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Denial of Area Variance In the Absence of Evidence of a Detrimental Effect on the Community Was Arbitrary and Capricious

The Second Department determined Supreme Court correctly held that the zoning board of appeals’ denial of area variances was arbitrary and capricious.  The court noted that similar variances had been granted to other parties and there was no evidence before the board that the variances would have an undesirable effect on the character of the community, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood:

In determining whether to grant an area variance, a zoning board must consider “the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant” … . The zoning board should also consider “(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (General City Law § 81-b[4][b]). In applying the statutory balancing test for granting area variances, a zoning board is “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational”… . Matter of L & M Graziose, LLP v City of Glen Cove Zoning Bd. of Appeals, 2nd Dept 4-8-15

 

Statutory Provision that the Gaming Commission “Shall” Render a Determination Within 30 Days After a Hearing Is “Directory” Not “Mandatory”—A Late Determination Will Not Be Annulled Absent Prejudice

The Third Department determined Supreme Court erred when it annulled the suspension of petitioner’s license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:

Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant’s license, the licensee may demand a hearing and, “[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing.” The use of “shall” is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent’s power to act or provide for any consequences for the failure to comply with the time limit … . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory … , yet the Legislature imposed no additional language limiting respondent’s power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.

Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can “show that substantial prejudice resulted from the agency’s noncompliance” … . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15

 

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Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

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Board of Commissioner’s Rejection of Hearing Officer’s Award of Supplemental Benefits Was Supported by Substantial Evidence—“Substantial Evidence” Defined and Review Criteria Explained

The Second Department determined the Board of Commissioners of the Greenville Fire District properly rejected a hearing officer’s recommendation that the petitioner be awarded supplemental benefits pursuant to the General Municipal Law. The court explained its review powers and the evidentiary requirements:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … . “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … .

Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner’s application for benefits pursuant to General Municipal Law § 207-a(2), was supported by substantial evidence … . The Board was entitled to make a finding contrary to the hearing officer’s recommendation, as long as substantial evidence supported the determination … . The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner’s expert, as it did, so long as testimony of the Fire District’s expert was consistent and supported by the medical evidence … . Since the Board’s determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 02474, 2nd Dept 3-25-15

 

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Extent of Court Review of Town Board’s Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained

The Second Department determined the Town Board had properly adopted the Final Generic Environmental Impact Statement (FEGIS) and Findings Statement re: an airport master plan (dealing with noise).  The Second Department explained the court’s review powers:

Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure … . Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination … . ” [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'” … .

Here, the Town Board of the Town of East Hampton (hereinafter the Town Board) fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the Final Generic Environmental Impact Statement (hereinafter FGEIS), which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.  Matter of Committee to Stop Airport Expansion v Wilkinson, 2015 NY Slip Op 01941, 2nd Dept 3-11-15

 

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Mandamus to Compel Proceedings Properly Sought to Compel the NYC Housing Authority to Consider Requests for Increases in “Section 8” Rent Subsidies (A Ministerial Act), But a Particular Result Could Not Be Compelled (Because Exercise of Discretion Involved)

The First Department, in a full-fledged opinion by Justice Richter, determined that Article78/mandamus-to-compel proceedings were properly brought by owners of rental-properties against the NYC Housing Authority seeking rulings re: increased and suspended “Section 8” rent subsidies. The court held that the property-owners could compel the NYCHA to consider its requests (a ministerial act), but could not compel any specific result (an exercise of discretion).  The action was deemed timely because the NYCHA had never denied the requests, therefore the four-month statute never started running.  With respect increased subsidies, the court wrote:

An article 78 mandamus proceeding may be brought to compel an agency “to perform a duty enjoined upon it by law” (CPLR 7803[1]). It is well-settled that a mandamus to compel “applies only to acts that are ministerial in nature and not those that involve the exercise of discretion” … . Thus, “the petitioner must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief” … .

Supreme Court properly found that the determination of the amount of any increase in the Section 8 subsidy is not purely ministerial but a matter entrusted to NYCHA’s discretion. An owner cannot receive a rent increase unless NYCHA first determines the reasonable rent (24 CFR 982.507[a][2][i]). In doing so, NYCHA is required to compare the unit’s rent to comparable unassisted units and must consider a myriad of discretionary factors, including location, quality, size, type and age of the unit, and any services, utilities and amenities provided (24 CFR 982.507[b]). Because the determination of the amount of any rental increase involves the exercise of discretion, it is not subject to mandamus. * * *

Although the eventual determination of reasonable rent will be the product of NYCHA’s judgment, the agency does not enjoy similar discretion to not make a decision at all on the rent increase requests. The applicable regulation, relied upon by NYCHA, provides that before any rent increase is allowed, NYCHA “must redetermine the reasonable rent” (24 CFR 982.507[a][2][i] [emphasis added]; see also 24 CFR 982.519[a] [under regulation relied upon by petitioners, NYCHA must annually adjust rent at owner’s request]). Upon the proper submission of a request for rent increase, NYCHA must process the request and come to a determination, whether adverse to petitioners’ position or not. NYCHA cannot leave petitioners in limbo, neither granting nor denying their requests, many of which have been pending for a significant amount of time. Thus, the petition states a claim for mandamus relief to the extent it seeks an order directing NYCHA to make a determination with respect to the rent increase requests … . Matter of Flosar Realty LLC v New York City Hous. Auth., 2015 NY Slip Op 01906, 1st Dept 3-10-15

 

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Testing and Monitoring Costs Associated with Remediation of a Petroleum Spill Are Taxable/Deference Is Accorded an Agency’s Interpretation of a Broadly-Worded Statute

The Third Department determined that the costs of monitoring and testing done as part of a remediation effort at the site of a petroleum spill are taxable pursuant to Tax Law 1105(c)(5).  The Third Department explained the courts’ review powers where an agency has interpreted a statute that is broadly worded:

Tax Law § 1105 (c) (5) imposes a sales tax on purchases of services related to “[m]aintaining, servicing or repairing real property, property or land . . . as distinguished from adding to or improving such real property, property or land, by a capital improvement.” 20 NYCRR 527.7 (a) (1) further defines “[m]aintaining, servicing and repairing” as “all activities that relate to keeping real property in a condition of fitness, efficiency, readiness or safety or restoring it to such condition.” Petitioner [Exxon Mobil] asserts that the monitoring and testing services paid for here were not taxable, as they were only intended to ascertain the condition of the affected property and not to remediate the petroleum spills. We disagree.

Under well-established principles of law, “an agency’s interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness” … . Petitioner points out that no deference will generally be afforded to administrative agencies in matters of pure statutory interpretation … . Inasmuch as the present case involves the specific application of broad statutory language, however, deference to the agency that is charged with administering the statute is appropriate … . Contrary to petitioner’s further assertion, the burden rested upon it to establish that the specific sales at issue here were not taxable (see Tax Law § 1132 [c] [1]…).

As this Court and the Court of Appeals have “noted, both the statute and regulation contain broad language” … . The removal of hazardous waste from a property constitutes a taxable maintenance service and, indeed, petitioner does not dispute that a purchase of services related to the remediation of spilled petroleum is taxable … . Petitioner claims that the services at issue here are not related to the improvement of property affected by a petroleum spill, but that claim is not borne out by the record. Petroleum discharges are prohibited in New York and, when a spill occurs, petitioner is obliged to notify the Department of Environmental Conservation and may coordinate with that Department to remediate the spill (see Navigation Law §§ 173, 175, 176 [7]). Petitioner is required to conduct an environmental investigation of the spill area, including the monitoring and testing services at issue here, as part of its remediation effort. While an active cleanup of a spill site is not required in every case, the same monitoring and testing procedures are always employed, and it may take years for those procedures to reveal what type of remediation is required. Moreover, if active remediation is conducted, further monitoring and testing is required to ensure that the remedial system may be safely removed. Under these circumstances, there was nothing irrational in the finding that the monitoring and testing services at issue constituted an “integral part of the” taxable remediation efforts, even if they were billed separately … .  Matter of Exxon Mobil Corp. v State of New York Tax Appeals Trib.. 2015 NY Slip Op 01840, 3rd Dept 3-5-15

 

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Criteria for Administrative Expungement of a Report of Child Abuse or Maltreatment Explained

In affirming the dismissal of a petition seeking expungement of a “child abuse or maltreatment report” maintained by the NYS Central Register of Child Abuse or Maltreatment, the Second Department explained the relevant analytical criteria:

At an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a preponderance of the evidence … . “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” … .

Judicial review of a determination that a report of maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record … . Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … .

To establish that maltreatment occurred, the agency must show that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of a parent or other person legally responsible for his or her care to exercise a minimum degree of care … .  Matter of Iacono v New York State Cent. Register of N.Y. State Off. of Children & Family Servs. 2015 NY Slip Op 01802, 2nd Dept 3-4-15

 

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Municipal Action Re: a Mining Permit Not Ripe for Review

In finding that the issue was not ripe for review, the Third Department explained the relevant analytical criteria:

A municipal action is ripe for judicial review if it “impose[s] an obligation, den[ies] a right or fix[es] some legal relationship as a consummation of the administrative process” … . Such a determination requires a “pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” … .

* * * … [A]ny harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review… . Matter of Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01517, 3rd Dept 2-19-15

 

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Department of Environmental Conservation’s Finding that the Owners of Land on Either Side of a Creek Also Owned a Dam Across the Creek, and Therefore Were Responsible for Making the Dam Safe, Was Not Supported by Substantial Evidence—Dam Had Been Conveyed to the City in Condemnation Proceeding

The Third Department determined that the Department of Environmental Conservation’s (DEC’s) finding that the owners of parcels of land bordering a creek also owned the dam spanning the creek between the parcels, and therefore the landowners were responsible for the work necessary to make the dam safe, was not supported by substantial evidence. The Third Department concluded the land under the water where the dam was located had been transferred to the City of Hudson in a condemnation proceeding:

We recognize that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land … . As such, a party could acquire an interest in the water flow separate and distinct from the land under the water … . The controlling point here, however, is that the “real estate” acquired in the condemnation, in conjunction with the indenture and agreement, is as defined under the WSA [Water Supply Act]. The comprehensive statutory definition for “real estate” embraces both the water and the “lands under water.” Because the [DEC] considered only the “rights” that the City acquired by the condemnation and not the “property,” the ALJ’s conclusion that petitioners own the dam is not supported by substantial evidence in the record. Berger v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01496, 3rd Dept 2-19-15

 

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