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  The Board then rescinded the negative declaration and issued a positive declaration.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).

Second Department Upholds Determination Granting Area Variances to Yeshiva

Divrei Chaim, a yeshiva (i.e. institution for studying Jewish religious texts), sought several area variances to construct and operate a religious school on its property. The Zoning Board of Appeals of the Town of Ramapo (“ZBA”) granted the application after hearing testimony on the requested variances. Two residents who lived near the proposed religious school (“Petitioners”) commenced a CPLR Article 78 proceeding seeking to annul the ZBA’s determination. The Supreme Court, Rockland County, denied the amended petition to annul the ZBA’s determination, and Petitioners appeal.

On appeal, the Appellate Division, Second Department first noted that a zoning board examines variances under a five factor test, but is “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations is rational.” Here, the court found that the ZBA engaged in the required balancing test and considered the relevant statutory factors before granting the application. As such, the record indicated that the ZBA’s determination had a rational basis and was not arbitrary or capricious. For these reasons, the judgment of the Supreme Court, Rockland County, was affirmed.

The case was Cohen v Town of Ramapo Building, Planning and Zoning Department, 150 AD.3d 993 (2d Dep’t 2017).

Appellate Court Reverses Decision To Allow Construction of Boathouses Absent Building Permit

Defendants constructed two boathouses without building permits on the shoreline of Lake Placid in the Town of North Elba, Essex County (“Town”). William H. Grimditch Jr. (deceased and represented by his estate) began construction of a three-slip boathouse on his unimproved lakefront property in September 2010.  His children began similar construction of a one-slip boathouse on their nearby lakefront property. Plaintiff James E. Morganson, the Code Enforcement Officer for the Village of Lake Placid (“Village”) and Town, immediately issued the first of three stop work orders, and Morganson and the Town sought a preliminary injunction to halt construction on both properties. The Supreme Court initially permitted construction of both boathouses to continue to the extent of allowing installation of the caissons and decking, but issued a limited preliminary injunction requiring Defendants apply for building permits pursuant to the New York State Uniform Fire Prevention and Building Code Act (“SBC”) and comply with the provisions of the Village/Town Land Use Code (“Code”). On appeal, the Third Department reversed the grant of summary judgment to Defendants, holding because “Lake Placid is not owned by the State in its sovereign capacity and most of the lake is within the Town's boundaries, the Town's zoning authority includes that portion of the lake, making the [Code] applicable to structures constructed therein,” including the boathouses, and remanded to the lower court.

On remand, the Supreme Court ordered Defendants “abate their violation of the [SBC and Code] ... by dismantling the two boathouses ... to the point where all that remains are the caissons and decking initially authorized” and denied the Town's request to impose civil penalties. Defendants appealed, and plaintiffs cross-appealed from the part of the order sparing the caissons and decking.

With respect to standing, the Third Department rejected Defendants claim, noting that as the offending premises were immediately adjacent to the neighbors' property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury.” Here, the neighbors demonstrated that the children's boathouse violated the Code, including the provisions on set-backs and prohibiting accessory structures lacking a principal building. Thus, the neighbors were found to have standing to maintain an action to enjoin zoning violations.

Defendants next alleged a vested rights claim, arguing that when construction began, the Code did not apply to the boathouses. Defendants claimed that due to their expended construction costs, they were entitled to certain vested rights. The Court rejected this argument, however, as prior to construction Defendants failed to obtain the required permit from the Town. The Court found no precedent that an SBC permit and/or compliance therewith was not required, and noted that “defendants' boathouses are structures subject to the SBC.” Regardless of the applicability of the Code, Defendants undertook and finished construction absent required SBC permits and Town approvals, in violation of stop work orders.

Finally, the Court found that “it was defendants' own actions that precipitated their treatment by the Town”—namely, by completing construction without the required building permits, ignoring the initial stop work order, pursuing construction in violation of a conditional permit to erect only the caissons and decking, and then ignoring further stop work orders and preventing Town representatives from entering the properties to inspect to conditions thereon.  Accordingly, there was a rational basis for the Town's disparate treatment of Defendants, and Defendants speculation as to Town's malevolent intent is insufficient to overcome the presumption that the Town's enforcement of its laws was “undertaken in good faith and without [impermissible] discrimination.” Accordingly, the Court reversed the order denying the plaintiffs’ motion for summary judgement, and ordered the removal of the caissons and decking.

The case was Town of North Elba v Grimditch, 131 A.D.3d 150 (3d Dep’t 2015).

Court Finds Zoning Board’s Failure To Follow Its Own Precedents “Arbitrary And Capricious”

On January 15, 2014, respondent Village of New Hempstead Zoning Board of Appeals (“ZBA”) granted area variances permitting the applicant (respondent Binyamin Amona, henceforth “Applicant”) to subdivide his parcel into two substandard lots, and construct a two-family residence on each lot.  Petitioners commenced a CPLR Article 78 proceeding to review the allegedly arbitrary and capricious determination, claiming that the Board failed to distinguish the instant application from a substantially similar prior application for the same parcel that the Board denied in 2010.  The trial Court granted the petition and annulled the determination, and the Applicant appealed.

On appeal, the Appellate Division, Second Department noted that the “decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.” Here, the ZBA reached a different result on substantially similar facts, and thus an explanation is required to justify the departure, however the ZBA failed to offer any such explanation. In the absence of a factual basis for the departure, the Court held that the ZBA’s decision was arbitrary and capricious, and affirmed the lower court’s decision to dismiss the petition and annul the determination.

The case was Amdurer v. Village of New Hempstead Zoning Bd. of Appeals, 2017 WL 189159 (2d Dep’t, January 18, 2017)

Appellate Court Finds Rational Basis For Area Variances And Holds Plaintiff Lacked Standing

Respondents Steven and Jennifer Kitchen (“the Kitchens”) sought to build a residence on real property they owned near Lake George in the Town of Queensbury. The Kitchens applied to Town Zoning Board of Appeals for area variances from requirements for the removal of vegetation and from setbacks for stormwater infiltration devices.  The ZBA granted the Kitchens' variance requests.  Petitioner David M. Klein (“Klein”), a professional engineer who claimed to be representing neighbors opposed to the Kitchens' project, requested determinations from the Town's zoning administrator on several issues related to the project.  He then appealed to the ZBA, which dismissed the appeal for lack of standing. Petitioners commenced a CPLR Article 78 proceeding seeking review of the ZBA's determinations to grant the area variances and of the ZBA’s dismissal of Klein's appeal.  The Supreme Court dismissed the petition, and Petitioners appealed.

The Appellate Division, Third Department noted that the notice of appeal to the ZBA listed Klein's engineering firm as the appellant and Klein as the appellant's agent. As neither Klein nor his firm showed any specialized harm or owned property near the Kitchens' property, the court held that Klein lacked standing in his individual capacity and as an agent of his firm. Accordingly, the Court affirmed the ZBA’s dismissal due to lack of standing.  As to the area variances, the ZBA members acknowledged that there were potential problems from clearing so much vegetation from the property, but stated they were impressed by the Kitchens' extensive efforts to mitigate the impact by including stormwater mitigation measures absent from neighboring properties. Thus, considering the evidence presented at the hearing, which was continued over several months, and giving due deference to the ZBA’s determinations and underlying findings of fact, the Court held that the ZBA's determination to grant the area variances was rational and not arbitrary.  Accordingly, the Supreme Court’s decision to dismiss the petition as affirmed.

The case was Fund for Lake George, Inc. v Town of Queensbury Zoning Board of Appeals, 126 A.D.3d 1152 (3d Dep’t 2015).

What Is Required By The “In Writing” Requirement of the TCA?

Defendant City of Roswell (“Defendant”) denied a cell tower application submitted by T Mobile, a “personal wireless service provider” under the Telecommunications Act of 1996 (TCA).  Defendant informed Plaintiff of the rejection by letter, telling Plaintiff it could find the reasons for the denial in the City Council minutes. The TCA provides a 30-day window to appeal; however, the City’s draft minutes were only approved four days before the 30 days ended.  Even so, Plaintiff challenged the decision in federal court based upon the TCA’s “in writing” requirement.  Plaintiff further alleged that the denial was not supported by substantial evidence. The trial court ruled for Plaintiff but the Eleventh Circuit, following a majority of circuits, found the letter and reference to the minutes to be sufficient. The Supreme Court granted certiorari.

Justice Sotomayor, writing for the court, found the “in writing” and “substantial evidence” requirements necessitated that reasons for the decision be given, as their absence would make the judicial review much more difficult. The use of “substantial evidence” in the TCA was a “term of art” for how an administrative record was to be reviewed by a court under the TCA. The court inferred that Congress required findings to be derived from the administrative process.  The Court rejected Defendants’ claim that this would deprive it of its local zoning authority, finding that Congress meant to interfere with local zoning processes to this extent, but stressing that the reasons provided need not be elaborate – merely sufficiently clear as to enable judicial review.

In addition, the TCA did not require that the reasons be stated in the decision or in any particular form, as the TCA stated it did not otherwise affect the authority of a local zoning authority.  While it may be a plausible interpretation of the TCA for the reasons to be in the decision, the Act did not specifically require this to occur and the court would not infer it. However, the court did require that the reasons be given either in the decision or essentially contemporaneous with the decision’s issuance. By waiting until 26 days after its decision to issue detailed approved minutes, Defendant failed its statutory obligations.  Accordingly, the Court reversed the decision of the Eleventh Circuit.

Justice Alito concurred, adding it would have been sufficient for the City to simply state that the proposal was “aesthetically incompatible with the surrounding area.”  He further wrote that Plaintiff was not injured by the City’s delay (he deemed it a harmless error), and that this procedural error can easily be corrected.

Chief Justice Roberts, joined by Justices Ginsburg and Thomas, dissented, stating that, while findings or reasons for the decision were required, they need not be issued “essentially contemporaneously” with the decision.  This requirement was not in the TCA, noting that Congress has in other legislation, such as the Administrative Procedures Act and elsewhere in the TCA itself, included such a requirement. The dissent also observed that the “sole issue” before the court was the “in writing” requirement, not the timing of the findings. While agreeing that findings were implicitly required by the “substantial evidence” standard, if they were not given or are inadequate, remand would be justified, rejecting the contention that plaintiff needed to see the reasons in order to decide whether to appeal. As the Chief Justice wrote:

This concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods. Almost invariably… the relevant local authority has held an open meeting at which the applicant was present and the issues publicly aired. In this case and others, T-Mobile has brought its own court reporter, ensuring that it has a verbatim transcript of the meeting well before the town is likely to finalize its minutes. I strongly doubt that a sophisticated, well-lawyered company like T-Mobile – with extensive experience in these particular types of proceedings – would have any trouble consulting its interests and deciding whether to seed review before it had received a written explanation from the town.

Finally, the dissent claims that the impact of this case on local governments will be “small,” suggesting that the delay in making the final version of the minutes available may be harmless error.

The case was T-Mobile South, LLC v. City of Roswell, 135 S. Ct. 808 (2015).

Second Department Holds Environmental Control Board Was Not Estopped from Rejecting Owner’s Contention Regarding Sign Validity

In 2011, the Department of Buildings of the City of New York (“Department”) issued multiple violation notices to Petitioner/Appellant (“Petitioner”) for an advertising sign painted on the wall of Petitioner’s four-story apartment building in Astoria, Queens. The sign was a nonconforming advertising sign governed by New York City Zoning Resolution (“NYCZR”) § 52–731. Petitioner commenced an Article 78 proceeding to review city environmental control board’s (“ECB”) determination affirming an administrative law judge’s (“ALJ”) finding that the advertising sign painted on the building violated the City administrative code and zoning resolution. The Supreme Court, Queens County, denied the petition, and Petitioner appealed.

On appeal, the Second Department reviewed whether the ECB decision “was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”  In its decision, the ECB noted that NYCZR § 52–731 expressly set forth a 10–year time restriction for any nonconforming advertising sign such as the sign at issue, which had long since expired. The Court found that the ECB was thus within its discretion to reject Petitioner’s equitable estoppel argument, which claimed that the Department’s issuance of a sign permit in 1981 exempted the sign from the time limitation in NYCZR § 52–731, and that Petitioner had purchased the subject property in reliance on the validity of the 1981 permit. The Court noted that “vested rights cannot be acquired in reliance upon an invalid permit,” and that such invalidly issued permits can be vacated by a municipality at will.  As such, the Court held that the ECB had a rational basis for its decision, and affirmed the holding of the Supreme Court that denied the petition.

The case was Astoria Landing v NYC Environmental Control Board, 148 A.D. 3d 1141 (2 Dept. 2017).

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