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Town, In Reviewing a Special Use Permit Application Under Its Zoning Regulations after the State Environmental Quality Review Act (SEQRA) Environmental Impact Statement (EIS) Process Is Complete, Must Rely on the SEQRA Findings and Cannot Make Further Environmental Impact Findings

In a mining-permit matter, the Third Department determined that, once a final Environmental Impact Statement (EIS) is approved after the State Environmental Quality Review Act (SEQRA) process is finished, the town (the lead agency) does not have the power to make further environmental-impact findings beyond those in the SEQRA record.  However, the town retains the power to do an independent review of the application for a special use permit under its zoning regulations:

…[A]lthough the Town is bound by DEC’s [Department of Environmental Conservation’s] SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs’ application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation … . That regulation provides that the Town may consider, among other things, the “health, safety, welfare, comfort and convenience of the public,” including “the environmental impact” of the proposed quarry (Local Law No. 2 [1986] of Town of Nassau art VI [A]). However, … the Town’s independent review [does not include] the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations. Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01511, 3rd Dept 2-19-15

 

“Special Exception Permit” Defined

In affirming the denial of an application for a “special exception permit,” the Second Department explained the relevant criteria:

A “special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden on an owner in seeking a special exception permit is, therefore, “considerably less” than the burden on an owner seeking a use variance … . An applicant for a special exception permit need only show that it has complied with every legislatively imposed condition on the permitted use … . If the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application … . Matter of Nathan v Board of Appeals of Town of Hempstead, 2015 NY Slip Op 01457, 2nd Dept 2-18-15

 

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Criteria for Area Zoning Variance and Court Review of Local Variance Proceedings Explained

The Second Department determined the zoning board had properly considered and denied an application for an area variance.  The court explained its review powers and the analytical criteria to be used by a zoning board:

“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion” … . “Accordingly, on judicial review, the determination of a zoning board should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious”… .

In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Village Law § 7-712-b[3][b]…). A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]). In making that determination, the personal observations of members of the zoning board may be considered … . Matter of Sacher v Village of Old Brookvile, 2015 NY Slip Op 00773, 2nd Dept 1-28-15

 

Criteria for a “Special Exception Permit” (Versus a “Variance”) Explained

The Second Department, in upholding the zoning board’s denial of a special exception permit and a variance, explained the criteria for a special exception permit:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance … . The owner must show compliance with legislatively imposed conditions pertaining to the intended use before a special exception permit may be granted … . The denial of a special exception permit must be supported by evidence in the record and may not be based solely upon community objection … . However, where such evidence exists, deference must be given to the discretion of the board authorized to rule upon the application. A court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record … .

Here, the Board’s determination that the petitioner failed to establish compliance with the legislatively imposed conditions for issuance of the requested special exceptions was supported by evidence in the record, and was not affected by an error of law, was not arbitrary and capricious, was not an abuse of discretion, and was not irrational… . Matter of M & V 99 Franklin Realty Corp v Weiss, 2015 NY Slip Op 00541, 2nd Dept 1-21-15

 

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Courts Should Not Defer to Zoning Board of Appeals’ Determination of a Purely Legal Question (the Meaning of a Town Code Provision)

The Third Department determined Supreme Court erred when it deferred to the zoning board of appeals’ (ZBA’s) interpretation of the town code (because the interpretation was a purely legal issue) and the ZBA erred in its interpretation of the code. The Third Department found that the word “dwelling” was encompassed by the word “building” and, therefore, the code provision at issue allowed the construction of 74 single family dwellings on petitioner’s (Boni’s) parcel:

Supreme Court erred in deferring to the ZBA’s interpretation of the zoning ordinance, and the ZBA erred in its interpretation of the Town Code as it pertains to the Boni parcel. Although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law … . Because zoning ordinances are in derogation of common law, they must be strictly construed against the municipality that drafted them, and any ambiguity must be resolved in favor of property owners … . The Boni parcel is located in a B-1 zoning district, which has 18 listed permitted uses, including one- and two-family dwellings (see Town Code of the Town of Clifton Park § 208-32 [A] [14]). Pursuant to § 208-33 (B) of the Town Code, in a B-1 district, “[n]o preexisting building(s) shall be rehabilitated or remodeled or new building(s) constructed on a vacant lot to a size greater than 12% of the lot size, with no single building to have a maximum square footage exceeding 4,800 square feet. Multiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded.”

Essentially, petitioners argue that the word “buildings” in the last sentence of § 208-33 (B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. * * *

We agree with respondents that respondent Town of Clifton Park probably never envisioned a landowner being able to build 74 one-family dwellings on a single, unsubdivided parcel in a business district. Nevertheless, the plain language of the Town Code, strictly construed against the municipality, must be interpreted as permitting multiple buildings — including one-family dwellings — on a single lot as long as they do not exceed the density limitations … . Matter of Boni Enters LLC v Zoning Bd of Appeals of the Town of Clifton Park, 2015 NY Slip Op 00428, 3rd Dept 1-15-15

 

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Issuance of a Positive Declaration that the Requested Rezoning May Have a Significant Impact on the Environment and the Requirement that a Draft Environmental Impact Statement Be Drawn Up, Under the Facts, Did Not Constitute an “Injury” Sufficient to Make the Matter Ripe for Court Review—All the Relevant Factors Discussed in Depth

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the town board’s issuance of a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA) (finding the proposed rezoning to heavy industrial may have a significant effect on the environment) and the requirement that the petitioner (landowner) prepare and circulate a draft environmental impact statement (DEIS), under all the facts, did not constitute an “injury” sufficient to make the matter ripe for judicial review.  Much of the opinion was devoted to distinguishing Matter of Gordon v Rush, 100 NY2d 236, where the Court of Appeals determined, under the facts, the positive SEQRA declaration and the DEIS requirement constituted an “injury” sufficient to make the case ripe for court review without further proceedings.  The Second Department determined that facts here did not warrant the relief granted in the Rush case:

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties'” … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

A court considering review of an agency determination “must determine whether an agency has arrived at a definitive position on the issue that inflicts an actual concrete injury and whether the resolution of the dispute requires any fact-finding, for [e]ven if an administrative action is final, however, it will still be “inappropriate” for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues'” … . “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” … . * * *

“An action taken by an agency pursuant to SEQRA may be challenged only when such action is final” … . Traditionally, a “SEQRA determination [has] usually [been] considered to be a preliminary step in the decision-making process and, therefore, . . . not ripe for judicial review until the decision-making process has been completed” … . Matter of Ranco Sand & Stone Corp v Vecchio, 2014 NY Slip Op 08338, 2nd Dept 11-26-14

 

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Failure to Apply for Zoning Variance Re: Sale of Adult Materials Rendered Plaintiff’s Free-Speech Challenge to the Code Speculative, i.e., Not Ripe for Review

The Third Department determined that plaintiff’s free-speech-violation claims re: the city’s failure to specify a zone for the sale of adult material were not ripe for review.  Plaintiff did not inform the city of his intent to sell adult material and did not use the procedures in place to obtain a zoning variance allowing the sale of adult material:

We shall not address plaintiff’s assertion that the failure of the Code of the City of Troy to specify a zone where adult materials may be sold violates plaintiff’s free speech rights under both the US and NY Constitutions, as this issue is not ripe for our review. According to the City’s Assistant Plans Examiner, if a particular use was not set forth in the list of allowed uses or special permit uses enumerated in the Code, as was the case with adult establishments, a use variance could be obtained by seeking approval from the appropriate zoning board. Because [plaintiff’s principal] did not disclose the extent of plaintiff’s sale of adult material in applying for a certificate of occupancy, and therefore did not follow the process set out in the Code to apply for a use variance, any harm that plaintiff may have suffered pursuant to such Code was speculative and contingent upon the City’s anticipated rejection of plaintiff’s proposal. Under these circumstances, plaintiff’s challenge to the constitutionality of the Code is not ripe for review … . Your Place LLC v City of Troy, 2014 NY Slip Op 08098, 3rd Dept 11-20-14

 

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Less Stringent “Area Variance” Criteria, Rather than the More Stringent “Use Variance” Criteria, Properly Applied to a Restaurant’s Request for a Variance Re: Off-Street Parking Requirements

The Court of Appeals, in a full-fledged opinion by Judge Read, determined when “area variance,” as opposed to “use variance,” criteria should be applied to off-street parking requirements.  The zoning board had allowed a variance from the off-street parking requirements for a restaurant under the less stringent “area variance” standard.  The petitioner, a neighboring property owner, sought a declaration that the more stringent “use variance” criteria should be applied.  The Court of Appeals disagreed with the petitioner and affirmed:

…[A]s of July 1, 1994, General City Law § 81-b (1) has defined a “use variance” as an authorization for the use of land for a purpose “otherwise not allowed or . . . prohibited” in the zoning district; and an “area variance” as an authorization to use land “in a manner which is not allowed by the dimensional or physical requirements” of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions. Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).

In this case, [the restaurant] applied for an off-street parking variance in connection with a change in the storefront's use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly considered the application as a request for an area variance. Matter of Colin Realty Co LLC v Town of N Hempstead, 2014 NY Slip Op 07008, CtApp 10-16-14

 

Denial of Variance Reversed–Criteria Explained

The Second Department determined that the zoning board’s denial of an application for a variance was arbitrary and capricious:

In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Village Law § 7-712-b[3][b]…). A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]).

Here, although there was some support in the record for the conclusions of the Board of Zoning Appeals of the Incorporated Village of Muttontown (hereinafter the Board) that the petitioners’ difficulty was self-created, and that the requested lot-depth variance was substantial, there was no evidence that granting the variance would produce an undesirable change in the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community … . Matter of Quintana v Board of Zoning Appeals of Inc Vil of Muttontown, 2014 NY Slip Op 06092, 2nd Dept 9-10-14

 

Criteria for Standing to Contest Zoning Variances Explained

The Second Department determined the petitioners did not have standing to contest zoning variances granted for property .69 miles from where the petitioners live:

To establish standing, a petitioner must show that he or she “would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted” … . “Injury-in-fact may arise from the existence of a presumption established by the allegations demonstrating close proximity to the subject property or, in the absence of such a presumption, the existence of an actual and specific injury” … . Here, the appellants failed to satisfy these requirements.

The appellants live .69 miles away from the subject beach club. Thus, they are not entitled to a presumption of injury … . Their allegations of injury-in-fact due to overcrowding and congestion are purely speculative … . Moreover, the alleged injuries are not specific to the appellants and distinguishable from those suffered by the public at large… . Matter of Radow v Bpoard of Appeals of Town of Hempstead, 2014 NY Slip Op 05645, 2nd Dept 8-6-14

 

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