Second Department Upholds Denial of Area Variances

Petitioner owned vacant property in the Town of Brookhaven (“Town”) that contained two tax lots that shared a rear boundary and abutted two parallel streets. Petitioner applied for area variances to build two houses on the property, one abutting each street, arguing it was entitled to the variances because the property consisted of two single and separate tax lots.  After a hearing, the Town’s Board of Zoning Appeals (“BZA”) denied the application, determining that the property consisted of two merged tax lots, and that Petitioner would have reasonable use of the property by developing one house instead.  Petitioner filed an Article 78 proceeding seeking to annul the BZA’s determination, but the Supreme Court, Suffolk County denied the petition and dismissed the proceeding. Petitioner appealed.

On appeal, the Second Department held that despite Petitioner’s contention that the property consisted of two separate lots, the record showed that the lots had been held in common ownership since 1948, and Petitioner offered no evidence that the lots were separate.  The record also had evidence that the proposal did not conform to the surrounding development pattern, and was a substantial deviation from the zoning requirements.  Finally, the BZA denied an identical application for a property in the immediate area in 2007.  As such, the Court concluded that the BZA properly weighed the relevant factors in denying Petitioner the requested relief, and that the BZA's determination was not illegal, arbitrary and capricious, or an abuse of discretion.  Thus, the decision of the lower court was affirmed.

The case was Harn Food, LLC v Dechance, 159 A.D.3d 819 (2d Dep’t 2018).


N.D.N.Y. Holds City’s Unreasonably Delay Acting On Application Violated the Telecommunications Act

Plaintiff Upstate Cellular Network (“Plaintiff”), d/b/a Verizon Wireless, filed suit alleging defendants, the City of Auburn (“City”), and its City Council, Planning Board, Zoning Board of Appeals, and Code Enforcement Officer (collectively “Defendants), improperly failed to act on its application to construct and operate a wireless telecommunications site in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332 et seq. ( “TCA”) and the Federal Communications Commission’s (the “FCC”) orders, rules and regulations.  The instant decision came upon competing motions for summary judgment.

Under the provisions of the TCA and related FCC Orders, a municipality has 150 days to review an application and make its final determination, consistent with local law, the TCA and federal rules and regulations.  Defendants argue that the City could not accept Plaintiff’s application as it was received during a moratorium on the acceptance and review of applications for telecommunication facilities while the Town revised its regulations.  Thus, Defendants claim the application was never “duly filed,” and the TCA’s 150-day timeframe never began to run.  However, the Court held that while the FCC recognizes the need of local municipalities to update their zoning regulations, a 2014 FCC Order expressly provided that the 150-day time “runs regardless of any moratorium.”  Thus, the City failed to rebut the presumption that its failure to review the application within 175 days of receipt was unreasonable, and the Court held that this constituted a violation of the TCA.

Conversely, Plaintiff demonstrated that Defendants’ actions prevented it from closing a significant gap in service, and effectively prohibited service. Plaintiff’s application had significant information, including Radio Frequency propagation maps, that demonstrated a gap in its service in the City and related capacity deficiencies, including major thoroughfares, residences, businesses and schools. Furthermore, the application established that there was no less intrusive means to fill the significant gap in coverage other than to construct and operate a wireless facility at the Site.

As such, the Court found that plaintiff was entitled to summary judgment. The Court found Defendants’ persistent and affirmative violation of the text and spirit of the TCA should result in its relinquishment of its right to obtain further review of Plaintiff’s application, and the Court issued a mandatory injunction directing Defendants to approve Plaintiff’s application and issue all applicable permits and approvals.

The case was Upstate Cellular Network v City of Auburn, 257 F.Supp.3d 309 (N.D.N.Y 2017).


Town of Southold Plans Crackdown On Short-Term Rentals

Citing safety concerns, the Town of Southold is mulling a crackdown on violators of its short-term rental law. While the law, passed in August of 2015, banned homeowners from renting their property for less than 14 days, the Town reports that last year it received more than 20 complaints about violations of the law.  More troubling, however, have been  several fires in residences that had been illegally used as short-term rentals. As a result, the Town is considering hiring additional code enforcement officers and more aggressively prosecuting violators.

The Town is also considering proposals to strengthen its short-term rental laws.  Among the proposals under consideration is a plan to require rental occupancy permits for all rentals in the Town. This proposal would also require code inspectors to ensure compliance with safety regulations, including proper entrances and exits, working carbon monoxide detectors and sufficiently wide hallways.  However, to address the short-term rental issue more broadly, the Town is considering loosening the building restrictions that limit accessory apartments, as well as promoting more affordable rental housing.  Taken together, these two proposals would allow for a more holistic approach to the Town's short-term rental issue.


Second Department Holds Planning Board Failed To Adequately Articulate Its Basis For Determining A Second SEIS Was Unnecessary For Proposed Changes

In 2004, a developer, Davies Farm, LLC, applied for site plan approval and a zoning amendment in connection with proposed residential and commercial development of a 53.3–acre parcel of land in the adjacent towns of Haverstraw and Ramapo. The Town of Haverstraw Planning Board, issued a positive declaration under SEQRA and required the preparation of a draft environmental impact statement (“DEIS”). After the DEIS was submitted in 2006, Davies Farm changed the proposed plan by eliminating the residential development in the Town of Haverstraw to avoid needing a zoning amendment. As a result, the Planning Board required a Supplemental Environmental Impact Statement (“SEIS”). In 2009, the Planning Board accepted a final SEIS and adopted a findings statement under SEQRA certifying that the development plan minimized or avoided adverse environmental impacts to the maximum extent practicable.

The property was later sold, and in 2012, the property’s new owner, Mt. Ivy Partners, LLC, applied to the Planning Board for preliminary and final site plan approval for the project, which included a deli/coffee shop with gas pumps. The Planning Board determined a second SEIS was not required, and granted the preliminary and final site plan approval subject to certain conditions. The owners of properties near the site of the supplemental proposed development commenced an Article 78 proceeding to review the Planning Board’s determination, and the Supreme Court granted the petition, annulled the SEQRA determination and site plan approval, and remitted the matter to the Planning Board.  The Planning Board appealed.

On appeal, the Second Department found that while a lead agency’s determination to require a SEIS is discretionary, the lead agency must “consider the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact.” Here, the proposed changes for the project included the construction of a large convenience store with 16 gas pumps. Mt. Ivy’s representatives asserted that the gas station did not necessitate a second SEIS because it would be constructed to meet New York State requirements and would need permits from the Rockland County Department of Health during the building permit process.  However, the Planning Board did not mention the gas station or petroleum storage in its determination that a second SEIS was not required. As such, the Court held that the Planning Board “failed to take the requisite hard look” at the project change adding the gas station, and “did not make a reasoned elaboration” of its basis for determining that a second SEIS was not necessary. Accordingly, the decision of the lower court was affirmed.

The case was Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 153 A.D.3d 823 (2d Dep’t 2017).


Second Department Reduces Wetlands Takings Award

Baycrest Manor, Inc. (“Claimant”) owned two contiguous unimproved lots near the eastern shore of Staten Island. Claimant acquired title in the 1970s, and the majority of the property was later designated as wetlands. In 2006, New York City (“City”) acquired the property as part of a multi-phase stormwater management project. Claimant then commenced a proceeding seeking compensation for the taking. After a nonjury trial, the court awarded Claimant the principal sum of $382,190.25, plus interest, as just compensation.  The City appealed the award.

On appeal, the City argued that Claimant’s compensation should be limited to the $57,000 market value of the property under the wetlands regulations.  The City claimed that no knowledgeable buyer would purchase the property above its regulated value based on a potential takings challenge to the wetlands regulations, as the purchaser takes the property subject to said wetland regulations.  However, the Court rejected this contention and held that a subsequent buyer would not be precluded from bringing a regulatory taking claim. Accordingly, the Court held that the reasonable probability incremental increase rule still could be applied in valuing regulated wetlands properties taken in condemnation.

The City next argued that the lower court erred in finding Claimant established a reasonable probability that the imposition of the wetlands regulations on the property would constitute a regulatory taking. However, the City’s own appraisal showed the wetlands regulations reduced the value of the property by 88%. This diminution in value, together with the effective prohibition on development, established a reasonable probability that the imposition of the wetlands regulations would be found to constitute a regulatory taking.

Finally, the City argued that the lower court should not have used the increment proposed by Claimant’s appraiser, who the record shows chose said increment based solely on instructions from Claimant’s attorneys and a prior case. The Court agreed and found that the lower court should have applied the increment formula proposed by the City’s appraiser, which was based on market data.  Accordingly, the Court held that Claimant should have been awarded the principal sum of $156,987.84, an affirmed the decree as modified to reflect the reduced amount of compensation.

The case was Matter of New Creek Bluebelt, Phase 3, 156 A.D.3d 163 (2d Dep’t 2017).


Appellate Term Reverses Conviction For Violations Of Zoning Provisions

This criminal action was based upon defendant’s alleged violations of the Code of the Village of Pelham Manor.  Defendant allegedly allowed two individuals to reside in a “carriage house” without obtaining a permit or a certificate of occupancy as required under the relevant Code provisions, and by using or occupying the premises for a purpose other than an accessory and/or special accessory building. This was the extent of the factual allegations set forth in the “information” and “supporting deposition.”  After the matter had been transferred to the City Court of New Rochelle, the People moved for “summary judgment,” which the City Court granted.

The court first noted that the three counts in the “information” were “deemed misdemeanors” under § 210-8(B) of the Code.  Accordingly, there was no authority for a criminal court to convict pursuant to a pretrial motion for summary judgment, as the CPLR is inapplicable to criminal proceedings.  Moreover, the Criminal Procedure Law does not include a provision for accelerated judgment.

In addition, the Court found that the counts charged in the accusatory instrument were jurisdictionally defective, and must therefore be dismissed.  Specifically, the factual allegations that two individuals had been residing in the “carriage house” were conclusory, rather than evidentiary, and the instrument’s allegations did not establish the elements of the offenses charged. Accordingly, the judgment of conviction was reversed and the accusatory instrument was dismissed.

The case was People v Cullen, 56 Misc.3d 45 (Sup. Ct., App. Term, 2d Dep’t 2017).


Second Department Holds ZBA Properly Granted Country Club Special Use Permit

Hampshire Recreation, LLC, owned a 216–acre property in which the Hampshire Country Club, a membership golf and tennis club, was located. Pursuant to the Village of Mamaroneck Zoning Code, a membership club must be operated by a not-for-profit corporation or organization. Accordingly, Hampshire Recreation, LLC, incorporated Hampshire Club, Inc. a not-for-profit corporation, and leased it the Hampshire Country Club to operate. Hampshire Club, Inc. later applied for a special use permit to host nonmember events at the Country Club. After a public hearing, the Zoning Board of Appeals (”ZBA”)voted to grant the special use permit. Petitioners commenced an CPLR Article 78 proceeding to review the ZBA’s determination and to annul the special use permit. The Supreme Court denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Court noted that once an applicant shows that the contemplated use conforms to the conditions imposed, a special use permit or exception must be granted absent reasonable grounds for denial, supported by substantial evidence. Here, the evidence showed that Hampshire Club, Inc.’s contemplated use comported with the requirements of Village of Mamaroneck Zoning Code §§ 342–3 and 342–35(B)(9)(a), and that there were no reasonable grounds for denying the special use permit. Accordingly, the Court found that the special use permit to host nonmember events at the Country Club should have been granted. As such, the Court affirmed the decision to deny the petition and dismiss the proceeding.

The case was Mamaroneck Coastal Environment Coalition, Inc. v Board of Appeals of the Village of Mamaroneck, 152 A.D. 3d 771 (2d Dep’t 2017).


Second Department Holds Building Inspector’s Determination That Separate Building Permit Was Necessary For Driveway Work Was Not Arbitrary And Capricious

Petitioners were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown (“Village”) in 1977.  Petitioners planned to renovate and upgrade the property, including by adding an indoor riding area.  After a six-year review process, the Village Board of Trustees approved the application.  However, while Petitioners were in the process of widening and repaving the driveway, the Village Building Inspector issued a stop work order on the basis that Petitioners had failed to obtain a permit.  Petitioners brought an Article 78 proceeding against the Village, Village building department, and related individuals. The Supreme Court, Nassau County, granted the petition, and the municipal parties appealed.

On appeal, the Second Department reversed the lower court’s decision.  The record reflected that the Building Inspector determined that the work being performed on the driveway required a separate building permit. While Petitioners contended the driveway work was approved by the Village Board of Trustees, and the subject work was covered under the broader building permit issued for their other renovations, the Court found that the Building Inspector’s determination that an additional permit was necessary was not made in violation of lawful procedure, was not affected by an error of law, was not arbitrary and capricious, and did not constitute an abuse of discretion. Accordingly, the Court reversed and held that the petition should have been denied and the proceeding dismissed.

The case was Carnelian Farms, LLC v Village of Muttontown Building Dept., 151 A.D. 3d 847 (2d Dep’t 2017). 


Appellate Court Upholds Rejection of Incomplete Building Permit Application for Non-Conforming Use Submitted Shortly Before Expiration of Building Code’s One-Year Restoration Period

Petitioner owned a real property in the Town of Kent (“Town”) with a single-family residence as a pre-existing “nonconforming building” under the Code of the Town of Kent (“Town Code”) § 77–47(A).  On February 3, 2010, a fire destroyed most of the residence, and the Town Code gave Petitioner one year (i.e. until February 3, 2011) to rebuild.  The Fire Inspector advised the building be condemned and demolished, but Petitioner waited nine months to apply for the demolition permit. Demolition was completed on December 26, 2010.  On January 21, 2011, two weeks before the one-year period expired, the Putnam County Department of Health approved what it called plans for a “proposed addition” to the residence, but said its approval was “for the proposed changes only,” and that “any other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” Petitioner applied for a building permit, but the Town Building Inspector required a site survey and plans signed by an architect before review. A surveyor was hired on February 1, 2011, but the survey was not completed until April 2011. On October 26, 2011, nearly 9 months after the one-year rebuilding period expired, Petitioner filed a complete application for a building permit, which was denied on the ground that the one-year rebuilding period had expired.  Petitioner filed an Article 78 proceeding to review the determination of the Towns’ Zoning Board of Appeals (“ZBA”), affirming the denial of Petitioner’s application. The Supreme Court, Putnam County, granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.  The ZBA appeals.

The Second Department found that the Town Code's provision stating that a nonconforming building “shall not be re-established ... unless such restoration is completed within one year from the date of such destruction” did not vest the ZBA with discretionary authority to extend the time limit, as “the word ‘shall’ is always mandatory and not merely directory.” Here, by filing an incomplete application just two weeks before the one-year restoration period expired, the court found that Petitioner could not reasonably have thought a site survey was unnecessary, given that the requirement of a survey was clearly stated in the Town Code and first page of the permit application form. The Court thus held that the ZBA's determination affirming the Building Inspector's rejection of the application was not arbitrary and capricious, illegal, or an abuse of discretion. The Court further held that Petitioner's claim that the application of Town Code § 77–48 to the subject property resulted in an unconstitutional taking without compensation was not ripe for review, as she failed to establish that she exhausted her administrative remedies by applying for a variance.

The case was Warner v. Town of Kent Zoning Bd. of Appeals, 144 A.D.3d 814 (2d Dep’t 2016).


Second Department Upholds Finding That Water District’s Proposed Construction Was A Type II Action Not Subject To Review Under SEQRA

Defendant/Respondent Manhasset–Lakeville Water District (the “Water District”) was a special district of the Town of North Hempstead created to provide and sell potable water to those in its boundaries. To do this, the Water District required water storage tanks to provide water and maintain water pressure, including elevated water storage tanks.  One such storage tank was located on a lot owned by the Water District within Plaintiff Incorporated Village of Munsey Park (“Plaintiff”). As the Village’s zoning code prohibits buildings over 30 feet high, the current tank was not permitted as of right.

In 2014, the Water District made plans to replace the tank.  This included installing an antennae on the replacement tank to provide wireless communication between facilities and for dispatching employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed plans, and the Water District determined that the proposed construction was a replacement-in-kind Type II action not subject to further environmental review under SEQRA. The Village commenced a declaratory judgment action asserting that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment, and Plaintiff appealed.

On appeal, the Court agreed that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment or require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion.  Therefore, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

The case was Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 150 A.D.3d 154 (2d Dep’t 2017).



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