium,” which is not defined in the zoning ordinance, was unacceptable. Even though the Zoning Board had looked at the plain meaning and dictionary definition, it simply picked the definition that fit with its perspective, while ignoring those which did not. Ambiguity in the zoning ordinance must be resolved in favor of the petitioner, and thus the Court reversed the board’s ruling.

The case is Albany Basketball & Sports Corporation v. City of Albany, 2014 WL 1316331 (App. Div. 2014). The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2014/517313.pdf


Don’t Feed the Birds: It’s a Nuisance

There are many homeowners who enjoy having birds on their properties: watching them, listening to their songs, perhaps feeding them. For their part the birds don’t generally cause much of a problem (Long Island’s issues with geese being a notable exception). Today’s case is the rare example where they did. Up in Saratoga County, Plaintiff homeowner brought a suit alleging private nuisance* and continuing trespass against his neighbor due to the “noise and excrement” of the neighbor’s waterfowl.

The Defendant, who had moved in years after the Plaintiff, had expanded the pond on his property to create a nature preserve for passing waterfowl. Apparently the number and impact of the birds became so pronounced, that when suit was brought the lower court granted a temporary restraining order against defendant enjoining him from feeding any “nonresident fowl” or maintaining a “feeding station for both wild and domesticated” birds on the property,” excluding those being cared for and treated in the defendants capacity as a wildlife rehabilitator.

Whether there was ultimately liability is unclear, as the record focuses on whether the denial of the defendants’ motion for summary judgment was proper (the court found it was). What the court did find was that the plaintiff’s selling their residence does not compel dismissal, as they may still be entitled to temporary nuisance damages. Quite fowl circumstances.

*For those of you who may not be lawyers, private nuisance consists of an act intentionally done (or not done) that substantially and unreasonably interferes with other people’s use and enjoyment of their property. Physical trespass onto the other person’s land is not required.

The case was Schillaci v Sarris, 2014 WL 6475553 (NYAD 3 Dept) and it can be found here: http://decisions.courts.state.ny.us/ad3/Decisions/2014/516239.pdf


Court Rules ATV Track Not “Customary Accessory Use”

All-Terrain Vehicles (ATVs) are an increasingly popular recreational activity, but one enthusiast’s attempts to build a track in his backyard are on hold after a decision by the Appellate Division, Fourth Department. Reinstating the West Seneca Planning Board’s original determination, the Court ruled that an ATV track is not a customary accessory use. The Town Code’s examples of accessory uses include “private garages…, family swimming pools, greenhouses, and horse stables.” Given that list and the residential character of the neighborhood, the court found the Planning Board had not acted irrationally or unreasonably. After all, six- to eight-foot jumps and “rumble strips” aren’t exactly benign additions to the neighborhood, and “the evidence in the record establishes that the track would increase already existing problems, including the noise level in the neighborhood, the number of incidents of physical damage and trespass to the neighboring properties, and the potential...to be held liable for injuries occurring on their properties.” As judicial review in such circumstance is limited to “whether the action taken… was illegal, arbitrary, or an abuse of discretion” and finding a rational basis for the decision, the court reversed the trial court and upheld the Planning Boards original decision. Thus while making big jumps on an ATV may very well be how you relax on a weekend, it seems you’ll have to go somewhere other than West Seneca to do it. The neighbors will undoubtedly appreciate it.

The case is Dietrich v. Planning Bd. of Town of West Seneca, 2014 WL 2782147 (NYAD 4 Dept. 2014). The full opinion can be accessed at: http://www.nycourts.gov/courts/ad4/clerk/decisions/2014/06-20-14/PDF/0508.pdf


Court Holds Yard Set Back Lines On Subdivision Maps Not Deed Restrictions That Run With The Land

Defendants were seeking building approvals for their new home from the City of Rye Planning Commission when Plaintiffs commenced an action for declaratory and injunctive relief alleging the set back lines on the subdivision map for the front and back yards were deed restrictions that run with the land. The subdivision map, approved by the Planning Commission in 1967, mandated set backs of at least 60 feet. The trial court granted plaintiffs summary judgment, and the defendants appealed.

On appeal, the Appellate Division, Second Department held that “the policy of the law is to favor free and unobstructed use” of land, and that the motion for summary judgment should have been denied. A purchaser of real property only takes with notice encumbrances in the chain of title, and absent actual notice or exceptional circumstances, is bound only by restrictions appearing in the deed of record in the conveyance (either his or his predecessors). Here, nothing indicated the set back lines were deed restrictions running with the land, and as such restrictions are strictly construed against those seeking to enforce them, plaintiff’s failure to show clear and convincing proof mandated denial of the motion for summary judgment. Reversed and remanded.

The case was Butler v. Mathisson, 114 A.D.3d 894 (N.Y.A.D. 2d Dept. 2014) and can be accessed here:

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D40774.pdf


Court Sides With Developers And Rejects Environmentalists’ Challenge To Adirondack Resort

Respondents are developers who proposed building a resort in the Town of Tupper Lake, Franklin County. The final proposal, which was approved by the Adirondack Park Agency (“ADA”), would span 6,235 acres and include 659 residential units, a 60–bedroom inn, a downhill ski area, a marina, a valet boat launching service, and assorted recreational amenities, to be serviced by the construction of over 15 miles of public and private roads, wastewater treatment systems and various maintenance facilities. Shortly thereafter, a variety of environmental groups brought an Article 78 proceeding to challenge the ADA’s final order and issuance of 14 permits for different aspects of the project. When the Supreme Court denied the motion to conduct discovery, the petitioners appealed to the Appellate Division.

Regarding the petitioner’s substantive claims, the standard of review requires only “relevant proof that a reasonable mind would accept as adequate to support a conclusion.” Here, the Court found this standard to be met regarding each of the petitioners’ claims. First, the Court found the decision to allow withdrawals from Cranberry Pond on a limited basis sound due to the APA’s findings that using Tupper Lake would be prohibitively expensive, making Cranberry Pond the only viable option. Second, the Court ruled that not requiring a wildlife survey was reasonable given that there is no evidence that any protected species lived in the area. Next the court dismissed claims regarding harm to the local economy, such as on commercial timber harvesting or the state-owned boat launch at Tupper Lake. These claims were also dismissed, noting that the APA found the economic benefits of the project far outweighed any limited harms it may cause to existing business. Finally, the court ruled that even if the developers were forced to default on the municipal bonds approved, the risk to the local municipalities would be limited. (The court also dismissed various procedural claims not warranting discussion.)

The case was Protection of the Adirondacks! Inc. v Adirondack Park Agency, 990 N.Y.S. 2d 643 (A.D. 3 Dept. 2014). The decision can be accessed here: http://law.justia.com/cases/new-york/appellate-division-third-department/2014/516901.html


Appellate Court Decision Cries “Fowl” on Man’s Quest to Keep Chickens in Residence

There have been a lot of bird-brained ideas raised in court over the years, but very rarely are actual birds involved. Not so in today’s case, which involves a man in Clinton County who sought a ruling that poultry husbandry was permitted in the residential zone area in which he lived. According to the Village Zoning Code, the petitioner’s residence was in an area zoned R1, meaning “one-and-two family dwellings” and “accessory uses,” such as garages, pools, and the “keeping of domesticated animals. Now for most people that means cats and dogs, but for this particular individual, chickens were the animal of choice. 

The case arose when the Village’s Zoning Enforcement Officer, Michael Tetreault, informed the petitioner that keeping chickens was an agricultural use and therefore ran afoul of the regulations for his residential neighborhood. Considering that ruling a rotten egg, the petitioner sought to have the Zoning Board, and later the Supreme Court, overturn the ruling. Ultimately both bodies declined to do so, finding poultry husbandry was included in the definition of “agriculture” and that the Officer’s ruling was reasonable.  The Appellate Court similarly dismissed, for the reasons discussed above, and so ended the petitioner’s quest.  An unusual case, to be sure…

The case was Meier v Village of Champlain Zoning Board of Appeals, 2015 WL 3767526 (NYAD 3 Dept. 2015)



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