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).


Court Holds Use of Property For Large Social Gatherings Was Not Subordinate Or Customarily Incidental to Single-Family Residential Use

Petitioner owned real property overlooking Lake George in the Town of Bolton, Warren County, more commonly known as Highlands Castle. In 2010, Petitioner starting advertising Highlands Castle online as a venue for weddings, corporate meetings, and similar events, describing the property as the “perfect setting for a special gathering with family and friends” or “any other meaningful ‘experience’ you can envision.” Following complaints from nearby homeowners regarding Petitioner's use of the property, the Town's Zoning Administrator issued a determination in March 2012 finding Petitioner’s rental activities did not violate the Town Code. The neighboring homeowners appealed.  After a public hearing, Respondent Zoning Board of Appeals of the Town of Bolton (“ZBA”) overturned Zoning Administrator’s determination. Petitioner then commenced a CPLR Article 78 proceeding to annul the ZBA determination.  The Supreme Court dismissed the petition, and the Petitioner appealed.

On appeal, the Appellate Division, Third Department noted that the ZBA’s determination was based on a finding that given how Petitioner used and marketed Highlands Castle, the challenged use of the property as a venue for weddings and similar events was neither subordinate nor customarily incidental to the property’s primary single-family residential use. The ZBA found Petitioner’s marketing evinced a clear intent to target a rental audience seeking more than just residential use of the property.  There was also no evidence that Highlands Castle had ever been rented as a single-family residence. Finally, during the public hearing, neighboring property owners testified that events held at Highlands Castle generated increased traffic, created overcrowded private roadways and often involved amplified music and announcements, which interfered with their enjoyment of their own nearby homes. Accordingly, the Court found the ZBA’s determination to be neither irrational nor unreasonable, and thus was entitled to deference and should not be disturbed.

The case was Lavender v Zoning Board of Appeals of Town of Bolton, 141 A.D.3d 970 (3d Dep’t 2016).


Court Finds Department of Health’s Review Of Denied Application Insufficiently Detailed

In 2011, Petitioners Sean and Dawn Menon sought purchase property for a vacation home. Prior to making an offer, Petitioner spoke with John Konefal, President of the Wanaksink Lake Club, Inc.  Konefal advised Petitioners that construction of a new house needed approval of the Lake Club and the Town of Thompson's Zoning Board of Appeals (“ZBA”). Petitioners later bought the property, and the Lake Club approved Petitioners' proposed construction plan.  However, the ZBA conditioned the necessary area variances upon Respondent's approval of the proposed well and septic system. Later, in a letter to Konefal, Respondent's Director of the Division of Environmental Health Protection wrote that “this vacant property is too small to be developed for a new home of any size. For this reason, the requested specific waiver ... cannot be issued.” In a separate letter, an engineer in Respondent's district office advised Petitioners that the waiver application was denied solely because “the vacant property is too small to be developed for a new home of any size.” Petitioners and the Lake Club commenced this CPLR Article 78 proceeding to annul Respondent's determination. The Supreme Court granted the petition, and Respondent appealed.

On appeal, Respondent claimed that the engineer’s affidavit sufficiently articulated the basis for Respondent’s determination by explaining why the property's small size did not warrant granting the waiver application. However, the Court noted that the affidavit explained only how the number of bedrooms, but not the size of the property or proposed house, correlated to the sufficiency of a well and septic system. Moreover, the size of the property was never raised as a disqualifying factor during the application process, including site visits and discussions with Petitioners. Accordingly, Respondent’s denial shed “no light upon the manner in which Petitioners’ proof was deemed to be deficient and falls far short of delineating the particular grounds for Respondent’s determination.”  The Court thus affirmed the grant of the petition.

The case was Menon v New York State Department of Health, 140 A.D.3d 1428 (3d Dep’t 2016).


S.D.N.Y. Dismisses Takings Claims as Unripe

Plaintiff owned approximately 68.4 acres in the Village of Chester.  Plaintiff consulted with Town and Village officials about developing the Property, and the Village asked Plaintiff petition to annex the Town portions of the Property into the Village. However, this would have precluded development pursuant to the Village's multi-residential zoning district (“RM zoning”) absent variances or zoning amendments, and so the Village asked Plaintiff to draft a new zoning provision, “Residential Multifamily-Neighborhood” (“RM-N”) that would be specific to this project. Plaintiff then petitioned for annexation of the Town part of the Property into the Village, which required approval under the State Environmental Quality Review Act (“SEQRA”).  The Village approved the annexation, development plan, and RM-N proposal, but the Town Board issued its own SEQRA findings and denied the petition.

Plaintiff and the Village Board commenced, as co-petitioners, an Article 78 proceeding against the Town, seeking to annul the Town's SEQRA findings. The parties reached a settlement that, among other things, stated development of the project site would proceed upon Plaintiff’s “receipt of final, unconditional and unappealable approvals for its proposed project.” The Village Board began processing the RM-N zoning proposal and sent it to the Village Planning Board for review.  However, the Planning Board opposed the RM-N zoning and suggested that the project “could be built as planned under the existing RM multi-residential zoning.” Plaintiff claims “none of the zoning amendments proposed by the Planning Board” would have allowed the project to proceed in accordance with the FEIS and the SEQRA findings, as required by the settlement. Thus, as the Village Board did not affirmatively enact any zoning, Plaintiff argued the Property was left with “no zoning at all.” Plaintiff subsequently filed a breach of contract claim and § 1983 claim alleging violations of the Fifth and Fourteenth Amendments in NY Supreme Court, which was later removed to the federal District Court for the Southern District of New York.

There, Plaintiff claimed that absent any zoning for the newly annexed portion of the Property, it could not demonstrate that its proposal conforms to the applicable zoning regulations.  Therefore, Plaintiff was “precluded from submitting applications for any use or occupancy.” The Court found, however, that Plaintiff could have “elicited from the Planning Board the applicable requirements of site plan approval.” The Court also rejected the claim that Plaintiff’s annexation petition was a land use application for purposes of the Williamson County analysis (a test for ripeness of Fifth Amendment takings claims). Even if Plaintiff submitted a development plan that the Planning Board rejected, or if the annexation petition was a viable substitute, there was no evidence Plaintiff requested any variance or use approvals from the Zoning Board of Appeals. Finally, absent evidence that Defendants used “repetitive and unfair procedures” or “engaged in a war of attrition” against Plaintiff to avoid issuing a final decision, the Court declined to invoke the futility exception required for Plaintiff's claim to be deemed ripe for adjudication. 

The Court then granted Defendants motion to dismiss the federal claims, and remanded the state law claims to the NY Supreme Court.  Please note that this decision is currently under appeal.

The case was BT Holdings, LLC. v. Village of Chester, 2016 WL 796866 (S.D.N.Y.  February 23, 2016).


Appellate Court Holds Property Interest By Prescription Removes Easement Requirement For Variance

Petitioners/Plaintiffs acquired property that included Lots 217 and 217A on the Village of Scarsdale tax map. These lots did not have street frontage, and Lot 215A, owned by the Village, sat between Plaintiffs’ lots and Farragut Road.  Plaintiffs applied to the Zoning Board of Appeals (ZBA) for a variance from the frontage requirements to build a single-family residence. The ZBA granted the variance subject to Plaintiffs obtaining an access easement to cross Lot 215A. Plaintiffs maintained that despite the official Village map, Farragut Road was paved and extended further than depicted, providing more than 20 feet of actual street access to Lot 217. The ZBA took the position that the area was part of Tax Lot 215A, and thus an easement would be required. Plaintiffs commenced an Article 78 proceeding, and the Supreme Court found that Plaintiffs had established that the strip of land was a public street by prescription, and included the public right-of-way that ran with Farragut Road. Respondents/Defendants appealed.

The Appellate Division, Second Department affirmed, holding that Plaintiffs had established that the strip of land was a public street pursuant to Village Law § 6–626, which provides that “all lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” The Court went on to note that “[n]aked use by the public is not enough, and plaintiffs must further demonstrate that the village has continuously maintained and repaired the alleged street and, thus, assumed control thereof during the period of time in question.”

Here, the land at issue was visibly indistinguishable from Farragut Road, and only by referencing survey maps could it be seen as part of Lot 215A. It was also undisputed that the lot was paved by the Village with Farragut Road more than 10 years prior, and the public used it in a manner indistinguishable from the surrounding roadway.  Defendants argued Plaintiffs needed evidence that the Village had made recent repairs to the paved area, but the Court disagreed that such proof was required, noting while there was visible wear-and-tear, the surrounding roadway was in the same condition. As the record was clear that the Village maintained the area in the same manner as the remainder of Farragut Road, the Court held the area was a public street.

The Court concluded by affirming that the prescriptive portion of Farragut Road included the public right-of-way that runs with the remainder of the road, as Village Law directs that prescriptive lands “shall be a street with the same force and effect as if it had been duly laid out and recorded as such,” i.e. it “carries with it the usual width of the street in the locality or such width as is reasonably necessary for the safety and convenience of the traveling public and for ordinary repairs and improvements.”

The case is Soldatenko v Vil. of Scarsdale Zoning Bd. of Appeals, 138 A.D.3d 1003 (2d Dep’t 2016).


Court Annuls ZBA Determination As Arbitrary and Capricious As Nonconforming Use Was Not Allowed To Be Expanded

In 2007, Miller Beach Surf Club, Inc. (“Club”), applied to the Board of Zoning Appeals of the Town of Brookhaven (“BZA”) for certificates of an existing use and for an extension of a nonconforming use, which the BZA granted. In 2008, Petitioner Martinos (“Petitioner”) commenced an Article 78 proceeding to annul the BZA's determination. The Supreme Court granted the petition, annulled the determination, and remitted the matter to the BZA for a new determination. Following remittal, the BZA granted the Club's applications again. Petitioner commenced a second Article 78 proceeding alleging that the BZA's determination was arbitrary and capricious. The Supreme Court denied the parts of the petition to annul the BZA's determination to grant the applications for a certificate of existing use and an extension of nonconforming use. Petitioner appealed.

The Appellate Division, Second Department began by noting that zoning boards determinations are entitled to great deference, and such determinations will only be set aside where “illegal, arbitrary and capricious, or irrational.” The Court also noted that “… nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance.” Accordingly, the owner bears the burden of establishing that the pre-existing use was legal prior to the enactment of the prohibitive zoning ordinance.

Here, the Surf Club established that its existing use of the clubhouse, office building, and one-family dwelling were legal prior to the enactment of the zoning ordinance, and was thus a legal nonconforming use. However, the Surf Club's erection of the decks, the awning, the gazebo, and the detached shed and the completion of certain alterations to its clubhouse constituted an impermissible extension of the nonconforming use, as opposed to a mere increase in volume or intensity of the same nonconforming use that previously existed. Therefore, the BZA's decision to grant the Surf Club's application violated the Code of Town of Brookhaven § 85–883(A)(2), prohibiting the extension of nonconforming uses. Accordingly, the Court held that the portion of the BZA's determination which granted the Surf Club's application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the court below.  The remaining contentions in the petition were dismissed.

The case was Martinos v Bd. of Zoning Appeals of Town of Brookhaven, 138 A.D.3d 859 (2d Dep’t 2016).


Appellate Court Upholds ZBA Finding That Nonconforming Campsite Complied With Applicable Zoning Ordinance

Petitioners, who have owned property adjoining the North Pole Campground (“the Camp”) since the 1990s, wrote a series of letters to the Town of Wilmington Zoning Board of Appeals (“ZBA”) claiming the Camp has failed comply with the Town’s zoning ordinances.  Petitioners claimed that (1) tents and recreational vehicles at the Camp are not properly screened from the public's view and are eyesores, (2) noise from the camp is disturbing, and (3) the Camp has failed to comply with setback, screening, and minimum square footage requirements for individual campsites. 

In response, the Code Enforcement Officer informed Petitioners the Camp was a nonconforming use and that he did not intend to take any action against it.  Petitioners filed an appeal with the ZBA, which was denied after a hearing in June 2013.  Petitioners then commenced a CPLR Article 78 proceeding, claiming the ZBA failed to give the public adequate notice of the June 2013 hearing.  The trial court agreed and remitted the matter to the ZBA for a new public hearing without addressing the merits, and on a properly noticed rehearing the ZBA once again denied the Petitioner’s appeal.  Petitioners appealed the ZBA’s decision to the Supreme Court, which dismissed the petition.  Petitioners then appealed the matter to the appellate division.

On appeal, the Appellate Division, Third Department first noted that to the extent Petitioners sought to compel the code enforcement office to enforce the Town's ordinances, “it is in essence a request for relief in the form of mandamus (see CPLR 7803[1]),” a form of relief “which does not lie to compel the performance of such a discretionary function.”  Turning to the merits, the Court found that the record shows that the Camp has been functioning since the 1960s, predating the enactment of the zoning ordinances in question.  Accordingly, the operation of the Camp a permissible nonconforming use. 

Furthermore, the Court found that the Camp had complied with the Town’s zoning ordinances, notwithstanding that it was not required to do so. The code enforcement officer had measured the campsites and found they all met the minimum area and screening requirements.  He also found that the RVs complained of were owned by the campsite owner and that the ordinance permitted the storage of personal RVs for up to 15 consecutive months.  Finally, the code enforcement officer found that because the tent campsites used by RVs had water and electricity access, the use by RVs was permitted. The Court therefore concluded that the ZBA's determination had a rational basis and affirmed the Supreme Court’s dismissal of the appeal.

The case was Cooney v. Town of Wilmington Zoning Bd. of Appeals, 140 A.D.2d 1350 (3d Dep’t 2016).



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