Land Use Archives - New York Appellate Digest

Civil Procedure, Environmental Law, Land Use, Zoning

THE IMMEDIATE NEIGHBORS HAD STANDING TO CONTEST THE APPROVAL OF THE CONSTRUCTION OF A DOLLAR STORE; THE PLANNING BOARD DID NOT NEED TO SEND THE MATTER TO THE ZONING BOARD OF APPEALS TO INTERPRET A ZONING ORDINANCE WHICH WAS ONLY A GUIDELINE CONCERNING THE ALLOWED LENGTH OF A BUILDING FACADE; THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (THIRD DEPT).

The Third Department, reversing Supreme Court, noting that the abutting neighbors (Cady and Crawley) had standing to contest the town planning board’s approval of the construction of a Dollar Store, determined Supreme Court should not have found that the matter must be sent to the Zoning Board of Appeals (ZBA) for a variance proceeding. Because the zoning ordinance in question, concerning the length of a building facade, was only a guideline, it was not necessary to involve the ZBA to interpret it:

Cady and Cawley’s residence is directly adjacent to the proposed construction site, and the proposed retail store would be directly across the woods from their property. The store’s main parking lot, which is located behind the store, is in the line of sight of Cady and Cawley’s property. As a result, the store is likely to obstruct or interfere with the scenic views within the scenic viewshed overlay district from Cady and Cawley’s property. Cady and Cawley have standing because they have demonstrated that they would suffer an “injury in fact – i.e., actual harm by the action challenged that differs from that suffered by the public at large — and that such injury falls within the zone of interests, or concerns sought to be promoted or protected by the statutory provision under which the agency has acted” … . * * *

… [T]he Town zoning code states that “the length of any faÇade should generally not exceed 50 feet maximum [horizontal dimension]”. Insofar as the subject provision lacks any compulsory language, … this provision is deliberately phrased … as a guideline, rather than as a prohibition; in other words, there was no requirement for a referral to the ZBA to determine the plain language of the statute. …

… [O]ur review of the record reveals that the Planning Board underwent a nearly four-year process that involved in-depth environmental impact reports, multiple draft EISes [environmental impact statements] and public hearings, which formed the basis of the FEIS [final environments impact statement] and SEQRA [State Environmental Quality Review Act] findings statement. Accordingly, we find that the Planning Board complied with its procedural and substantive requirements under SEQRA … . Matter of Arthur M. v Town of Germantown Planning Bd., 2020 NY Slip Op 03440, Third Dept 6-18-20

June 18, 2020/0 Comments/by Bruce Freeman

Land Use, Zoning

SALE OF LAND ORIGINALLY SET ASIDE FOR A CEMETERY WITHOUT RESTRICTIONS CONSTITUTED AN ABANDONMENT OF THE CEMETERY-RELATED USE-RESTRICTIONS ON THE LAND (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined the (1907) restrictions on land originally set aside for use as a cemetery had been abandoned (by the sale of the land in 1908) and the single-family residential zoning restrictions subsequently imposed on the land were enforceable, despite the repurchase of the land by the operator of the cemetery:

“A holder of a deed of a cemetery lot . . . acquires only a privilege or license, exclusive of others, to make interments in the lot purchased, only so long as the lot remains a cemetery” … . However, such privilege or license may be extinguished upon abandonment of the cemetery use … . * * *

… “[W]here a cemetery has been so neglected as entirely to lose its identity as such, and is no longer known, recognized, and respected by the public as a cemetery, it may be said to be abandoned” … . Moreover, an affirmative act that “undoes the character and association” of the cemetery “and leaves the land subject to sale or to legal partition . . . loses its sacredness as a resting place for the dead” … . …

Here, the 1908 sale of the 33-acre parcel … to … a private individual, which included the 12.5-acre parcel at issue, constituted an affirmative act of abandonment of the cemetery use of that property. The petitioner failed to submit any evidence to establish a continuous and uninterrupted relationship between itself and the persons or entities that owned the property from 1908 to 1971, when it reacquired the property … . Matter of Ferncliff Cemetery Assn. v Town of Greenburgh, 2020 NY Slip Op 02925, Second Dept 5-20-20

May 20, 2020/by Bruce Freeman

Land Use, Zoning

ZONING BOARD’S DENIAL OF A VARIANCE WAS BASED PRIMARILY ON COMMUNITY OPPOSITION; THE DENIAL WAS PROPERLY ANNULLED BY SUPREME COURT (THIRD DEPT).

The Third Department determined the Board of Zoning Appeals improperly denied petitioner’s application for a variance based primarily on community opposition:

… [W]e cannot say that respondent’s determination to deny the area variance was rational. Respondent’s findings reflect that an environmental review of the proposed project concluded that there would be no significant impacts to, among other things, aesthetic or historic resources, the air, land, drainage or open space area. The findings also indicated that the City of Ithaca Planning Board, at best, gave an equivocal opinion about the proposed project. In this regard, the findings stated that the Planning Board was “unsure” whether the requested variance was consistent with the neighborhood and that it was ‘conflicted’ about petitioner’s appeal to respondent. Furthermore, petitioner’s proposed use of the property was a permitted use in the neighborhood. In addition, the record contains comments from individuals in the neighborhood — some of which supported and some of which disapproved of petitioner’s request. Yet, respondent’s consideration of the requisite factors (see Code of City of Ithaca § 325-40 [C] [3] [b] [1]-[5]) rested primarily on the opposing comments provided by those individuals living in the neighborhood … . Given that the views of the community in opposition to petitioner’s request by itself does not suffice to deny a variance, respondent’s determination lacks a rational basis … . Matter of 209 Hudson St., LLC v City of Ithaca Bd. of Zoning Appeals, 2020 NY Slip Op 02311, Third Dept 4-16-20

April 16, 2020/by Bruce Freeman

Civil Procedure, Land Use, Zoning

VILLAGE BOARD WAS NOT REQUIRED TO CONSIDER AN APPLICATION FOR THE AMENDMENT OF A ZONING ORDINANCE WHICH IS A LEGISLATIVE FUNCTION NOT SUBJECT TO AN ARTICLE 78 REVIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village board properly declined to consider an application to rezone the subject property, which was an exercise of a legislative function:

“[T]he amendment of a zoning ordinance is a purely legislative function” … . The Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change (see Village Law § 7-708 …). Thus, in the present case, the Village Board’s determinations not to consider the plaintiffs/petitioners’ applications were a legislative function not subject to review under CPLR article 78 … . Matter of Hampshire Recreation, LLC v Village of Mamaroneck, 2020 NY Slip Op 02062, Second Dept 3-25-20

March 25, 2020/by Bruce Freeman

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

PLAINTIFF DID NOT HAVE STANDING TO CONTEST PERMITS GRANTING THE CONVERSION OF DEFENDANT’S PROPERTY FROM MANUFACTURING TO RETAIL; PROXIMITY TO DEFENDANT’S PROPERTY WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to contest the defendant City’s issuing permits allowing defendant CAB to convert property from manufacturing to retail. Plaintiff operated a grocery store 450 feet from CAB’s property. The Second Department held proximity was not enough to confer standing on plaintiff:

“In land use matters, . . . [the plaintiff] must show that it would suffer direct harm, injury that is in some way different from that of the public at large'” … . “An allegation of close proximity may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury” … . “However, this does not entitle the property owner to judicial review in every instance” … . “Rather, in addition to establishing that the effect of the proposed change is different from that suffered by the public generally, the [property owner] must establish that the interest asserted is arguably within the zone of interests the statute protects” … . Thus, “even where [the property owner’s] premises are physically close to the subject property, an ad hoc determination may be required as to whether a particular [property owner] itself has a legally protectable interest so as to confer standing” … .

Here, the plaintiff alleged standing on the basis of proximity, issues and interests within the zone of interests, and adverse impacts. We disagree with the Supreme Court’s finding that the plaintiff had standing to commence this action. The plaintiff failed to allege any harm distinct from that of the community at large … . 159-MP Corp. v CAB Bedford, LLC, 2020 NY Slip Op 01892, Second Dept 3-18-20

March 18, 2020/by Bruce Freeman

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

CORRESPONDENCE BETWEEN THE TOWN AND THE PROPERTY OWNER AMOUNTED TO AN AGREEMENT TO AGREE, NOT AN ENFORCEABLE SETTLEMENT AGREEMENT ALLOWING CONSTRUCTION; SUPREME COURT’S DIRECTIVES TO THE TOWN ENCROACHED UPON THE TOWN’S ADMINISTRATIVE AUTHORITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) the correspondence between the property owner (PCP) and the town concerning proposed construction created an agreement to agree, not an enforceable settlement agreement allowing construction; and (2), Supreme Court’s directing what the town could and could not consider with respect to the construction project encroached upon the town’s administrative authority:

… [T]he letters that the court found to have memorialized the settlement agreement did not contain all the material terms of the settlement and constituted no more than an agreement to agree … . [The town] stated therein only that it was “now in a position to agree to a settlement of the mass and scale issues,” but that first it would “need to receive, review and approve all of the items that it normally reviews in connection with any application it receives.” Any agreement was further conditioned on [the town’s] receipt of additional documentation from PCP, including “an accurate, to-scale site plan” and further roof specifications … .

We further conclude that, in the absence of an enforceable settlement agreement, the court’s hearing on the issues of mass and scale, subsequent decision rendering findings of fact related to PCP’s new application for a certificate of approval, and remittal to [the town] for consideration of that application with specific directives regarding what [the town] could and could not consider were impermissible intrusions into respondents’ administrative domain … . Matter of Pittsford Canalside Props., LLC v Village of Pittsford Zoning Bd. of Appeals, 2020 NY Slip Op 01812, Fourth Dept 3-13-20

March 13, 2020/by Bruce Freeman

Civil Procedure, Land Use, Zoning

LOCAL LAW CREATING A SENIOR LIVING DISTRICT (SLD) WAS INVALID BECAUSE APPROVAL BY A SUPERMAJORITY OF THE TOWN BOARD WAS REQUIRED; BECAUSE THE COMPLAINT SOUGHT A DECLARATORY JUDGMENT DISMISSAL OF THE COMPLAINT WAS NOT PROPER, SUPREME COURT SHOULD HAVE RULED ON THE DECLARATORY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, in a matter of first impression, determined a local law rezoning agricultural land as a senior living district (SLD) where a senior living community could be constructed was invalid. In order to avoid the requirement that the local law be approved by a supermajority (as opposed to a simple majority) of the town board, the local law called for a 100-foot buffer between the SLD and the surrounding properties. However, in this case, the land in the 100-foot buffer was to be used for access roads and other purposes which exclusively served the SLD. In that situation, the Third Department held, the approval of the local law requires a supermajority and the local law was therefore invalid. The Third Department also noted that, because the complaint sought a declaratory judgment, dismissal of the complaint was not proper. A ruling on the declaratory judgment was required:

… [T]he SLD cannot be used for its intended purpose without improvements in the buffer zone that will serve only uses in the SLD and will provide no public benefit. Under these circumstances, we do not find that the purported buffer zone is sufficient to defeat the supermajority requirements of Town Law § 265. Notably, in holding that the distance of a buffer zone from neighboring properties should be measured from the boundary of the rezoned area rather than that of the buffer zone, the Court of Appeals found that this statutory interpretation “is fair, because it makes the power to require a supermajority vote dependent on the distance of one’s property from land that will actually be affected by the change” (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d at 315 [emphasis added]). Here, land within the buffer zone will actually be affected by the rezoning in such a way that it would neither be fair nor consistent with the spirit and intent of Town Law § 265 to deprive neighboring landowners of the power to require a supermajority vote. We find that where, as here, a proposed buffer zone will contain improvements that benefit only the rezoned area and are necessary to the intended uses of the rezoned area, Town Law § 265 should be interpreted to require the 100-foot distance to opposing and adjacent properties to be measured from the boundary of the buffer zone rather than that of the rezoned area … . Dodson v Town Bd. of the Town of Rotterdam, 2020 NY Slip Op 01234, Third Dept 2-20-20

February 20, 2020/by Bruce Freeman

Environmental Law, Land Use, Real Property Law, Zoning

UNRESOLVED QUESTIONS OF FACT CONCERNING WHETHER THE CONSTRUCTION OF A WHOLE FOODS STORE IN THE VICINITY OF A RECREATIONAL TRAIL AND A PUBLIC USE EASEMENT VIOLATES THE PUBLIC TRUST DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined petitioner’s violation of the public trust doctrine causes of action should not have been dismissed. The action relates to the construction of a Whole Foods store in the vicinity of a recreational trail and a public use easement:

… [T]he court erred by granting a declaration in favor of respondents on petitioner’s … causes of action … which allege violations of the public trust doctrine, because there are unresolved factual issues concerning the impact of the Whole Foods development on a recreational trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail ,,, , Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754, Fourth Dept 1-31-20

January 31, 2020/by Bruce Freeman

Land Use, Landlord-Tenant, Zoning

USE OF A SINGLE FAMILY HOME FOR MOSTLY WEEKEND SHORT-RENTALS IS NOT A LEGAL NONCONFORMING USE OF THE PROPERTY (SECOND DEPT).

The Second Department determined the zoning board properly held that petitioner’s. Cradit’s, use of her property for short-term guests was not a legal nonconforming use:

… [W]e agree with the Board’s determination that Cradit’s use of her property was not a legal nonconforming use. Contrary to Cradit’s argument, in renting out the residence on the property on a short-term basis, she was not using the residence as a one-family dwelling. A one-family dwelling is a building that contains a single dwelling unit (see Southold Town Code § 280-4[B]). Where property is used as “a boarding- or rooming house, . . . hotel, motel, inn, lodging or nursing or similar home or other similar structure[, it] shall not be deemed to constitute a dwelling unit'” (id.). The Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280-4 and 280-111(J), Southold Town Code § 280-8(E) specifically provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, because Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use is a legal nonconforming use … . Matter of Cradit v Southold Town Zoning Bd. of Appeals, 2020 NY Slip Op 00588, Second Dept 1-29-20

January 29, 2020/by Bruce Freeman

Environmental Law, Land Use, Municipal Law

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/by Bruce Freeman