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RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS.

The Third Department, reversing Supreme Court, determined the record did not support the zoning board of appeals’ (ZBA’s) denial of a special use permit for keeping dogs on petitioner’s property. The Third Department found the only competent evidence of the noise level was petitioner’s scientific measurement and the neighbors’ complaints about the noise were not a proper basis for denial of the permit:

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The record shows that the ZBA advised petitioner that the noise from her property should not exceed 80 decibels … . At the public hearing, petitioner explained that she was certified as a nurse to take sound readings and had done so at the property line over a period of approximately one month at different intervals of the day. She claimed that the noise from her property had not exceeded 70 decibels … . She also offered at least two proposals to address the concerns of the neighbors regarding any noise issue. She proposed a six-foot-high stockade fence and moving the outside pens so that they would be blocked by a building. The nearest neighbor, located across the road from petitioner’s property, played a recording at the public hearing that he claimed was a recording that he made of noise emanating from petitioner’s property. He also claimed that the noise was cited by a prospective purchaser of his property … . Another neighbor, who has a horse training and boarding business approximately 500 feet from petitioner’s property, claimed that some of her customers expressed concerns about the noise from petitioner’s property, and she allegedly provided copies of emails from those customers. …

In its determination, the ZBA did not identify any specific shortcomings in petitioner’s mitigation measures, but summarily determined that petitioner had not offered measures that would sufficiently mitigate the dog noise impact from her business. We view this determination of the ZBA to be without sufficient support in the record. Petitioner offered scientific measurement of the noise level and there was no other objective measure of the noise offered at the public hearing. The neighbor’s recording of the noise is subject to an unreliable interpretation of its level based upon the ability to control the volume of the recording, and reliance on the recording would be unreasonable. Absent reliable proof that rebuts petitioner’s offer of her measurement of the sound level and her offer of measures to address any noise concerns, there is no basis in the record to determine that petitioner did not meet the conditions imposed by the Land Use Law, and it appears that the ZBA bowed to generalized objections from two neighbors … . Matter of Blanchfield v Hoosick, 2017 NY Slip Op 03097, 3rd Dept 4-20-17

 

ZONING (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/SPECIAL USE PERMITS (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/NEIGHBOR OBJECTIONS (ZONING, RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)

LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW.

The Second Department determined the local procedural laws for the zoning board of appeals (ZBA) were not preempted by the state-wide Village Law and the village’s failure to comply with time limits imposed by the local laws did not require the annulment of the board’s ruling (approving a variance). The decision includes a good discussion of the interplay between local zoning laws and the state-wide Village Law:

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“Although local laws that are inconsistent with state laws are generally invalid, the Municipal Home Rule Law allows incorporated villages to amend or supersede provisions of the Village Law as they relate to zoning matters” … . Nevertheless, “[l]ocal lawmaking power under the supersession authority is of course in all instances subject to the State’s transcendent interest where the Legislature has manifested such interest by expressly prohibiting a local law, or where a local law is otherwise preempted by State law” … .

Here, contrary to the petitioner’s contention, Village Law § 7-712-a does not preempt the Village from regulating the issues of whether its ZBA renders short-form or long-form decisions, or the time periods within which those decisions must be issued. The Legislature has not evinced an intent to preempt the field, and the legislative history of that section indicates that the Legislature envisioned no comprehensive and detailed regulatory scheme with respect to the form or timing of decisions of a zoning board of appeals … . Matter of Wenz v Brogan, 2017 NY Slip Op 03009, 2nd Dept 4-19-17

 

ZONING (LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW)/PREEMPTION (ZONING, LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW)

TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING ITS ORIGINAL JURISDICTION.

The Third Department determined a 2-2 tie vote by the zoning board of appeals on a special use permit was not a default denial because the board was exercising its original, not appellate, jurisdiction. Therefore a subsequent 3-2 vote in favor of the permit (after a new member was appointed) was valid:

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Supreme Court accurately set forth the 2002 legislative amendments to Town Law § 267-a, aptly observed the impact of those amendments in relation to Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington (97 NY2d 86 [2001]) and correctly determined that a tie vote of a zoning board of appeals only results in a default denial when, among other things, it is exercising its appellate jurisdiction … . Inasmuch as it is undisputed that the ZBA was exercising its original jurisdiction here … , we agree with Supreme Court that the September 2014 tie vote did not result in a default denial. Matter of Alper Rest. Inc. v Town of Copake Zoning Bd. of Appeals, 2017 NY Slip Op 02871, 3rd Dept 4-13-17

ZONING (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)/ZONING BOARD OF APPEALS (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)

BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS.

The Second Department, remitting the matter to the zoning board of appeals, noted that Supreme Court should not have considered the merits of petitioners’ application for renewal of a variance because the board did not address the merits. The board denied the application under the doctrine of res judicata which the parties agreed was not applicable:

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The Supreme Court improperly, in effect, denied the petition and dismissed the proceeding after reviewing the merits of the subject portion of the petitioners’ application. In considering the petitioners’ request to renew the use variance allowing the subject property to be used as a two-family dwelling without the condition that the subject property be owner-occupied, the Board did not reach the merits of that portion of the application. Instead, the Board relied upon the doctrine of res judicata to deny the petitioners’ request for renewal of the use variance without an owner-occupied condition and stated that, as a result, it was not engaging in an analysis of the merits of imposing an owner-occupied condition, which had been rendered academic. On appeal, the parties do not challenge the court’s determination that the Board’s reliance upon the doctrine of res judicata was improper.

However, upon concluding that the Board improperly invoked the doctrine of res judicata, the Supreme Court should not have then analyzed the merits of the subject portion of the petitioners’ application. “Judicial review of an administrative determination is limited to the grounds invoked by the agency in making its decision” … . “If the grounds relied upon by the agency are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Matter of Rodriguez v Weiss, 2017 NY Slip Op 02794, 2nd Dept 4-12-17

 

ZONING (BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS)/ADMINISTRATIVE LAW (ZONING, BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS)

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PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE.

The Fourth Department determined the respondent town planning board acted arbitrarily and capriciously when it denied petitioner’s challenge to the finding his property was within the boundaries of a woodlot environmental protection overlay district (EPOD). The Fourth Department held that the respondent was obligated to consider the EPOD criteria laid out in the Town Code and failed to do so:

Petitioner owns property located within a Woodlot Overlay Protection District in the Town of Irondequoit, as set forth on the Woodlots Map of the Town of Irondequoit. Irondequoit Town Code (Town Code) § 235-43 provides that the locations and boundaries of an environmental protection overlay district (EPOD) shall be delineated on the official set of maps, but further states that those maps “shall be used for reference purposes only and shall not be used to delineate specific or exact boundaries of the various overlay districts. Field investigations and/or other environmental analyses may be required in order to determine whether or not a particular piece of property is included within one or more of the overlay districts.” Section 235-44 then provides that the “Town Department of Planning and Zoning shall be responsible for interpreting [EPOD] boundaries based on an interpretation of the Official Town of Irondequoit EPOD Maps, as well as the use of various criteria set forth in this article for determining such district boundaries.” For a Woodlot EPOD, those criteria are set forth at section 235-53 (B) of the Town Code and include, inter alia, that the property have “communities” of certain species of trees. Finally, section 235-44 provides that “[a]ppeals from a determination of the Town Department of Planning and Zoning regarding boundaries of overlay districts shall be made to the Town Planning Board in accordance with the public hearing procedures.” * * *

We conclude that petitioner stated a claim that respondent acted arbitrarily and capriciously in denying the appeal because the criteria set forth in Town Code § 235-53 (B) were not considered by respondent. Based on Town Code §§ 235-43 and 235-44, respondent is responsible for interpreting the boundary of the particular Woodlot EPOD encompassing petitioner’s property, based on the criteria set forth in Town Code … . Matter of Gilbert v Planning Bd. of Town of Irondequoit, 2017 NY Slip Op 02210, 4th Dept 3-24-17

 

ZONING (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/ENVIROMENTAL LAW (ENVIRONMENTAL PROTECTION OVERLAY DISTRICT, (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/PLANNIG BOARD (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)

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PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS.

The Third Department, reversing Supreme Court, determined defendant property owners’ counterclaim should have been dismissed. Defendants, in the context of a zoning-violation action by the town, alleged fraud and a violation of civil rights by the town. With respect to municipal liability for civil rights violations in the zoning context, the court explained:

A government official may face civil liability if a party can prove that he or she was “depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws” (42 USC § 1983). With respect to zoning issues, “42 USC § 1983 protects against municipal actions that violate a property owner’s rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution” … . To state a cause of action, defendants must “allege that, without legal justification, they were deprived of a vested property interest, consisting of more than a mere expectation or hope of obtaining a permit or a variance” … . Further, a municipal body may face liability pursuant to 42 USC § 1983 only where the constitutional deprivation stems from an official municipal policy or custom … .

Here, defendants never had a permit to allow them to park more than four commercial vehicles on the property or to install fuel tanks to use in association with their commercial operations. Nor do they allege that they had a vested property interest in such a special use permit … . Moreover, defendants’ submissions fail to establish that the Planning Board’s discretionary determination to impose conditions on defendants’ special use permit “rose to the level of a constitutional violation, i.e., that they were so outrageously arbitrary as to constitute a gross abuse of governmental authority . . . that would support a claim pursuant to 42 USC § 1983” … . Even accepting as true that one Planning Board member stated that he wanted to “make an example” of defendants, defendants did not allege, nor does the record support a claim, that this motivation resulted from official municipal policy or custom … . Town of Tupper Lake v Sootbusters, LLC, 2017 NY Slip Op 01428, 3rd Dept 2-23-17

 

ZONING (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/MUNCIPAL LAW (ZONING, (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/CIVIL RIGHTS LAW (MUNICIPAL LAW, ZONING, PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)

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DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED.

The Fourth Department determined the ruling of the zoning board of appeals (ZBA) was properly upheld by Supreme Court. Petitioner-trust owns a landlocked undeveloped parcel. An offer to buy the parcel was contingent on the grant of variances allowing off-site billboards visible from the adjacent highway. The town code allows only on-site billboards. The ZBA denied the variances.

We reject petitioners’ contention that the ZBA acted arbitrarily and capriciously in determining that they failed to establish the factors constituting unnecessary hardship required for the issuance of the use variances (see Town Law § 267-b [2] [b]). The court properly determined, upon review of the record as a whole, including the evidence submitted to the ZBA, the findings and conclusions articulated by the ZBA during the hearing, and its subsequent letter decision … , that there is substantial evidence supporting the ZBA’s determination that the hardship was self-created (see § 267-b [2] [b] [4]). * * * … [T]he Trust possesses the same unused, oddly-shaped, difficult-to-develop property that [its predecessor] purchased, and although the purchase may now be viewed as a poor investment, courts are not responsible for “guarantee[ing] the investments of careless land buyers” … .

Contrary to petitioners’ contention, the court properly concluded that there is substantial evidence supporting the ZBA’s determination that the billboards would have a negative and adverse effect upon the character of the neighborhood inasmuch as the relevant area could not aesthetically support additional signs … . Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 2017 NY Slip Op 00874, 4th Dept 2-3-17

ZONING (DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/VARIANCES (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)/BILLBOARDS (ZONING, DENIAL OF VARIANCES FOR BILLBOARDS UPHELD, ANY HARDSHIP DEEMED SELF-CREATED)

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DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING.

The Fourth Department, reversing the zoning board of appeals (ZBA) and Supreme Court, held that the ZBA’s determination allowing respondent Seneca Meadows Inc (SMI) to use residential streets to access a clay mining operation was irrational and unreasonable. SMI did not demonstrate that no reasonable return may be obtained from the property under existing zoning:

SMI’s proposed clay mine is located within its agriculturally zoned parcel, but it is bordered by its commercially and residentially zoned parcels that provide access to public roads. The Zoning Law of the Town of Waterloo prohibits commercial excavation operations in residential districts. Nevertheless, the ZBA upheld [the code enforcement officer’s] determination that the access road can cross the residential district because the agricultural portion of the property is landlocked. …

The ZBA’s and the court’s reliance on our determination in Matter of Passucci v Town of W. Seneca (151 AD2d 984) is misplaced. In that case, similar to this case, the commercially zoned portion of the petitioner’s property was landlocked, and the only access was over the residentially zoned portion of the property (id. at 984). In that case, however, the Town’s ordinance prohibited the petitioner from using the residential portion of his premises to access his commercial portion, and thus enforcing the zoning restriction would be unconstitutionally applied inasmuch as it “would prevent [the petitioner] from making any use of the property and would destroy its economic value” (id. …). SMI has failed to carry its “heavy burden of establishing that no reasonable return may be obtained from the property under the existing zoning” … . Matter of Lemmon v Seneca Meadows, Inc., 2017 NY Slip Op 00798, 4th Dept 2-3-17

 

ZONING (DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING)

ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS.

The Second Department determined the zoning board’s failure explain why it departed from its own precedent rendered its grant of variances arbitrary and capricious:

[The] variances permitted [petitioner] to subdivide a parcel he owned into two substandard lots, and to construct a two-family residence on each lot. In February 2014, the petitioners commenced this CPLR article 78 proceeding to review the Zoning Board’s determination on the ground that it was arbitrary and capricious, because the Zoning Board failed to properly distinguish the subject application from a substantially similar prior application, made as to the same parcel, which the Zoning Board had denied in 2010. The Supreme Court granted the petition and annulled the determination … .

“A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious” … . Where it is shown that a zoning board has reached contrary results on substantially similar facts, an explanation is required … . Here, the Zoning Board’s failure to set forth a factual basis as to why it was departing from its prior precedent rendered its determination arbitrary and capricious … . Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals, 2017 NY Slip Op 00300, 2nd Dept 1-18-17

 

ZONING (ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)/VARIANCES (ZONING, ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)

SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED.

The Third Department upheld the zoning board’s (ZBA’s) determination that the application for the nonconforming use of the property as a boarding house was properly denied. There was evidence that the initial nonconforming use was a nursing home, not a boarding house. The court noted that Supreme Court, which affirmed on different grounds, should not have substituted its own judgment for that of the board. The court further explained the criteria for allowing nonconforming use of property:

Supreme Court, apparently rejecting the ZBA’s conclusion that the property was a nursing home at the time that the zoning law was enacted in 1963, independently determined that the property was used as a boarding house in 1963, but that its current use as a boarding house was nonetheless a nonconforming use because its “ownership, occupancy and usage . . . [was] far removed from what it was in 1963.” This was improper. A reviewing court cannot, as the court did here, “search the record for a rational basis to support [an administrative agency’s] determination, substitute its judgment for that of the [agency] or affirm the underlying determination upon a ground not invoked . . . in the first instance” … . …

In recognition of the “undue financial hardship that immediate elimination of nonconforming uses would cause to property owners,” nonconforming uses that predate the enactment of a zoning ordinance are constitutionally protected and will grudgingly be permitted to continue notwithstanding the contrary law of the ordinance … . However, “[t]he law . . . generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination” … . A preexisting nonconforming use is “closely restricted” such that it cannot be restored after substantial damage or conversion to a different nonconforming use and may be deemed abandoned following substantial discontinuation … . Matter of Tri-Serendipity, LLC v City of Kingston, 2016 NY Slip Op 08292, 3rd Dept 12-8-16

 

ZONING (SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)/NONCONFORMING USE (ZNONING, SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)

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