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).


Court Holds Municipal Resolution That Excluded Farmer’s Property From Watershed Acquisition By NYC Not A Regulatory Taking

Petitioner owned a 58–acre dairy farm in the watershed in the Village of Andes, Delaware County. In 2010, the New York Department of Environmental Conservation (“DEC”) issued a 15–year water supply permit authorizing continued land and easement acquisitions by New York City (“City”) within the watershed. This permit was subject to special condition No. 10, which allowed certain geographical areas to be excluded if a municipality promptly passed a resolution designating such locations as hamlet areas. In May 2011, Respondent Andes Town Board adopted Resolution No. 31 of 2011, excluding an area in the Town that encompassed Petitioner's farm from City acquisition. Petitioner commenced this proceeding in July 2011 seeking to annul Resolution No. 31. Petitioner alleged that Respondents failed to follow proper procedures in adopting Resolution No. 31, acted arbitrarily, and that the resolution constituted a de facto taking without just compensation. The Supreme Court dismissed the petition, and Petitioner appealed.

On appeal, the Appellate Division, Third Department held that Resolution No. 31 did not exceed Respondents' authority by restricting ownership or transferability of Petitioner's property. The Court noted that towns have broad authority to regulate land use within their borders, and that the City voluntarily consented not to purchase certain upstate property if local municipalities opted to exclude the property as part of an agreement designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities. Accordingly, the court was not persuaded by Petitioner's argument that Resolution No. 31 effected a de facto taking for which she is entitled to just compensation. Furthermore, Petitioner had since found another purchaser, and the resolution did not hinder the property’s existing use as a farming operation. Accordingly, the Court affirmed the holding of the New York Supreme Court in favor of the City and dismissed the petition.

The case was Nelson v. City of New York, 117 A.D.3d 1121 (3d Dep’t 2014).


Appellate Division Upholds Denial of Special Use Permit for Day Care Facility Expansion

Petitioner filed an application for a special use permit to expand a day care facility into nearby vacant retail space.  After a hearing, the Village Board of Trustees denied petitioner’s application for a special use permit, finding that the proposed expansion of the facility into vacant retail space would “result in a dangerous traffic situation, an over intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services.” Petitioner commenced a CPLR Article 78 proceeding to challenge the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

The Appellate Division, Second Department began by noting that the burden of proof for a special use permit is lighter than that for a variance, as the special use permit seeks permission to use a property “in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right.”  Denial of a special use permit must be supported by evidence in the record, and cannot be based solely on community opposition. Furthermore, courts must give deference to the authorized board.  Where the record supports a denial, the court may not substitute its own judgment merely because the record could also support a contrary decision. Finally, the Court noted that it is appropriate for board members to base their decision upon, among other things, their knowledge of the community.  Reviewing the record before the Board, the Court ruled that the decision was supported by the record, and therefore was not arbitrary and capricious.

The Court also addressed allegations that the Board failed to comply with the time limitations to decide on the application under Village Law 7-725-b(6).  The Court said that if the time limit had passed, the Petitioner’s remedy would have been to commence a special proceeding to compel the Board to issue a determination on the application.  Annulment of the Board’s decision is not warranted, and given that the Board did issue a determination, the Court found Petitioner’s claims to be academic.

The case was Smyles v. Board of Trustees of Incorporated Village of Mineola, 120 A.D.3d 822 (2d Dep’t 2014).


Court Upholds ZBA Decision To Grant Area Variance Despite Finding Variance Was Substantial

The Edwards applied to the Zoning Board of Appeals of the Village of Southampton (ZBA) for an area variance allowing them to demolish an existing cottage on their property and replace it with a larger cottage on a different part on their property. After a hearing, the ZBA granted the Edwards’ application. Petitioner, the owner of the property adjacent to the subject property who opposed the application, commenced this proceeding seeking review of the ZBA determination granting the application. The Supreme Court denied the petition and dismissed the proceeding, and Petitioner appealed.

On appeal, the court found that the Zoning Board’s determination that the Edwards required an area variance rather than a use variance had a rational basis in the record, and was not arbitrary and capricious, since they were not seeking to change the essential use of the property. The Court noted that the ZBA engaged in the required balancing test of the statutory factors, namely “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance *893 is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”  

While the Court agreed that the proposed variance was substantial, there was no evidence that granting the variance would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Moreover, the proposed variance would benefit the environment by “eliminating wetlands set-back nonconformities and removing the existing septic system that was located in the wetlands area.”  Accordingly, Supreme Court’s decision to deny the petition and dismiss the proceeding was affirmed.

The case was Wambold v Southampton Zoning Board of Appeals, 140 A.D.3d 891 (2d Dep’t 2016).


Court of Appeals Finds Town’s SEQRA Positive Declaration on Rezoning Not Ripe for Judicial Review

Apellant Ranco Sand and Stone Corporation (“Ranco”) owned two contiguous parcels of property in the Town of Smithtown that were zoned for residential use. In 1997, Ranco leased Parcel One to a private school bus company, which used it as a bus yard and trucking station. Although this use was unapproved and nonconforming, the Town did not enforce the residential zoning requirements. Even so, in 2002 Ranco applied to rezone Parcel One for heavy industrial use. The Town Board issued positive declaration pursuant to the State Environmental Quality Review Act (“SEQRA”) that the rezoning may significantly impact the environment, and requiring Ranco prepare and submit a draft environmental impact statement (“DEIS”). Ranco commenced this CPLR article 78 proceeding against the Town of Smithtown and the members of the Town Board, seeking to annul the positive declaration as “arbitrary, capricious, and unauthorized,” and requesting mandamus relief directing the Town to process Ranco’s application without a DEIS.

Ranco asserted that the declaration imposed a hardship on the company, as the allegedly unnecessary DEIS would cost between $75,000 and $150,000.  In support of its claim that the DEIS was unnecessary, Ranco cited the prior rezoning of the contiguous parcel (Parcel Two) for heavy industrial use, which was approved without a DEIS.  Ranco claimed that the court should treat the Town's prior rezoning of Parcel Two as res judicata and binding on the Town with respect to Parcel One. Respondents moved to dismiss for failure to state a cause of action. The Supreme Court granted the motion, holding the matter was not ripe for judicial review, and the Appellate Division affirmed, noting that the SEQRA positive declaration requiring Ranco to prepare a DEIS was the initial step in the decision-making process, and therefore did not give rise to a justiciable controversy.

On appeal, the Court of Appeals affirmed that the issue was not ripe for review. The Court found that the obligation imposed on Ranco, both as a lump sum of $75,000 to $150,000 annd percentage of the rentals collected under the Parcel One lease, satisfied the first requirement of the ripeness analysis. However, the Court found that the fact that Ranco could not recoup the costs incurred and time spent on conducting a DEIS to be insufficient, without more, to distinguish its case from any other preliminary administrative action. Additionally, Ranco did not claim the declaration is unauthorized or that the property is not subject to SEQRA, nor did it present any other basis to conclude that the Town Board acted outside the scope of its authority.  The Court thus affirmed the dismissal of the petition without addressing Ranco’s claims on the merits.

The case was Ranco Sand and Stone Corp. v Vecchio, 27 N.Y.3d 92 (2016).



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