Mark Cuthbertson Gives Presentation On Short-Term Rental Regulations to SCVOA

On October 18, 2017, Mark Cuthbertson gave a presentation 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," examined 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 accompanied  Mr. Cuthbertson's presentation can be downloaded here.

Appellate Court Holds Town Findings Underlying Zoning Determinations Must Be Based Upon Fully Developed SEQRA Record

In 2003, Plaintiff Troy Sand & Gravel Company, Inc. (“Plaintiff”) applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau, Rensselaer County. Plaintiff also applied for a special use permit and site plan approval from defendant Town of Nassau. DEC, as the lead agency for a coordinated review under the State Environmental Quality Review Act (“SEQRA”), issued a positive declaration, and Plaintiff prepared a draft environmental impact statement in 2006. After a public hearing and comments, Plaintiff prepared a final EIS in 2007. Thereafter, DEC issued its SEQRA findings, approved the project, and granted the mining permit.

Following DEC’s approval, the Town filed an action challenging DEC’s findings, and in the subsequent years the parties have litigated at least three related actions that have come before the Appellate Division, Third Department.  The instant case arose when Plaintiff filed a declaratory judgment action seeking a declaration that the Town was from conducting its own review of the environmental impact of the proposed quarry as part of its zoning determination.  The trial court granted a preliminary injunction to that effect, but the Third Department reversed and vacated the injunction on appeal. The Town Board then rescinded its determination that the permit was complete, and Plaintiff commenced a separate Article 78 proceeding to reverse the decision and for a declaratory judgment that the Town was limited to relying on the existing SEQRA record to justify its determination.  As the Supreme Court refused to allow consolidation of the Article 78 and pending appeal, the Third Department addressed the Article 78 in a separate, simultaneously issued decision that refers.

As a preliminary matter, the Court noted that while the Town is bound by DEC's SEQRA findings and may not repeat the SEQRA process, it still retains authority to make an independent review of Plaintiffs' application for a special use permit based on the standards laid out in the applicable zoning regulation. Here, the full SEQRA record, spanning thousands of pages, reflected the hard look taken by DEC at the proposed quarry's environmental impacts, made with the Town's extensive involvement. Allowing the Town to rely on information outside of the SEQRA record would undermine the efficiency and coordination goals of SEQRA. Accordingly, the Court held that the Town must base its determination of the environmental impact for zoning purposes on the record developed as part of the coordinated review conducted pursuant to SEQRA.

The case was Troy Sand & Gravel Co. Inc. v. Town of Nassau, 125 A.D.3d 1170 (3d Dep’t 2015).  The Article 78 was decided in a separate, but related decision, Troy Sand & Gravel Co. Inc. v. Town of Nassau, 125 A.D.3d 1188 (3d Dep’t 2015).

Second Department Upholds Conditions on Parking Variance

Petitioner sought to demolish the structure on its property and construct a 5,400 square-foot restaurant in its place. The Village of Rockville Centre’s (“Village”) Zoning Code required Petitioner to have 54 off-street parking spaces. As the property did not have any off-street parking, Petitioner proposed to merge the subject property with the adjoining lot that it also owned. This would allow Petitioner to utilize an exception to the off-street parking requirement for “interior restaurants that abut municipal parking fields,” as the adjoining property was adjacent to a municipal parking lot. When Petitioner’s restaurant was substantially completed, the Building Department discovered that the proposed merger had never taken place. As such, the Building Department directed Petitioner to apply for a parking variance. Petitioner applied, relying on a license agreement which allowed the petitioner access to the adjoining property’s 40 exclusive parking spaces between 4:00 p.m. and 12:30 a.m. on Monday-Friday. The Village’s Zoning Board of Appeals (Z”BA”) granted the parking variance but imposed the conditions that the restaurant’s operating hours be restricted to the times in the lease agreement, and mandated valet parking. Petitioner commenced a CPLR article 78 proceeding to annul these conditions. The Supreme Court granted Petitioner’s request, and the ZBA appealed.

On appeal, the Second Department found that the ZBA’s conditions were proper because they “related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion and parking problems.” The ZBA’s rationale was supported by empirical and testimonial evidence, as Petitioner’s own expert stated that there was a high demand for parking in the area of the subject restaurant. Accordingly, the petition to annul the conditions restricting hours of operation and requiring valet parking was denied.

The case was Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 WL 4275872 (2d Dep’t September 27, 2017).

Court Upholds Dismissal of Petition to Annul Issuance of a Special Use Permit Due to Nonconforming Use

Respondent Morrow and her husband operated a home improvement business out of a building located on their residential property in the Village of Clifton Springs, and had done so for nearly 45 years. This business had been “grandfathered” as a non-conforming use following the enactment of the Village of Clifton Springs Zoning Ordinance. After the death of Morrow's husband, a former employee continued working out of the building until Morrow came to terms with another individual to permit him to operate an HVAC business out of the building. Morrow applied for a building permit to make nonstructural changes to the building to accommodate the HVAC business, and the Code Enforcement Officer denied the building permit on the ground that Morrow needed a special use permit. Morrow subsequently applied for a special use permit, which was granted by the Village of Clifton Springs Zoning Board of Appeals. Petitioner commenced a proceeding under CPLR Article 78 seeking to annul of the issuance of a special use permit, but the Supreme Court issued a judgment dismissing the petition.  Petitioner appealed.

On appeal, the Appellate Division, Fourth Department noted that § 120–55 of the Zoning Ordinance provides that the ZBA may permit “any nonconforming use of a structure” to “be changed to another nonconforming use, provided that the ZBA shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use.” The Court concluded that the ZBA's determination that Morrow did not discontinue or abandon the nonconforming business use of the property was a reasonable application of § 120–55. Finally, although it was appropriate for the ZBA to request such records, Morrow's failure to present records of ongoing business activity did not constitute a basis to set aside the ZBA's determination.

Based on the forgoing, the Court affirmed the Supreme Court’s decision to dismiss the petition.

The case was Bounds v Village of Clifton, 137 A.D.3d 1759 (4th Dep’t 2016).

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).

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