Court Finds Tire Sales And Automotive Repair Are Conditional Uses Under Applicable Zoning Code

Petitioners owned adjacent parcels of real property in the Village of Monroe zoned for general business. In 2012, Petitioners contracted to sell the parcels to Goddard Development Partners IV, LLC, who planned to use the parcels for tire sales and automotive repair services. The Zoning Board of Appeals then denied Goddard's application for an interpretation of the Village Code’s zoning provisions that the proposed use was permitted as of right, alternatively determining the proposed use was a conditional use requiring a conditional use permit and site plan approval. Petitioners brought an Article 78 proceeding challenging the determination, and the Supreme Court, Orange County annulled the determination, and directed the Building Inspector of the Village of Monroe to deem the proposed use to be a permitted use. The ZBA then appealed.

On appeal, the Appellate Division found that under the Zoning Code, uses permitted as of right and conditional uses were set forth in two zoning schedules. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I–F included, “retail sales” and “repair service, including automotive”. However, column C listed “tire sales and service” among the conditional uses. § 200–3 of the Village Code provides that “in the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control.” As such, the ZBA's determination that the proposed use of the properties for tire sales was a conditional use was correct.

The case is Robert E. Hayell Revocable Trust v. Zoning Board of Appeals of Village of Monroe, 127 A.D.3d 1095 (App. Div. 2015).

Court Upholds Local Health Department’s Approval of Proposed Subdivision

In September 2009, the Ulster County Department of Health – Environmental Sanitation Division (“DoH”) found that there would be no negative environmental impact for a proposed 21-unit residential and one commercial lot subdivision. The subdivision application was subsequently approved by the planning board, and Petitioners, neighbors of the proposed subdivision, brought an Article 78 proceeding challenging the determination. The state Supreme Court dismissed the petition, and Petitioners now appeal to the Appellate Division.

On appeal, the Appellate Division stated that although Petitioners claimthe Department failed to meet its statutory obligations in “regulating the sanitary aspects of water supplies and sewage disposal and controlling pollution of waters,” the Court would not second guess “thoughtful agency decision-making.” The Court noted the DoH’s review, which lasted three years, involved a comprehensive and extensive review of the project including site evaluations, soil and well testing, and a commissioned report from a geologist.  While Petitioners’ provide their own expert opinion, the DoH is free to rely on its own experts in making its decisions. Finally, correspondence from the DoH to the applicant show items identified by the DoH engineer as needing to be addressed, and presumably were addressed prior to final approval. The Court thus upheld the DoH’s determination as not being arbitrary and capricious, irrational, or in violation of law.

The case was Dugan v Liggan, 121 A.D.3d 1471 (App. Div. 2014) and can be found at:

New York City Council Proposes Bill For DoT Regulation of Times Square

Last week, the New York City Councilmen Corey Johnson and Dan Garodnick introduced a bill which would allow the Department of Transportation (“DoT”) to implement new regulations for pedestrian plazas in New York City, most notably Times Square. The goal of the regulations is to improve the flow of pedestrian traffic and better regulate the wide range of commercial activity, which ranges from local businesses to independent vendors, including the costumed characters and other eccentricities that have become associated with Times Square’s unique character.

Under the bill’s, the DoT would use reflective tape, signs, and a new unit of roughly 100 police officers to create highly visible, marked areas for different types of activity. This would include designated “flow zones,” marked by reflective tape, which would essentially be special lanes to keep pedestrian traffic moving.  The DoT would also create multiple “designated activity zones,” at an estimated ten-by-fifteen feet each, set aside for commercial activity, entertainment, or solicitation by groups or individuals.

Previous attempts at regulating commercial activity in highly trafficked areas, including a bill introduced last year, have failed to gain traction amid First Amendment concerns, particularly regarding Free Speech. The most contentious issue has been how to best handle unwanted solicitation, or what some characterize as harassment, by costumed characters, topless women in bodypaint (also called “desnudas”), and other unique characters in Times Square. For the individuals in question, Times Square is a public space in which they are expressing themselves, and they view them, and even Transportation Committee Chair Ydanis Rodriquez emphasized “this is not about Elmo.” Regarding concerns about the enforcement of the new regulations, NYPD Captain Robert O’Hare, who commands the Times Square Unit, made clear that the goal “is not to criminalize this,” but acknowledged that non-compliance may warrant civil or criminal action.

The bill could be voted upon as soon as April 7, 2016. Should the bill pass and be signed into law by Mayor Bill de Blasio, the Department of Transportation will begin the rule-making process, including a 30-day public comment period.

Finally, for your further amusement, here is Batman and company at City Hall to speak out against the proposed bill:

Appellate Court Upholds Violation Finding That Premises Was Being Used As Transient Hotel

The NYC Environmental Control Board determined that Petitioner violated the City Administrative Code and the Zoning Resolution by using the premises primarily as a transient hotel. Petitioner brought an Article 78 proceeding to challenge the determination, which was transferred to the Appellate Division.

Reviewing the ECB determination, the Appellate Division stated the finding was supported by substantial evidence, "including the inspector's unrefuted testimony that he entered 90% of the rooms, spoke to guests concerning the length of their stays, and observed that at least 60% of the premises was being used as a transient hotel. This conclusion was supported by... rooms with three piece bathrooms with toilet seats, towels placed on towel racks, coffee makers, mini-bars… housekeeping service, and a notice warning guests that staying past check-out time would cause them to be charged for an extra day." Finally, Petitioner did not establish that the transient hotel was a lawful non-conforming use existing at the time the relevant statutory provision was enacted and continued thereafter uninterrupted except for a period of up to two years. The Appellate Division accordingly upheld the ECB’s determination and dismissed the petition.

The case was In re Grand Imperial, LLC v City of New York, 115 A.D.3d 436 (App. Div. 2014).

Court Upholds ZBA’s Determination That Property Could Have Single-Family Residence In Addition to Existing Nonconforming Business Use

Petitioner appeals from a decision of the state Supreme Court dismissing his Article 78 claim challenging the determination of the Town of East Hampton Zoning Board that Owner could build a single family residence in addition to the existing commercial building on the Property.

Wainscott Wombles, LLC, purchased a Property in a residential zoning district, which prior to 1975 was a pre-existing nonconforming diner. In 1975, the Zoning Board approved the previous owner’s application to change the nonconforming use from a diner to a real estate office and antique shop. In 2011, a Town Building Inspector determined that the Town Code permitted construction of a single-family residence on the property in addition to the existing commercial building. The Planning Board then approved an application by the Wainscott to construct a separate 600 square foot single-family residence on the Property. In June 2012, the ZBA upheld the Building Inspector's determination, and the state Supreme Court denied petitioner’s resultant Article 78 claims.

On appeal, the Appellate Division found the East Hampton Town Code defines commercial property as “any lot containing a nonconforming business use” and permits “any one commercial property in any district” to have “two uses.” Accordingly, the Court found the ZBA and Planning Board's determinations approving the application of Wainscott to build the single-family residence were not arbitrary and capricious. The judgment dismissing petitioner’s claims was therefore affirmed.

The case was Concerned Citizens of Wainscott v Planning Board of the Town of East Hampton, 129 A.D.3d 716 (App. Div. 2015). The opinion can be accessed at:

Court Rejects Resident’s Attempt to Circumvent Permit Requirement With Adverse Possession Claim

Defendant began construction of a swimming pool without permit approval. When the code enforcement officer notified Defendant of the violation, Defendant filed a permit application. The application was rejected because the pool failed to comply with the applicable set back requirements, but Defendant continued to build the pool regardless.

it was later determined that the pool encroached on Defendant’s neighbor’s property. Defendant eventually applied for an area variance, but the request was denied and Defendant did not appeal or remove the encroachment. Instead, Defendant brought an adverse possession action and sought to have the enforcement stayed. On appeal, the appellate court agreed with the trial court’s decision not to hold the enforcement action in abeyance, noting that even if Defendant were to be successful with the adverse possession claim, she would still need the required variance. Still, you have to give her credit for creative thinking.

The case was Town of Chatham v Smith, 119 A.D. 3d 1282 (3 Dept. 7/24/2014) and the decision can be found at:

Appellate Court Affirms the Annulment of Zoning Map Change Based On Collateral Estoppel

In 2006, Petitioner purchased property in Scarsdale zoned in a multi-family district. In 2007, Petitioner submitted a site plan application to build a multi-family development. The Town’s Commissioner of Planning issued a memorandum directing the Town Engineer to alter the Official Zoning Map to show that the property was actually in a single-family district, and advising the Town's Zoning Board of Appeals that the property had been placed in a multi-family district in error. As such, the ZBA denied Petitioner's appeal, after which the petitioner commenced a CPLR Article 78 proceeding to review the ZBA's determination. The Supreme Court granted the petition, finding that the Official Zoning Map had been amended without notice and a hearing as required under Town Law §§ 264(1) and 265(1). The Court also held that the ZBA's finding that an error in an earlier zoning map had been carried forward to the current map was arbitrary and capricious, based on community pressure, and in bad faith. After the Petitioner submitted a new site plan approval, the Town Board passed resolutions rezoning various properties, including Petitioner’s. Petitioner commenced a second Article 78 proceeding.

In the instant proceeding, the Court ruled that the Town’s arguments were precluded by the doctrine of collateral estoppel. The Town's argument that its amendment of the Official Zoning Map was to correct an error and show that the property was properly zoned in a single-family district was the same issue that was decided in the first proceeding. As the Town had a full and fair opportunity to litigate the issue then, the doctrine of collateral estoppel precluded the Town from re-litigating an issue already raised and decided. The Supreme Court’s decision to grant Petitioner relief was therefore affirmed.

The case is S & R Development Estates, LLC v Feiner, 132 A.D.3d 772 (App. Div. 2d. Dep’t. 2015).

Court Finds Property Retained Its Status As Nonconforming Use Despite Inactivity

Petitioners appeal denial of a permit to operate an automotive repair shop. On review, the Court first found that the trial court erred in transferring the proceeding pursuant to CPLR 7804(g). Despite this error, because the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, the Court held that pursuant to direction of law it would decide the matter on the merits.  The Putnam Valley Code provides that nonconforming use status is lost after such use “is inactive or ceases ... for a continuous period of more than two years.” Based on this language, the Court disagreed with the Zoning Board's contention that the minimal extent of the nonconforming use in this instance constituted either inactivity or cessation, and found that as there had been some automotive repair activity during the relevant time period, the property retained its status as a nonconforming use. The Court accordingly reversed the determination of the Town of Putnam Valley Zoning Board of Appeals, holding that its finding the property had lost its nonconforming use status did not have a rational basis, and was arbitrary and capricious.

The case is TAC Peck Equities, Ltd. v Town of Putnam Zoning Board of Appeals, 2015 WL 1915498 (NYAD 2 Dept. 4/29/2015) and it can be found here:

Court Denies Motion for TRO and Preliminary Injunction Against Enforcement of a Sign Ordinance

Plaintiff, a Town Board candidate in Warrensburg, received an email from the Town’s Code Enforcement Officer informing him that Town Zoning Ordinance § 211.33(B)(1) prohibits signs within the public right-of-way. The email stated notice was being given to all candidates with political signs in the public right-of-way, yet Plaintiff sought to enjoin Defendant from enforcing the ordinance, contending Defendant selectively enforced the ordinance against him due to his political affiliation. Defendant agreed to discontinue its enforcement of the ordinance until after the November 3 general election, and replaced the taken down signs. Allegedly, four of Plaintiff's signs were still missing.

On review, the Court found that even though Plaintiff alleged enforcement of the ordinance violated his First Amendment right, he failed to establish that without a temporary restraining order he would suffer “an injury that is neither remote nor speculative, but actual and imminent.” Defendant stipulated the ordinance would not be enforced before the general election, and claims to have returned those signs that were initially removed. In addition, Plaintiff failed to show the likelihood of success on the merits since he did not present any evidence of how the ordinance was selectively enforced against him. Thus Plaintiff’s motion for a temporary restraining order and preliminary injunction was denied.

The case is Mahar v Town of Warrensburg, 2015 WL 6671335 (N.D.N.Y.).

Appellate Court Finds Petitioner’s Use of Real Property Not Continuation Of Preexisting Nonconforming Use

Petitioner leased his property to several retail stores the Village of Southampton. In 1982, the Village Code was amended to require retail stores operate in at least 800 square feet. In 2008, a Village Building Inspector discovered one of Petitioner’s tenants operated a 100 square foot shop and notified Petitioner of the zoning violation. Petitioner appealed to the Zoning Board of Appeals that the nonconforming unit was a lawful preexisting use, citing an appraisal from its 1999 mortgage application and the certificate of occupancy issued prior to the closing that listed the 100 square foot unit as occupied in 1999. Neither document, however, included a floor plan showing the layout of the shops present in 1999. The Building Inspector responded by producing the 1999 certificate of occupancy and 1981 and 1999 surveys with floor plans and layouts of the seven stores on the property. As these surveys did not show the 100 square foot unit, the ZBA affirmed the Building Inspector's findings.

On appeal, the Court found the record lacked any evidence the 100 square foot unit existed and was used as retail space before or when the zoning code was amended. While the certificate of occupancy gave the petitioner the right to use the seven stores depicted on the 1999 survey, the shop at issue was not portrayed on that survey, thus the certificate did not authorize its use. The court thus held that it was not arbitrary and capricious or irrational for the ZBA to conclude that the petitioner's use of the subject unit was not the continuation of a legal, nonconforming use.

The case is East End Holdings, LLC v Village of Southampton Zoning Board of Appeals, 2016 WL 229660 (App. Div. 2d Dep’t.)

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