Second Department Dismisses Claim Over Town Board’s Approval Of Wireless Communications Tower As Moot

Petitioners brought a hybrid Article 78 / declaratory judgment action seeking review of two resolutions passed by the Town Board of the Town of Kent authorizing the construction and operation of a 150–foot monopole wireless communications tower by Defendant/Respondent Homeland Towers, LLC.  The lower court denied the petition, dismissed the proceeding, and declared that the resolutions are not null and void.  Petitioners appealed, and Respondent moved to dismiss the appeal as academic in light of the completion of the tower.

The Appellate Division, Second Department noted that “typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.”  For cases involving a construction project, the court must consider how far the work has progressed, however a “race to completion cannot be determinative.” As such, other factors, such as whether the plaintiff sought a preliminary injunction to prevent construction from commencing or continuing during the pendency of the litigation, must also be weighed.  Here, Petitioners never requested a preliminary injunction, and the Court found their claim that they did not do so due to monetary constraints “unavailing under the circumstances of this case.”  As Respondent “established that the construction of the tower was not performed in bad faith or without authority, that the work could not be readily undone without substantial hardship,” the Court held that “this appeal does not present any recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise.”   As such, the Court granted Respondent’s motion to dismiss the appeal.

The case was Bruenn v. Town Bd. of Town of Kent, 145 A.D.3d 878 (2d Dep’t 2016).


Second Department Finds Portion of Building Not Subject To New York City Zoning Resolution

In 2014, the Department of Buildings of the City of New York (“DOB”) found that, pursuant to New York City Zoning Resolution (“NYCZR”) § 113–11, the maximum permitted floor-to-area ratio for the portion of the subject building located in a C4–2 zoning district was governed by ZR Article II, Chapter 3, and that it was proper to refer to ZR § 34–112 in order to determine how to apply ZR Article II, Chapter 3 within a C4–2 zoning district. Following an administrative appeal, the Board of Standards and Appeals of the City of New York (“BSA”) upheld the determination of the DOB.

On appeal, the court applied the “arbitrary and capricious” standard, and found that, according proper deference to the interpretation given to ZR § 113–11 by the DOB, the BSA’s determination in upholding the determination of the DOB had a rational basis. Accordingly, the court held that the Supreme Court of New York properly denied the petition and dismissed the proceeding.

The case was Quentin Road Development, LLC v. Collins, 150 A.D.3d 859 (2d Dep’t 2017).


Court Holds Owner Had Standing to Challenge Site Plan Park Fee Sue Despite Selling Land

Plaintiff, who owned 6.59 acres of real property in the Village of Westhampton Beach (“Village”), applied to the Village Planning Board for site plan approval to develop a 39–unit condominium. The Planning Board adopted a resolution approving the site plan, but conditioned it on Plaintiff paying the Village a recreation or park fee (“Park Fee”) pursuant to Village Law § 7–725–a(6) and Code of the Village of Westhampton Beach § 197–63(Q)(2).  After an appraisal, the Village Board of Trustees passed a resolution setting the Park Fee at $776,307. In 2012, Plaintiff sold the property to a nonparty. In 2014, Plaintiff brought an action for a declaratory judgment that § 197-63(Q)(2) was unconstitutionally vague. The Supreme Court granted the Village’s motion to dismiss for lack of standing, and Plaintiff appealed.

On appeal, the Second Department determined that while Plaintiff had sold the property before it paid any portion of the Park Fee, a rider to the contract of sale indicated that the sale price was reduced by the amount of the Park Fee that the purchaser had to pay. Specifically, the rider provided that if any or all of the Park Fee was waived by the Village or “ceased to be in effect” for any reason, the purchaser would pay that amount to the plaintiff. Thus, the court found Plaintiff demonstrated a sufficient interest to establish standing.

The court next addressed Plaintiff’s claim that it was entitled to judgment as a matter of law that Village Code § 197–63(Q)(2) was unconstitutionally vague. The Village Code provides the formula for the fee “shall be the appraisal amount at the time of the application of the land area on the application as vacant land divided by the total area shown on the plan in square feet times 2,178 square feet of reserved area per dwelling times the number of dwelling units proposed on the plan.” This formula was applied by the Board of Trustees after their receipt of an appraisal for the property.  Accordingly, the court found that the Village defendants were entitled to a declaration that the subject code provision was not unconstitutionally vague.

The case was Westhampton Beach Associates, LLC v Inc. Village of Westhampton, 151 A.D.3d 793 (2 Dep’t 2017).


Appellate Court Upholds Zoning Board’s Denial of Area Variance Application for Single Family Home

Petitioner commenced a CPLR article 78 proceeding to review a determination of the Zoning Board of Appeals of the Town of Southold (“ZBA”) denying its application for area and lot-width variances. The Supreme Court granted the petition, annulled the determination, and directed the ZBA to grant the application. The ZBA appealed.

The Appellate Division, Second Department noted that since local zoning boards have broad discretion in considering applications for variances, judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion. Here, the Court found that the denial of Petitioners' application for area and lot-width variances to build a single-family dwelling by the ZBA had a rational basis and was supported by evidence in the record. Granting the variances would have resulted in the creation of a nonconforming lot in a unique neighborhood. In addition, the Court held that the ZBA granting of a particular prior application for an area variance did not constitute a precedent from which the ZBA was required to explain a departure, especially since Petitioner failed to establish that the prior application bore sufficient factual similarity to the subject application.  Accordingly, the court held that the Supreme Court should not have disturbed the ZBA's determination denying the petitioners' application for area and lot-width variances, and reversed.

The case was Traendly v. Zoning Board of Appeals of Town of Southold, 127 A.D.3d 1218 (2d Dep’t 2015).


Court Finds Architectural Renderings Became “Records” Under FOIL

Petitioner was the chairperson of a local land preservation organization, the Putnam County Coalition to Preserve Open Space, Inc., in Putnam County, New York.  In that capacity, Petitioner had monitored a proposal to develop a large shopping center in Putnam County, and commenced the instant proceeding to compel production of the plan’s architectural renderings under the Freedom of Information Law (“FOIL”).  The plans being sought were located in the office of the Town Planner of the Town of Patterson, having been left by the developer in the Town Planner’s possession so that the Town Planner could give informal advice to regarding the developer's plan.  In an order dated April 4, 2013, the Supreme Court granted the motion of the Town respondents to dismiss the proceeding and the separate motion of the developer to impose costs and sanctions on Petitioner. Petitioner appealed.

On appeal, the Second Department found that it was undisputed that Camarda, the developer's owner, left the subject architectural renderings in the possession of the Town Planner.  It was also undisputed that the Town Planner displayed the renderings at the meeting of the Planning Board that took place on May 31, 2012.  Accordingly, the renderings were “kept” and “held” by an agency, as those terms are used FOIL, and were thus “records” within the scope of FOIL that Petitioner could lawfully seek.

Notwithstanding that the plans were “records,” the Court found that it was unclear whether the renderings were still in the possession of the Town Planner when Petitioner made her request. If the records were still in the Town Planner’s possession, Petitioner would have had a meritorious FOIL claim.  Thus, the imposition of sanctions against Petitioner by the lower court for having brought a frivolous claim was inappropriate.  Accordingly, the Court reversed the decision of the Supreme Court, holding that the Supreme Court should have denied both the motions of the Town respondents and the developer to dismiss the petition/complaint.

The case was Fanizzi v. Planning Bd. of Patterson, 146 A.D.3d 98 (2d Dep’t 2016).


Appellate Division Upholds Planning Board’s Rescission of Subdivision and Site Plan Approvals

Petitioner Sullivan Farms II, Inc. owned property in the Village of Wurtsboro and adjoining property in the Town of Mamakating. In 2009, Sullivan Farms II received conditional final site plan and subdivision approval from Respondent Village of Wurtsboro Planning Board for the development and construction of a 72–unit townhouse development known as “Kaufman Farms West”. The approval lapsed due to inactivity, so Sullivan Farms IV, LLC, successor-in-interest, sought and was granted approval in 2011. Petitioner Kaufman Farms, LLC submitted a site plan/special use application with the Planning Board for a separate residential development, known as “Kaufman Farms East,” on its nearby property. While review was pending, Respondent Village of Wurtsboro Board of Trustees adopted Local Laws No. 1 and 2 of the Village of Wurtsboro (2014), which altered the procedure for calculating the number of allowable building lots or dwelling units for a residential cluster subdivision in the Village. As a result, the Planning Board rescinded its approval for Kaufman Farms West. Petitioners brought an Article 78 proceeding and declaratory judgment action challenging the decision to rescind the subdivision and site plan approvals. The Supreme Court granted Respondent’s motion to dismiss the amended petition/complaint for failing to state a cause of action.

Under the Village Law, building lots or dwelling units in a cluster development “shall in no case exceed the number which could be permitted, in the planning board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning local law applicable to the district or districts in which such land is situated.” Though the 85-acre development was sufficient for the proposed 72 dwelling units, only 54 acres were actually located within the Village. Therefore, the Planning Board rationally determined that its final approval of Kaufman Farms West violated state and local law and must be rescinded. Moreover, since subdivision approval was not legally granted in the first instance, Sullivan Farms never had a valid approval from which vested rights could be acquired.

Petitioners also alleged that the Planning Board failed to make any findings pursuant to SEQRA when it rescinded the subdivision approval. However, the Court found that the Planning Board correctly found its revised determination “was merely performing the ministerial function of rescinding an approval that was void ab initio” and thus was not performing an “action” that would trigger SEQRA. Finally, the Board of Trustees “identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determinations.” Accordingly, Appellate Division, Third Department affirmed the dismissal of the Petition.

The case was Sullivan Farms IV, LLC v Village of Wurstboro, 134 A.D.3d 1275 (3d Dep’t 2015).


Appellate Court Finds Board of Trustee Member’s Opposition To Project Was Not A Conflict of Interest

Petitioner was the owner and developer of a proposed mixed-use development in the Village of Pittsford (“Village”). After conducting a SEQRA environmental review, the Village’s Board of Trustees (“Board”) issued a negative declaration and adopted a resolution issuing the requisite permits for the project to the Petitioner. However, after the Village Planning Board Board approved a preliminary site plan, the Board adopted two resolutions stating that there had been “substantive changes,” creating a “potential significant adverse impact” on the environment not addressed in the SEQRA review.  The Board then rescinded the negative declaration and issued a positive declaration. Petitioner commenced an Article 78 proceeding to reverse the decision and reinstate the negative declaration, arguing that three Board members had demonstrated bias against of project and should have recused themselves due to a conflict of interest.  The Supreme Court annulled the resolution, finding two Board members had conflict and may not participate in additional SEQRA deliberations or determinations, while also finding a third member had no conflict. Both sides appealed.

On appeal, the Appellate Division, Fourth Department modified to the judgment to declare that none of the Board members had a conflict of interest.  While the Court acknowledged that two of the Board members had expressed their opposition to the project both before and after they were elected to the Board, the Court held that their personal opinions were not a basis for finding a conflict of interest. The Court even went so far as to suggest that the “expression of opinion by… [officials] on matters of public concern ‘is to be encouraged, not penalized.’”  Notwithstanding these modifications, the Court affirmed the decision to annul the challenge resolution, finding “the Board lacked authority to rescind its negative declaration under the circumstances of this case.”  Thus, the decision was affirmed as modified.

The case was Pittsford Canalside Properties, LLC v. Vill. of Pittsford, 137 A.D.3d 1566 (4th Dep’t 2016).


Mark Cuthbertson To Give Presentation On Short-Term Rental Regulations to Suffolk County Village Officials Association

On October 18, 2017, Mark Cuthbertson will be one of the featured speakers at the Suffolk County Village Officials Association's annual municipal training event.  Mr. Cuthbertson's presentation, entitled "Homestay Companies: A Guide To Short-Term Rental Regulations," will examine different approaches to regulating short-term rentals in light of the unique regulatory challenges posed by companies such as AirBnB. 

A copy of the PowerPoint that will accompany Mr. Cuthbertson's presentation can be downloaded here.


Second Department Holds De Facto Taking Claim Untimely

Claimant acquired a vacant and unimproved lot on Staten Island in 1985 that is precluded from being developed due to being designated as freshwater wetlands or wetlands adjacent area. In 2010, the City of New York acquired the property by eminent domain as part of its South Richmond Bluebelt, Phase 3 project, and Claimant brought a claim for damages resulting from the taking. Claimant argued the date of the taking was 2005, as the City de facto took the property by constructing a headwall and installing stormwater control devices, but that Claimant did not become aware of the construction until 2011. The Supreme Court, Richmond County, granted Condemnor's motion to strike Claimant's appraisal report and preclude the claimant from offering any testimony concerning the contents of the report at trial, as damages from the 2005 taking were barred by the statute of limitations.  Claimant appeals.

The Appellate Division, Second Department first noted that a de facto taking claim is governed by the three-year statute of limitations applicable to claims to recover damages for injury to property in CPLR § 214(4). As the record established that the headwall and overflow outlet were readily visible in 2005, the Court held that the Supreme Court properly determined Claimant's time to bring any claim for damages for the alleged de facto taking expired in 2008. Moreover, contrary to Claimant's contention, the Court held that the continuous wrong doctrine was not applicable to its de facto taking claim. Accordingly, the decision to grant the City's motion to strike the claimant's appraisal report and preclude it from offering any testimony concerning the report's contents on that ground was affirmed.

The case was In the Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672 (2d Dep’t 2016).


E.D.N.Y. Upholds Denial of Motion for Reconsideration on Futility Grounds

Plaintiff’s 42 U.S.C. § 1983 claims arose from two decisions by Defendant Town of Southampton Planning Board to conditionally approval Plaintiff's applications for a building permit for the construction of a barn on its property. Plaintiff also commenced two related Article 78 proceedings in state court to challenge the Planning Board decisions as errors of law, arbitrary and capricious, an abuse of discretion, and not supported by a rational basis. On August 19, 2014 the Court denied Defendants' motion to dismiss for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and, for the Individual Defendants, qualified immunity.

On April 8, 2015, the Court granted in part and denied in part Defendants' motion for reconsideration, rejecting the section pertaining to Defendants’ ripeness argument. Defendants moved pursuant to Local Civil Rule 6.1 for reconsideration of the court's April 8, 2015 order, claiming the Court misapprehended their ripeness-based argument. The court granted the Defendants' motion for reconsideration on the basis that this action was unripe for review, due to the December 2014 decision in the Article 78 action. The complaint was dismissed without prejudice with leave to refile when the claims became ripe or an exception to the ripeness doctrine could be shown. On May 15, 2015, Plaintiff moved pursuant to Local Civil Rule 6.3 for reconsideration of the May 8, 2015 order. Plaintiff contends in part that, in declining to find that further proceedings before the Planning Board were not futile, the Court misapprehended the permitting restrictions of Sections 330–51 and 330–50(d)(2) of the Southampton Town Code.

The Court first noted that the futility exception to the ripeness doctrine states that a property owner will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. Alternatively, the futility exception is applied when the relevant “agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.”  The Court agreed with Plaintiff that any consideration of its land use applications by the Planning Board under Section 330–51(a) would be futile, but foudn Plaintiff had not shown futility with regard to those land use applications as a permitted use under the Grant of the Agricultural Reserve Area (“ARA”) as open, fallow, landscaped, and wooded areas.

The court determined that it was not entirely clear that the Plaintiff's land use applications were not a permissible use of the ARA, and the Planning Board failed to consider this possibility. As it appeared that neither the Town Attorney nor the Planning Board had made any pronouncements on this possibility, separate and apart from their litigation positions with regard to Section 330–50(D)(2), the Court denied the Plaintiff’s motion for reconsideration and stated it would not entertain further motions for reconsideration on the issue of futility.

The case was 545 Halsey Lane Properties, LLC v Town of Southampton, 2015 WL 3824050 (E.D.N.Y. June 19, 2015).



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