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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

 

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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

 

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OWNERS OF BUSINESSES IN THE VICINITY OF THE PROPOSED CONSTRUCTION ALLEGED DECREASED PARKING SPACES, INCREASED TRAFFIC CONGESTION AND THE BLOCKING OF SCENIC VIEWS AS REASONS FOR OVERTURNING THE SEQRA NEGATIVE DECLARATION ALLOWING THE CONSTRUCTION; THE BUSINESS OWNERS DID NOT HAVE STANDING TO CONTEST THE DECLARATION (THIRD DEPT).

The Third Department upheld the negative SEQRA (State Environmental Quality Review Act) declaration approving the construction of a mixed use structure which would reduce the number of parking spaces available in Oneonta. The fact that the petitioners owned businesses in the vicinity of the new construction did not confer standing to contest the negative declaration:

Although petitioners have established that their businesses are within close proximity to the project site, that fact alone does not confer automatic standing in the SEQRA context … . Petitioners’ allegations largely hinged on economic business concerns occasioned by an alleged decrease in available parking … , and their claim relating to traffic impacts “fail[s] to demonstrate an environmental injury different from that suffered by the public at large” … . Although the obstruction of a scenic view may constitute an environmental injury within the zone of interests sought to be protected by SEQRA … , the concerns espoused by certain petitioners regarding potential adverse scenic impacts to their businesses were undeveloped and otherwise too speculative to establish standing in these circumstances … . We also note that the project site is located in a “mixed use” district (MU-1) — which permits the type of development contemplated — and, according to the full environmental assessment form, there are no officially designated scenic or aesthetic resources located within five miles … . Matter of Peachin v City of Oneonta, 2021 NY Slip Op 02863, Third Detp 5-6-21

 

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TWO ZONING VIOLATION SUMMONSES ADDRESSING THE SAME USE OF THE PROPERTY WERE NOT DUPLICATIVE; THEREFORE THE NYC DEPARTMENT OF BUILDINGS’ FAILURE TO APPEAL THE DISMISSAL OF THE FIRST SUMMONS DID NOT PRECLUDE THE SECOND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that two actions brought by the NYC Department of Buildings (DOB) seeking the removal of four large industrial shipping containers from petitioner’s auto-repair-shop premises were not duplicative. Therefore the DOB’s failure to appeal the dismissal of the first summons did not preclude the second summons. The second summons was dismissed by the hearing officer but was reinstated by the OATH [NYC Office of Trials and Hearings] Appeals Unit. The First Department upheld the reversal by the Appeals Unit. [The decision covers several substantive issues not summarized here]:

Petitioners argue primarily that although the summonses cite to two different provisions of the law — a Zoning Resolution violation and a certificate of occupancy violation pursuant to Administrative Code § 28-118.3.2 — the same proof and arguments were presented at the hearings for both summonses, namely, the certificate of occupancy, photographs depicting storage of the shipping containers on the property, the argument that the shipping containers would be transformed into trucks, and the counterargument that the storage was not a permitted use. They contend that this analysis is sufficient to demonstrate the duplicative nature of the summonses. The argument is unavailing. * * *

Here … the same body of evidence is used to prove two different violations, a violation of the Zoning Resolution, which covers the permitted uses and businesses within a specific area, and a violation of the certificate of occupancy, which applies specifically to the property, and describes the legal occupancy and use of that property. Moreover, the remedy for the two summonses is not the same. The first summons demanded that petitioners discontinue the illegal use, while the second summons provided for alternative remedies — discontinue illegal use or amend the certificate of occupancy. Accordingly, the OATH Appeals Unit’s finding that the second summons was not duplicative of the first summons was not arbitrary and capricious. Matter of Karakash v Del Valle, 2021 NY Slip Op 01484, First Dept 3-11-21

 

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ABSENT A REQUEST FROM A PARTY, SUPREME COURT SHOULD NOT HAVE SUMMARILY DISMISSED THE DECLARATORY JUDGMENT ASPECT OF THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the court should not have summarily dismissed the declaratory judgment aspect of this hybrid declaratory judgment/Article 78 action. The Second Department found that Supreme Court had properly affirmed the denial of a special use permit for a dog kennel, but the Second Department reinstated the request for a declaratory judgment on the constitutionality of a related local law:

… [T]he Supreme Court should not have summarily dismissed the cause of action for a judgment declaring that Town of Lewisboro Code § 220-23(D)(7) is unconstitutional. “In a hybrid proceeding and action, separate procedural 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'” … . Here, since no party made such a request, the court erred in summarily disposing of the cause of action for a judgment declaring that Town of Lewisboro Code § 220-23(D)(7) is unconstitutional. Matter of Muller v Zoning Bd. of Appeals Town of Lewisboro, 2021 NY Slip Op 01416, Second Dept 3-10-21

 

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SUPREME COURT SHOULD HAVE DEFERRED TO THE NYC BOARD OF STANDARDS AND APPEALS’ INTERPRETATION OF AN AMBIGUOUS ZONING RESOLUTION WHICH ALLOWED THE CONSTRUCTION OF A 55 STORY CONDOMINIUM BUILDING; THE BUILDING IS COMPLETE AND THE DOCTRINE OF MOOTNESS APPLIES TO PRECLUDE THE APPEAL (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined Supreme Court should have deferred o the judgment of the NYC Board of Standards and Appeals (BSA) which allowed the construction of a 55 story condominium building. At issue was an ambiguous Zoning Resolution and the relationship between zoning lots and tax lots. The First Department held that the BSA had the necessary expertise to interpret the relevant statute and Supreme Court should have allowed the BSA’s interpretation to stand. In addition, the First Department found that the mootness doctrine had not been waived and the doctrine applied to the appeal because the building was fully completed and so steps to halt construction had been taken during the lengthy litigation:

The BSA’s interpretation of the relevant subdivision was “neither irrational, unreasonable nor inconsistent with the governing statutes” … . It rationally interpreted the resolution and properly considered Amsterdam’s reliance on the DOB’s [NYC Department of Building’s] longstanding Minkin Memo and the history of the block, as several other buildings on the block were issued certificates of occupancy, even though they also include partial tax lots. “When an agency adopts a construction which is then followed for ‘a long period of time,’ such interpretation ‘is entitled to great weight and may not be ignored'” … . …

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy”… . In the construction context, “several factors [are] significant in evaluating claims of mootness[,] [c]hief among them [being] a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … . Matter of Committee for Environmentally Sound Dev. v Amsterdam Ave. Redevelopment Assoc. LLC, 2021 NY Slip Op 01228, First Dept 3-2-21

 

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NYC’S “OPEN SPACE” ZONING REQUIREMENT IS MET BY ROOFTOP GARDENS ON A SINGLE BUILDING IN A MULTI-BUILDING ZONING LOT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division and upholding the NYC Board of Standards and Appeals (BSA), over an extensive three-judge dissent, determined the “open space” requirement of the NYC Zoning Resolution in a zoning lot with multiple buildings was met by rooftop gardens accessible to a single building’s residents:

The question before us is whether an area must be accessible to the residents of every building on a zoning lot containing multiple, separately owned buildings in order to constitute “open space” within the meaning of the New York City Zoning Resolution … . The Board of Standards and Appeals of the City of New York (BSA), which is responsible for administering the Zoning Resolution, has interpreted the definition of open space to encompass rooftop gardens accessible to a single building’s residents as long as the residents of each building on the zoning lot receive at least a proportionate share of open space. …

… “‘Open space’ is that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot” … . The minimum amount of open space required on a zoning lot is determined by the “open space ratio,” which is “the number of square feet of open space on the zoning lot, expressed as a percentage of the floor area on that zoning lot” … . … [T]he minimum amount of open space required on a zoning lot is calculated by multiplying the given open space ratio by the total residential floor area on the zoning lot. * * * The Appellate Division … opined that the definition of open space in ZR [Zoning Resolution] § 12-10 unambiguously requires that open space be accessible to the residents of every building on a zoning lot. By contrast, the dissent concluded that the statute was ambiguous and would have deferred to the BSA’s practical reading of the open-space definition as applied to multi-owner zoning lots. * * *The BSA’s interpretation is rational as applied to multi-owner zoning lots. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2020 NY Slip Op 07662, CtApp 12-17-20

 

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TOWN PLANNING BOARD PROPERLY ISSUED A SPECIAL USE PERMIT FOR THE INSTALLATION OF A MAJOR SOLAR SYSTEM; DENIAL OF A SPECIAL USE PERMIT CANNOT BE BASED SOLELY UPON COMMUNITY OPPOSITION (THIRD DEPT).

The Third Department determined the town planning board properly issued the special use permit for a major solar energy system. Petitioners objected to the project alleging “negative visual impact and negative impact on adjoining property values.” The court found that the planning board had complied with the State Environmental Quality Review Act (SEQRA), the relevant Local Law and the relevant zoning ordinance.  The court noted a special use permit cannot be denied solely based upon community opposition:

A Planning Board may not deny a special use permit based “solely on community objection” … . Petitioners and the community objected to the project due to potential concerns of negative visual impact and negative impact upon adjoining property values. The Planning Board had ample evidence to support its determination that these impacts would be minimal. The visual assessment survey determined that, between the existing vegetation and the topography, the completed project would not be readily visible to the surrounding area. The Planning Board further found that the property owner’s concern about potential reflected glare from the solar panels was adequately addressed through Eden’s use of anti-glare coating. To further shield the community’s view of the project and to allow adjoining property owners to cut down their own trees if they so choose, the Planning Board required a 1,600-foot evergreen barrier. This evergreen screen, the property’s continued use of the land for beekeeping and sheep grazing and the determination that the project will not affect any historic resources all provide a rational basis for the Planning Board’s determination that the character of the neighborhood and property values would be reasonably safeguarded. Matter of Biggs v Eden Renewables LLC, 2020 NY Slip Op 07011, Third Dept 11-25-20

 

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PETITIONERS WERE NOT REQUIRED TO OBTAIN A USE VARIANCE BEFORE APPLYING FOR A SPECIAL PERMIT TO OPERATE THEIR RESIDENCE AS AN AIRBNB, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Zoning Board of Appeals’ (ZBA’s) ruling that petitioners would have to obtain a use variance before applying for a special use permit to operate their residence as an Airbnb rental lacked a rational basis:

Town Code § 280-31 provides that the uses and structures permitted in the R-1 District, where petitioners’ residence is located, include the principal uses and structures permitted under section 280-24, which governs R-E Districts, except those specified in subdivisions four and five of the six enumerated subdivisions in that section. The sixth subdivision allows “[t]he following uses by special use permit authorized by the Planning Board: . . . (b) Bed-and-breakfast establishments and tourist homes” … . A plain reading of sections 280-24 and 280-31 therefore unambiguously demonstrates that special uses are permitted principal uses, subject to authoriztion by the Planning Board … . …

… [W]e conclude that the Town Code establishes that special uses are permitted uses in specific districts, but the burden is on an applicant for a special use permit to show that the proposed use is allowable within that district by establishing that the use has the requisite individual characteristics … . Our interpretation of the Town Code is supported by Town Law§ 274-b (1), which defines a special use permit as “an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met.” Matter of Churchill v Town of Hamburg, 2020 NY Slip Op 05356, Fourth Dept 10-2-20

 

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INSTEAD OF DISMISSING THE PETITION FOR FAILURE TO INCLUDE A NECESSARY PARTY, SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED PURSUANT TO CPLR 1001 (b) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking review of the village planning board’s decision re: petitioner’s application for approval of a subdivision should not have been dismissed. Because the planning board’s decision affected another landowner (160 South Ocean, LLC) Supreme Court dismissed the petition for failure to include a necessary party. The Second Department held Supreme Court should have ordered the party summoned pursuant to CPLR 1001 (b):

160 South Ocean, LLC, is a necessary party to this proceeding (see CPLR 1001[a]) subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than denying the petition and dismissing the proceeding for failure to join a necessary … party (CPLR 1001[b] …). Accordingly, we reinstate the petition and remit the matter to the Supreme Court, Suffolk County, for further proceedings, including a determination on the merits of the respondents’ motion, inter alia, to dismiss the petition … . Matter of Mulford Bay, LLC v Rocco, 2020 NY Slip Op 05050, Second Dept 9-23-30

 

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