Second Department Holds Zoning Board Lacked Authority to Impose Durational Limits on Permit

Petitioners own property in a split-zone lot in the Town of North Hempstead.  The property had a restaurant within the Town's business district, and an adjoining parking lot that extends into the Town's residential district. The Zoning Board of Appeals (“ZBA”) granted Petitioners a permit pursuant to the Code of the Town of North Hempstead (“Town Code”) § 70–225(E) to continue use of the parking lot in the residence district for a period of five years. Petitioners commenced an Article 78 proceeding to annul the five-year durational limit. The Supreme Court denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Appellate Division, Second Department reversed, finding that the Board lacked the authority to impose a durational limit on a permit granted pursuant to Town Code § 70–225(E). Noting that conditions imposed by a zoning board of appealed must be authorized by the zoning ordinance, the Court held that as the Town Code did not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section, it was improper for the Board to include a five-year durational limit. Thus, the Court annulled the condition.

The case was Citrin v Board of Zoning Appeals of the Town of North Hempstead, 143 A.D.3d 893 (2d Dep’t 2016).


Court Finds Code Enforcement Officer Rationally Concluded Bulk of Proposed Activities Was Not Activity Subject to Further Site Plan Review

The Town of Harpersfield Planning Board granted site plan approval for Respondent New York Safety Track LLC to operate a motorcycle safety training facility at a converted former airport. In January 2013, Safety Track was advised by Respondent Town of Harpersfield Code Enforcement Officer (“CEO”) that the races and other large events occurring at the track were not authorized uses pursuant to the site plan. Safety Track and the Planning Board then executed an agreement that “purported to outline Safety Track's approved land uses for May 1, 2013 to December 31, 2013.” The agreement was challenged in a combined CPLR article 78 / declaratory judgment action. The Supreme Court “annulled it and made declarations regarding the scope of Safety Track's permissible land uses.” During the pendency of this appeal, the court reversed the part of the judgment that made declarations regarding the uses permitted under the site plan approval.

Safety Track then requested a determination by the CEO whether specified activities at the track would require further site plan approval. The CEO declined to rule whether the activities were permitted under the terms of the January 2014 judgment, and found most would not require further review. Petitioners, a group of concerned landowners, commenced the instant proceeding to challenge the CEO's determination. The Supreme Court granted the petition annulling certain portions of the CEO's determination. Safety Track, respondent Mountain Top Airfield LLC, and the CEO appealed.

Respondents argued the Supreme Court erred in concluding that the CEO irrationally refused to take a position on whether the specified uses ran afoul of the January 2014 judgment. However, as the court subsequently reversed that part of its judgment, the CEO could not be faulted for failing to adhere to or otherwise interpret judicial declarations that no longer existed. Absent the January 2014 judgment, the court found nothing irrational in the CEO’s determination that the bulk of the proposed activities did not constitute a “change in the use” of the property or otherwise constitute activity that would be subject to further site plan review.  The Second Department thus reversed to the extent the petition had been partially granted, and dismissed the petition in its entirety.

The case was Ballard v New York Safety Track, LLC, 134 A.D. 3d 1322 (2 Dep’t 2015).


Second Department Restores Action by Citizen Taxpayers To Enjoin Defendant From Using Subject Property For Receipt Of “Land-Clearing Debris”

Plaintiffs were resident taxpayers of the Town of Southampton. In 2005, they commenced an action to enjoin Defendant, Sand Land Corporation, pursuant to Town Law § 268(2), from using its property, located in a residential district, for the annual receipt of “thousands of tons” of clearing debris, including trees, brush, stumps, and leaves; the processing of such clearing debris into topsoil and mulch; the storage, sale, and delivery of mulch, topsoil, and wood chips; and the receipt, processing, and/or disposal of concrete, demolition debris, asphalt pavement, brick, rock, and metals. Plaintiffs claimed this violated the Town’s zoning laws.  In 2012, the Zoning Board of Appeals (“ZBA”) separately ruled in that Defendant’s use was not a pre-existing nonconforming use.  The lower court dismissed the instant action, and Plaintiffs appealed while Defendant’s CPLR Article 78 challenge to the ZBA's determination was pending. During the pendency of this appeal, the lower court granted Defendant’s petition, finding that the processing of brush, trees, stumps, leaves, and other clearing debris, and the sale of topsoil, mulch, and wood were not legal preexisting nonconforming uses.

Subsequent to that holding, Plaintiffs acknowledge that with respect to these specific uses, because the local officials found no zoning violation, there was no “official lassitude or nonfeasance in the enforcement of zoning laws which citizen taxpayers may overcome” and no action pursuant to Town Law § 268(2) could be maintained. However, the ZBA made no such “legal pre-existing nonconforming use” finding with regard to the use of the property for the processing of trees, brush, stumps, leaves, and other land-clearing debris into topsoil or mulch. Since there was no finding by the zoning officials that these uses were legal, the court found that there was no reason why either the Town or the citizen taxpayers could not seek to enforce compliance with the zoning code in an action brought pursuant to Town Law § 268(2). As to the second cause of action, since Defendant made no claim that Plaintiffs could not prove special damages, and Defendant offered no other ground for dismissing the common-law claim in its entirety. Accordingly, the dismissal of these two causes of action was reversed.

The case was Phair v. Sand Land Corporation, 137 A.D.3d 1237 (2d Dep’t 2016).


Appellate Division Finds 12-Story Budget Hotel To Be Highest And Best Use of Condemnee’s Property Following Rezoning

Claimant, 730 Eq. Corp., owned a 20,738 square foot, irregularly shaped, vacant parcel of real property in Brooklyn.  The property was in an M1–1 manufacturing district, and had previously been improved with a gas station. The property was subject to a long-term lease with Amoco, which intended to build a gas station on the property. In December 2009, New York State Urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”), used eminent domain to take the subject property, among others, for the Atlantic Yards project. The trial court granted the condemnation, and awarded Claimant $6,906,000 as just compensation for the taking. Claimant appealed from the award as being inadequate (for reference, the trial appraisals were $20 million for Claimant and $2.8 million for ESDC).

In making its award, the trial court determined that Claimant had established that, absent the project, there was a reasonable probability that the property would have been rezoned to C6–2A. The court found many of the area’s buildings had been converted to commercial and residential use, and noted that New York City policy was to rezone underutilized industrial sites for commercial or residential development. Furthermore, the lease on the property did not prohibit finding a different highest and best use than contemplated in the lease, as the property must be valued at “its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time.”

On appeal, the Appellate Division, Second Department held that the trial court’s determination that a 12–story budget hotel would be legally and physically possible, and financially feasible, was supported by the record. Specifically, the Court cited testimony by ESDC’s own expert regarding alternate designs for such a hotel that would meet the zoning requirements, and evidence of an increased demand for and development of hotels in Brooklyn around the vesting date. It further held that the trial court need not accept the opinions of ESDC’s experts on the financial feasibility issue. Accordingly, the Court held that the Supreme Court properly rejected ESDC’s appraisal and based its award on Claimant’s appraisal with such adjustments as the evidence supported.

The case was 730 Eq. Corp. v. New York State Urb. Dev. Corp., 37 N.Y.S.3d 599 (2d Dep’t 2016).


Appellate Court Upholds Determination That Nonconforming Use Was Discontinued

Petitioner OTR Media Group (“Petitioner”) applied to the New York Department of Buildings (“DOB”) to register a sign as a nonconforming advertising sign.  DOB denied the application, finding it was a nonconforming use that had been discontinued for more than two years after being replaced by an accessory sign in 1981. This determination was subsequently upheld by a resolution of the Board of Standards and Appeals of the City of New York (“BSA”).  In response, Petitioner brought an Article 78 proceeding against the BSA to annul the resolution.  The trial court denied the petition, and the Petitioner appealed.

The Appellate Division, First Department found that the BSA’s determination was supported by substantial evidence, noting the two-year discontinuance of the nonconforming use. Furthermore, the Court found there was no basis to disturb the BSA’s decision to discredit affidavits submitted by Petitioner, which contradicted the documents submitted in support of the accessory sign application granted by DOB in 1981. Accordingly, since the record showed that the BSA's determination was supported by substantial evidence and had a rational basis, the court held that petitioners were not entitled to a hearing pursuant to CPLR 7804(h).

The case was OTR Media Grp. v. Bd. of Standards & Appeals of City of New York, 35 N.Y.S.3d 76 (1st Dep’t 2016)


Second Circuit Upholds Regulation Prohibiting Illuminated Peace Sign in Upper West Side Window

Plaintiff was fined pursuant to a City of New York Zoning Resolution for affixing an illuminated peace symbol to the exterior frame of the window of her seventeenth-floor condominium unit on the Upper West Side of Manhattan.  Plaintiff sued the City, claiming the Zoning Resolution and fine thereunder violated her right to free speech.  In a previous decision, the Second Circuit held that Plaintiff lacked standing to challenge the regulations as content-based, but remanded the case to address whether the zoning regulations “constituted an unduly restrictive time, place, [or] manner restriction on speech.” See Vosse v. City of New York, 594 F. App'x 52, 53 (2d Cir. 2015)). On remand, the district court rejected Plaintiff’s argument that the regulations, even if content-neutral, still do not pass constitutional muster due to the manner of the restriction. See Vosse v. City of New York, 144 F. Supp. 3d 627 (S.D.N.Y. 2015).

In the instant case, the Second Circuit affirmed the lower court’s finding that the City Zoning Resolution was a content-neutral restriction on speech that was narrowly tailored to serve a significant government interest, namely the City’s interest in “maintaining an aesthetically pleasing cityscape and preserving neighborhood character.” The Court held that the Resolution left ample forms of communication available, as the height restriction in the Resolution does not prohibit non-illuminated, non-commercial signs.  Moreover, both sides agreed that the Plaintiff was free to display the same sign in her window so long as it was not illuminated.  Finally, while the Court acknowledged Plaintiff’s argument that an unilluminated sign would be harder for passers-by to see at night, it noted that “the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.” Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

The case was Vosse v The City of New York, 2016 WL 6037372 (2d Cir. October 14, 2016)


S.D.N.Y. Holds Concrete Recycler’s Suit Barred on Res Judicata Grounds

In 2008, Plaintiff James Meaney (“Meaney”), principal of co-plaintiff Green Materials of Westchester (“Green Materials””), leased property in the Town of Cortlandt (“Town”) from co-plaintiff George Liaskos (“Liaskos”) to as a “Specialty Trade Contractor,” a permitted use under the Town's zoning ordinance. Meaney received ZBA approval, and then applied for site plan approval. The Planning Board held a public hearing on plaintiffs' site plan application to recycle concrete, and adjourned consideration of the application. One week later, the Town Board enacted a one-year moratorium on processing applications for site plan approvals for certain uses, including specialty contractor yards. In March 2011, the Planning Board denied Plaintiffs’ site plan application. Plaintiffs submitted a new site plan, but this was denied by the ZBA, which stated that Plaintiffs “cannot apply to the planning Board for a Special Permit for a Specialty Trade Contractor where the applicant's activities require the processing of raw materials.” Plaintiffs deny that their proposed activities require processing raw materials.

Green Materials and Meaney then commenced a combined Article 78/declaratory judgment action in Supreme Court, Westchester County, against the Town, the ZBA and Planning Board members, and the Town's building officials, seeking a reversal of the ZBA's determination, and declaratory relief. The court granted the petition and nullified the ZBA's determination, and severed the claim for declaratory relief. Green Materials and Meaney sought leave to amend their complaint to add causes of action alleging violations of their First Amendment rights to freedom of speech and association, and Fourteenth Amendment rights to due process and equal protection. Both leaves were denied, and Plaintiffs commenced this action in federal court.

Defendants moved to dismiss under Rule 12(b)(1), pursuant to the Rooker-Feldman doctrine, which “directs federal courts to abstain from considering claims when four requirements are met: the plaintiff lost in state court, the plaintiff complains of injuries caused by the state court judgment, the plaintiff invites district court review of that judgment, and the state court judgment was entered before the plaintiff's federal suit commenced.” The Court held that this doctrine was inapplicable because the Town and Town officials allegedly violated plaintiffs' constitutional rights; thus, the plaintiffs' injuries were not caused by the state court judgment. As to res judicata, the Court first held that the decisions denying Plaintiffs' motions to amend their complaint were adjudications on the merits with preclusive effect. Next, the Court found Green Materials and Meaney, as lessees of Liaskos's property, were in privity with Liaskos. Finally, Plaintiffs could not avoid res judicata merely by suing the same officials again in their individual capacities. As all of these claims were brought in state court, all of the elements of res judicata had been met.  As such, the Court dismissed Plaintiff’s claims.

The case was Green Materials of Westchester v. Town of Cortlandt, 2015 WL 9302838 (S.D.N.Y. Dec. 21, 2015)


Court Affirms There Is No Entitlement to Nonconforming Use Status As Prior Use Was Discontinued

Petitioner/Plaintiff (henceforth “Petitioner”) commenced an Article 78 proceeding seeking review a determination of the Zoning Board of Appeals for the Town of Mount Pleasant (“ZBA”) denying Petitioner’s appeal from a Code Enforcement Appearance Ticket issued by Respondent Town Building Inspector. The Supreme Court denied the petition and dismissed the proceeding.  Petitioner appealed.

On appeal, the Appellate Division, Second Department held that contrary to Petitioner’s contention, Petitioner failed to establish that its use of the subject property as a maintenance garage and truck storage facility was a preexisting nonconforming use that (1) existed at the time of the enactment of the Town of Mount Pleasant Zoning Code in 1928, and (2) had continued uninterrupted thereafter except for a period of one year or less. Here, the ZBA determined that a use variance issued in 1931 to a prior owner limited the subject property to a sand and gravel operation, a use that was discontinued around 1950. Thus, the Court found that Petitioner's subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. Finally, the Court rejected Petitioner’s claim that Respondents were equitably estopped from prohibiting the operating of a maintenance garage and truck storage facility on the subject lot.  As the evidence submitted by Petitioner failed to establish that there were “exceptional circumstances” involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision, the Court found this claim to be without merit. Thus, the court affirmed the Supreme Court’s denial of the petition and dismissal of the proceeding on the merits.

The case was Bradhurst Site Construction Corp. v Zoning Board of Appeals, Town of Mount Pleasant, 128 A.D.3d 817 (2d Dep’t 2015).


Court Annuls Zoning Board of Appeals Decision Requiring Petitioner to Obtain a Special Use Permit

Petitioner owned a two-bedroom single-family residence in the Town of Hurley, Ulster County. In 2012, Petitioner began listing the property online to rent for terms ranging from one night to an entire season. Respondent Hofstatter, the Town’s code enforcement officer, issued Petitioner an order to remedy for illegally operating a bed-and-breakfast or hotel. Petitioner appealed to Respondent Zoning Board of Appeals of the Town of Hurley, which held that under the Town Code, Petitioner’s short-term rentals required a special use permit. Petitioner commenced a hybrid CPLR Article 78/declaratory judgment. The Supreme Court dismissed the petition and declared Petitioner’s due process and equal protection rights were not violated. On appeal, Petitioner contends that the Town Code does not require a special use permit for the type of short-term rentals that he provides.

While the ZBA did not decide what category of use Petitioner’s activity fell under in the Town Code, it upheld Hofstatter’s determination labelling the use as either a bed and breakfast or hotel. Despite this, Petitioner’s use of the property did not meet either of these definitions in the Town Code. Petitioner’s residence did not have “a common exterior entrance or entrances” provided in the definition of a hotel. In addition, since Petitioner always rented the entire premises and vacated while renting, it was not an “owner-occupied dwelling” in which only “rooms” were being rented as provided in the definition of a bed-and-breakfast. As Petitioner’s use was not prohibited by the Town Code, the Court granted the petition to annul the ZBA’s determination.

The case was Fructher v Zoning Board of Appeals of Town of Hurley, 133 A.D.3d 1174 (3d Dep’t 2015).


2nd Circuit Finds Town Lacked Retaliatory Motive in Keeping Restoration Condition in Variance But Reverses Summary Judgement on Provision’s Reasonableness

Plaintiffs-Appellants brought an action seeking injunctive and declaratory relief against the Town.  Plaintiffs alleged that a variance permitting installation of above-ground pool with protective fencing due to their son’s disability, but required the pool and fence be removed upon sale of the home or when their disabled son was no longer in residence, violated the Fair Housing Act (FHA). Plaintiffs also alleged that the Town retaliated against them for making an FHA claim. The U.S. District Court for the Western District of New York granted Town’s motion to dismiss, and Plaintiffs appealed.

The Second Circuit found that a plain text reading of the statute included no per se rule against land-use regulators, including restoration provisions in zoning variances or other land-use accommodations. However, the reasonableness of a requested accommodation is based upon the cost and whether it poses an undue hardship or substantial burden on the rule maker. Thus, reasonableness could not be determined on the pleadings where balancing the relevant factors would require a full evidentiary record. Accordingly, the Court reversed the dismissal of the FHA reasonableness claim.

On the retaliation claim, Plaintiffs asserted that the lack of a justification for the restoration provisions, and the existence of smaller lots in the without a prohibition on accessory structures, was sufficient to allege a prima facie case of retaliation. However, the instant restoration provision simply reinstituted generally applicable requirements once modification was no longer necessary to meet the needs of Plaintiffs’ disabled child. The Court noted the Town’s purposes could be found in documents annexed to Plaintiffs’ own motion for summary judgment: “Town-wide differences in the applicability of various land-use regulations to various developments and lots preexisted appellants’ request for a variance, and the Auburn Meadows regulations applied to appellants’ neighbors as well as to them.”  Accordingly, the Court affirmed the dismissal of appellants’ retaliation claim.

The case was Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. 2016).



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