Court Upholds Decision to Allow Construction of Tennis Court in Front Yard of Nonconforming Lot

Petitioner commenced a CPLR Article 78 proceeding challenging the decision by the Zoning Board of Appeals for the Town of Southampton to grant an application for an area variance allowing the applicant, 34 Cove, LLC, to construct a tennis court in the front yard of its nonconforming lot. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Appellate Division found that the Zoning Board of Appeals had completed the required balancing test of the relevant statutory factors in making its decision.  It noted that while Petitioner was correct that the proposed variances were substantial and the alleged difficulty was self-created, “there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood....” The Court also rejected the viability of the Petitioner's proposed alternative location, as well as the contention that the Code prevented the Town from approving construction of a tennis court on a nonconforming lot that lacks a primary structure. In light of this, and given the broad discretion of a zoning board to grant area variance applications, the Appellate Division affirmed the lower court’s ruling to dismiss the proceeding.

The case was Borrok v. Town of Southampton, 130 A.D.3d 1024 (2d Dep’t. 2015).

Court Finds Challenge to DEIS Unripe For Review

Plaintiffs owned real property in Kings Park that had been used as a bus yard and trucking station by a third party lessor for several years. In 2002, Plaintiff filed an application with the Town of Smithtown to rezone the property from residential to heavy industrial. Several years then passed before the Town Board issued a positive declaration pursuant to SEQRA (State Environmental Quality Review Act) requiring a DEIS (draft environmental impact statement). Plaintiff commenced an Article 78 proceeding against the Town, arguing that the determination was arbitrary and capricious because it had already allowed a long-time use of the property consistent with a zoning of heavy industrial and thus the DEIS would be of no benefit. In addition, the process of preparing and circulating a DEIS would be enormously expensive and time consuming for the Plaintiff.

Despite all of this, the Court found that the issuance of the positive declaration was procedurally a first step in the process for the parties, despite the number of years which had already lapsed since the application was initially submitted for review. For that reason, the court found the matter to be unripe.

The case was Ranco Sand and Stone Corp. v. Vecchio, 2014 WL 6676772. The decision can be found here:

Court Finds Town’s 30-Day Statute of Limitations Takes Precedence Over The Standard 6-Year Term

Developer sought site plan approval for constructing a 24-unit townhouse project. The Town of South Bristol Planning Board (“Board”) responded with a negative declaration of environmental significance and site plan approval. In 2009, Developer altered project from townhouses to condominiums, and the Board again issued a negative declaration and site approval. Finally, in 2012, the Board approved a re-subdivision creating two lots from the previous twenty-four. Plaintiff commenced action for declaratory judgment that the 2009 site plan approval automatically terminated because “significant work” had not been timely commenced. Defendants moved under CPLR 3211(a)(5) to dismiss due to the statute of limitations; Plaintiff cross-moved under CPLR article 63 for a preliminary injunction halting construction work and development of the project. Supreme Court granted defendants' motion to dismiss.

On appeal, the Appellate Division found that even though the statute of limitations for declaratory judgments is normally six years, when the claim in question could have been brought in another form, the statute of limitations with the shorter term applies. Here, Town Law § 274–a (11) gives a 30–day period for bringing an Article 78 proceeding challenging “a decision of the planning board or any officer, department, board or bureau of the town”. Thus plaintiff's challenge to the Town Code Enforcement Officer's interpretation of “significant work” could have been brought in a Article 78 proceeding under Town Law § 274–a (11) and accordingly was time-barred.

The case is Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (4 Dept.) and the opinion can be accessed at:

Court Upholds Condemnation of Property To Expand Public Airport Runway

Petitioner requested judicial review of the County’s determination to condemn real property for the purpose of expanding the runway at a public airport, claiming that the County failed to demonstrate that an actual public use, benefit, or purpose will be served by the taking. The court rejected this claim, noting that while it is well established that the power of eminent domain cannot be used to take property not necessary to fulfilling a public purpose, the government or subdivision thereof has broad discretion in deciding what land is necessary to fulfill that purpose. In addition, the court looked at the agency's compliance with the substantive mandates of the statute, namely identifying the relevant areas of environmental concern. Concluding that respondent had neither abused its discretion nor acted improvidently in determining the scope of the taking, and having adequate basis to make the decision it did relative to the statutory mandates, the Court upheld the taking. Thus the determination was unanimously confirmed without costs and the petition was dismissed.

The case is Eisenhauer v County of Jefferson, 2014 WL 5904610 (NYAD 4 Dept. 2014). The full decision can be found here:

Condemnation for Industrial Park Expansion Upheld

The Town of Lockport Industrial Development Agency (LIDA) authorized the condemnation of 91 acres of vacant land owned by GM Components Holdings, LLC to facilitate the expansion of the Industrial Park. GM filed suit to challenge the decision. On review, the court examined (1) the authority by which LIDA acted, (2) whether the acquisition serves a public use, (3) if the decision was constitutionally sound, (4) if the decision complied with SEQRA and EDPL Article 2. As is required for such cases, the burden lays with the party challenging the condemnation to show the determination was baseless. They failed to do so.

In justifying its actions, LIDA cited an array of statistics about the Industrial Park, including the number of businesses operating therein, nearly $400 million in investment, and the roughly 500 local residents employed at companies in the Industrial Park. Based on this evidence, the court found the use of eminent domain to be “rationally related to a conceivable public purpose,” and further ruled it had complied with the statutory procedures, including the required environmental reviews. Thus the decision was upheld by the Court.

The case was GM Components Holdings, LLC v. Town of Lockport Indus. Dev. Agency, 977 N.Y.S.2d 836 (N.Y. App. Div. 4th Dept. 2013); appeal dismissed, 22 N.Y.3d 1165 (2014)

Old Adage of “Better Late Than Never” Doesn’t Apply to Rezoning Law

In 2007, Loudon House LLC bought real property in the Town of Colonie that was zoned for single family residential use. Wishing to build a 24-unit condominium development, Loudon House sought and received a rezoning decision from the Town Board which would make the condos a permissible use, as long as the property was “developed as a multi-family complex with no more than 24 residential condominium apartment units in one building.” Permits were obtained and construction began in 2008. Then, in mid-2012, a public hearing was conducted after which the Town Board voted to restore the property’s original zoning designation. Loudon House brought a CPLR Article 78 proceeding seeking to annul the new law. The trial court dismissed the petition, and London House appealed.


On appeal, the Appellate Division noted that Town of Colonie Land Use Law §190-72 allowed the Town Board to rescind its decision and restore a property to its prior zoning under limited circumstances, however none of the required factual findings under that section were made. In addition, the Town Attorney explicitly stated that the Town was not relying on that provision. The court thus found that the Town Board’s actions were arbitrary and capricious and reversed the lower court’s decision holding the new law valid. The court did, however, dismiss the due process and equal protection claims, arguing that while arbitrary, the Board’s actions were not “so outrageously arbitrary as to constitute a gross abuse of governmental authority.”


The case is Loudon House LLC v Town of Colonie, 2014 WL 7391487. The opinion can be accessed at:

Substance Recovery Center Skips One of the Steps, Has Appeal Rejected

Most organizations that treat substance abuse do so through a step-by-step process (ex: Alcohol Anonymous’ 12 steps). Follow the steps, get the outcome you want.  Given that, it seems strange to have this type of organization have legal problems from skipping a step, yet that is exactly what happened in today’s case.

Safe Harbor, a retreat for those recovering from alcohol or drug abuse, opened its door in East Hampton after a building inspector granted it a reasonable accommodation to operate in a residential area, on the theory that the use was functionally equivalent to a family. Later, the building inspector determined that Safe Harbor would in fact need a special permit as a semi-public facility. Safe Harbor unsuccessfully appealed to the Zoning Board, before commencing a suit in federal district court alleging violations of the ADA (Americans with Disabilities Act) and the FHA (Fair Housing Act).

The district court ruled that it lacked subject matter jurisdiction as the claims were not yet ripe, a position affirmed on appeal. Why? Because Safe Harbor failed to apply for the special permit that both the building inspector and zoning board had suggested.  Even if the determination by the Board had technically been “final,” there was a remaining avenue of recourse available. In short, the Safe Harbor went straight to the courts without exhausting its other remedies. This reiterates a common theme in our land use blog: always exhaust administrative appeals before pursuing further legal recourse, because if you try to skip steps you may end up falling off the wagon further down the road. 

The case was Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 6405378 (2d Cir. 2015)

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:

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).

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