Condemnation for Industrial Park Expansion Upheld

The Town of Lockport Industrial Development Agency (LIDA) authorized the condemnation of 91 acres of vacant land owned by GM Components Holdings, LLC to facilitate the expansion of the Industrial Park. GM filed suit to challenge the decision. On review, the court examined (1) the authority by which LIDA acted, (2) whether the acquisition serves a public use, (3) if the decision was constitutionally sound, (4) if the decision complied with SEQRA and EDPL Article 2. As is required for such cases, the burden lays with the party challenging the condemnation to show the determination was baseless. They failed to do so.

In justifying its actions, LIDA cited an array of statistics about the Industrial Park, including the number of businesses operating therein, nearly $400 million in investment, and the roughly 500 local residents employed at companies in the Industrial Park. Based on this evidence, the court found the use of eminent domain to be “rationally related to a conceivable public purpose,” and further ruled it had complied with the statutory procedures, including the required environmental reviews. Thus the decision was upheld by the Court.

The case was GM Components Holdings, LLC v. Town of Lockport Indus. Dev. Agency, 977 N.Y.S.2d 836 (N.Y. App. Div. 4th Dept. 2013); appeal dismissed, 22 N.Y.3d 1165 (2014)

Old Adage of “Better Late Than Never” Doesn’t Apply to Rezoning Law

In 2007, Loudon House LLC bought real property in the Town of Colonie that was zoned for single family residential use. Wishing to build a 24-unit condominium development, Loudon House sought and received a rezoning decision from the Town Board which would make the condos a permissible use, as long as the property was “developed as a multi-family complex with no more than 24 residential condominium apartment units in one building.” Permits were obtained and construction began in 2008. Then, in mid-2012, a public hearing was conducted after which the Town Board voted to restore the property’s original zoning designation. Loudon House brought a CPLR Article 78 proceeding seeking to annul the new law. The trial court dismissed the petition, and London House appealed.


On appeal, the Appellate Division noted that Town of Colonie Land Use Law §190-72 allowed the Town Board to rescind its decision and restore a property to its prior zoning under limited circumstances, however none of the required factual findings under that section were made. In addition, the Town Attorney explicitly stated that the Town was not relying on that provision. The court thus found that the Town Board’s actions were arbitrary and capricious and reversed the lower court’s decision holding the new law valid. The court did, however, dismiss the due process and equal protection claims, arguing that while arbitrary, the Board’s actions were not “so outrageously arbitrary as to constitute a gross abuse of governmental authority.”


The case is Loudon House LLC v Town of Colonie, 2014 WL 7391487. The opinion can be accessed at:

Substance Recovery Center Skips One of the Steps, Has Appeal Rejected

Most organizations that treat substance abuse do so through a step-by-step process (ex: Alcohol Anonymous’ 12 steps). Follow the steps, get the outcome you want.  Given that, it seems strange to have this type of organization have legal problems from skipping a step, yet that is exactly what happened in today’s case.

Safe Harbor, a retreat for those recovering from alcohol or drug abuse, opened its door in East Hampton after a building inspector granted it a reasonable accommodation to operate in a residential area, on the theory that the use was functionally equivalent to a family. Later, the building inspector determined that Safe Harbor would in fact need a special permit as a semi-public facility. Safe Harbor unsuccessfully appealed to the Zoning Board, before commencing a suit in federal district court alleging violations of the ADA (Americans with Disabilities Act) and the FHA (Fair Housing Act).

The district court ruled that it lacked subject matter jurisdiction as the claims were not yet ripe, a position affirmed on appeal. Why? Because Safe Harbor failed to apply for the special permit that both the building inspector and zoning board had suggested.  Even if the determination by the Board had technically been “final,” there was a remaining avenue of recourse available. In short, the Safe Harbor went straight to the courts without exhausting its other remedies. This reiterates a common theme in our land use blog: always exhaust administrative appeals before pursuing further legal recourse, because if you try to skip steps you may end up falling off the wagon further down the road. 

The case was Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 6405378 (2d Cir. 2015)

Building A Better Club Without A Permit

New York is home to all kinds of membership clubs, whether at the beach or the golf course. Today’s case looks at a beach club in the City of New Rochelle, which ran into a bit of stormy weather when it built walls to enclose some outdoor porches for use as storage and office space. Though the club argued this was a “renovation” allowed under the City Code, the City issued a violation for the failure to obtain a building permit. It was later ruled that the enclosure was not a “renovation,” and subsequent requests for a building permit and with the Zoning Board for a use variance were both denied. The club’s owners then filed an Article 78 proceeding.

As always, Article 78 reviews of zoning board of appeals determinations are limited to “whether the action was illegal, arbitrary and capricious, or an abuse of discretion.” Looking to the Code, the court noted its restrictions on beach clubs renovations regarding maximum size and coverage area of structures, noise levels, the number of cabanas, etc. At trial, testimony showed that the enclosure did not extend the club’s “footprint” by modifying existing structures, nor allow for an expansion of membership capacity. It also caused no harms to neighboring lots. The trial court thus overturned the zoning board’s decision and ordered a permit be issued. The appeals court upheld.

The case was Greentree Country Club, Inc. v City of New Rochelle, 2014 WL 2958423 (NYAD 2 Dept. 2014) and it can be found here:

In This Story, Peace Doesn’t Win Out

Plaintiff was fined $800 for placing an illuminated peace symbol in the window of her condo, located on the 17th Floor in a building on the Upper West Side, in violation of N.Y.C. Zoning Resolution §32-655. This resolution prohibits illuminated signs from greater than 40 feet above the curb. Plaintiff brought suit alleging the ordinance violated the First Amendment by placing a content-based restriction on speech. The lower court granted summary judgment for the City, and the decision was affirmed on appeal. The present case focused on Plaintiff’s alternate argument that “irrespective of content” the zoning regulation was “an unduly restrictive time, place, and manner” limitation on speech.

Examining this argument, the Second Circuit rejected Plaintiff’s contention that the City had failed to show a sufficiently real and significant governmental interest. Multiple courts have upheld the interest of preserving the character and aesthetic of a city in the land use context. In addition, the Court found the ordinance to be narrowly tailored because it allowed other signs to be displayed more than 40 feet above the curb, prohibiting only illuminated or commercial signs. Thus the Court upheld the ordinance as not placing a substantially greater burden on speech than necessary to further the government’s legitimate interests.

Finally, the Court noted that the ordinance left plenty of other avenues by which the Plaintiff could spread her message of peace and love. Plaintiff’s sign already fit the size requirements, and thus an un-illuminated version would be acceptable. Similarly, a banner with a picture of a peace sign or the actual word “Peace” would also have been allowed. The complaint was thus dismissed.

The case was Vosse v City of New York, 2015 WL 7280226 (S.D.N.Y.)

Court Reinstates ZBA Finding That Den Was An Addition And Not An Accessory Building

Homeowner in Yorktown was issued a building permit to construct an attached den and garage to his house. Neighbor brought a challenge before the Zoning Board of Appeals that the expansion was not an addition but an “accessory building.” ZBA affirmed the permit as valid, and Neighbor commenced an Article 78 proceeding. The Supreme Court annulled the ZBA determination, and Homeowner appealed.

On appeal, the Appellate Division reversed the lower court’s finding that the ZBA’s decision was “unreasonable and irrational.” According to the ordinance, an accessory building can be attached or separate, but the primary consideration is that its use is “incidental” to the main building. Here, the ZBA considered evidence that the proposed add-on was going to be used as a “conventional living space” rather than a “breezeway” or “connecting corridor.” Based on that, the Court found the ZBA’s determination that the permit was in fact for an addition, not an accessory building.

The case was Witkowich v Zoning Board of Appeals of Town of Yorktown, 2015 WL 6982380 (NYAD 2 Dept. 2015).

Adult Business Found to Lack Standing to Bring First Amendment Suit Against City Ordinance

Plaintiff owns an adult-oriented business in the City of Milford, which passed an ordinance requiring such businesses to publicly post the names of their officers, operators, and owners. Plaintiff brought suit alleging this ordinance violated the First Amendment right to free speech and the Due Process Clause due to vagueness. At trial, the Plaintiffs deposed the City, represented by a former municipal attorney, and received an affidavit from the Chief of Police who was chiefly responsible for administering the ordinance. Based on the deposition and affidavit, the US District Court for Connecticut granted Plaintiff summary judgment, and the City appealed.

On appeal, the Second Circuit zeroed in on the issue of standing. Plaintiffs argued that prudential standing issues were irrelevant as “courts have generally dispensed with the rule that a party must assert its own legal rights and not the rights of third parties when First Amendment free speech rights are at stake” for cases alleging overbroad restrictions. Even so, the Court found that here the Plaintiffs owners and officers had already been publicly identified in the course of the litigation and the Plaintiffs had failed to demonstrate how they would face “threats, harassment, or reprisals” from bringing a case in their own names, nor how the loss of anonymity had infringed upon their rights or harmed them economically. Thus the Court found the plaintiffs lacked standing to challenging a public-posting law based on the right of anonymous expression, vacated the district court’s decision, and remanded for dismissal.

The case was Keepers, Inc. v City of Milford, 2015 WL 73252120 (2d Cir.)

Court Overturns Zoning Board’s Interpretation of “Auditorium”

The Washington Avenue Armory, once literally an armory, is now a prominent venue in Albany. Zoned as an auditorium in a commercial zone, the Armory has hosted concerts, sporting events, and even the World Wide Wrestling Federation (decades before its current incarnation as the WWE). Following multiple cease and desist orders regarding events held at the Armory, the owners of the armory (“petitioners” ) entered into a memorandum of understanding the with City under which it would submit an application for a clarification on the acceptable uses of the property. As part of that determination, the Board of Zoning appeals ruled the "use of the facility for a 'Rave' party, nightclub, dance club or other similar event is excluded from the definition of an '[a]uditori[um]' and thus [is] an illegal use." The petitioner then commenced an Article 78 proceeding against the Zoning Board of Appeals. The Supreme Court ruled for the Board, but the Appellate Division, Third Department reversed.

Reviewing the decision, the Appellate Division noted that the petitioners had applied to use the venue for “musical entertainment,” a category which includes events in which those attending are standing for the entire event. The Court ruled that denying this use based solely upon the word “auditorium,” which is not defined in the zoning ordinance, was unacceptable. Even though the Zoning Board had looked at the plain meaning and dictionary definition, it simply picked the definition that fit with its perspective, while ignoring those which did not. Ambiguity in the zoning ordinance must be resolved in favor of the petitioner, and thus the Court reversed the board’s ruling.

The case is Albany Basketball & Sports Corporation v. City of Albany, 2014 WL 1316331 (App. Div. 2014). The opinion can be accessed at:

Don’t Feed the Birds: It’s a Nuisance

There are many homeowners who enjoy having birds on their properties: watching them, listening to their songs, perhaps feeding them. For their part the birds don’t generally cause much of a problem (Long Island’s issues with geese being a notable exception). Today’s case is the rare example where they did. Up in Saratoga County, Plaintiff homeowner brought a suit alleging private nuisance* and continuing trespass against his neighbor due to the “noise and excrement” of the neighbor’s waterfowl.

The Defendant, who had moved in years after the Plaintiff, had expanded the pond on his property to create a nature preserve for passing waterfowl. Apparently the number and impact of the birds became so pronounced, that when suit was brought the lower court granted a temporary restraining order against defendant enjoining him from feeding any “nonresident fowl” or maintaining a “feeding station for both wild and domesticated” birds on the property,” excluding those being cared for and treated in the defendants capacity as a wildlife rehabilitator.

Whether there was ultimately liability is unclear, as the record focuses on whether the denial of the defendants’ motion for summary judgment was proper (the court found it was). What the court did find was that the plaintiff’s selling their residence does not compel dismissal, as they may still be entitled to temporary nuisance damages. Quite fowl circumstances.

*For those of you who may not be lawyers, private nuisance consists of an act intentionally done (or not done) that substantially and unreasonably interferes with other people’s use and enjoyment of their property. Physical trespass onto the other person’s land is not required.

The case was Schillaci v Sarris, 2014 WL 6475553 (NYAD 3 Dept) and it can be found here:

Court Rules ATV Track Not “Customary Accessory Use”

All-Terrain Vehicles (ATVs) are an increasingly popular recreational activity, but one enthusiast’s attempts to build a track in his backyard are on hold after a decision by the Appellate Division, Fourth Department. Reinstating the West Seneca Planning Board’s original determination, the Court ruled that an ATV track is not a customary accessory use. The Town Code’s examples of accessory uses include “private garages…, family swimming pools, greenhouses, and horse stables.” Given that list and the residential character of the neighborhood, the court found the Planning Board had not acted irrationally or unreasonably. After all, six- to eight-foot jumps and “rumble strips” aren’t exactly benign additions to the neighborhood, and “the evidence in the record establishes that the track would increase already existing problems, including the noise level in the neighborhood, the number of incidents of physical damage and trespass to the neighboring properties, and the be held liable for injuries occurring on their properties.” As judicial review in such circumstance is limited to “whether the action taken… was illegal, arbitrary, or an abuse of discretion” and finding a rational basis for the decision, the court reversed the trial court and upheld the Planning Boards original decision. Thus while making big jumps on an ATV may very well be how you relax on a weekend, it seems you’ll have to go somewhere other than West Seneca to do it. The neighbors will undoubtedly appreciate it.

The case is Dietrich v. Planning Bd. of Town of West Seneca, 2014 WL 2782147 (NYAD 4 Dept. 2014). The full opinion can be accessed at:

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