Court Allows FHA Claim By Sober Living Home Operator To Proceed To Trial

ober living homes are often controversial and draw the ire of local residents who object to having such operations in residential neighborhoods. However, as individuals recovering from substance abuse issues are treated as disabled under the Fair Housing Act ("FHA") and Americans With Disabilities Act ("ADA"), municipal attempts to restrict or close such facilities can run afoul of federal law. This is the situation in Swanson v. Cit of Plano, 4:19-cv-412.

The case centers on a sober living home run by Women's Elevated Sober Living LLC, and located on property owned by Constance Swanson. Since 2018, the home has housed 15 to 19 unrelated residents, despite a City ordinance limiting occupants to eight unrelated individuals plus two caregivers. After being informed of the violation, Swanson applied for a variance as a reasonable accommodation. After a public hearing with more than 50 residents in opposition, the Board of Adjustments denied the variance. Swanson then filed suit under the FHA and ADA, alleging that the ordinance discriminated against individuals with disabilities.

The City filed four motions for summary judgment. Three of these motions addressed procedural issues or standing, but each was rejected by the Court. The City's final motion asserted that Swanson's claim that the City's ordinance was facially discriminatory lacked merit as a matter of law, and should be dismissed.

Swanson's claim turned on the definitions of (1) "Household," which permits "one or more individuals related by blood, marriage, adoption... and not more than 4 adult unrelated individuals....", and (2) "Household Care Facility," which allows not more than 8 unrelated persons, plus two caregivers. The Court held that these definitions were not dispositive evidence of discrimination, but met Plaintiff's prima facie burden. In response, the City cited its non-discriminatory grounds for the ordinance, namely "promoting the general welfare, promoting family values, and controlling density." Ultimately, the Court held that Plaintiff has raised a genuine issue of fact as to whether the City's reasons for the ordinance were pretextual, and denied the City's final motion for summary judgment.

First Department Holds Planning Commissioner Considered Appropriate Factors In Renewing Special Permit

Respondent Hospital for Special Surgery (“HSS”) applied to the New York City Planning Commission to renew a special permit to construct a new hospital building.  The Planning Commission granted the application, and the petitioner, a nearby apartment company, filed a petition seeking to annul the determination granting the renewal.  The Supreme Court of New York denied the petition, and the petitioner appealed.

On appeal, the First Department held that the Commission’s determination that “the facts upon which the special permit was granted have not substantially changed” was rationally based in the record and not contrary to the law.  The Court emphasized that they owed deference to the Commission’s rational construction of the relevant statute, namely that the “facts” to be assessed refer to the scope and terms of the permitted project, rather than external factors, such as environmental impacts that may have resulted from area development during the years since the original grant of the special permit.  As such, irrespective of the merits of petitioner’s claim that the Planning Commission should have considered external factors, the Court must affirm the Planning Commission’s rational conclusion that a full-scale reassessment of the project's impact was not needed.

The case was Edgewater Apartments, Inc. v. New York City Planning Comm'n, 177 A.D.3d 576 (1st Dep’t 2019).

Fourth Department Rejects SEQRA Challenge To Approval Of Four-Story, Mixed-Use Building

Respondent Affinity Elmwood Gateway Properties, LLC sought to build a four-story mixed-use building in the City of Buffalo (“City”). The project called for demolishing 14 structures in a district listed on the National Register of Historic Places. Respondent Planning Board of City of Buffalo (“Planning Board”) was the lead agency under State Environmental Quality Review Act (“SEQRA”) and, after determining that the project was in compliance with SEQRA's mandates, granted site plan and minor subdivision approval. Petitioners commenced a CPLR article 78 proceeding to annul the determinations of the Planning Board. The Supreme Court dismissed the amended petition, and Petitioners appealed.

On appeal, the Fourth Department rejected a challenge to the notices of the ZBA’s hearing, noting they listed the dates and times of the hearings, said that they were for “variances” or “variance applications” regarding the construction of a “mixed use building” at the relevant property address, and listed a website address, telephone number, and email address for the public to obtain further information.  Moreover, while the ZBA imposed a three-minute time limit per speaker and closed one hearing before every member of the public could speak, the ZBA stated that it would accept all written comments.  Accordingly, the Court held that those restrictions were reasonable in nature and allowed the public an opportunity to be heard.

The Court similarly rejected Petitioners’ claim that the Planning Board did not comply with the substantive requirements of SEQRA because it failed to take the requisite hard look at identified historic resources as an area of environmental concern or provide a reasoned elaboration for its determination. The Court noted that the record showed that the Planning Board initially issued a positive declaration pursuant to SEQRA, i.e. had “the potential to result in a substantial impact on the neighborhood character,” and informed the New York State Office of Parks, Recreation and Historic Preservation (“SHPO”) of the project as an interested agency. The SHPO recommended that the “impacts to important historic resources be considered in your review,” and noted the project would “significantly and negatively alter the character of the surrounding historic districts.” The Planning Board’s final environmental impact statement addressed the concerns raised by SHPO, but ultimately disagreed and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. As the record demonstrated that the Planning Board conducted a lengthy and detailed review of the project, and a written elaboration for its determination, its determination was upheld as not arbitrary, capricious, or unsupported by substantial evidence.

The case was Davis v. Zoning Bd. of Appeals of City of Buffalo, 177 A.D.3d 1331 (4th Dep’t 2019).

Second Department Affirms Denial of Variance Sought For Subdivision

In 1995, Petitioner bought a 157,241 sq. ft., property in the Village of North Haven (“Village”) that was improved with a single-family dwelling. The property was zoned “R–1,” which required a minimum lot size of 80,000 square feet. In 2016, Petitioner applied for an area variance so he could subdivide the property into two lots. The north lot would be 80,000 sq. ft. and include all existing residential improvements. The south lot, which was in a natural state, would be 77,241 sq. ft. and developed into a single-family residence. After a hearing, the Village’s Zoning Board of Appeals (“ZBA”) found that although the variance was not substantial, the substandard lot would have a detrimental effect on the character of the neighborhood, which contained many lots that were significantly larger than the required 80,000 sq. ft.  Petitioner commenced a proceeding CPLR article 78 to review the ZBA's determination, and the Supreme Court denied the petition and dismissed the proceeding.  Petitioner appealed.

On appeal, the Second Department held that the record demonstrated that the ZBA engaged in the required balancing test and considered the relevant statutory factors. Specifically, the Court found that the ZBA's determination that the introduction of a substandard lot was detrimental to, and would cause an undesirable change in, the character of the neighborhood had a rational basis. In addition, Petitioner presumably knew about the applicable zoning restrictions when he purchased the property.  As such, any resulting hardship was self-created. Accordingly, the Court affirmed the Supreme Court's determination to deny the petition and dismiss the proceeding.

The case was Kaye v Zoning Board of Appeals of the Village of North Haven, 185 A.D.3d 820 (2d Dep’t 2020).

Third Department Finds Road Run-Off Contaminating Property Owner’s Well Constituted Taking

Property owner plaintiffs commenced this action after snow plows operated by defendant Town of Shandaken (“Town”) allegedly damaged part of a privacy fence installed along Fox Hollow Road in the front of their property. Plaintiffs alleged trespass and negligence for damage to the fence, and a third cause of action alleging that the Town widened Fox Hollow Road in 2010, taking their property without compensation and altering the drainage such that run-off from the road contaminated their well.  The Supreme Court, Ulster County, granted the Town’s motion for summary judgment, and Plaintiffs appeal.

On the first two causes of action, Plaintiffs argued that the Town’s easement was limited to the width of the paved portion of Fox Hollow Road prior to the 2010 expansion because that is the only portion of the road that had been used by the Town for the statutory period of 10 years.  However, the Third Department noted that under Highway Law § 189, once a roadway is established as a highway by use, a town may maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Here, it was undisputed that Plaintiffs’ fence and the widening of the roadway were within the three-rod width that defendants were statutorily authorized to open. As the Town was engaging in permissible uses of its easement, the lower court’s judgment was affirmed

On the third cause of action, however, the Court held that the lower court erred in granting the Town’s motion to the extent that it alleged a de facto taking based upon the contamination of plaintiffs’ well.  The Court found that the record established that the Town proffered no proof and, accordingly, did not meet its initial burden concerning this claim.  Thus, the Third Department reinstated this claim.

The case was Hoffman v. Town of Shandaken, 147 A.D.3d 1275 (3d Dep’t 2017).

District Court Rejects Constitutional Challenge To Hours of Operation Limits On Restaurant/Bar

Plaintiff Obsession Sports Bar & Grill, Inc. (“Plaintiff”) alleged that the City of Rochester (“City”) violated its due process rights and improperly restricted its hours of operation because Section 120-34(O) of the Rochester Municipal Code was “an impermissible exercise of municipal zoning power” that conflicted with the New York State Alcoholic Beverages Control Law (“ABC Law”).  Under the ABC Law, establishments with liquor licenses can sell alcohol from 8:00 a.m. until 2:00 a.m. Monday through Saturday, and from 12p.m. to 2:00 a.m. on Sundays.  Plaintiff commenced an Article 78 proceeding to challenge the regulation, and both the Supreme Court and Fourth Department agreed the City law was preempted by the ACB Law.  Plaintiff then filed the instant action in federal court.  

The District Court for the Western District of New York first held that while the Complaint did not specify whether the claim was for procedural or substantive due process, the Court interpreted the pleading as asserting a substantive due process claim, as it alleged the City injured Plaintiffs’ property rights to operate their business during all hours allowed by the ABC Law through an “illegal ordinance.”  Such claims require both “a valid property interest” and that “defendants infringed on the property right in an arbitrary or irrational manner.”  However, a plaintiff cannot maintain a substantive due process claim merely because he was deprived of property pursuant to a statute or ordinance that is later found to be contrary to, or preempted by, state law.  Here, it was undisputed that the City acted under color of state law when it enacted § 120-34(O), which had the effect of restricting the hours in which Plaintiff could remain open and sell alcohol.

Thus, even assuming Plaintiff had a sufficient constitutionally-protected property interest in their New York State Liquor License, the Court found Plaintiffs failed to show that the City lacked the authority to enact this zoning provision. Furthermore, Plaintiff did not challenge the City’s authority to enact zoning provisions generally, or that any type of “fundamental procedural irregularity” occurred during the process by which Defendant enacted § 120-34(O). Finally, Plaintiffs did not produce any evidence that in enacting § 120-34(O), Defendant was motivated by any personal animosity towards Plaintiffs, or that Defendant acted for an improper purpose. As such, the court held Plaintiff’s failed to state a claim and dismissed the action.

The case was Obsession Sports Bar & Grill, Inc. v. City of Rochester, 235 F.Supp.3d 461 (W.D.N.Y. 2017).

Court Overturns Planning Board’s Denial of Site Plan Based On Traffic Study and Community Opposition As Arbitrary and Capricious

In July of 2012, 7-Eleven filed a site plan application (“Application”) with the Town of Babylon (“Town”) Planning Board for a proposed store in West Babylon, New York.  7-Eleven subsequently revised the site plan to incorporate comments from the Town, and submitted expert evidence addressing the Town’s other concerns.  In particular, the Town Traffic Division issued a memo noting that all of its concerns and objections were met.  In December of 2013, the Planning Board held a public hearing on the application.  During the public hearing, community members, including a nearby 7-Eleven store owner, opposed the new store.  The Planning Board left the record open for the submission of a traffic study by 7-Eleven, and additional public comment.  After this public hearing, the Town’s Traffic Division issued a new memo outlining objections to the Application, including the number of on-site customer truck parking spaces and whether the delivery zone could accommodate a tractor-trailer.  This memo began a two-year back-and-forth between applicant and the Town, as 7-Eleven attempted to address each comment.  When pushed for an “up or down” vote on the Application, the Planning Board finally voted to deny it in August of 2016.  Both 7-Eleven and the property owner appealed to the Supreme Court, Suffolk County.

As an initial matter, the Court undertook a ripeness analysis, rejecting the Town’s claim that petitioners were required to seek a variance approval from the zoning board, even though the planning board had issued a denial. “Petitioners sought both site plan review and for a permit to commence demolition and new construction on their intended site.  Respondents granted neither application, with the practical import of each denial being that petitioners cannot move their project forward.  Thus, to conclude as respondents seek that petitioners have not yet been injured, or rather, that respondents’ determination is not yet in final form contorts logic.”

The Court the noted the similarities to 7-Eleven’s Article 78 proceeding against the Village of Mineola over its denial of a special use permit.  Here, the Town’s Planning Board, like the Board of Trustees in the Mineola case, denied the applications partly because of perceived traffic impacts from tractor-trailer deliveries and perceived noise problems from overnight deliveries, even though 7-Eleven supported both applications with affidavits stating that delivery times would be restricted, and that only box trucks would deliver to the stores.  Relying upon the Appellate Division’s decision in that case, the Court concluded that it is arbitrary and capricious for a municipality to deny a 7-Eleven store application on the grounds of tractor-trailer delivery concerns or overnight delivery concerns where 7-Eleven had filed an affidavit stating that those two events will not occur.

The Court also found that the Planning Board’s decision was irrational, arbitrary and capricious in light of the “empirical data” submitted “evidencing that the proposed use would not carry deleterious impact or effects on the adjacent residential neighborhood as far as increased traffic or public safety.”   The Court wrote that the Planning Board could not point to any contradictory “objective, factual or scientific support” to credit the concerns of the community opposition.  In sum, the Court held, “Even after giving respondents’ due deference in its expertise in local planning matters and site plan review, this Court finds that respondents did not attempt to counter petitioners’ scientific and factual evidence, but instead rather relied upon conclusory and speculative concerns to justify denial of petitioners’ application.”   Thus, the Court held municipalities could not base their decisions on the community’s political pressure or its unsubstantiated objections, or ignore traffic and engineering studies or an affidavit of the applicant in favor of its own opinions.

The case was 7-Eleven and Louhal Properties v. Town of Babylon, 2017 NY Slip Op 31467(U) (Sup. Ct. Suffolk County, July 7, 2017).

Appellate Court Finds Action Did Not Meet Exception To The Mootness Doctrine And That Town Violated Open Meetings Law

In 2011, respondent New York Safety Track LLC applied for site plan approval from respondent Town of Harpersfield Planning Board to convert a former airport property to a motorcycle safety training facility.  The Planning Board’s minutes show that the Board conditionally approved the proposed site plan, and that the facility was completed thereafter. After receiving numerous complaints from neighbors that the facility was hosting large, high-speed racing events, respondent Town of Harpersfield Code Enforcement Officer (“CEO”) advised Safety Track that its advertised racing and large events were not authorized uses under the site plan that had been approved by the Planning Board.  A few weeks later, the CEO, Planning Board, Town of Harpersfield and Safety Track executed an “Agreement for Operation of New York Safety Track” (“2013 agreement”) and an events calendar for the 2013 facility's season, which purported to outline Safety Track's approved land uses for May 1, 2013 to December 31, 2013.  A group of concerned landowners brought a CPLR Article 78 proceeding challenging the agreement, and the Supreme Court issued a judgment holding that Petitioners' challenge to the then-expired 2013 agreement was not moot, annulled it, and made declarations regarding the scope of Safety Track's permissible land uses.  Respondents appealed.

The Appellate Division, Third Department began by noting that where the passage of time or a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy, the claim must be dismissed.  Here, the 2013 agreement pertained solely to Safety Track's land uses and events that occurred during the 2013 track season and expired at the end of that year, thus rendering the challenges to the 2013 agreement moot.  Furthermore, the Supreme Court did not err in finding that the Town violated the Open Meetings Law several times leading up to the execution of the 2013 agreement, nor in awarding Petitioners reasonable attorneys’ fees and costs. This reflects that the Town's conduct denied Petitioners “any meaningful participation” in the process leading to the final adoption of the 2013 agreement, in clear contravention of Public Officers Law § 103(e). For these reasons, the court dismissed the appeal and modified the underlying judgment to the extent that it annulled the 2013 agreement.

The case was Ballard v New York Safety Track, LLC, 126 A.D.3d 1073 (3d Dep’t 2015).

Third Department Upholds ZBA Determination That Property Used By Church To House Homeless Qualified As A House Of Worship Under Zoning Code

Respondent Bethany Reformed Church (“Church”) owned property within zoning district R-1B, for single family medium density residencies, that was adjacent to Petitioner’s home.  Permitted uses include single family detached dwellings and houses of worship, defined by the Code of City of Albany as “a structure or part of a structure used for worship or religious ceremonies.” The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals, and based upon the apparent non-religious use, the Church was informed that a use variance and/or special use permit would be required.  Following the church’s application and public hearings by the Board of Zoning Appeals (“ZBA”), the ZBA found that the “proposed use is consistent with mission and actions of a house of worship,” and that no zoning exemptions were necessary. Petitioner filed an Article 78 proceeding to annul the Board’s determination. The Supreme Court granted the petitioner’s application, annulling the Board’s determination, and this Respondents appealed.

On appeal, the Appellate Division, Third Department noted the well-established standard that a ZBA’s interpretation of a zoning provision is afforded great deference, except where there is an issue of pure legal interpretation.  While the Court noted Respondents and the Supreme Court took different views on whether the issue was factual or legal, the Court determined that this issue did not affect the ultimately outcome, namely that the Board’s determination should be upheld under either standard.

While the term “house of worship” often is synonymous with a structure where formal, organized religious services take place, the Court recognized that “the courts of this [s]tate have been very flexible in their interpretation of religious uses under local zoning ordinances.” Noting that religious uses and activities are more than prayer and sacrifice, and that the concept of acts of charity as an essential part of religious worship is a central tenet of all major religion, “services to the homeless have been judicially recognized as religious conduct.”  Accordingly, the Court concluded that the plain and ordinary meaning of the term “house of worship” included the instant circumstances, reversed the decision of the Supreme Court, and reinstated the decision of the ZBA.

The case was Sullivan v Board of Zoning Appeals City of Albany, 144 A.D.3d 1480 (3d Dep’t 2016), leave to appeal denied, 29 N.Y.3d, 901 (2017).

Fourth Department Finds Denial Of District Boundary Appeal Was Arbitrary And Capricious

Petitioner owned property in the Woodlot Overlay Protection District in the Town of Irondequoit. Section 235–44 Irondequoit Town Code provides that the “Town Department of Planning and Zoning shall be responsible for interpreting EPOD boundaries based on an interpretation of the Official Town of Irondequoit EPOD Maps, as well as the use of various criteria set forth in this article for determining such district boundaries.” It further provides that “appeals… regarding boundaries of overlay districts shall be made to the Town Planning Board in accordance with the public hearing procedures.” Petitioner appealed to Respondent Town Planning Board regarding the boundaries of the Woodlot EPOD that encompassed his property, and submitted evidence that his property did not meet the criteria for a Woodlot EPOD set forth in section 235–53(B). Respondent denied the appeal, and Petitioner commenced an CPLR article 78 proceeding.  The Supreme Court granted Respondent’s motion to dismiss, and Petitioner appealed.

On appeal, the Court agreed with the lower Court that the Town Code’s plain language did not prohibit Respondent from changing the boundary lines shown on the EPOD maps, and that Respondent’s authority to make such changes extended beyond situations in which the property was located near the existing boundary as shown on the EPOD map. However, the Court rejected Respondent’s claim that the appeal was untimely, as the Town Code did not set any time limit for when property owners could seek an interpretation of overlay district boundaries. Thus, the motion to dismiss should not have been granted, and the lower court’s decision was accordingly reversed, and the petition reinstated.

The case was Gilbert v Planning Board of Town of Irondequoit, 148 A.D. 3d 1587 (4 Dep’t 2017).

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