Court Holds City Council May Disapprove Planning Commission’s Grant of a Special Use Permit On Policy Grounds

Petitioner brought a proceeding under CPLR Article 78 seeking reversal of the City Council’s decision to deny a special permit application. On review, the Court held the New  York City Council may disapprove of the Planning Commission's grant of a special use permit where there is a rational basis and it was not arbitrary and capricious. The Court noted that even where the Council had legislated a standard, the City Council “has not divested itself of the power of further regulation, unless the standards expressed purport to be so complete or exclusive as to preclude consideration of other factors.” Thus the power to grant or deny a special permit is not limited to the specific permit standards in the Zoning Resolution. Rather, the Court found the City Council may properly consider policy issues, and that here the Council, "...properly denied petitioners' application upon consideration of matters related to the public welfare, including concerns about the over-saturation of similar buildings in the area, the poor condition of petitioners' building, and the precedent that approval of the permit would set for overbuilding first and requesting permission after the fact."

The case is Liska NY, Inc. v City Council of the City of New York, and the full decision may be found here:

Appellate Court Rejects Defendant’s Motions To Dismiss For Lack Of Standing And Personal Jurisdiction

In an action to permanently enjoin alleged violations of the New York City Zoning Resolution, defendant Robert Cunningham appealed from an order of the Supreme Court, Kings County denying his motion to dismiss for lack of standing and personal jurisdiction.

Standing in a private common-law action to enjoin zoning violations requires the plaintiff establish that the defendant's activities have caused the plaintiff damages “different in kind and degree from the community generally,” and that plaintiff interest is “‘within the zone of interest to be protected’ by the statute or ordinance at issue.” Here, the court found that the record indicated the plaintiffs' property was in close proximity to the defendants' property and that the plaintiffs' interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated. Because defendant failed to rebut this evidence, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3).

The court also found that the trial court properly denied the appellant's motion to dismiss for lack of personal jurisdiction because the appellant failed to submit a sworn denial of receipt of process to rebut the presumption of proper service. The court therefore affirmed the determination of the trial court to dismiss Cunningham’s motions.

The case is Gershon v Cunningham, 2016 WL 229867 (App. Div. 2d Dep’t.)

Department of Environmental Conservation Proposes New Dumping Regulations

On February 28, 2016, the New York State Department of Environmental Conservation (“DEC”) proposed a comprehensive revision to the Part 360 regulations governing the transportation and disposal of solid waste materials.  These proposed regulations, governing everything from bio-hazardous materials and organic waste to construction debris, makes both substantive changes and reorganizes of the law to provide separate subparts for different types of waste. In particular, the new regulations would impose strict requirements for the transportation, storage, and disposal of construction and demolition debris (“C&D”), which has been involved in high profile illegal dumping cases in recent years. Most regulations would also apply to waste called “historic fill.”

Illegal dumping is a serious problem on Long Island. As a sole-source aquifer region, Long Island’s 3 million residents rely entirely on a single underground source for its drinking water, making groundwater pollution potentially devastating. In addition, illegally dumped material may be hazardous to those who come in contact with it, either because it contains toxic materials such as asbestos or lead, or more mundane dangers such as broken glass. 

The Suffolk County District Attorney is currently investigating four different illegal dumping sites, in areas as diverse as Roberto Clemente Park in Brentwood, state-protected wetlands in Deer Park, and a development with homes for veterans. Though the individuals responsible face a 32-count indictment, unsealed December 2014, cleanup did not begin until the end of last year. All told, removing the illegally dumped material and shipping it to Pennsylvania to prevent groundwater seepage is expected to cost between $1.4 and $3 million. The proposed regulations aim to prevent similar events in the future.  

Though the proposal is comprehensive, the provisions related to C&D are the most noteworthy. C&D, the type of material illegally dumped in the case above, includes concrete and masonry materials (ex: steel, fiberglass reinforcement), brick, soil, and rock. The proposed regulations on C&D processing facilities, codified as Subpart 361-5, also cover asphalt pavement, gypsum wallboard, and non-asbestos containing asphalt roofing shingles.

Under the proposed regulations, facilities receiving C&D materials must register with DEC, with facilities receiving over 250 tons on any day needing a permit. At the facility, C&D or asphalt pavement may be stored uncovered for up to 180 days in piles not exceeding 20 ft. high, 40 ft. wide, and a volume of 20,000 cubic ft. All other material must be covered and stored for no more than 30 days. These piles must be spaced 25 ft. apart (50 ft. if combustible) and 50 ft. from property boundaries, and may not be in excavations. Finally, the floors of these storage areas must be concrete or asphalt paving and equipped with drainage and retention structures for potentially contaminated materials. These are all subject to modification with DEC approval.

Finally, the proposed regulations impose new recordkeeping requirements on both transporters and facilities receiving C&D. All material going to and from a registered or permitted C&D facility must be accompanied by a tracking document. This document must include the name and address of the originating facility, transporter, and destination of the waste, plus detail the type and quantity of waste being moved. These documents, which must be kept for 7 years and made available for inspection, must also be signed at each stage of the process, with the final copies sent back to the generating facility once the material reaches its destination. The regulations would also tighten storage requirements during transport.

The full text of the proposed regulations, along with supporting documents, comment period information, and the scheduled public hearings, can be found on the DEC’s website at:

Supreme Court Grants Certiorari Takings Case

Last month, the US Supreme Court granted a Petition for Writ of Certiorari for Murr v. State of Wisconsin (Docket Number 15-214). The question before the court is whether the “parcel as a whole” concept described in Penn Central Transportation Company v City of New York, requires that two legally distinct but commonly owned contiguous parcels must be combined for the purpose of a takings analysis.

In regulatory takings cases, the scope of property to be considered will often determine if a regulatory imposition constitutes a taking.  Generally speaking, the larger the property to be considered, the less severe the regulatory impact on the entire parcel-as-a-whole. Conversely, the regulatory impact on a small parcel will be more concentrated and thus is more likely to be adverse. As the economic impact of a regulation is usually key important factor in determining whether a taking has occurred – with a regulation that entirely eliminates the value of the relevant parcel a per se taking – a decision by the Supreme Court to narrow or expand the definition the relevant parcel could be one of the most significant takings cases in decades. This is definitely a case to keep an eye on going forward.

To familiarize yourself with the facts of the case more closely, the lower court’s decision was Murr v. Wisconsin, 359 Wisc. 2d 675 (Wis. App. 2014), rev. denied, 862 N.W.2d 899 (Wis. 2015).

Second Circuit Affirms Dismissal of Inverse Condemnation Claim

Plaintiff Arrigoni Enterprises, LLC (“Plaintiff), brought suit against the Town of Durham, the Planning and Zoning Commission, and the Zoning Board of Appeals (collectively “Defendants”) claiming that the denial of Plaintiff’s permit application by the Defendants was an unconstitutional inverse condemnation and violated the Plaintiff’s rights under the Due Process and Equal Protection Clauses. In instant decision, Plaintiff is appealing from District Court’s summary judgment in favor of the Town.

On appeal, the Second Circuit affirmed the District Court’s ruling on all counts. Regarding the inverse condemnation claim, the Second Circuit agreed that the claim was unripe as the Plaintiff had not sought compensation under the existing State procedures for the alleged taking. For the Equal Protection claim, the court also upheld dismissal on the grounds that the application sought to permit “rock-crushing” in a zone where rock crushing was expressly prohibited, thus undermining any attempts to show better comparable treatment for another entity.

On the issue of the development permit, the Court noted that a constitutionally cognizable property interest only vests when the Plaintiff can show “clear entitlement” to the permit. This “entitlement” only exists when the issuing agency has so little discretion as to make it that approval is “virtually assured.” As the permit process affords the ZBA broad discretion, this does not apply and there is no property interest under which a Due Process claim can be made. Thus the Second Circuit affirmed the decision on all counts.

The case was Arrigoni Enterprises, LLC v Town of Durham, 2015 WL 6118204 (2d Cir. 2015).

Appellate Court Upholds Rejection of Application for Advertising Signs

The Appellate Division recently upheld a determination by the Board of Standards and Appeals rejecting an application to place advertising signs on the roof and walls of buildings near the exit roadway of the Holland Tunnel. The Court said that the Board’s determination was neither arbitrary or capricious, an abuse of discretion, or contrary to the law. Specifically, the Court agreed with the Board’s interpretation that the exit roadway is an "approach" within the meaning of the Rules of City of New York Department of Buildings § 49-01, and therefore is an "arterial highway" within the meaning of § 42-55 of the Zoning Resolution.  Finally, the Court noted that although the Department of Buildings had previously approved the signs, the Board may subsequently reject its previous findings if it adequately explained its reasons for doing so. The appellate court rejected the petitioner’s argument that the rejection was a violation of commercial free speech.

The case is Take Two Outdoor Media, LLC v Board of Standards and Appeals of the City of New York, 2015 WL 2401486 (App. Div. 1st Dep’t.). and can be accessed at:

Court Upholds Decision to Allow Construction of Tennis Court in Front Yard of Nonconforming Lot

Petitioner commenced a CPLR Article 78 proceeding challenging the decision by the Zoning Board of Appeals for the Town of Southampton to grant an application for an area variance allowing the applicant, 34 Cove, LLC, to construct a tennis court in the front yard of its nonconforming lot. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Appellate Division found that the Zoning Board of Appeals had completed the required balancing test of the relevant statutory factors in making its decision.  It noted that while Petitioner was correct that the proposed variances were substantial and the alleged difficulty was self-created, “there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood....” The Court also rejected the viability of the Petitioner's proposed alternative location, as well as the contention that the Code prevented the Town from approving construction of a tennis court on a nonconforming lot that lacks a primary structure. In light of this, and given the broad discretion of a zoning board to grant area variance applications, the Appellate Division affirmed the lower court’s ruling to dismiss the proceeding.

The case was Borrok v. Town of Southampton, 130 A.D.3d 1024 (2d Dep’t. 2015).

Court Finds Challenge to DEIS Unripe For Review

Plaintiffs owned real property in Kings Park that had been used as a bus yard and trucking station by a third party lessor for several years. In 2002, Plaintiff filed an application with the Town of Smithtown to rezone the property from residential to heavy industrial. Several years then passed before the Town Board issued a positive declaration pursuant to SEQRA (State Environmental Quality Review Act) requiring a DEIS (draft environmental impact statement). Plaintiff commenced an Article 78 proceeding against the Town, arguing that the determination was arbitrary and capricious because it had already allowed a long-time use of the property consistent with a zoning of heavy industrial and thus the DEIS would be of no benefit. In addition, the process of preparing and circulating a DEIS would be enormously expensive and time consuming for the Plaintiff.

Despite all of this, the Court found that the issuance of the positive declaration was procedurally a first step in the process for the parties, despite the number of years which had already lapsed since the application was initially submitted for review. For that reason, the court found the matter to be unripe.

The case was Ranco Sand and Stone Corp. v. Vecchio, 2014 WL 6676772. The decision can be found here:

Court Finds Town’s 30-Day Statute of Limitations Takes Precedence Over The Standard 6-Year Term

Developer sought site plan approval for constructing a 24-unit townhouse project. The Town of South Bristol Planning Board (“Board”) responded with a negative declaration of environmental significance and site plan approval. In 2009, Developer altered project from townhouses to condominiums, and the Board again issued a negative declaration and site approval. Finally, in 2012, the Board approved a re-subdivision creating two lots from the previous twenty-four. Plaintiff commenced action for declaratory judgment that the 2009 site plan approval automatically terminated because “significant work” had not been timely commenced. Defendants moved under CPLR 3211(a)(5) to dismiss due to the statute of limitations; Plaintiff cross-moved under CPLR article 63 for a preliminary injunction halting construction work and development of the project. Supreme Court granted defendants' motion to dismiss.

On appeal, the Appellate Division found that even though the statute of limitations for declaratory judgments is normally six years, when the claim in question could have been brought in another form, the statute of limitations with the shorter term applies. Here, Town Law § 274–a (11) gives a 30–day period for bringing an Article 78 proceeding challenging “a decision of the planning board or any officer, department, board or bureau of the town”. Thus plaintiff's challenge to the Town Code Enforcement Officer's interpretation of “significant work” could have been brought in a Article 78 proceeding under Town Law § 274–a (11) and accordingly was time-barred.

The case is Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (4 Dept.) and the opinion can be accessed at:

Court Upholds Condemnation of Property To Expand Public Airport Runway

Petitioner requested judicial review of the County’s determination to condemn real property for the purpose of expanding the runway at a public airport, claiming that the County failed to demonstrate that an actual public use, benefit, or purpose will be served by the taking. The court rejected this claim, noting that while it is well established that the power of eminent domain cannot be used to take property not necessary to fulfilling a public purpose, the government or subdivision thereof has broad discretion in deciding what land is necessary to fulfill that purpose. In addition, the court looked at the agency's compliance with the substantive mandates of the statute, namely identifying the relevant areas of environmental concern. Concluding that respondent had neither abused its discretion nor acted improvidently in determining the scope of the taking, and having adequate basis to make the decision it did relative to the statutory mandates, the Court upheld the taking. Thus the determination was unanimously confirmed without costs and the petition was dismissed.

The case is Eisenhauer v County of Jefferson, 2014 WL 5904610 (NYAD 4 Dept. 2014). The full decision can be found here:

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