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NYU SUFFICIENTLY ALLEGED AN INJURY-IN-FACT ENTITLING IT TO LITIGATE THE CONSTITUTIONALITY OF A NYC ZONING RESOLUTION PROHIBITING THE CONSTRUCTION OF CLASSROOMS AND DORMITORIES IN THE SPECIAL DISTRICT; THERE WAS A COMPREHENSIVE DISSENT (FIRST DEPT). ​

The First Department, over an extensive dissent, reversing Supreme Court, determined plaintiff New York University (NYU) had demonstrated an “injury in fact” which provided standing to contest the constitutionality of a New York City Zoning Regulation (ZR) prohibiting the construction of classrooms and dormitories:

NYU has sufficiently alleged an injury in fact. As stated by the Court of Appeals … , “[t]he injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention”; while this requirement “is closely aligned with [the] policy not to render advisory opinions,” “standing rules should not be applied in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . * * *

NYU … has alleged not just an interference with its ability or abstract interest but with its actual present intentions and desires, a showing of specific plans is not a necessary additional requirement for an injury-in-fact showing. NYU’s claim that it has had a long-standing and continuing interest in expanding educational uses in the Special District whose implementation has been limited by the variance requirement is further evidenced by the fact that NYU previously put one of its Special District properties to educational use after obtaining a variance. There is no valid basis for predicating the injury-in-fact showing on evidence that NYU has expended time, money and other resources developing a particular plan for the renovation or conversion of a particular Special District property to educational uses. Judicial consideration of NYU’s claim seeking a declaration as to the unconstitutionality of the ZR amendment should not require that it first experience the harm it seeks to avoid by challenging the amendment. New York Univ. v City of New York, 2024 NY Slip Op 04183, First Dept 8-7-24

​Practice Point: Consult this decision for an explanation of what constitutes an injury-in-fact providing a party with standing to litigate the constitutionality of a zoning provision.

 

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RESIDENTS WHO DO NOT LIVE IN CLOSE PROXIMITY TO THE CHALLENGED FENCE DO NOT HAVE STANDING TO ASSERT A ZONING VIOLATION; BECAUSE THE NYS DEPARTMENT OF EDUCATION AND THE COMMISSIONER OF EDUCATION APPROVED CONSTRUCTION OF THE FENCE, THEY ARE NECESSARY PARTIES IN THIS ZONING-VIOLATION PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) plaintiff property owners who did not live in close proximity to the proposed fence around school property did not have standing to assert a zoning violation; and (2) the NYS Department of Education (SED) and the Commissioner of Education, which authorized construction of the fence, are necessary parties. The plaintiffs alleged the local school district violated local zoning laws by not seeking approval from the village before starting construction of the fence:

A party seeking standing to challenge an administrative action must establish that the injury it sustained was “different in kind and degree from the community generally” … . A party residing “in the immediate vicinity” of the subject property suffers harm greater than the community at large when the subject property violates a zoning law because “loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood” … . …

… “[N]ecessary parties are persons who might be inequitably affected by a judgment in the action and must be made plaintiffs or defendants” ( … CPLR 1001[a]). SED and the Commissioner are necessary parties because the Supreme Court’s determination would necessarily determine their rights to set school safety standards and approve plans for school construction … . Matter of Cuomo v East Williston Union Free Sch. Dist., 2024 NY Slip Op 02702, Second Dept 5-15-24

Practice Point: Only residents who live in close proximity to property alleged to violate zoning laws have standing to assert a zoning violation.

Practice Point: When necessary parties have not been included in a lawsuit, the court should try to make them parties.

 

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THE RULING OF THE TOWN PLANNING BOARD ENGINEER RE: A PROPOSED INDUSTRIAL PARK MUST BE CHALLENGED BEFORE THE TOWN ZONING BOARD OF APPEALS, NOT SUPREME COURT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petitioners’ challenge to a ruling by the town’s planning board engineer must first be brought in front of the town’s zoning board of appeals before a court can hear it:

“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” … . “This doctrine . . . reliev[es] the courts of the burden of deciding questions entrusted to an agency, prevent[s] premature judicial interference with the administrators’ efforts to develop[ ] . . . a co-ordinated, consistent and legally enforceable scheme of regulation,” and allows the agency “to prepare a record reflective of its expertise and judgment” … . “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … .

As required by Code of the Town of New Windsor § 300-86(D)(3), the Planning Board Engineer reported to the Planning Board that the proposed site plan met all applicable zoning laws. Since the Town’s Zoning Board of Appeals had the authority to review determinations of administrative officials with respect to local zoning laws … , the petitioners were required to challenge the determination of the Planning Board Engineer before the Zoning Board of Appeals … . Matter of O’Malley v Town of New Windsor Planning Bd., 2024 NY Slip Op 02537, Second Dept 5-8-24

Practice Point: Here the petitioners did not exhaust their administrative remedies before bringing a petition in Supreme Court. The town planning board engineer’s ruling on an application for approval of an industrial park must first be challenged in front of the town zoning board of appeals before an Article 78 petition is an available remedy.

 

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THE TOWN ZONING BOARD SHOULD NOT HAVE INTERPRETED THE TERM “SINGLE FAMILY DWELLINGS” SUCH THAT SHORT TERM RENTALS WERE PROHIBITED BECAUSE TRANSIENT TENANTS DO NOT MEET THE DEFINITION OF “FAMILY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and annulling the zoning board’s (ZBA’s) ruling, determined the term “single family dwellings” should not have been interpreted to prohibit short-term rentals. The ZBA reasoned that short-term, transient tenants do not meet the definition of “family:”

“[L]ocal zoning boards have broad discretion, and [a] determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence” … . So long as a zoning board’s interpretation of its governing code “is neither ‘irrational, unreasonable nor inconsistent with the governing [code],’ it will be upheld” … . However, where, as here, the issue presented “is one of pure legal interpretation of [the code’s] terms, deference to the zoning board is not required” … . * * *

… [U]nder the Zoning Ordinance, the transient or temporary nature of a group is but one factor that “may” be considered to determine whether four or more persons who are not related by blood, marriage, or adoption are the “functional equivalent” of a “traditional family.” … [I]f petitioner rented her property to three or fewer persons, or to four or more persons who are related by blood, marriage, or adoption, those groups would meet the Zoning Ordinance’s definition of a “[f]amily” without regard to whether their tenancy was transient or temporary in nature. The ZBA’s determination to the contrary lacked a rational basis … , and the court erred in sustaining the determination. Matter of Friedman v Town of Dunkirk, 2023 NY Slip Op 05912, Fourth Dept 11-17-23

Practice Point: Where a zoning board purports to make a pure legal interpretation of terms used in the zoning code, a court’s deference to the zoning board is not required.

Practice Point: Here the zoning board’s interpretation of the term “family” within the phrase “single family residences” to exclude short-term rentals to transient tenants was irrational.

 

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THERE WAS A QUESTION WHETHER THE EXPANSION OF A PREEXISTING NONCONFORMING USE FELL WITHIN THE NONCONFORMING USE; THE ZONING BOARD OF APPEALS’ RULING ALLOWING THE EXPANSION OF A MARINA WAS ANNULLED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the marina and shellfishiing operation were preexisting nonconforming uses, there was a question whether the expansion of the marina fell within the nonconforming use. The zoning board of appeals’ (ZBA’s) determination allowing the expansion was annulled and the matter was remitted to the ZBA:

“While nonconforming uses are generally permitted to continue, they may not be enlarged as a matter of right” … . Although a mere increase in the volume in one’s business may not constitute a change in use, “a distinction is to be drawn where there has been a purposeful expansion of the nature of [the] operation” … . “The protection of vested rights in a nonconforming structure, existing or in process of erection at the time of the imposition of zoning restrictions, does not extend to subsequent new construction” … .

Here, the Reeves’ [the marina owners’] failure to obtain site plan approval for the reconstruction of the docks and bulkhead, for which permits were initially issued in 2003, casts doubt on whether any of the new structures built after 2003 fall within the Reeves’ nonconforming use for the marina and commercial shellfishing operation … and calls into question the Building Department’s unexplained finding that the dock and bulkhead reconstruction work “did not constitute an expansion of a pre-existing, non-conforming use in 2003″—which was not specifically addressed in the ZBA’s … determination. Matter of Andes v Zoning Bd. of Appeals of the Town of Riverhead, 2023 NY Slip Op 03009, Second Dept 6-7-23

Practice Point: An expansion of a preexisting nonconforming use, here a marina and shellfishing operation, may not fall within the nonconforming use. The building department’s finding that new construction did not expand the preexisting nonconforming use was not addressed in the zoning board of appeals’ (ZBA’s) determination. The determination was annulled and the matter was sent back to the ZBA.

 

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BUYER WAS ENTITLED TO SPECIFIC PERFORMANCE OF A CONTRACT FOR THE SALE OF “INCLUSIONARY AIR RIGHTS” (IAR’S); IAR’S DICTATE THE ALLOWED SQUARE FOOTAGE OF BUILDINGS ON A PARCEL OF LAND (THE ALLOWED NUMBER OF FLOORS FOR EXAMPLE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined that a contract for the purchase of “inclusionary air rights” (IAR’s) was subject to specific performance. “Air rights” are controlled by zoning regulations. For example, if a 10,000 square-foot parcel of land is allowed 50,000 square feet of floor space, the air rights for that 10,000 square-foot parcel constitute 40,000 square feet. Here the contract for the purchase of air rights between sophisticated real estate developers was deemed to be subject to specific performance. Defendant seller tried to back out of the deal because the selling price was too low:

… New York courts have consistently considered air rights an “interest in real property” … . … [S]pecific performance is not solely limited to real property; the remedy may also apply in other instances, such as a conveyance of shares of stock in a close corporation or an agreement to sell shares in a cooperative real estate corporation … .

… [S]pecific performance may be available in actions where the market is opaque and the price of the goods is subject to intense fluctuation … . … [S]pecific performance is warranted because of the parties’ incorporation of a specific performance in their agreement, defendant’s willful breach of the agreement, the absence of an inequitable or disproportionate burden, and the admitted uncertainty of valuing IARs.  301 E. 60th St. LLC v Competitive Solutions LLC, 2023 NY Slip Op 02842, First Dept 5-30-23

Practice Point: A contract for the sale of “inclusionary air right” (IAR’s) which, for example, dictate the number of floors allowed in a building constructed on a parcel of land, can be subject to specific performance.

 

THE ZONING BOARD OF APPEALS’ INTERPRETATION OF THE CODE RE: THE PARKING OF A CAMPER TRAILER ON THE PETITIONER’S PROPERTY WAS IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the zoning board of appeals’ (ZBA’s) interpretation of the zoning code was irrational. Petitioner was ordered to remedy the violation which was alleged to be his parking his camper trailer on his property within 250 feet of the property line. But the code provisions did not support the alleged violation:

The interpretation by a zoning board of its governing code is generally entitled to great deference by the courts” … . In the end, “[s]o long as its interpretation is neither ‘irrational, unreasonable nor inconsistent with the governing statute,’ it will be upheld” … . “Where, however, the question is one of pure legal interpretation of [a zoning code’s] terms, deference to the zoning board is not required” … . “[T]he ultimate responsibility of interpreting the law is with the court” … .

… [W]e agree with petitioner that respondents’ interpretation of the Zoning Code is irrational and unreasonable … . The “order to remedy violation” stated that petitioner violated the setback requirement set forth in section 110-3 of the Town’s Zoning Code, which limits “[t]he number of tents, trailers, houseboats, recreational vehicles, or other portable shelters in a camp” … . The Zoning Code, however, defines a “[c]amp” as “[a]ny temporary or portable shelter, such as a tent, recreational vehicle, or trailer” … . Respondents do not explain how a trailer or recreational vehicle can constitute both a “[c]amp” as defined in section 103-2 as well as a shelter “in a camp,” as defined in section 110-3, and the Zoning Code does not have additional provisions that clarify the issue. Matter of Lemmon v Town of Scipio, 2023 NY Slip Op 02446, Fpurth Dept 5-5-23

Practice Point: Here the zoning code was self-contradictory and the zoning board of appeals applied the code irrationally with respect to petitioner’s parking a camper trailer on his property.

 

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THE TOWN PLANNING BOARD COMPLIED WITH THE “HARD LOOK” REQUIREMENTS OF SEQRA AND PROPERLY GRANTED A SPECIAL USE PERMIT, CRITERIA EXPLAINED IN SOME DETAIL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town planning board complied with the State Environmental Quality Review Act (SEQRA) and properly considered the criteria for a special use permit when it approved a project:

… [T]he Planning Board identified groundwater resources, noise, and scenic resources as relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its negative determination of significance. * * *

… [T]he record demonstrates that the Planning Board complied with Zoning Code § 143-117(A)(6) and (9), which required it to assess the “[a]dequacy of water supply and sewage disposal facilities,” and to provide the protection of “neighboring properties against noise, glare, unsightliness or other objectionable features.”

Lastly, “[a] use permitted by a special use permit is a use that has been found by the local legislative body to be appropriate for the zoning district and ‘in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . Although the Planning Board “‘does not have the authority to waive or modify any conditions set forth in the ordinance'” … , “[t]he permit must be granted if the application satisfies the criteria set forth in the zoning law” … . Matter of Tampone v Town of Red Hook Planning Bd., 2023 NY Slip Op 02011, Second Dept 4-19-23

Practice Point: The Second Department explained the judicial-review criteria for a town planning board’s negative declaration under SEQRA and a town planning board’s compliance with the zoning code and special-use-permit requirements.

 

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THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT).

The Fourth Department, sending the matter back to the Town Board for the second time in this variance proceeding, determined the board’s failure make adequate findings of fact and explain the reasons for its decision precluded appellate review:

Generally, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination” … . Here, we conclude that the Town Board has once again precluded intelligent judicial review of its determination inasmuch as its “purported findings of fact are speculative and mere conclusions and contain very little[, if any,] factual matter” … . The Town Board “must do more than merely restate the terms of the applicable ordinance” and the procedural history preceding and subsequent to the determination; rather, the Town Board must set forth “findings of the facts essential to its conclusion” to grant the variance in the first instance—i.e., the determination that is the subject of the appeal … . Given that the Town Board has “failed to articulate the reasons for its determination and failed to set forth …, we continue to hold the case, reserve decision and remit the matter to the Town Board to properly set forth the factual basis for its determination within 30 days of the date of entry of the order of this Court. We remind the parties that “[a]n attorney or party who fails to comply with a[n] . . . order of th[is C]ourt . . . shall be subject to such sanction as [we] may impose” upon motion or our own initiative after the attorney or party has a reasonable opportunity to be heard (22 NYCRR 1250.1 [h]). Matter of Guttman v Covert Town Bd., 2023 NY Slip Op 01632, Fourth Dept 3-24-23

Practice Point: An appellate court cannot review a Town Board’s ruling in a variance proceeding when the board does not explain its ruling and make findings of fact. Here the matter was sent back to the board for its reasons and findings of fact for a second time, under threat of sanctions.

 

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PERMIT/ORDER ALLOWING DEVELOPMENT OF MARINAS ON LOWER SARANAC LAKE IN THE ADIRONDACK PARK ANNULLED (THIRD DEPT).

The Third Department, reversing the Adirondack Park Agency (APA), in a full-fledged opinion by Justice Ceresia, determined that the APA misapplied its wetlands regulations in issuing a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled. The opinion is too detailed and comprehensive to fairly summarize here:

LS Marina’s wetlands permit application required APA to evaluate the freshwater wetland at the Annex location and assign it a value rating between one and four, with one representing the highest value (see 9 NYCRR 578.5). The value rating is arrived at by first determining whether the wetland possesses any one or more of 24 different characteristics, each of which, in turn, has an assigned value of one through four (see 9 NYCRR 578.5 [a]-[x]). These 24 characteristics are grouped under six headings or categories, which APA refers to as “factors.” The wetland’s overall value is to be no lower than the highest value of any of its characteristics (see 9 NYCRR 578.6 [a]). Furthermore, as is relevant here, if the wetland has three or more characteristics with a value of two, which fall under “more than one factor,” this will raise the wetland’s value to one (9 NYCRR 578.6 [c]).

There is no dispute that the wetland at the Annex has three value-two characteristics, and that these three characteristics fall under two separate factors (see 9 NYCRR 578.5 [c], [g], [k]). Nevertheless, APA assigned the wetland an overall value of two rather than one … . … Therefore, APA should have assigned an overall value of one to the Annex wetland and should have analyzed the wetlands permit application accordingly (see 9 NYCRR 578.10 [a] [1]). Matter of Jorling v Adirondack Park Agency, 2023 NY Slip Op 01118, Third Dept 3-2-23

Practice Point: Here the Adirondack Park Agency misapplied its wetlands regulations with respect to a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled.

 

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