Land Use – New York Appellate Digest

Administrative Law, Appeals, Land Use, Municipal Law, Zoning

A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances:

Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA is without jurisdiction to hear an appeal … . * * *

…[W]e conclude on this record that there was no determination … affording jurisdiction to the ZBA to hear petitioner’s appeal … . Matter of Webster Citizens for Appropriate Land Use, Inc. v Town of Webster, 2021 NY Slip Op 07370, Fourth Dept 12-23-21

December 23, 2021/0 Comments/by Bruce Freeman

Environmental Law, Land Use, Municipal Law

EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING COMMUNITY (FLOOD PROTECTION) AS WELL AS THE PARK, THE RECONSTRUCTION SERVES A PARK PURPOSE AND THE APPROVAL OF THE STATE LEGISLATURE IS THERFORE NOT REQUIRED UNDER THE PUBLIC TRUST DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined the planned reconstruction of the East River Park along the waterfront of the lower east side of Manhattan did not require approval by the state legislature pursuant to the public trust doctrine, even though the project benefitted the park and other community objectives (protection against neighborhood flooding):

Petitioners contend that the principal purpose of the project is construction of a coastal shore floodwall to safeguard the residential developments nearby. They argue that the conclusion of a nonpark purpose is warranted because the work proposed is disproportionate to the work required to preserve the Park. There is no dispute that the project will greatly benefit the nearby communities from the risk of coastal flooding. At its core, however, petitioners’ argument is that any project that serves a park purpose cannot serve a dual purpose. Stated differently, that a park purpose is served only if that is the sole objective of a particular project. This is too narrow a reading of the park purpose requirement.

A project that benefits a park as well as other community objectives can still be considered to serve a park purpose under the public trust doctrine. * * * … [E]ven though a coastal flooding protection project will provide communities adjacent to the Park with flood protection, it will also protect the Park from coastal flooding.

Once it is determined that there is a park purpose, the salutary goal of preventing the alienation of parkland is satisfied. Matter of East Riv. Park Action v City of New York, 2021 NY Slip Op 06652, First Dept 11-30-21

November 30, 2021/by Bruce Freeman

Administrative Law, Land Use, Zoning

THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT).

The Second Department determined the planning board abused its discretion in issuing a special permit and approving a site plan for a plant nursery and arborist business. To issue the special permit, the planning board improperly waived a requirement that the business have frontage and access to two major roads. The approve the site plan, the planning board which violated the village zoning law:

One of the requirements of the special use permit at issue was that the arborist service, landscape services and/or wholesale nursery “shall have frontage on and practical access to two major roads” (Code of the Village of Wesley Hills [hereinafter Village Code] § 230-26[N][2]). Here, the Planning Board abused its discretion by waiving this requirement and deeming “practical access” to a second major road unnecessary. …

… A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion … . Village Code § 230-45 states that the Planning Board “shall not approve a site plan unless it shall find that such plan conforms [with] the requirements of [the Village Zoning Law].” Since the Village Zoning Law requires that a lot in the R—35 zoning district have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment I), the Planning Board abused its discretion in approving the site plan, which had a proposed gross impervious surface ratio of .44. Matter of Marcus v Planning Bd. of the Vil. of Wesley Hills, 2021 NY Slip Op 06618, Second Dept 11-24-21

November 24, 2021/by Bruce Freeman

Administrative Law, Land Use, Zoning

THE ADMINISTRATIVE RECORD SUPPORTED THE GRANT OF THE ARIA VARIANCE BY THE ZONING BOARD OF APPEALS; SUPREME COURT SHOULD NOT HAVE SUBSTITUTED ITS JUDGMENT FOR THE BOARD’S (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly granted an area variance and Supreme Court should not have substituted its judgment for the board’s:

The administrative record and the ZBA’s formal return in the CPLR article 78 proceeding establish that the ZBA considered the five statutory factors, including whether the alleged difficulty was self-created … . Thus, we conclude that the ZBA “rendered its determination after considering the appropriate factors and properly weighing the benefit to the [applicants] against the detriment to the health, safety and welfare of the neighborhood or community” if the variance was granted … . We further conclude that the record establishes that the ZBA’s determination had the requisite rational basis … . It was therefore error for the court to substitute its judgment for that of the ZBA, “even if such a contrary determination is itself supported by the record” … . Matter of Gasparino v Town of Brighton Zoning Bd. of Appeals, 2021 NY Slip Op 06239, Fourth Dept 11-12-21

November 12, 2021/by Bruce Freeman

Environmental Law, Land Use, Zoning

ALLOWING THE APPLICANT FOR SITE PLAN APPROVAL TO RETURN WITH A SIGNAGE PROPOSAL AFTER THE PLAN WAS APPROVED DID NOT CONSTITUTE (IMPERMISSIBLE) SEGMENTATION UNDER SEQRA (SECOND DEPT).

The Second Department determined the fact the site plan was approved by the planning board without signage did not constitute segmentation under the State Environmental Quality Review Act (SEQRA):

The fact that the site plan was approved without signage did not constitute segmentation under SEQRA. Segmentation is defined as the division of the environmental review of a single action such that various activities or stages are addressed as though they are independent, unrelated activities, needing individual determinations of significance (see 6 NYCRR 617.2[ah]). The regulations which prohibit segmentation are designed to guard against a distortion of the approval process by preventing a project with potentially significant environmental effects from being split into two or more smaller projects, each falling below the threshold requiring full-blown review … . Here, signage is not being treated as an independent, unrelated activity, but as a part of the entire project, and allowing [the applicant] to return to the Planning Board with a signage proposal will not distort the approval process. Matter of Route 17K Real Estate, LLC v Planning Bd. of the Town of Newburgh, 2021 NY Slip Op 05858, Second Dept 10-27-21

October 27, 2021/by Bruce Freeman

Administrative Law, Civil Procedure, Land Use, Municipal Law, Zoning

THE FINDING BY THE BOARD OF ZONING APPEALS WAS NEVER FILED AS REQUIRED BY THE GENERAL CITY LAW; THEREFORE THE 60-DAY TIME LIMIT FOR CONTESTING THE RULING NEVER STARTED TO RUN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 60-day statute of limitation for contesting a ruling of the board of zoning appeals (BZA) never started to run because the ZBA’s finding was never filed:

General City Law § 81-a (5) (a) imposes an affirmative duty on administrative officials charged with the enforcement of a local zoning law or ordinance in mandating that “[e]ach order, requirement, decision, interpretation or determination . . . shall be filed. . . within five business days from the day it is rendered, and shall be a public record” … . General City Law § 81-a (5) (b) states that “[a]n appeal shall be taken within [60] days after the filingof any order, requirement, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought” (… see Code of the City of Ithaca § 325-40 [B] [1] [e]). Upon review of the record, it is impossible to ascertain exactly when the Planning Board determined that variances were not necessary. However, it is undisputed that no determination of such finding was ever filed. As General City Law § 81-a (5) (b) plainly provides that the time period for commencing a review proceeding is to be measured from the filing, and there was no filing, the time period for the administrative appeal never began to run … . Matter of Grout v Visum Dev. Group LLC, 2021 NY Slip Op 04997, Third Dept 9-16-21

September 16, 2021/by Bruce Freeman

Land Use, Zoning

THE ZONING BOARD OF APPEALS’ (ZBA’S) DENIAL OF A LOT-SIZE VARIANCE CONFLICTED WITH A PRIOR RULING BASED ON SIMILAR FACTS; THEREFORE THE ZBA WAS REQUIRED TO PROVIDE A FACTUAL BASIS FOR ITS DECISION; THE DECISION, WHICH WAS SUPPORTED ONLY BY COMMUNITY OPPOSITION, WAS ARBITRARY AND CAPRICIOUS (SECOND DEPT).

The Second Department affirmed Supreme Court’s ruling that the zoning board of appeals (ZBA’s) denial of a lot-size variance was arbitrary and capricious:

“A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,” and thus, “[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation” … .

Here, the ZBA failed to set forth any factual basis in the determination to establish why it was reaching a different result on essentially the same facts as a prior application that had been granted … . Further, in response to the petitioner’s submission of expert testimony, the ZBA’s findings were merely supported by generalized community opposition and were not corroborated by any empirical data or expert testimony … . Matter of O’Connor & Son’s Home Improvement, LLC v Acevedo, 2021 NY Slip Op 04915, Second Dept 9-1-21

September 1, 2021/by Bruce Freeman

Land Use, Zoning

THE NYC BOARD OF STANDARDS AND APPEALS (BSA) PROPERLY APPROVED THE CONSTRUCTION OF A BUILDING IN THE SPECIAL LINCOLN SQUARE DISTRICT ON A SPLIT-LOT, I.E., A LOT THAT STRADDLES TWO ZONING DISTRICTS, EACH WITH ITS OWN LIMITATIONS ON USE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Count, determined the NYC Board of Standards and Appeals (BSA) properly approved the construction of a building in the Special Lincoln Square District. The project is on a zoning lot that straddles to zoning districts, each with its own limitations on uses, a so-called split-lot:

This Court has held that a split lot is treated as a single lot when assessing compliance with a zoning requirement that applies equally to both zoning districts of the split lot and that the split-lot provision is applied on a “regulation-by-regulation basis” … . ZR § 82-34, the relevant bulk distribution regulation, provides that “[w]ithin the Special District, at least 60 percent of the total floor area permitted on a zoning lot” must be below a height of 150 feet from curb level. There is no dispute that the project complied with ZR § 82-34. Practically speaking, this provision directly regulates the distribution of a building’s floor area and indirectly regulates height by restricting much of a zoning lot’s floor area to the part of a building below a cutoff. Every square foot that needs to be below the 150-foot ceiling to comply with ZR § 82-34 reduces the number of square feet that could be above it. ,,, As noted by BSA, “the Special District’s bulk-distribution regulations do operate to reduce the height of buildings in the Special District — only not to the extent [petitioner] wish[es]” … . … BSA held that this regulation applies to both … zoning districts because it is located in a “Special District.” … ZR § 82-34’s imposition of the bulk distribution regulation within the Special Lincoln Square District creates … commonality … so as to override the split-lot provision’s prohibition against transfer of floor area between the two zoning districts, and permits the two zoning districts to be treated as one. Under these circumstances, we find that BSA’s determination to apply ZR § 82-34 to the project’s zoning lot was rational. City Club of N.Y. v New York City Bd. of Stds. & Appeals, 2021 NY Slip Op 04533, First Dept 7-22-21

July 22, 2021/by Bruce Freeman

Administrative Law, Environmental Law, Land Use, Zoning

THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) WHEN IT APPROVED THE DEVELOPMENT WHICH INCLUDED APARTMENTS AND A COSTCO RETAIL FACILITY; SUPREME COURT SHOULD NOT HAVE ANNULLED THE APPROVAL AS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department, reversing Supreme Court, in an exhaustive analysis which cannot be fairly summarized here, determined the Planning Board took the required hard look, pursuant to the State Environmental Quality Review Act (SEGRA), at all the aspects of the proposed development project. Therefore the Planning Board’s approval of the project should not have been annulled as arbitrary and capricious. The development included apartments and a Costco Wholesale retail facility. With regard to the compatibility issues, the court wrote:

In essence, although the Costco store may, to some, not be the most compatible use, the Planning Board properly viewed it in the context of the entire project. As such, the Planning Board considered not only the fact that the Costco store is a permitted use that complied with all of the design standards contained in Local Law No. 4, but also the other tangible benefits of the project, which directly aligned with the purpose of the Local Law. These factors included pedestrian and bicycle accommodations and improvements. Also, the Planning Board considered access management and transit improvements in design and layout, including the reduction of lanes … , the construction of a new roundabout to process traffic more efficiently, the reconfiguration of a major intersection to reduce vehicular speed and a new CDTA bus stop, which CDTA confirmed would ease congestion, improve safety and result in a “marked improvement for customers” in the area. The Planning Board proposed the construction of a new connector road … , and numerous project design features to prevent noise and visual and other impacts. All told, the Planning Board discharged its duty and took the requisite hard look as to compatibility and satisfied its obligations under SEQRA … . Matter of Hart v Town of Guilderland, 2021 NY Slip Op 04273, Third Dept 7-8-21

July 8, 2021/by Bruce Freeman

Administrative Law, Land Use, Municipal Law, Zoning

ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY IN APPROVING THE USE OF A BUILDING AS A HOMELESS SHELTER ITS JUDICIAL REVIEW WAS DONE; THE APPELLATE DIVISION SHOULD NOT HAVE REMITTED THE MATTER FOR A HEARING ON THE SAFETY OF THE BUILDING (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division did not have the authority to send the matter back for a hearing after finding the NYC Department of Buildings (DOB) acted rationally when it approved the use of a building as a homeless shelter:

The Appellate Division erred in remitting to Supreme Court for a hearing on whether the building’s use as a homeless shelter was “consistent with general safety and welfare standards.” In this CPLR article 78 proceeding, the scope of judicial review does not extend past the question of whether the challenged determinations were irrational, which is a question of law (see CPLR 7803[3] …). Upon concluding that an authorized agency has reviewed a matter applying the proper legal standard and that its determination has a rational basis, a court cannot second guess that determination by granting a hearing to find additional facts or consider evidence not before the agency when it made its determination … . Accordingly, it was improper for the Appellate Division to remit for plenary judicial proceedings to address “general safety and welfare” issues, thereby contravening the applicable standard of judicial review in this context and inviting inconsistent enforcement of the Building Code. Matter of West 58th St. Coalition, Inc. v City of New York, 2021 NY Slip Op 03346, CtApp 5-27-21

May 27, 2021/by Bruce Freeman