Appellate Court Upholds Rejection of Incomplete Building Permit Application for Non-Conforming Use Submitted Shortly Before Expiration of Building Code’s One-Year Restoration Period

Petitioner owned a real property in the Town of Kent (“Town”) with a single-family residence as a pre-existing “nonconforming building” under the Code of the Town of Kent (“Town Code”) § 77–47(A).  On February 3, 2010, a fire destroyed most of the residence, and the Town Code gave Petitioner one year (i.e. until February 3, 2011) to rebuild.  The Fire Inspector advised the building be condemned and demolished, but Petitioner waited nine months to apply for the demolition permit. Demolition was completed on December 26, 2010.  On January 21, 2011, two weeks before the one-year period expired, the Putnam County Department of Health approved what it called plans for a “proposed addition” to the residence, but said its approval was “for the proposed changes only,” and that “any other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” Petitioner applied for a building permit, but the Town Building Inspector required a site survey and plans signed by an architect before review. A surveyor was hired on February 1, 2011, but the survey was not completed until April 2011. On October 26, 2011, nearly 9 months after the one-year rebuilding period expired, Petitioner filed a complete application for a building permit, which was denied on the ground that the one-year rebuilding period had expired.  Petitioner filed an Article 78 proceeding to review the determination of the Towns’ Zoning Board of Appeals (“ZBA”), affirming the denial of Petitioner’s application. The Supreme Court, Putnam County, granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.  The ZBA appeals.

The Second Department found that the Town Code's provision stating that a nonconforming building “shall not be re-established ... unless such restoration is completed within one year from the date of such destruction” did not vest the ZBA with discretionary authority to extend the time limit, as “the word ‘shall’ is always mandatory and not merely directory.” Here, by filing an incomplete application just two weeks before the one-year restoration period expired, the court found that Petitioner could not reasonably have thought a site survey was unnecessary, given that the requirement of a survey was clearly stated in the Town Code and first page of the permit application form. The Court thus held that the ZBA's determination affirming the Building Inspector's rejection of the application was not arbitrary and capricious, illegal, or an abuse of discretion. The Court further held that Petitioner's claim that the application of Town Code § 77–48 to the subject property resulted in an unconstitutional taking without compensation was not ripe for review, as she failed to establish that she exhausted her administrative remedies by applying for a variance.

The case was Warner v. Town of Kent Zoning Bd. of Appeals, 144 A.D.3d 814 (2d Dep’t 2016).

Second Department Upholds Finding That Water District’s Proposed Construction Was A Type II Action Not Subject To Review Under SEQRA

Defendant/Respondent Manhasset–Lakeville Water District (the “Water District”) was a special district of the Town of North Hempstead created to provide and sell potable water to those in its boundaries. To do this, the Water District required water storage tanks to provide water and maintain water pressure, including elevated water storage tanks.  One such storage tank was located on a lot owned by the Water District within Plaintiff Incorporated Village of Munsey Park (“Plaintiff”). As the Village’s zoning code prohibits buildings over 30 feet high, the current tank was not permitted as of right.

In 2014, the Water District made plans to replace the tank.  This included installing an antennae on the replacement tank to provide wireless communication between facilities and for dispatching employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed plans, and the Water District determined that the proposed construction was a replacement-in-kind Type II action not subject to further environmental review under SEQRA. The Village commenced a declaratory judgment action asserting that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment, and Plaintiff appealed.

On appeal, the Court agreed that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment or require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion.  Therefore, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

The case was Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 150 A.D.3d 154 (2d Dep’t 2017).

Second Department Reverses Decision Denying Renewal Of Use Variance Absent Owner-Occupation Condition

Petitioners owned property improved with a two-family residential dwelling in the Town of Hempstead (“Town”). They applied to the Board of Appeals of the Town of Hempstead (“Board”) to renew a use variance allowing the property to be used as a two-family dwelling without the condition that the property be owner-occupied. The Board renewed the variance, but denied the portion of the application that sought to lift the accompanying condition, and instead renewed the variance on the condition that at least one apartment at the subject property must be owner-occupied at all times. Petitioners commenced a CPLR article 78 proceeding to review the determination denying the renewal without the condition. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Court noted that the Board improperly relied upon the doctrine of res judicata to deny Petitioners’ request for renewal without the condition, a point not disputed by the parties, and that as a result, the Board did not analyze the merits of imposing an owner-occupied condition.  It further noted that “if the grounds relied upon by the agency are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Since the Board never reached the merits, the Court held that the lower court erred in analyzing the merits itself, in essence substituting its own judgment for that of the Board.  Thus, the Court reversed the lower court’s decision and remitted the matter to the Board for a determination on the merits.

The case was Rodriguez v Weiss, 149 A.D.3d 842 (2d Dep’t 2017).

Second Circuit Rejects “Class-of-One” Claim Against Town’s Enforcement of Zoning Restrictions

Plaintiff Beard (“Plaintiff”) owned five acres in the Town of Monroe (“Town”), subject to dwelling size and use restrictions, which he used to operate numerous businesses including excavation, trucking and hauling, salvage, loam manufacturing, demolition, and plowing.  Plaintiff also stored the associated heavy vehicles on site.  Plaintiff sued under § 1983 alleging that the Town violated his Fourteenth Amendment rights by enforcing zoning restrictions against him and not others who were allegedly similarly situated. The trial court granted summary judgment for the Town, its Planning and Zoning Commission, and Zoning Enforcement Officer Joseph Chapman (“ZEO”).

Plaintiff’s alleged an Equal Protection claim under a “class-of-one” theory, arguing the Town violated his Fourteenth Amendment rights by prohibiting loam manufacturing on his property while allowing others to do so. However, the record indicated that Plaintiff engaged in a number of non-conforming activities that the other properties did not, such as storing heavy vehicles and conducting excavation, trucking and hauling, salvage, demolition, and snow plowing businesses. Moreover, while the alleged comparable sold compost and mulch, he did so with a permit. Finally, Plaintiff generated significantly more local opposition. In the same vein, while the other comparable was also subject to complaints, they were far fewer in number.

Accordingly, the record demonstrated the properties were not sufficiently similar to find that the Town improperly denied Plaintiff pre-existing use status. As the court failed to find that Plaintiff established a cognizable claim under the Fourteenth Amendment, it did not reach the issue of causation.

The case was Beard v Town of Monroe, 666 Fed.Appx. 62 (2d Cir. 2016).

Fourth Department Holds Finding That Commercial Use of Mansion Would Not Yield Reasonable Return Without A Variance Lacked A Rational Basis

Petitioners, residents of the City of Jamestown (“City”), challenged the determination of Respondent City of Jamestown Zoning Board of Appeals (“ZBA”) to grant a use variance to Respondents Jamestown Community College (“JCC”) and Lynn Development, Inc. (“Lynn”), to permit the commercial use of a mansion known as Sheldon House. The Supreme Court dismissed the petition, holding that JCC and Lynn had “presented substantial evidence, especially regarding the four-pronged hardship test, providing the ZBA with a rational basis upon which to issue a variance.”  Petitioners appealed.

On appeal, Petitioners argued that JCC and Lynn failed to satisfy the four requirements for the issuance of a use variance based on unnecessary hardship, and that the court erred in deferring to the ZBA.  The Fourth Department agreed, finding that JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship: “that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence.”  Absent any evidence in dollars and cents form, the Court held there was no rational basis for the ZBA’s finding that the premises would not yield a reasonable return without the requested use variance.  Accordingly, the Court held that the ZBA’s determination should be annulled, reversing the lower court’s judgment and granting the petition.

The case was Leone v. City of Jamestown Zoning Bd. of Appeals, 151 A.D. 3d 1828 (4 Dep’t 2017).

Third Department Reverses Decision Denying Special Use Permit for Dog Training Business

Petitioner owned property on which she operated a dog training and handling business in the Town of Hoosick. Following a noise complaint from a neighbor, the Code Enforcement Officer of the Town of Hoosick (“CEO”) determined Petitioner’s use of the property violated the Town’s Land Use Law and that a special use permit and site plan approval were needed. Petitioner submitted the required applications, but the ZBA denied them both, citing the current and foreseeable impact of dog noise on the neighbors. Petitioner then commenced a CPLR Article 78 proceeding to review the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

On appeal, Petitioner first argued that the Supreme Court erred in holding that she was required to obtain a special use permit and site plan approval, as her business involved operating a boarding kennel and breeding kennel, both uses permitted by right. However, the application for site plan approval described the intended use as a “training + handling center for show dogs.”  Thus, the Court found that since Petitioner’s use of the property did not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit.

Petitioner next argued that site plan review was not required because the use began in 2006, predating both the 2009 enactment of the Land Use Law and 2014 version of the site plan review law. The Court found that this argument was also without merit, as having a protected interest when the 2009 Land Use Law was enacted required petitioner to have received site plan approval under the 2001 Site Plan Review Law. Here, Petitioner never applied for or received site plan approval, and thus her use was not a lawful nonconforming use.  In addition, her proposal would expand the scope of the use, in terms of both staff and number of dogs, thus triggering the requirement for site plan approval.

Despite these holdings, the Court still reversed the lower court’s decision.  The ZBA found that Petitioner had failed to offer sufficient mitigation for the dog noise from her business.  However, Petitioner offered scientific measurement of the noise level, while there was no other objective measurement offered at the public hearing.  Moreover, the neighbor’s recording could be subjectively interpreted due to the ability to control the volume of the recording, making reliance on it unreasonable. Absent evidence rebutting Petitioner’s measurement of the sound level and offer to address any noise concerns, the Court found that there was no basis in the record to find that Petitioner did not comply wtih the Land Use Law. Accordingly, the judgment was reversed and the matter was remitted to the ZBA to grant a special use permit and site plan approval.

The case was Blanchfield v Town of Hoosick, 149 A.D.3d 1380 (3d Dep’t 2017). 

Third Department Upholds ZBA Denial of Petitioner’s Request to Rescind Charges For Waste Removal After Violations

Petitioner’s neighbor filed a complaint with Respondent City of Albany’s Department of General Services (“DGS”) that trash was “blowing around” his yard and into the street. DGS issued Petitioner a notice of violation, stating that his yard violated Chapter 313 of the Code of the City of Albany (“Code”), governing solid waste. The notice stated that if Petitioner failed to remedy the violation, DGS would bill him for the cost of cleanup, plus a 15% administrative surcharge and a fine of up to $500. After Petitioner failed to remedy the condition, DGS cleaned up the property and billed him $838.73 ($638.73 for cleanup costs and a $200 fine). Shortly thereafter, DGS removed an “oversized amount of trash,” including furniture, from the curb in front of Petitioner’s property, notified Petitioner that it constituted “illegal debris,” and charged him $444.24 ($119.24 for cleanup costs and a $325 fine). DGS denied Petitioner’s request to rescind the two bills after two administrative hearing.  Petitioner appealed to the BZA, which reversed the $200 fine on the first violation, and vacated the charge on the second violation.  Petitioner filed an Article 78 proceeding to further review the first charge, and the Supreme Court, Albany County dismissed the petition. 

On appeal, Petitioner argued that the violation should have been prosecuted in criminal court because it classified as a criminal violation pursuant to Penal Law § 55.10, which provides in relevant part that “any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if ... a sentence to a term of imprisonment which is not in excess of [15] days is provided therein, or the only sentence provided therein is a fine.” The court found that because this section set forth the penalties for failing to comply with a notice of violation, the general penalty provision set forth in Code § 258–1 was not applicable. As such, the court held that a violation of Code § 313–51.1(E) was not a criminal violation within the meaning of Penal Law § 55.10(3), and thus not preempted.

Petitioner also argued that his constitutional rights were violated during the administrative process, and was therefore not required to exhaust his administrative remedies. He claimed that he was not provided with adequate notice of the first violation, that the Enforcement Committee was biased, that DGS failed to introduce evidence at the hearing, thus denying him his right to confront his accusers, and that DGS shifted the burden of proof. The court found that these claims would be better addressed with the administrative agency so that the necessary factual record could be established.

Accordingly, the court affirmed the dismissal of petitioner’s application.

The case was Haddad v City of Albany, 149 A.D.3d 1361 (3d Dep’t 2017).

Second Department Finds Development Rights Constitute Real Property Under RPAPL § 1602

Plaintiffs Thomas G. Hahn, Jr., Jeanne Halstead, and Barbara Butts (collectively “Plaintiffs”), and defendant Johanne Hagar, were siblings who owned a 101–acre farm (“Hahn Farm”) in the Town of Pleasant Valley, which had been in the parties’ family for over 240 years.  The property was owned jointly by the parties’ parents until their father’s death in 1995, and then solely by their mother until her death. The mother’s will left a qualified life estate in the property to Thomas G. Hahn, Jr., and the remainder interest to her four children in equal shares.  Plaintiffs sought authorization pursuant to RPAPL § 1602, which allows the owner of a possessory interest in real property to apply to a court for an order directing that the “real property, or a part thereof, be mortgaged, leased or sold,” to sell the development rights to the property in order to preserve its future use as a farm.  However, the Court found that development rights do not constitute real property, or a part thereof, for purposes of RPAPL § 1602. Accordingly, the court dismissed the proceeding, and Plaintiffs appealed.

The Second Department found that while the parties stipulated to a definition of “development rights,” the specific rights or burdens broadly referred to by this term could vary according to contractual terms or applicable governing statutes.  Here, the court held that development rights, as defined by the parties, constituted “real property, or a part thereof,” for purposes of RPAPL 1602.

Even so, the Court affirmed the lower court’s dismissal because Plaintiffs failed to establish that the proposed sale of development rights would be expedient.  Specifically, the plaintiffs failed to present any evidence of a proposed buyer for the development rights or the value of the underlying property both with and without the development rights. In addition, Plaintiffs failed to present evidence of any other tangible or intangible benefit that could be achieved by a sale of the development rights, or that the sale was necessary to preserve the property as an asset. Accordingly, the Court held that the Supreme Court properly directed the dismissal of the cause of action pursuant to RPAPL § 1602.

The case was Hahn v Hager, 153 A.D.3d 105 (2d Dep’t 2017).

Second Circuit Court Affirms Denial Of Equal Protection Claim Regarding Off-Street Parking Variance

Almost two years after Plaintiff 26 Seminary LLC purchased the property at issue, the Binghamton City Council adopted Ordinance 009-009, amending Chapter 410 of the Zoning Ordinance of the City of Binghamton to require increased off-street parking, including in residential areas of the city, when a building owner sought to modify the use of an existing structure on the property.  Shortly after the new ordinance was adopted, 26 Seminary LLC sought to renovate and modify the use of parts of the structure on its property. The City of Binghamton's Planning Commission and Zoning Board of Appeals (“ZBA”) denied 26 Seminary LLC's application for a variance from the new off-street parking requirement.  Based upon this denial and other events and interactions with the City that occurred during the application process, 26 Seminary LLC brought a non-class-based equal protection claim. The United States District Court for the Northern District of New York granted summary judgment to Defendants, and the Plaintiffs now appeal.

On appeal, the Second Circuit found that 26 Seminary LLC failed to point to any comparable property as a basis for its equal protection claim. In fact, the Court found that the two properties cited as comparators, 63 Front Street and 46 Seminary Avenue, differed significantly from 26 Seminary Avenue. 46 Seminary Avenue involved conversion from one commercial use to another, and 63 Front Street site had an entirely different classification for zoning purposes than the 26 Seminary LLC’s property. In addition, both sites included some off-street parking accommodation as a component of their proposed site plans, while the site plan for the subject property did not. As 26 Seminary LLC failed to point to any substantially comparable example of the City of Binghamton's applying its zoning law regarding the off-street parking requirement, the issue at the heart of Plaintiff’s equal protection claim, the Court held that summary judgment in favor of the City was appropriate and affirmed the District Court’s decision.

The case was 33 Seminary LLC v. The City of Binghamton, 670 Fed.Appx. 727 (2nd Cir. 2016).

Court Rejects Variance Claim for Billboard As Self-Created Harm

Petitioner Canandaigua National Bank, trustee of the Max M. Farash Declaration of Trust, owned real property in the Town of Gates (“Town”) adjacent to Interstate 390.  Farash had purchased the parcels in 1986, but never developed them. The Trust tried to sell the property in 2009 but the sole offer, from petitioner Expressview Development, Inc., was contingent upon receiving variances from the Town.  Specifically, Expressview wanted to construct billboards visible from the highway, requiring a variance of Gates Code § 190–22(E), which prohibited commercial signs not located on the site of the business for which they advertise.  Expressview sought use and area variances allowing installation of the billboards, but the Town’s Zoning Board of Appeals (“ZBA”) denied the application. Petitioners sought to annul the ZBA determination, arguing the § 190–22(E) was unconstitutional. The lower court dismissed the amended petition-complaint, and petitioners appealed.

On appeal, the Appellate Division, Fourth Department found Petitioners’ main contention, that the ZBA failed to adhere to its precedent, was without merit as petitioners failed to show earlier determinations that were based on essentially the same facts. The Court also found that settlement of a federal lawsuit in 1999 by the Town that permitted installation of certain billboards along the highway by two outdoor advertisers was not a ZBA determination under its administrative variance process.  As such, it was not a ZBA precedent from which departure must be justified.

In addition, the record showed that Farash knew or should have known the extent of the limitations on the property at the time of his purchase, as Farash purchased the property after the approval of the industrial park plan, the adoption of applicable zoning restrictions, and the construction of the highway adjacent to the property. Accordingly, there was substantial evidence to support the ZBA determination that Petitioners hardship was self-created.

Finally, the Court rejected Petitioners’ contention that § 190–22(E) was an unconstitutional restraint on free speech. Using the intermediate scrutiny test for restrictions on commercial speech set forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of N.Y., 447 U.S. 557, 561–566 (1980), the Court found the regulation did not impermissible distinguish between on-site and offsite commercial signs.  Accordingly, the Court modified the order to reinstate the declaratory judgment cause of action and declare the provision constitutional, and affirmed the decision as modified.  

The case was Expressview Development Inc. v. Town of Gates Zoning Bd. Of Appeals, 2017 WL 460597 (4th Dep’t February 3, 2017).

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