Land Use Archives - New York Appellate Digest

THE FACT THAT PETITIONERS OWN PROPERTY ADJACENT TO THE NATURE PRESERVE DID NOT GIVE THEM STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION UNDER SEQRA WITH RESPECT TO THE TOWN’S PURCHASE OF THE PRESERVE (THIRD DEPT).

The Third Department determined petitioners did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) allowing the town’s purchase of land held by a nature conservancy:

It is well settled that standing to challenge an alleged SEQRA violation by a governmental entity requires a petitioner to demonstrate “that it would suffer direct harm, injury that is in some way different from that of the public at large” … . Importantly, “[p]etitioners must have more than generalized environmental concerns to satisfy that burden and, unlike . . . cases involving zoning issues, there is no presumption of standing to raise a SEQRA or other environmental challenge based on a party’s close proximity alone” … .

Here, petitioners claim of standing is based upon the fact that they own property directly adjacent to the nature preserve and have asserted concerns that the Town, in conducting its SEQRA review, failed to consider the impact of increased motor vehicle and pedestrian traffic and/or the environmental effect that a newly proposed parking lot and hiking trail would have on the nature preserve. Initially, assuming, without deciding, that petitioners adequately established their ownership interest in the property directly adjacent to the nature preserve, their position as adjacent landowners does not automatically confer standing on them to challenge the Town Board’s negative declaration … . Moreover, petitioners’ asserted concerns fail to allege any unique or distinct injury that they will suffer as a result of the Town’s proposed land acquisition that is not generally applicable to the public at large … . Matter of Hohman v Town of Poestenkill, 2020 NY Slip Op 00013, Third Dept 1-2-20

January 2, 2020/0 Comments/by Bruce Freeman

Constitutional Law, Land Use, Zoning

ZONING LAWS WHICH PROHIBITED DEFENDANT FROM USING HIS RURAL-DISTRICT LAND TO HOST A LARGE, THREE-DAY MUSIC AND CAMPING EVENT DID NOT VIOLATE HIS FIRST AMENDMENT RIGHTS AND WERE NOT VOID FOR VAGUENESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the town zoning laws which prohibited a landowner from holding a three-day music and camping on his rural property did not unconstitutionally restrict his First Amendment rights and were not void for vagueness:

Defendant Ian Leifer owns a 68-acre property containing a single-family home and undeveloped land within the boundaries of plaintiff Town of Delaware. In 2016, he planned to sponsor on the property a three-day event named “The Camping Trip” — which he had hosted twice before in previous years — over the course of an August weekend. … Meals would be provided at the site through food truck vendors and a religious nonprofit organization would lead in Jewish religious ceremonies. … [P]reparations included off-site parking at a local school and rental of shuttle buses to transport attendees to the event site, a party tent for inclement weather, security at both the parking lot and event, $2,000,000 event insurance, 16 portable toilets, a 30-cubic-yard dumpster, EMTs on site and an ambulance on standby. * * *

None of the principal or accessory uses specifically permitted in the Rural District encompass defendant’s three-day outdoor music and camping festival. Such an event cannot reasonably be characterized as a customary accessory use associated with defendant’s single-family residence. … [U]nless the provisions are unconstitutional, his proposed use is clearly prohibited in the Rural District under the Town of Delaware Zoning Law and the Town was entitled to enjoin the event … . * * *

Defendant’s constitutional challenges … largely focus on a single land use defined in the Zoning Law that is prohibited in the Rural District but permitted in other zoning districts: the “theater” land use. This approach misses the mark because the Town did not rely exclusively on the theater provision but cited the Zoning Law as a whole to show that certain uses are prohibited in a Rural District but expressive aspects of the event, such as the musical presentations, are permitted in other districts. Considering this context, neither the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional rights. Town of Del. v Leifer, 2019 NY Slip Op 08446, CtApp 11-21-19

November 21, 2019/by Bruce Freeman

Civil Procedure, Constitutional Law, Environmental Law, Land Use, Municipal Law

PLAINTIFF DID NOT HAVE STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION PURSUANT TO SEQRA RE THE PROPOSED SEWER DISTRICT; PLAINTIFF’S ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 AND WAS THEREFORE TIME-BARRED; PLAINTIFF DID NOT HAVE A FIRST AMENDMENT RIGHT TO A RESPONSE TO HIS COMPLAINT TO THE TOWN RE THE SEWER DISTRICT (THIRD DEPT).

The Third Department determined plaintiff did not have standing to contest the negative declaration issued by the town under the State Environmental Quality Review Act (SEQRA) because the sewer construction approved by the town was 15 miles from plaintiff’s property. The Third Department further found that plaintiff’s actions should have been brought as an Article 78 and therefore was time-barred, and his First Amendment arguments, alleging the town should have responded to his “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” were meritless:

Plaintiff does not have standing to raise the SEQRA claims. “In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and] [t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds” … .Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of — and approximately 15 miles away from — the sewer district. Moreover, plaintiff’s status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district … . …

Plaintiff’s SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply … . * * *

… [T]he First Amendment does not “guarantee[] a citizen’s right to receive a government response to or official consideration of a petition for redress of grievances” … . Schulz v Town Bd. of the Town of Queensbury, 2019 NY Slip Op 07667, Third Dept 10-24-19

October 24, 2019/by Bruce Freeman

Civil Rights Law, Land Use, Zoning

THE ZONING BOARD OF APPEALS’ RULING THAT A BREAKWALL AND RETAINING WALLS ON LAKEFRONT PROPERTY WERE FENCES WHICH VIOLATED THE CODE WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ANNULLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Zoning Board of Appeals’ (ZBA’s) ruling that the breakwall and retaining walls on lakefront property were fences which violated the code was not supported by substantial evidence. The matter was brought as a hybrid CPLR article 78 proceeding and action under 42 USC §§ 1983, 1985, and 1988:

… [T]he undisputed relevant evidence establishes that the walls do not fall within the plain meaning of fences as defined by Code former § 77-1 inasmuch as they were not erected for the purpose of enclosing or dividing a piece of land …. Instead, the breakwall was constructed to maintain the shoreline of the lake in light of the future construction of a house on petitioner’s property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field, and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. We thus conclude that the ZBA’s determination affirming the order to remedy with respect to the violations of the Code that depend on the walls being considered fences lacks a rational basis and is not supported by substantial evidence. Matter of Fox v Town of Geneva Zoning Bd. of Appeals, 2019 NY Slip Op 07160

October 4, 2019/by Bruce Freeman

Land Use, Zoning

ZONING BOARD DID NOT CONSIDER ALL THE STATUTORY FACTORS; DENIAL OF APPLICATION FOR VARIANCES TO ALLOW NEW CONSTRUCTION ANNULLED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the zoning board did not consider all the statutory factors before rejecting Ressa-Cibants’ request for variances for new construction:

In determining whether to grant an area variance, a village zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b] …). In making that determination, the board must consider: “(1) 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; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) 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” (Village Law § 7-712-b[3][b] … ).

Here, the record does not reflect that the Board weighed the benefit to Ressa-Cibants against the detriment to the health, safety, and welfare of the neighborhood by considering the five factors enumerated in the Village Law § 7-712-b(3)(b) … . In particular, the Board’s determinations do not reflect that the Board considered whether there was no feasible method to achieve the benefit sought by Ressa-Cibants without height and coverage area variances. Matter of Pangbourne v Thomsen, 2019 NY Slip Op 06159, Second Dept 8-21-19

August 21, 2019/by Bruce Freeman

Land Use, Zoning

PLANNING BOARD HAD THE AUTHORITY TO RECONSIDER A SUBDIVISION AND SITE PLAN APPROVAL BASED UPON NEW INFORMATION, DESPITE THE FACT THE APPROVAL HAD BEEN RESCINDED (THIRD DEPT).

The Third Department determined that the village planning board had the authority to reaffirm a subdivision and site plan approval based upon new evidence, despite the fact the plan had previously been rescinded:

Petitioners argue that the Village Planning Board lacked the authority to reaffirm the 2010 subdivision and site plan approval. We disagree. “Despite the lack of statutory authority, a planning board may reconsider a determination if there has been a material change of circumstances since its initial approval of the plat or new evidence is presented” (Matter of 1066 Land Corp. v Planning Bd. of Town of Austerlitz, 218 AD2d 887, 887 [1995] [citations omitted]). Given that the record discloses that the Village Planning Board was presented with new information in the amended subdivision and site plan, we find that it was authorized to reaffirm the approval notwithstanding the fact that it had been previously rescinded. Matter of Town of Mamakating v Village of Bloomingburg, 2019 NY Slip Op 05732, Third Dept 7-18-19

July 18, 2019/by Bruce Freeman

Civil Procedure, Environmental Law, Judges, Land Use, Zoning

HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the Article 78 petition for a hardship waiver to allow petitioner to build a single family residence on property within the core preservation area of the Long Island Central Pines Barrens was properly denied. However, the accompanying declaratory judgment action (alleging the denial of the waiver was an unconstitutional taking) should not have been summarily dismissed by the judge absent a motion for that relief:

… [C]ontrary to the petitioner’s contention, the Commission’s determination to deny its application for an extraordinary hardship waiver had a rational basis and was not arbitrary and capricious. In particular, the Commission rationally found, inter alia, that the alleged hardship was not the result of any unique circumstances peculiar to the subject property (see ECL 57-0121[10][a][i] …) and, in any event, that the alleged hardship was self-created (see ECL 57-0121[10][a][ii], [iii] …). The Commission also rationally found that the application did not satisfy the requirements of ECL 57-0121(10)(c) and reasonably distinguished the application from prior applications for which it granted an extraordinary hardship waiver … . …

“In a hybrid proceeding and action, separate rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand” … . “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment”… . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Armand Gustave, LLC v Pavacic, 2019 NY Slip Op 05125, Second Dept 6-26-19

June 26, 2019/by Bruce Freeman

Civil Procedure, Evidence, Land Use, Real Property Law

PLAINTIFF’S DISCOVERY REQUEST FOR INSPECTION AND EXPERT EXAMINATION OF DEFENDANTS’ PROPERTY IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED DEFENDANTS DIVERTED WATER ONTO A PUBLIC ROAD WHICH FORMED A PATCH OF BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s request to enter the Rizzetta defendants’ property to allow inspection and expert examination of the alleged diversion of water from the property onto a public road should have been granted. Plaintiff was injured riding his bicycle when he hit a patch of black ice, slipped and fell:

CPLR 3120(1)(ii) provides that a party may serve another party with notice “to permit entry upon designated land or other property in the possession, custody or control of the party served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon.” Motions seeking such discovery “are routinely granted when a central issue in the case is the condition of the real property under inspection” … . …

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion. A central issue in this litigation is the source of the water which allegedly caused the injury-producing ice condition. An owner of private land abutting a public roadway may be liable for injuries sustained from a fall on ice on the public roadway, if the “ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway” … . The plaintiff’s theory of the Rizzetta defendants’ liability is premised upon the Rizzetta defendants’ alleged diversion of water from their property onto the public roadway. Although the probative value of the inspection may be weakened by the passage of time since the accident occurred, such delay is not a basis for denying the plaintiff’s discovery request where, as here, the inspection may still aid the parties in preparation for trial … . Zupnick v City of New Rochelle, 2019 NY Slip Op 04754, Second Dept 6-12-19

June 12, 2019/by Bruce Freeman

Administrative Law, Civil Procedure, Land Use, Zoning

THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript:

The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided “a copy of a transcript from the proceeding, . . . any of the submissions that he may have made in support of the requests, including the applications for any variances themselves” and had “also not provided an affidavit from a person with knowledge in support of [his] petition.”

CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.” Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381, Second Dept 6-5-10

June 5, 2019/by Bruce Freeman

Civil Procedure, Land Use, Real Estate, Real Property Law, Zoning

PLAINTIFFS’ ACTION SEEKING TO ENJOIN THE CONSTRUCTION OF A HOME PLAINTIFFS CONTENDED WAS IN VIOLATION OF THE TOWN CODE SHOULD HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF LACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the doctrine of laches applied to plaintiffs’ action seeking to enjoin defendant’s construction of a house. Plaintiffs alleged the construction violated the Town Code:

” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . ” The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . …

The plaintiffs commenced this action nearly three years after the building permit was first issued in May 2012 and after [plaintiff] Kverel withdrew his administrative appeal, two years after the parties entered into the stipulation, and more than six months after construction purportedly commenced in August 2014. Although the building permit was amended several times thereafter and as late as February 2015, the record demonstrates that the plaintiffs were aware as early as July 2012, when the subject property remained undeveloped and before the defendant purchased the subject property, of their claim that the defendant’s construction was in violation of the Town Code. Although the record unequivocally demonstrates that the plaintiffs were opposed to the defendant’s construction on the subject property, the plaintiffs did not seek administrative review by the ZBA or injunctive relief until they commenced this action. Kverel v Silverman, 2019 NY Slip Op 04152, Second Dept 5-29-19

May 29, 2019/by Bruce Freeman