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:

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 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:

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:

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:

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)

Meeting Obligations under SEQRA

Earlier this year, the Appellate Division, Second Department issued a ruling on whether the Town of New Hyde Park Planning Board had met its obligations under the State Environmental Quality Review Act (SEQRA) when it granted site plan approval to NND Poughkeepsie Properties, LLC, a decision that had been challenged by the Saint James Antiochian Orthodox Church. The lower court had denied the petition and dismissed the proceeding.

When courts examine an agency determination under SEQRA, it does so with strict limits on the scope of review. Specifically, the court can only review the decision for four types of failings: (1) the influence of an error of law, (2) abuse of discretion, (3) arbitrary and capricious decision-making, or (4) procedural flaws. In the present case, the court failed to find any of these four circumstances, stating the Planning Board had met its obligations under SEQRA by “taking a hard look at the relevant areas of environmental concern” and finding a reasonable basis for its decision. Therefore, in the absence of procedural or substantive errors and having seen evidence of a rational basis for the decision, the court upheld the dismissal of the proceeding. 

The case was Saint James Antiochian Orthodox Church v Town of Hyde Park, 2015 WL 5827160 (NYAD 2 Dept. 2015)

Court Rules Eminent Domain Taking Should be Valued on Per-Ace Basis

This case comes from an appeal by the Village of Haverstraw from a decision awarding a condemnee $6.5 million in compensation. On appeal, the appellate court reviewed the basis of accepting that valuation on two grounds.

First, the court examined whether the valuation was reasonably supported by the expert testimony. This requires that the valuation be explained by reference to comparable properties and that alterations are justified. The condemnee’s appraiser had testified that the property’s best/highest value use was a multi-family residential complex, an opinion and valuation the court found sufficient based on the facts provided. In contrast, the Village failed to show why its view, that the best use was light industrial development, was correct. Finally, the alterations the lower court made to the valuations presented by the expert testimony were adequately explained to be upheld.

The appellate court also addressed the method by which the property should be valued, holding that the proper valuation of a given property should be calculated per-acre, not based on the number of units that could potentially be developed on the property. Based on the foregoing reasons, the lower court’s decision was upheld.

The case was Village of Haverstraw v. AAA Electricians, Inc., 114 A.D.3d 955 (N.Y.A.D. 2014). The full opinion can be accessed at:

Unconstitutional Portion of Town Sign Ordinance Found to be Severable

Defendant business pleaded guilty to placing a prohibited sign on public property in violation of the Town Code. Defendant then appealed, and the Supreme Court, Appellate Term reversed the conviction and remitted the fines paid on the grounds that part of the Code unconstitutionally favored commercial over noncommercial speech, and that these sections were not severable from the larger chapter.

Town Code §57A-11 (“Signs, posters and stickers prohibited on public property”) provides:

“Prohibitions. With the exception of any sign created by the Town, county, state or other governmental entity and all signs pertaining to traffic regulations, parking regulations and fire zones which are subject to the rules and regulations of the New York State Vehicle and Traffic Law, no sign, poster, sticker, flag or advertising device shall be located within or upon the right-of-way of any Town, state or county road or highway or upon any Town, county or state or other publicly owned land, or upon any utility pole, tree, fence, or any other structure or object thereupon”

The Town appealed, and the Court of Appeals reversed the Appellate Term. Specifically, the Court of Appeals found that this provision was limited to signs on public property, a finding reinforced by the §57A-11(A), on the provision’s purpose, which focused entirely on the problems of signs in public right-of-ways. The Court found the provision to be a content-neutral ban on all signs on public property, regardless of their commercial or noncommercial nature or content, and that provision validly served the interests of traffic safety and aesthetics. Due to the independent legislative purpose, the unconstitutional sections were found severable from the unconstitutional ones.

The case was People v On Sight Mobile Opticians, 2014 WL 7069518 (2014), and it can be found here:

Zoning Trouble For Gift Shop Found Selling Adult Materials

In the City of Troy, one man gave “stopping by the gift shop” an entirely new meaning. Plaintiff was granted a certificate of occupancy to start a “gift shop,” but what was actually constructed was quite different. While investigating complaints against the shop, a Code Inspector found an inventory consisting primarily of adult materials, complete with viewing booths. As these were constructed without a permit, not to mention the business constituted a zoning violation. A stop work order was issued, the premises were locked, and the “gift shop” was shut down.

Plaintiff later brought a constitutional challenge for damages and the reinstatement of his certificate of occupancy on the grounds the City Code didn’t designate a zone to sell adult materials. The Court ultimately rejected this on several grounds. First, in the absence of guidance in the Code, the Zoning Board has authority to grant use variances. In addition, failing to disclose the true nature of the business proposed was a violation of the City Code’s procedure, and his harm remains speculative while administrative remedies such as an Article 78 proceeding remain. For all of these reasons, the court ruled the challenge was not ripe for review. 

To top it all off, the Plaintiff failed to respond to three violation notices, thereby negating his due process claim against the City.

The case was Your Place, LLC v City of Troy, 2013 WL 6474899 (N.Y. App. Div. 3 Dept. 2014). It can be found here:

The Pines Barrens Credit Program

In July of 1993, the New York State Legislature passed the Long Island Pine Barrens Protection Act to protect the Central Pine Barrens in Suffolk County, New York. In June 1995, the Central Pine Barrens Comprehensive Land Use Plan was adopted, which introduced the Pine Barrens Credit Program. This program provides a financial incentive for landowners to preserve the Pine Barrens rather than seek to develop the land. Allocation of Pine Barren Credits is based upon a formula that takes into account a variety of factors, such as the size of the parcel, etc.  

Last year, the Appellate Division, Second Department reviewed an Article 78 proceeding in which a landowner challenged his allocation under the formula. Given 18.46 Pine Barrens Credits, the petitioner alleged he was entitled to 50.42 Pine Barren Credits based on the size of his property and other factors. The Supreme Court, Suffolk County denied the petition, and the Appellate Division upheld, on the grounds that the petitioner failed to demonstrate a clear legal right to the requested allocation. First amongst these failings was not accounting for the fact that only 20% of the property could have been developed under the Town’s Zoning Code but for the Act. As such, it is clear that allocations under the Credit Program are limited by the potential for development. 

The case was Tuccio v. C. Pine Barrens Jt. Plan. and Policy Commn., 978 N.Y.S.2d 350 (N.Y. App. Div. 2d Dept. 2014)

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