Petitioners brought a hybrid Article 78 / declaratory judgment action seeking review of two resolutions passed by the Town Board of the Town of Kent authorizing the construction and operation of a 150–foot monopole wireless communications tower by Defendant/Respondent Homeland Towers, LLC.  The lower court denied the petition, dismissed the proceeding, and declared that the resolutions are not null and void.  Petitioners appealed, and Respondent moved to dismiss the appeal as academic in light of the completion of the tower.

The Appellate Division, Second Department noted that “typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.”  For cases involving a construction project, the court must consider how far the work has progressed, however a “race to completion cannot be determinative.” As such, other factors, such as whether the plaintiff sought a preliminary injunction to prevent construction from commencing or continuing during the pendency of the litigation, must also be weighed.  Here, Petitioners never requested a preliminary injunction, and the Court found their claim that they did not do so due to monetary constraints “unavailing under the circumstances of this case.”  As Respondent “established that the construction of the tower was not performed in bad faith or without authority, that the work could not be readily undone without substantial hardship,” the Court held that “this appeal does not present any recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise.”   As such, the Court granted Respondent’s motion to dismiss the appeal.

The case was Bruenn v. Town Bd. of Town of Kent, 145 A.D.3d 878 (2d Dep’t 2016).

This dispute is a recurring theme on our blog, as this is the parties’ seventh appearance before the Appellate Division since 2003. The dispute arose when Petitioner Troy Sand & Gravel Company, Inc. (“Petitioner”) applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau in Rensselaer County (“Town”), and for a special use permit and site plan approval from the Town.

In 2006, DEC issued a positive declaration as lead agency under the State Environmental Quality Review Act (“SEQRA”), and Petitioner prepared a draft environmental impact statement (“EIS”). After a public comment period, Petitioner prepared a final DEIS in 2007, and DEC issued its SEQRA findings approving the project and granting the mining permit.  The Town then began its own review of the environmental impact of the proposed quarry as part of its zoning determination, however, this review was limited to information collected during the SEQRA process (note: this is an over-simplification of decisions on two separate appeals in this dispute). The Town Board then denied Petitioner’s application, and Petitioners commenced an Article 78 proceeding to annul the Town Board's determination. The Supreme Court dismissed the petition and upheld the Town Board's denial of a special use permit. Petitioners appealed.

Petitioners challenged almost every aspect of the Town Board's decision as arbitrary and capricious, as it was contrary to the final EIS and not based on the SEQRA record.  However, while the Court did find that the Town Board's determinations on the general land use standards were either founded on information outside of the SEQRA record or entirely inconsistent with the final EIS, the Court nevertheless found that the Town Board's denial of Petitioner’s application was properly based upon three of the four special use permit standards in the final EIS.

The Court found there was ample evidence in the SEQRA record that Petitioner’s proposed quarry would be a sizable operation and create a highly intensive industrial land use where only one small commercial entity currently existed. The Court also found that the Town Board was justified in concluding that the probability of decreased property values associated with the proposed land use rendered the second special use standard unsatisfied. On this issue, the Town Board relied on a property value impact analysis prepared by an expert whose qualifications had not been challenged. The Town Board also rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land. Accordingly, the lower court’s ruling in favor of the Town was affirmed.

The case was Troy Sand and Gravel Co., Inc. v Fleming, 156 A.D. 3d 1295 (3 Dep’t 2017).

Prior cases in this dispute include Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170 [2015]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1188 [2015]; Troy Sand & Gravel Co., Inc. v. Town of Nassau, 101 A.D.3d 1505 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 89 A.D.3d 1178 [2011], lv dismissed 18 N.Y.3d 920, 941 N.Y.S.2d 554 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377 [2011]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 80 A.D.3d 199 [2010] ).

Plaintiff Carney, appearing pro se, alleged Defendants (the Town Code Enforcement Officer, Town Supervisor, four Town Councilmen, and Town Assessor) sent him a letter that informed him that “the use of his sawmill is prohibited” by the local zoning ordinances.  Plaintiff claimed this letter denied him “the use of his property and interferes with his freedom to contract.”  Plaintiff also alleged Defendants violated due process when they did not “respond to Plaintiff’s reply dated October 15, 2015 asking for discovery of definitions and statutory authorization of zoning codes.” Defendants moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction, and the District Court for the Western District of New York  granted their motion and dismissed the claim.

In so holding, the Court noted that ripeness was a “jurisdiction prerequisite” for determining that an injury is not speculative.  Here, the Complaint failed to allege that Plaintiff appealed Defendants’ initial allegation that he violated the Town Building and Zoning Codes by operating an illegal saw mill. Plaintiff also failed to allege that he requested a variance applied for a building permit for the structure, thus legalizing the activity. As Defendants demonstrated that Plaintiff had not appealed these issues, and that the Town’s Zoning Board of Appeals had not taken any action, the Court held that there was no “final decision” giving the court jurisdiction to adjudicate Plaintiff’s claims.

As to the futility exception, the Court found no basis to believe that the ZBA had “dug in its heels” or has otherwise prevented Plaintiff from appealing. Accordingly, the Court held Plaintiff’s claims were not ripe until he obtained a final decision from the ZBA, and dismissed the case.

The case was Carney v. Swanson, 2016 WL 7450459 (W.D.N.Y. December 28, 2016).

Petitioner Skyhigh Murals – Colossal Media Inc. (“Petitioner”) owns property in the City of New York.  The New York City Department of Buildings (“DOB”) denied of Petitioner’s application to install an advertising sign on its property, and that decision was later affirmed by the Board of Standards and Appeals of the City of New York (“BSA”) on May 17, 2016.  Petitioner challenged brought a CPLR Article 78 proceeding to challenge the determination, and the Supreme Court, New York County annulled the BSA’s determination.  The BSA appealed.

On appeal, the Appellate Division, First Department held that the BSA rationally found that the proposed sign was prohibited by New York City Zoning Resolution § 42–561.  The proposed sign was located within 100 feet of the boundary of a Special Mixed-Use District superimposed on a Residence District, and the record showed that the 1997 resolution of the City Planning Commission of the New York City Department of City Planning that created the first Special Mixed Use District indicated that restrictions governing Residence Districts could apply to Special Mixed Use Districts, depending on the regulations at issue. Thus, the Court found that the BSA’s determination that the DOB properly denied Petitioner’s application had a rational basis and was supported by substantial evidence.  It concluded that the lower court should have deferred to BSA’s determination instead of applying a de novo standard of review, reversed the lower courts decision, and affirmed the ruling by the BSA.

The case was Skyhigh Murals - Colossal Media, Inc.  v Board of Standards and Appeals of the City of New York, 162 A.D.3d 446 (1^st Dep’t 2018).

Respondents/claimants owned land in the Town of Oyster Bay (“Town”).  On September 5, 2003, the Town condemned a 14.03–acre parcel of land (“Parcel 1”) to expand an abutting public park.  Another 7.51–acre parcel to the east of Parcel 1 (“Parcel 2”), and an 8.7–acre parcel of land to the east of Parcel 2 (“Parcel 3”), also owned by claimants, was not condemned at that time.  In April 2002, one of the claimants, 55 Motor Avenue Company, LLC, entered into a ground lease with Stop & Shop Supermarket Company to build and operate a store on Parcel 3.  In August 2006, claimants filed a claim for just compensation, seeking direct damages for the loss of Parcel 1, and consequential damages for Parcels 2 and 3. The Supreme Court, Nassau County held the three parcels should be valued as one economic unit, and that the highest and best use on the date of the taking “was retail development of the maximum allowable density.” The claimants were awarded a principal sum $20,700,000.  The Town appealed.

On appeal, the Second Department held that claimants failed to demonstrate unity of use between Parcels 1 and 3 on the vesting date.  It found 17 months before the vesting date, 55 Motor Avenue Company, LLC had entered into a ground lease that included a non-integration clause, which provided Stop & Shop could “erect a fence” around Parcel 3 “as may be reasonably necessary to prevent” any “persons occupying or having business with any other land adjacent to or near” Parcel 3 from using any portion of Parcel 3. Accordingly, the lower court erred in finding Parcel 3 should be valued as a single economic unit with Parcels 1 and 2.

The Court also found that claimants failed to establish a reasonable probability that they would be granted a special use permit to develop Parcels 1 and 2 as a large-scale multi-tenant retail development. While claimants proffered the testimony and report of their expert planner, the planner did not review the history of any special use permit applications to the Town Board or reference any largescale retail developments located in the immediate area on the vesting date. Furthermore, the special use permit granted in 2008 for the Stop & Shop to operate on Parcel 3 did not provide sufficient evidence that, as of the vesting date, there was a reasonable probability that the Town Board would have granted a special use permit for big box retail development on Parcels 1 and 2. The court therefore reversed and remitted the matter to determine the fair market value of Parcel 1 and whether Parcel 2 sustained consequential damages when the highest and best use for both parcels was  light industrial development.

The case was Matter of the Town of Oyster Bay, 156 A.D. 3d 704 (2d Dep’t 2017).

Respondent Rhinebeck Village Place sought to develop a lodging facility on a lot owned by Respondent Mirbeau of Rhinebeck, LLC.  Petitioner, owner of an adjacent hotel, sought to invalidate the issuance of a negative declaration of adverse environmental impact pursuant to the State Environmental Quality Review Act (“SEQRA”), an area variance from the 5–foot maximum front-yard setback requirement in §120–8 of the Village of Rhinebeck Zoning Law (“Zoning Law”), and site plan and special permit approvals. The area variance was 296.7 feet to permit a front-yard setback of approximately 302 feet. The amended petition alleged that the project failed to comport with Village Center principles pursuant to §120–19 of the Zoning Law and would negatively impact the character of the community. The Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed.

On appeal, Petitioner argued that the Village of Rhinebeck Planning Board erred in determining that the project would not create a material conflict with the community’s current plans or goals as officially approved or adopted, and that the project “would not result in the impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or existing community or neighborhood character.” The Court found that the record established that the review conducted by the Planning Board comported with the procedural and substantive requirements of SEQRA. In addition, while the area variance was substantial, there was no evidence that the variance would produce an undesirable change in the neighborhood, adversely impact the neighborhood’s physical/environmental conditions, that the benefit to the applicant could be achieved by other means, or that the difficulty was self-created. As such, the Court held that the Supreme Court properly denied the amended petition and dismissed the proceeding.

The case was Beekman Delamater Properties, LLC v. Village of Rhinebeck Zoning Board of Appeals, 150 A.D.3d 1099 (2d Dep’t 2017).

Defendant/Appellant Claudia Dowling (“Dowling”) was hired to conduct a four-month open house design by the owner of a residential property in the Village of Laurel Hollow (“Village”). Under the plan, different designers would decorate each room, and the home would then be open to the public for a small fee. The owner applied for a permit, but the Village denied this request, as well as his appeal for a use variance, finding the event would alter an essential character of the neighborhood by introducing a commercial use and creating negative impacts such as traffic. Dowling proceeded with the open house and was issued a succession of appearance tickets and stop work orders for operating an unlawful use. The Justice Court of the Village of Laurel Hollow, Nassau County, after a joint non-jury trial, convicted Dowling on five counts of violating Village of Laurel Hollow Code § 145–5(E) and four counts of violating Village of Laurel Hollow Code § 23–3(P).  Dowling appealed.

On appeal, the Supreme Court, Appellate Term for the 9^th and 10^th Judicial District rejected Dowling's argument that she could not be held liable in an individual capacity.  The Court noted that the state penal law specifically states that individuals are subject to same criminal liability for illegal conduct performed on behalf of a corporation as they would be if they acted on their own.  Here, the accusatory instruments sufficiently alleged that Dowling had operated an unlawful commercial use in a residential district. Accordingly, she was liable regardless of whether she acted in an individual capacity or as the president of Claudia Dowling, Inc.

Dowling alternatively argued that the open house was a use “customarily incidental and accessory to a single-family dwelling,” because the event was merely incidental to the sale of the house. However, the Court found that the event had a commercial intent, noting the fee charged to attendees and that under the Dowling’s contract with the owner, the open house would continue for its full six-week run even if the house was sold before that time had lapsed.  Thus, the Court upheld the five counts of violating § 145-5(E) of the Village Code.

However, the Court ruled in Dowling's favor on the four counts derived from the validity of the village's stop work orders. The Court held that the code inspector exceeded his authority in issuing these orders because the Village's power to issue stop work orders derived from the building code and was limited to violations occurring during construction. The Court also emphasized that because the building code was penal in nature, it was strictly construed against the Village. As such, the Court concluded that "there was no valid line of reasoning and permissible inferences" from which the village could have decided that the open house was in violation of the building code, vacated the convictions on those four counts, dismissed the accusatory instruments, and ordered the remission of any fines Dowling had paid.

The case was People v Dowling, 57 Misc.3d 52 (N.Y. App. Term 2017).

Petitioners are the owners of a condominium adjacent to the boardwalk in the City of Long Beach (“City”). After the destruction of the boardwalk and restroom facilities by Superstorm Sandy, the City awarded contracts for construction of comfort stations along the boardwalk as part of its reconstruction plan. The comfort station at issue would be installed adjacent to Petitioners’ condominium complex. Petitioners filed a hybrid Article 78 proceeding / declaratory judgment action to challenge the contract awards, alleging that the City had violated the State Environmental Quality Review Act (“SEQRA”), Article 17 of The Charter of the City of Long Beach, and interfered with Petitioners’ easement of light, air, and access. The Supreme Court, in denying the petitioners' motion for a preliminary injunction, in effect determined that the construction is not a prohibited use of a public street. The Court then denied the petition and dismissed the case. Petitioners appealed.

As a preliminary matter, the Second Department found that Petitioners lacked standing under SEQRA. To establish standing under SEQRA, “a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” Here, the Court found Petitioners' alleged environmentally related injuries too speculative and conjectural to show an actual and specific injury.

Turning to Petitioners’ easement claim, the Court found that the proposed construction would neither completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. The construction would only shorten the length of the dead-end street, and remove several public parking spaces. In addition, the turnaround on the street would still be intact (albeit moved 23 feet to the north), and access to the petitioners’ driveway and building’s entrance would not be impeded. Accordingly, the Supreme Court’s determination that the construction was not a prohibited use of a public street, was upheld, with the modification that it include a declaration that the construction is a permitted use of a public street.

The case was Shapiro v Torres, 153 A.D.3d 835 (2d Dep’t 2017).

Petitioners were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown (“Village”) in 1977.  Petitioners planned to renovate and upgrade the property, including by adding an indoor riding area.  After a six-year review process, the Village Board of Trustees approved the application.  However, the building permit issued by the Village Building Inspector included a condition that all excavated material be removed upon generation, and could not be stored or spread on the property.  Petitioners appealed to the Village Zoning Board of Appeals (“ZBA”), which upheld the condition. Petitioners then brought the instant Article 78 proceeding to review the ZBA decision. The Supreme Court, Nassau County, granted the petition, and the municipal parties appealed.

On appeal, the Second Department found that the ZBA decision was rational and supported by the record, and therefore properly shown deference by the lower court.  In its decision, the ZBA properly considered the scope of the construction at the premises and the amount of fill that would result, as well as the proposed use of said fill and the environmental effects therefrom.  Based on those factors, the ZBA rationally concluded that removal of the fill, rather than Petitioner’s alternatives, was the most appropriate course of action.  As such, the Court held that the Supreme Court erred by failing to accord deference to the ZBA’s discretion instead of substituting its own judgment. The Supreme Court’s holding was therefore reversed.

The case was Carnelian Farms, LLC v Leventhal, 151 A.D. 3d 844 (2 Dep’t 2017).

Plaintiff is a recreational club located on 116 acres in Defendant Village of Mamoroneck. The full details of the case can be found in lower court’s decision at 2016 WL 1181727.  On appeal, the Second Circuit Court of Appeals affirmed, by summary order, the decision of the Southern District of New York to dismiss the Plaintiff’s selective prosecution, equal protection, and retaliation claims.

The Second Circuit held that the lower court properly dismissed the selective enforcement claim made by Hampshire Recreation LLC (“Hampshire”) because it was not similarly situated to its alleged comparators. Specifically, the Court noted that Hampshire was subject to different zoning regulations than the three alleged comparators, and that it initially did not have a Special Permit.  The Court found that these facts “explain why it is not entitled to equal treatment with respect to its property use.” 

This issue of inapposite comparators was also cited as a basis to uphold the dismissal of Hampshire’s Equal Protection claim.  However, in dismissing this claim, the Court wrote that “[e]ven if Hampshire were able to establish a class of similarly situated comparators, the District Court offers numerous reasons why the Village's decision to award a probationary permit was not discriminatory under both ‘selection enforcement’ and ‘class-of-one’ theories.”

Finally, with respect to Hampshire’s retaliation claim, the Court agreed that the violation notice was too remote from the Village’s enforcement actions (the only plausible retaliatory conduct) based on the 18 month gap between said enforcement actions and Hampshire’s protected speech.  As such, the Court affirmed that Hampshire could not sustain a retaliation claim under the First Amendment.

The case was Hampshire Recreation, LLC  v Village of Mamaroneck, 664 Fed.Appx. 98 (2d Cir. 2016).  Please note that as a summary order, this decision does NOT have precedential effect.