Fourth Department Holds Finding That Commercial Use of Mansion Would Not Yield Reasonable Return Without A Variance Lacked A Rational Basis

Petitioners, residents of the City of Jamestown (“City”), challenged the determination of Respondent City of Jamestown Zoning Board of Appeals (“ZBA”) to grant a use variance to Respondents Jamestown Community College (“JCC”) and Lynn Development, Inc. (“Lynn”), to permit the commercial use of a mansion known as Sheldon House. The Supreme Court dismissed the petition, holding that JCC and Lynn had “presented substantial evidence, especially regarding the four-pronged hardship test, providing the ZBA with a rational basis upon which to issue a variance.”  Petitioners appealed.

On appeal, Petitioners argued that JCC and Lynn failed to satisfy the four requirements for the issuance of a use variance based on unnecessary hardship, and that the court erred in deferring to the ZBA.  The Fourth Department agreed, finding that JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship: “that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence.”  Absent any evidence in dollars and cents form, the Court held there was no rational basis for the ZBA’s finding that the premises would not yield a reasonable return without the requested use variance.  Accordingly, the Court held that the ZBA’s determination should be annulled, reversing the lower court’s judgment and granting the petition.

The case was Leone v. City of Jamestown Zoning Bd. of Appeals, 151 A.D. 3d 1828 (4 Dep’t 2017).


Third Department Reverses Decision Denying Special Use Permit for Dog Training Business

Petitioner owned property on which she operated a dog training and handling business in the Town of Hoosick. Following a noise complaint from a neighbor, the Code Enforcement Officer of the Town of Hoosick (“CEO”) determined Petitioner’s use of the property violated the Town’s Land Use Law and that a special use permit and site plan approval were needed. Petitioner submitted the required applications, but the ZBA denied them both, citing the current and foreseeable impact of dog noise on the neighbors. Petitioner then commenced a CPLR Article 78 proceeding to review the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

On appeal, Petitioner first argued that the Supreme Court erred in holding that she was required to obtain a special use permit and site plan approval, as her business involved operating a boarding kennel and breeding kennel, both uses permitted by right. However, the application for site plan approval described the intended use as a “training + handling center for show dogs.”  Thus, the Court found that since Petitioner’s use of the property did not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit.

Petitioner next argued that site plan review was not required because the use began in 2006, predating both the 2009 enactment of the Land Use Law and 2014 version of the site plan review law. The Court found that this argument was also without merit, as having a protected interest when the 2009 Land Use Law was enacted required petitioner to have received site plan approval under the 2001 Site Plan Review Law. Here, Petitioner never applied for or received site plan approval, and thus her use was not a lawful nonconforming use.  In addition, her proposal would expand the scope of the use, in terms of both staff and number of dogs, thus triggering the requirement for site plan approval.

Despite these holdings, the Court still reversed the lower court’s decision.  The ZBA found that Petitioner had failed to offer sufficient mitigation for the dog noise from her business.  However, Petitioner offered scientific measurement of the noise level, while there was no other objective measurement offered at the public hearing.  Moreover, the neighbor’s recording could be subjectively interpreted due to the ability to control the volume of the recording, making reliance on it unreasonable. Absent evidence rebutting Petitioner’s measurement of the sound level and offer to address any noise concerns, the Court found that there was no basis in the record to find that Petitioner did not comply wtih the Land Use Law. Accordingly, the judgment was reversed and the matter was remitted to the ZBA to grant a special use permit and site plan approval.

The case was Blanchfield v Town of Hoosick, 149 A.D.3d 1380 (3d Dep’t 2017). 


Third Department Upholds ZBA Denial of Petitioner’s Request to Rescind Charges For Waste Removal After Violations

Petitioner’s neighbor filed a complaint with Respondent City of Albany’s Department of General Services (“DGS”) that trash was “blowing around” his yard and into the street. DGS issued Petitioner a notice of violation, stating that his yard violated Chapter 313 of the Code of the City of Albany (“Code”), governing solid waste. The notice stated that if Petitioner failed to remedy the violation, DGS would bill him for the cost of cleanup, plus a 15% administrative surcharge and a fine of up to $500. After Petitioner failed to remedy the condition, DGS cleaned up the property and billed him $838.73 ($638.73 for cleanup costs and a $200 fine). Shortly thereafter, DGS removed an “oversized amount of trash,” including furniture, from the curb in front of Petitioner’s property, notified Petitioner that it constituted “illegal debris,” and charged him $444.24 ($119.24 for cleanup costs and a $325 fine). DGS denied Petitioner’s request to rescind the two bills after two administrative hearing.  Petitioner appealed to the BZA, which reversed the $200 fine on the first violation, and vacated the charge on the second violation.  Petitioner filed an Article 78 proceeding to further review the first charge, and the Supreme Court, Albany County dismissed the petition. 

On appeal, Petitioner argued that the violation should have been prosecuted in criminal court because it classified as a criminal violation pursuant to Penal Law § 55.10, which provides in relevant part that “any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if ... a sentence to a term of imprisonment which is not in excess of [15] days is provided therein, or the only sentence provided therein is a fine.” The court found that because this section set forth the penalties for failing to comply with a notice of violation, the general penalty provision set forth in Code § 258–1 was not applicable. As such, the court held that a violation of Code § 313–51.1(E) was not a criminal violation within the meaning of Penal Law § 55.10(3), and thus not preempted.

Petitioner also argued that his constitutional rights were violated during the administrative process, and was therefore not required to exhaust his administrative remedies. He claimed that he was not provided with adequate notice of the first violation, that the Enforcement Committee was biased, that DGS failed to introduce evidence at the hearing, thus denying him his right to confront his accusers, and that DGS shifted the burden of proof. The court found that these claims would be better addressed with the administrative agency so that the necessary factual record could be established.

Accordingly, the court affirmed the dismissal of petitioner’s application.

The case was Haddad v City of Albany, 149 A.D.3d 1361 (3d Dep’t 2017).


Second Department Finds Development Rights Constitute Real Property Under RPAPL § 1602

Plaintiffs Thomas G. Hahn, Jr., Jeanne Halstead, and Barbara Butts (collectively “Plaintiffs”), and defendant Johanne Hagar, were siblings who owned a 101–acre farm (“Hahn Farm”) in the Town of Pleasant Valley, which had been in the parties’ family for over 240 years.  The property was owned jointly by the parties’ parents until their father’s death in 1995, and then solely by their mother until her death. The mother’s will left a qualified life estate in the property to Thomas G. Hahn, Jr., and the remainder interest to her four children in equal shares.  Plaintiffs sought authorization pursuant to RPAPL § 1602, which allows the owner of a possessory interest in real property to apply to a court for an order directing that the “real property, or a part thereof, be mortgaged, leased or sold,” to sell the development rights to the property in order to preserve its future use as a farm.  However, the Court found that development rights do not constitute real property, or a part thereof, for purposes of RPAPL § 1602. Accordingly, the court dismissed the proceeding, and Plaintiffs appealed.

The Second Department found that while the parties stipulated to a definition of “development rights,” the specific rights or burdens broadly referred to by this term could vary according to contractual terms or applicable governing statutes.  Here, the court held that development rights, as defined by the parties, constituted “real property, or a part thereof,” for purposes of RPAPL 1602.

Even so, the Court affirmed the lower court’s dismissal because Plaintiffs failed to establish that the proposed sale of development rights would be expedient.  Specifically, the plaintiffs failed to present any evidence of a proposed buyer for the development rights or the value of the underlying property both with and without the development rights. In addition, Plaintiffs failed to present evidence of any other tangible or intangible benefit that could be achieved by a sale of the development rights, or that the sale was necessary to preserve the property as an asset. Accordingly, the Court held that the Supreme Court properly directed the dismissal of the cause of action pursuant to RPAPL § 1602.

The case was Hahn v Hager, 153 A.D.3d 105 (2d Dep’t 2017).


Second Circuit Court Affirms Denial Of Equal Protection Claim Regarding Off-Street Parking Variance

Almost two years after Plaintiff 26 Seminary LLC purchased the property at issue, the Binghamton City Council adopted Ordinance 009-009, amending Chapter 410 of the Zoning Ordinance of the City of Binghamton to require increased off-street parking, including in residential areas of the city, when a building owner sought to modify the use of an existing structure on the property.  Shortly after the new ordinance was adopted, 26 Seminary LLC sought to renovate and modify the use of parts of the structure on its property. The City of Binghamton's Planning Commission and Zoning Board of Appeals (“ZBA”) denied 26 Seminary LLC's application for a variance from the new off-street parking requirement.  Based upon this denial and other events and interactions with the City that occurred during the application process, 26 Seminary LLC brought a non-class-based equal protection claim. The United States District Court for the Northern District of New York granted summary judgment to Defendants, and the Plaintiffs now appeal.

On appeal, the Second Circuit found that 26 Seminary LLC failed to point to any comparable property as a basis for its equal protection claim. In fact, the Court found that the two properties cited as comparators, 63 Front Street and 46 Seminary Avenue, differed significantly from 26 Seminary Avenue. 46 Seminary Avenue involved conversion from one commercial use to another, and 63 Front Street site had an entirely different classification for zoning purposes than the 26 Seminary LLC’s property. In addition, both sites included some off-street parking accommodation as a component of their proposed site plans, while the site plan for the subject property did not. As 26 Seminary LLC failed to point to any substantially comparable example of the City of Binghamton's applying its zoning law regarding the off-street parking requirement, the issue at the heart of Plaintiff’s equal protection claim, the Court held that summary judgment in favor of the City was appropriate and affirmed the District Court’s decision.

The case was 33 Seminary LLC v. The City of Binghamton, 670 Fed.Appx. 727 (2nd Cir. 2016).


Court Rejects Variance Claim for Billboard As Self-Created Harm

Petitioner Canandaigua National Bank, trustee of the Max M. Farash Declaration of Trust, owned real property in the Town of Gates (“Town”) adjacent to Interstate 390.  Farash had purchased the parcels in 1986, but never developed them. The Trust tried to sell the property in 2009 but the sole offer, from petitioner Expressview Development, Inc., was contingent upon receiving variances from the Town.  Specifically, Expressview wanted to construct billboards visible from the highway, requiring a variance of Gates Code § 190–22(E), which prohibited commercial signs not located on the site of the business for which they advertise.  Expressview sought use and area variances allowing installation of the billboards, but the Town’s Zoning Board of Appeals (“ZBA”) denied the application. Petitioners sought to annul the ZBA determination, arguing the § 190–22(E) was unconstitutional. The lower court dismissed the amended petition-complaint, and petitioners appealed.

On appeal, the Appellate Division, Fourth Department found Petitioners’ main contention, that the ZBA failed to adhere to its precedent, was without merit as petitioners failed to show earlier determinations that were based on essentially the same facts. The Court also found that settlement of a federal lawsuit in 1999 by the Town that permitted installation of certain billboards along the highway by two outdoor advertisers was not a ZBA determination under its administrative variance process.  As such, it was not a ZBA precedent from which departure must be justified.

In addition, the record showed that Farash knew or should have known the extent of the limitations on the property at the time of his purchase, as Farash purchased the property after the approval of the industrial park plan, the adoption of applicable zoning restrictions, and the construction of the highway adjacent to the property. Accordingly, there was substantial evidence to support the ZBA determination that Petitioners hardship was self-created.

Finally, the Court rejected Petitioners’ contention that § 190–22(E) was an unconstitutional restraint on free speech. Using the intermediate scrutiny test for restrictions on commercial speech set forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of N.Y., 447 U.S. 557, 561–566 (1980), the Court found the regulation did not impermissible distinguish between on-site and offsite commercial signs.  Accordingly, the Court modified the order to reinstate the declaratory judgment cause of action and declare the provision constitutional, and affirmed the decision as modified.  

The case was Expressview Development Inc. v. Town of Gates Zoning Bd. Of Appeals, 2017 WL 460597 (4th Dep’t February 3, 2017).


Mark Cuthbertson Published In New York Law Journal

Following the success of his October 18, 2017 presentation to the Suffolk County Village Officials Association, entitled "Homestay Companies: A Guide To Short-Term Rental Regulations," Mark Cuthbertson prepared a journal article detailing the essential elements his presentation.  This article was published in the October 23, 2017 edition of the New York Law Journal.

A reprint of the published article can be downloaded here.


Second Circuit Finds Developer’s Takings Claim Was Ripe Notwisthanding Pending Subdivision Application

In March of 2000, Plaintiff applied to the Planning Board for subdivision approval to develop a nearly 400-acre parcel he buying. The project would include 385 housing units and “an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant and a golf course that wove through the property.” In October 2003, the Planning Board “deemed complete” Plaintiff’s Draft Environmental Impact Statement (“DEIS”). However, in 2003 the Town Board approved amended zoning regulations. Plaintiff was assured by the Town Planner that he could meet the new requirements with only “a modest amount of additional work” and would soon receive preliminary approval. Plaintiff revised his plan, but the Town again amended its zoning regulations. Eleven months later, Town amended its zoning law for a third time without informing Plaintiff in advance. Plaintiff revised his application again, and in February 2006, the Town again changed its zoning law without warning.  Plaintiff submitted yet another plan in March 2007, and the Town changed its zoning for the fifth time, again without notice. Plaintiff then filed suit in federal court. The District Court held Plaintiff had failed to show that seeking a final decision from the Town would be futile, and Plaintiff appealed.

On appeal, Plaintiff conceded that the Town has not reached an official final decision, but argued that he did not need to meet this requirement of the ripeness doctrine because of the futility exception. The Court reasoned that requiring Plaintiff to persist with this protracted application process to meet the final decision requirement would implicate concerns about disjointed, repetitive, and unfair procedures.  Accordingly, the Court ruled Plaintiff’s claim was ripe for review.

With respect to the takings claim, the Court weighed the three Penn Central factors for whether the interference rose to the level of a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. On the first prong, the Court held the Town had effectively prevented Plaintiff from making any economic use of his property. The second was similarly satisfied, as when Plaintiff bought the property, it was already zoned for residential use, and his expectation was that he would begin recouping that investment after a reasonable period to get the Town's approval for some form of development. On the final prong, the Court found the Town's alleged conduct was unfair, unreasonable, and in bad faith. Thus, the court held that Plaintiff stated a non-categorical takings claim and remanded it to be heard on the merits in District Court.

The case was Sherman v Town of Chester, 752 F.3d 554 (2nd Cir. 2014).


Second Circuit Finds Developer’s Takings Claim Was Ripe Despite Pending Subdivision Application

In March of 2000, Plaintiff applied to the Planning Board for subdivision approval to develop a nearly 400-acre parcel he buying. The project would include 385 housing units and “an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant and a golf course that wove through the property.” In October 2003, the Planning Board “deemed complete” Plaintiff’s Draft Environmental Impact Statement (“DEIS”). However, in 2003 the Town Board approved amended zoning regulations. Plaintiff was assured by the Town Planner that he could meet the new requirements with only “a modest amount of additional work” and would soon receive preliminary approval. Plaintiff revised his plan, but the Town again amended its zoning regulations. Eleven months later, Town amended its zoning law for a third time without informing Plaintiff in advance. Plaintiff revised his application again, and in February 2006, the Town again changed its zoning law without warning.  Plaintiff submitted yet another plan in March 2007, and the Town changed its zoning for the fifth time, again without notice. Plaintiff then filed suit in federal court. The District Court held Plaintiff had failed to show that seeking a final decision from the Town would be futile, and Plaintiff appealed.

On appeal, Plaintiff conceded that the Town has not reached an official final decision, but argued that he did not need to meet this requirement of the ripeness doctrine because of the futility exception. The Court reasoned that requiring Plaintiff to persist with this protracted application process to meet the final decision requirement would implicate concerns about disjointed, repetitive, and unfair procedures.  Accordingly, the Court ruled Plaintiff’s claim was ripe for review.

With respect to the takings claim, the Court weighed the three Penn Central factors for whether the interference rose to the level of a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. On the first prong, the Court held the Town had effectively prevented Plaintiff from making any economic use of his property. The second was similarly satisfied, as when Plaintiff bought the property, it was already zoned for residential use, and his expectation was that he would begin recouping that investment after a reasonable period to get the Town's approval for some form of development. On the final prong, the Court found the Town's alleged conduct was unfair, unreasonable, and in bad faith. Thus, the court held that Plaintiff stated a non-categorical takings claim and remanded it to be heard on the merits in District Court.

The case was Sherman v Town of Chester, 752 F.3d 554 (2d. Cir. 2014).


Appeals Court Affirms Dismissal Of Substantive Due Process Claim Based on Planning Board’s Refusal to Adopt 25-Year-Old SEQRA Review

In 1987, the Town of Union Vale Planning Board issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) regarding a proposal to subdivide a 950-acre parcel of real property owned by plaintiffs/petitioners.  Plaintiffs/petitioners later sought and received approval to subdivide a portion of the property, which was developed.

In 2012, plaintiff/petitioner Dryfoos, to whom a portion of the property had been sold, applied for preliminary plat approval to subdivide the remainder of the parcel using the 1987 negative declaration. The Planning Board found that the 1987 negative declaration was inapplicable and ruled the application was incomplete. Plaintiffs/petitioners commenced this action to recover damages pursuant to 42 USC § 1983, claiming the Planning Board's determination violated their substantive due process rights. The trial court granted the branch of defendant/respondent's motion alleging a violation of constitutional rights pursuant to 42 USC § 1983, and denied plaintiffs/petitioners’ motion for leave to renew their opposition.  Plaintiffs/petitioners appeal.

The Appellate Division, Second Department stated that to establish a violation of substantive due process, plaintiffs must establish “a cognizable or vested property interest, not the mere hope of one.” Here, plaintiffs/petitioners were required to establish a “legitimate claim of entitlement” to have the 1987 negative declaration applied to their present application. As the Planning Board's discretion was not “so narrowly circumscribed” that approving the application of the 1987 negative declaration was “virtually assured,” plaintiffs/petitioners failed to allege a cognizable property interest.

The case was Leonard v Planning Bd. of Town of Union Vale, 136 A.D.3d 873 (2d Dep’t 2016).



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