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)

Court Allows Takings Claim Based on Restrictive Covenant

Plaintiff Blue Island Development, LLC purchased a defunct oil storage facility in the Town of Hempstead with the intent of cleaning up the site and developing the property into 172 waterfront condominiums. The property was re-zoned to allow this, but Blue Island was made subject to a restrictive covenant that it had to sell all of the condominium units. This covenant was later modified to allow 17 properties to be retained as rental units, but Blue Island eventually requested it be allowed to keep up to 140 units as rental properties. This request was denied by the Town without justification, and so Blue Island brought suit to challenge the zoning action. After some procedural changes, Blue Island was granted summary judgment on a CPLR 3001 claim for declaratory judgment. The Town appealed.

On appeal, the Appellate Division found the restrictive covenant in appropriate on several grounds. First, it restricted Blue Island’s ability to rent the property rather than its ability to use the land itself. Second, the restriction on renting the property only applied to Blue Island, but not any subsequent owner, meaning it was ultimately of no benefit to the Town. Finally, the covenant allegedly denied Blue Island an economically viable use of the land. Given that the Town failed to offer any kind of evidence or justification for the restrictive covenant, the Appellate Division reversed and allowed the Takings claim to proceed.

The case was Blue Island Development, LLC v Town of Hempstead, 2015 WL 4744517 (NYAD 2015)

Judicial Review of Purely Legal Questions Absent Written Findings

Government bodies with an administrative or quasi-judicial function, such as zoning boards of appeal, must generally adopt written findings before courts will review their determinations. In cases where such findings are absent, it is quite common for courts to remand so that a written record can be developed. However, when reviewing questions of strictly legal interpretation, such as the terms of a Town Code or Zoning Code, it is possible for courts to review the statute’s language in the first instance. The reason is that for a strictly legal question, there is no requirement for the court to grant deference, much as an appellate court would engage in de novo review a trial court’s purely legal determinations. This position, adopted in Toys “R” Us v. Silva, 89 N.Y.2d 411 (1996), reversed the doctrine in Emmerling v. Town of Richmond Zoning Bd. Of Appeals, 67 A.D.3d 1467 (4th Dep’t 2009) that held a zoning board’s interpretation should be affirmed unless contrary to the “clear wording” of the zoning code.

 The implications of this are twofold. First, posing your issue as a purely legal question (when possible) provides an avenue for circumventing the strong deference zoning boards of appeal usually receive. Second, relying on legal questions can potentially speed up proceedings that lack a written record by avoiding the usual remand for further proceedings. That’s not to say this will always be an option; the fact remains that many such determinations are situation-specific. However, it is an option to keep in mind when possible.

Big Trouble with Big Cats

Today’s case is from all the way back in 2014, but it is simply too good to pass up when talking about home occupation. In this particular case, the petitioner was found to have an illegal home occupation due to his keeping of various exotic animals, including 3 tigers and 2 leopards. You read that correctly, tigers. As in “lions and tigers and bears, oh my.” To be specific, the petitioner was allegedly running a business in which he would display these animals to the public for a fee, essentially running an at-home zoo. Unsurprisingly, a Town Code enforcement officer took some issue with this.

The Mayfield Town Code defines a home occupation as “a businesses where the owner resides on the property and where the activities of the business are conducted inside the residence, a legally constructed accessory building, or at off-site locations.” Here, the petitioner had no employees, filed no business taxes, has no business insurance, and apparently did not charge people to view the animals, despite the business card he carried listing prices. On the other hand, the court ruled that the animal cages, which were built right into the ground on the petitioner’s property, qualified as legal “accessory buildings.” Based on the legality of the buildings and the remaining facts (or perhaps in spite of them), the court ruled the petitioner was operating a home occupation.

The question then became whether this use was grandfathered in before the enactment of the current zoning ordinance. As much as I’d like to say it was, based on the federal licenses the petitioner produced it was not, and the petitioner was compelled to end his home occupation. The real question is what happened to the big cats, but unfortunately the case doesn’t include that information. It still makes for quite the story though.

The case was Salton v Town of Mayfield Zoning Board of Appeals, WL 1316363 (NYAD 3 Dept. 2014). The opinion can be accessed at:

Court Upholds Denial of Damages Claim for Delayed Building Permit

Appellants applied for a building permit in the Village of Farmingdale. After reviewing their application, the inspector for respondent informed the appellants that the permit would not be granted as aspects of their building plan failed to comply with the New York State building code. Addressing those concerns required the appellants to alter their plans, increasing costs and delaying the permit. Plaintiffs then sued respondents for their costs and damages caused by the delay. The Supreme Court granted summary judgment for the defendants, and the New York Appellate Division, Second Department affirmed.

Unsurprisingly, the Supreme Court ruled that the defendants were immune from liability and dismissed for the plaintiffs failure to state a claim as a matter of law. As the decision of whether to grant a building permit is discretionary, and the inspector was clearly acting within the scope of his authority when deciding the permit should not be granted, plaintiffs had failed to state a claim for damages. On review, the Appellate Division not only upheld the Supreme Court’s grant of summary judgment, but found the plaintiff had improperly raised a complaint about the timeliness of the defendant’s motion for the first time on appeal.   

So what is the take away from this case? Having a building permit denied can cause all kinds of costs, from financial losses to delays in construction, but suing the inspector likely won’t get you very far. That is why when drawing up building plans, it is critical to be aware of the building code and ensure your plans are in complete compliance with its terms. If they are not, there will be very little recourse you can seek in the courts.

The case is Sharp v Incorporated Village of Farmingdale, 129 A.D. 3d 821 (NYAD 2 Dept. 2015)

To Show What You Know, Always Bring an Expert

Experts are important. Given the broad discretion that Zoning Boards are given in granting or denying special use permits, bringing an expert is a lot like bringing a gun to a knife fight: if your opponent has one and you don’t, you might not last long enough to regret it. To drive the point home, one need look no further than 7-Eleven, Inc. v. Incorporated Village of Mineola, where the failure of the concerned board and town members to provide an expert witness led to their concerns being dismissed.

The situation arose out of a proposal to build a 7-Eleven at 400 East Jericho Turnpike in Mineola. When the owners and 7-Eleven sought a special use permit, there was a contentious meeting in which Board members and residents expressed concerns about the proposal, citing the likely clientele, worsened traffic, and the impact on property values. To combat these concerns, 7-Eleven brought an expert witness to provide testimony addressing these concerns. Despite this testimony, the Board ruled against the special permit, and action challenged and later overturned as “arbitrary and capricious.” The court also took notice of the willingness by 7-Eleven to operate under certain restrictions regarding deliveries and the like. Thus even if the concerns of those opposed had merit, their failure to provide expert, informed testimony to that effect undermined their ability to attain their ends.  

Moral of the Story:  It never hurts to bring an expert, and odds are you’ll be glad you did

The case is 7-Eleven, Inc. v Incorporated Village of Mineola, 2015 WL 1915853 (N.Y. App. Div. 2015). The full decision can be found here

Court Voids Variance Finding Citing Insufficient “Dollars and Cents” Proof

The New York Appellate Division, Third Department recently addressed a case involving the evidentiary requirements associated with justifying a use variance. The lower court had found respondents, who operated an industrial manufacturing business as a non-conforming use, had expanded their facility in 2001 after a zoning code prohibited manufacturing uses in the property’s zone. On those grounds the court granted the petitioner’s request for an injunction against using the property for nonresidential purposes. Respondents then obtained a use variance determination from the Zoning Board of Appeals. That decision was challenged in an Article 78 proceeding and upheld, leading to the current appeal.

In reversing the Supreme Court’s decision, the Appellate Division zeroed in on the requirement that an applicant for a use variance show that the property cannot yield a reasonable return if used for any of the purposes the current zoning would permit. Specifically, applicants must show this through “dollars and cents” proof for each of the various permitted uses. In the present case, the court found that respondent’s conclusory statement that 10-20% of respondents revenue would be needed to provide an alternative to their expansion, and that doing so would put them “out of business,” was insufficient to satisfy the “dollars and cents” burden of proof required. The court accordingly ruled that the Zoning Board of Appeals should not have granted the variance, and reversed.

The case is Nemeth v Village of Hancock Zoning Board of Appeals, 2015 WL 1565749 (NYAD 3 Dept. 4/9/2015). The full text of the decision can be found at

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