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Challenge to Environmental Impact Statement Premature/Not Ripe for Adjudication Until the Special Use Permit and Site-Plan Approval (which Precipated the Enviromental Review) Are Issued

The Second Department determined a challenge to finding pursuant to the State Environmental Quality Review Act (SEQRA) was not ripe.  The environmental review was precipitatied by an application for a special use permit and site-plan approval.  Although the town board had approved the final environmental impact statement (FEIS), the special use permit and site-plan approval were still pending:

An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decisionmaker arrives at a ” definitive position on the issue that inflicts an actual, concrete injury'” … . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party … .Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication… . Matter of Patel v Board of Trustees of Inc Vil of Muttontown, 2014 NY Slip Op 01756, 2nd Dept 3-19-14

 

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Landowners Who Have Been Granted a Variance Are Necessary Parties In an Action Challenging the Variance (CPLR 1001 (b))

The Second Department determined that landowners who were issued a zoning variance were necessary parties in the action challenging the variance. The landowners had not been properly served and Supreme Court went ahead and determined the merits without the landowners in the suit. On appeal the petitioners did not dispute that the landowners were necessary parties, but argued their presence should be excused under the factors in CPLR 1001 (b). The Second Department disagreed, finding that, under the facts, factors 2 through 5 required the landowners to be parties to the action:

A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b):   (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party… . Matter of Feder v Town of Islip Zoning Board of Appeals, 2014 NY Slip Op 00998, 2nd Dept 2-13-14

 

Petitioners Did Not Have Standing to Challenge Construction of Shopping Mall/No Showing of Unique Environmental Injury

The Second Department determined that members of a “Neighborhood Preservation Coalition” did not have standing to challenge the construction of a shopping mall.  The petitioners lived approximately 1300 to 2000 feet away from the proposed construction site:

Contrary to the petitioners’ contention, the Supreme Court properly concluded that they lacked standing. ” [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at …large'” … . Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone … . Further, the individual petitioners’ allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course… . Matter of Riverhead Neighborhood Preserv Coalition Inc v Town of Riverhead Town Bd, 2013 NY Slip Op 08640, 2nd Dept 12-26-13

 

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:

“A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” … .  While “[z]oning laws must be enacted in accordance with a comprehensive land use plan” … to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” … .  … As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.”  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .

Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful”… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

 

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Criteria Not Met for “Special Facts” Exception to Rule that the Zoning Law in Effect at the Time a Site Plan Application is Decided Is Controlling

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the zoning law in effect at the time the applicant’s (Rocky Point’s) site plan application was decided, as opposed to the zoning law in effect when the application was first submitted, controlled. The criteria for the “special facts” exception to the general rule (general rule = applying the law at the time the application was decided) was not met. The court explained:

In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law … . Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the “special facts” exception to the general time of decision rule.Under the special facts exception, where the land owner establishes that they are entitled as a matter of right to the underlying land use application—here, a “site plan”–the application is determined under the zoning law in effect at the time the application is submitted …. In order for a land owner to establish entitlement to the request as a matter of right, the land owner must be in “full compliance with the requirements at the time of the application,” such that “proper action upon the permit would have given [the land owner] time to acquire a vested right” … . In addition to showing entitlement to the request as a matter of right, the land owner must also show “extensive delay indicative of bad faith,” …, “unjustifiable actions” by the municipal officials, …, or “abuse of administrative procedures” ….As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point Drive-In LP v Town of Brookhaven, 197, CtApp 11-14-13

 

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Construction of Dock Could Not Be Regulated by Town—Land Under Navigable Waters Owned by State

The Third Department determined that the Lake George Town Planning Board did not have jurisdiction to grant or deny petitioner’s application to build a dock in Lake George because the state, not the town, owned the land under navigable waters:

When the state owns land under navigable waters in its sovereign capacity, its exclusive authority preempts local land use laws and extends beyond the regulation of navigation “to every form of regulation in the public interest.”… .  The state holds title to the lands under Lake George in its sovereign capacity  and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government … .

“[A]bsent the delegations in Navigation Law § 46-a allowing local municipalities to regulate the manner of construction and location of structures in waters owned by the [s]tate in its sovereign capacity, municipalities bordering or encompassing such waters . . . have no authority to issue such regulations”… . The Hart Family v Town of Lake George, 515142, 3rd Dept 10-24-13

 

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Variance Should Not Have Been Granted to Homeowner Who Built Swimming Pool In Violation of Set-Back Requirements

The Second Department reversed Supreme Court’s annulment of a Zoning Board of Appeals (ZBA) determination that a variance should not be granted to a homeowner who, without a permit, constructed a swimming pool in violation of a rear-yard setback:

In deciding whether to grant an application for an area variance, the Board “is required to engage in a balancing test that weighs the benefit to the applicant if the variance is granted against the detriment to the health, safety, and welfare of the neighborhood or community” … . The Board must consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will result by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method other than an area variance, (3) the requested area variance is substantial, (4) the proposed variance will adversely impact the physical or environmental conditions in the neighborhood if it is granted, and (5) the alleged difficulty was self-created (see Town Law § 267-b[3][b]). * * *

Contrary to the conclusion reached by the Supreme Court, the ZBA’s determination had a rational basis and was not arbitrary and capricious. The evidence before the ZBA supported its conclusions that granting the requested variance would produce an undesirable change in the character of the neighborhood, the variance was substantial, and any hardship was self-created (see Town Law § 267-b[3][b]). Contrary to the petitioner’s contention, the ZBA’s granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA… . Matter of Blandeburgo v Zoning Bd of Appeals Town of Islip, 2013 NY Slip Op 06680, 2nd Dept 10-16-13

 

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Petition Seeking Revocation of Building Permit Should Have Named the Director Who Had the Power to Revoke It

In affirming the grant of a building permit by the village board of appeals (BOA), the Second Department noted that only Director of Building, Code Enforcement and Land Use Administration had the power to revoke a building permit and therefore the Director should have been named in the Article 78 proceeding seeking revocation: …[I]n a proceeding pursuant to CPLR article 78 which seeks to compel a body or officer to perform a duty imposed by law, the proceeding must be commenced against the body or officer whose performance is sought (see CPLR 7803). The petitioners sought to compel the BOA to revoke the building permit and any subsequently issued certificate of occupancy. However, only the Director is empowered to do so (see Village Code §§ 126-7, 126-12, 126-15). Thus, the petitioners should have named and joined the Director as a party to this proceeding … .  Matter of Lucas v Board of Appeals of Vil of Mamaroneck, 2013 NY Slip Op 05908, 2nd Dept 9-18-13

 

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Planning Board Should Not Have Added Conditions for Approval of Final Plat Plan

The Second Department affirmed Supreme Court’s determination that the planning board’s denial of approval of a final plat plan was arbitrary and capricious.  The Court determined that the planning board was aware of the variance upon which the denial was based (involving the transfer of sanitary flow credits) at the time it approved the preliminary plat plan:

Although the Planning Board’s approval of the preliminary plat in April 2010 did not guarantee approval of the final version (see Town Law § 276[4]), a planning board may not, in the absence of significant new information, deny final approval if a property owner implements the modifications or conditions required by a preliminary approval (…Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 276 Preliminary Review). Here, the Planning Board had long known that the SCDHS’s approval of a Suffolk County Sanitary Code variance was based on the transfer of sanitary flow credits and, indeed, the Planning Board specifically referenced that transfer in its April 2010 conditional preliminary approval. Inasmuch as no significant new information came to light after the Planning Board gave its approval to the preliminary plat, its imposition of additional requirements in the conditional final approval was, as the Supreme Court correctly held, arbitrary and capricious… . Matter of Nickart Realty Corp v Southold Town Planning Bd, 2013 NY Slip Op 05909, 2nd Dept 9-18-13

 

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Use Variance Criteria

The Second Department explained the criteria for a use variance as follows:

“[A] landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” …. Here, [the property owner] failed to show, based on competent financial evidence, that it cannot yield a reasonable rate of return absent the requested variance. Therefore, the ZBA’s [Zoning Board of Appeals’] determination to grant a use variance for parking in the BB residence district must be annulled. Matter of Hejna v Board of Appeals…, 2013 NY Slip Op 02395, 2011-08146, Index No 29063/07, 2nd Dept 4-10-13

 

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