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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

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PETITIONER WAS ISSUED A PERMIT TO CONSTRUCT COMMERCIAL SPACE WITH 557 PARKING SPACES; THE PERMIT WAS REVOKED BECAUSE THE TOWN CODE REQUIRED 624 PARKING SPACES; BECAUSE THE PERMIT WAS INVALID, PETITIONER COULD NOT INVOKE THE “DOCTRINE OF VESTED RIGHTS” FOR A VARIANCE ALLOWING 557 SPACES (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the petitioner was not entitled to a variance pursuant to the doctrine of vested rights. Petitioner had been issued a permit to build commercial space which included 557 parking spaces. The town subsequently revoked the permit because the town code required 624 parking spaces. Petitioner then applied for a variance arguing the permit which had been issued conveyed a vested right to the originally approved 557 parking spaces:

“The doctrine of vested rights is implicated when a property owner seeks to continue to use property, or to initiate the use of property, in a way that was permissible before enactment or amendment of a zoning ordinance but would not be permitted under a new zoning law” … . Such “a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . However, “[v]ested rights cannot be acquired in reliance upon an invalid permit” … . “[T]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results” … . Here, as the ZBA [zoning board of appeals] soundly determined, the permit issued to the petitioner was invalid, since the Town Code plainly sets forth the method for calculating the nonresidential gross floor area according to which the number of required parking spaces is set and pursuant to that method, the required number of spaces exceeded the 557 spaces planned by the petitioner … . Since the permit issued to the petitioner was invalid, it could not have conferred vested rights … . Matter of C & B Realty #3, LLC v Van Loan, 2022 NY Slip Op 05036, Second Dept 8-24-22

Practice Point: Here the petitioner was issued a permit for construction which was later revoked as invalid because it violated the town code. The “doctrine of vested rights” does not apply to the provisions in an invalid permit. Therefore petitioner’s application for a variance to build according to the provisions of the revoked permit was denied. The “doctrine of vested rights” is explained in the decision.

 

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THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated the failure to issue a timely decision as a denial by default. which it then annulled, ordering the town to issue the permit and the variance; and (3) Supreme Court should not have denied the Board’s motion to vacate Supreme Court’s order and judgment (ordering the issuance of the permit and variance):

Pursuant to Town Law § 267-a(8), the Board must render a decision within 62 days after the close of the hearing. The Town Law also contains a default provision which provides that if the Board, in exercising its appellate jurisdiction, fails to render a decision within 62 days of the hearing, the application is deemed denied (see id. § 267-a[13][b]). …

A proceeding to annul a determination by an administrative body “should not be concluded in the petitioner’s favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits” … . Here, there was no evidence demonstrating a deliberate default by the Board … .

Contrary to the petitioner’s contention, its application for a special exception permit was not denied by default. The Board’s failure to comply with the time period prescribed by Town Law § 267-a(8) only results in a denial by default when the Board exercises its appellate jurisdiction (see id. § 267-a[13][b]). The Board exercises its original jurisdiction in special exception cases … , and thus, there was no denial by default of the petitioner’s application for a special exception permit … . With no final determination having been rendered on the application for a special exception permit, that issue was not ripe for judicial review, and the Supreme Court lacked subject matter jurisdiction over that issue … . We note that ripeness “is a matter pertaining to subject matter jurisdiction which may be raised at any time, including sua sponte” … . Matter of 999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 2022 NY Slip Op 04721, Second Dept 7-29-22

Practice Point: A town Board of Appeals’ failure to issue a decision on an application for a permit and an area variance within the 62 days prescribed by the Town Law is not a denial of the petition by default. Supreme Court, therefore, did not have subject matter jurisdiction over he purported “denial by default” and the matter was not ripe for review.

 

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DUE TO A CONTRACTOR’S ERROR, PETITIONER’S SWIMMING POOL WAS INSTALLED SIX FEET FROM THE PROPERTY LINE, VIOLATING THE 14-FOOT SETBACK REQUIREMENT; THE ZONING BOARD OF APPEALS PROPERLY DENIED THE PETITIONER’S APPLICATION FOR A VARIANCE; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly took into the considerations the factors prescribed by the Town Law when it denied petitioner’s application for a setback variance. The setback requirement for a swimming was 14 feet. Due to an error made by the contractor, petitioner’s pool was installed six feet from the property line:

The record indicates that the ZBA considered the five factors set forth in Town Law § 267-b(3) and conducted the relevant balancing test to reach its determination. The ZBA found that the requested variance would produce an undesirable change in the character of the neighborhood because there was no evidence of any similarly located in-ground pools. The ZBA explained that approving a pool with such a small setback where there are no similar structures in the neighborhood would establish an unwarranted precedent for future development of the area, which could result in a detriment to nearby properties. The ZBA properly considered the possibility that granting the requested variance could set a negative precedent in the area … . Based on the property survey, the ZBA determined that the petitioner could have placed the pool in a conforming location. Moreover, the petitioner presented no evidence that the property could not be utilized without violating the zoning code. The ZBA determined that the requested variance was substantial because it asked for a 57% relaxation of the zoning code. Taking into account the rationale for the required setback, which was to protect the privacy and quiet enjoyment of adjacent residential properties, as well as the fact that the location of the pool was inconsistent with the nature and character of the surrounding area, and that the approval of the requested variance would establish an unwarranted precedent for future development of the area, the ZBA determined that granting the requested variance would have an adverse effect on the physical or environmental conditions in the neighborhood. Finally, the ZBA’s finding that the petitioner’s zoning violation, which was the result of the contractor’s error, was self-created is well founded … . Matter of Dutt v Bowers, 2022 NY Slip Op 04546, Second Dept 7-13-22

Practice Point: Due to a contractor’s error, the petitioner’s swimming pool was installed six feet from the properly line, violating the 14-foor setback requirement. The petitioner applied for a variance. The Zoning Board of Appeal properly considered all the factors prescribed the Town Law and denied the variance. Supreme Court granted the variance. The Second Department reversed.

 

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THE PLANNING BOARD’S GRANT OF A SPECIAL USE PERMIT AND SITE PLAN APPROVAL FOR CONSTRUCTION OF A BARN TO BE USED TO HOST SEASONAL PARTIES SHOULD NOT HAVE BEEN ANNULLED; THE PLANNING BOARD CONSIDERED ALL THE FACTORS REQUIRED BY THE TOWN CODE AND FOUND THERE WOULD BE NO SIGNIFICANT IMPACT ON TRAFFIC OR NOISE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the planning board’s granting of a special use permit and approval of respondent’s site plan was not arbitrary and capricious and should not have been annulled:

Respondent Kenneth Bailey applied for a special use permit and site plan approval so that he could construct a barn on his property that would operate as a seasonal party venue. Following hearings, respondent Planning Board of the Town of Sand Lake (hereinafter the Board) issued resolutions adopting a negative declaration under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and granting Bailey’s application with conditions. Petitioners — a neighborhood association and individual members thereof — commenced this proceeding seeking to annul the Board’s resolutions. * * *

The Board’s resolutions reflect that it considered the relevant criteria as set forth in Town of Sand Lake Zoning Code § 250-80. The Board noted the various uses permitted as of right by the zoning code and found that these uses “may be more intense and affecting” than Bailey’s proposed party venue. The Board relied on the engineering report in concluding that there would be no significant impact to traffic or noise. The record also discloses that the Board entertained comments derived from multiple public hearings. In view of the foregoing, and taking into account that “[a] municipality ‘retains some discretion to evaluate each application for a special use permit, to determine whether applicable criteria have been met and to make commonsense judgments in deciding whether a particular application should be granted'” … . Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 2022 NY Slip Op 04205, Third Dept 6-30-22

Practice Point: Here the respondent requested a special use permit and a site plan approval for the construction of a barn to host seasonal parties. The planning board issued the special permit and the approval. Supreme Court annulled the planning board’s determination. The Third Department reversed, finding that the planning board had properly considered the environmental impact and the factors listed in the town code. Therefore the board’s decision was not arbitrary or capricious.

 

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THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (THIRD DEPT).

The Third Department, over an extensive dissent, determined the relation-back doctrine did not save the petition challenging a use variance. The initial petition was dismissed for failure to name a necessary party, Rosa Kuehn. The subsequent amended petition, which included the necessary party, was dismissed as time-barred:

Supreme Court correctly determined that petitioners are not entitled to the benefit of the relation back doctrine. That doctrine “permits a petitioner to amend a petition to add a respondent even though the statute of limitations has expired at the time of amendment so long as the petitioner can demonstrate three things: (1) that the claims arose out of the same occurrence, (2) that the later-added respondent is united in interest with a previously named respondent, and (3) that the later-added respondent knew or should have known that, but for a mistake by petitioners as to the later-added respondent’s identity, the proceeding would have also been brought against him or her” … .

… [P]etitioners simply cannot meet the third and final condition and therefore cannot avail themselves of the doctrine. Indeed, Rosa Kuehn was appropriately named as a respondent and identified as the landowner of the subject property in petitioners’ successful challenge to the use variance issued in 2013 … ; “thus, this simply is not an instance where the identity of a respondent . . . was in doubt or there was some question regarding that party’s status” … . Matter of Nemeth v K-Tooling, 2022 NY Slip Op 03034, Third Department 5-4-22

Practice Point: Here a necessary party was not named in the petition and the petition was dismissed for that reason. The amended petition, which named the necessary party, was time-barred. The relation-back doctrine could not be invoked to save the amended petition because the identity of the necessary party was known to the petitioners who had named her in a related petition in 2013.

 

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ALTHOUGH THE PLANS FOR THE EXPANSION OF A HOSPITAL WERE NOT YET FINALIZED, IT WAS CLEAR THAT SUCH AN EXPANSION WAS AN ANTICIPATED RESULT OF THE PROPOSED ZONING CHANGE; THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) PROHIBITION OF “SEGMENTATION” REQUIRED CONSIDERATION OF THE EXPANSION AS PART OF THE “HARD LOOK” AT THE CONSEQUENCES OF THE ZONING CHANGE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the respondents (city) did not take the requisite “hard look,” required by the State Environmental Quality Review Act (SEQRA), at the environmental consequences before approving a zoning change that would allow an expansion of a hospital. Although there were no finalized plans to expand the hospital, it was clear that the zoning change was a first step in an expected expansion. Failure consider the expansion constituted a prohibited form of “segmentation:”

As to the segmentation claim, although the City Council was not presented with any impending, specific development proposals, rezoning parcel 1 was the “first step” in the process of eventually developing parcel 1 … . In essence, before Saratoga Hospital could move forward with any development and expansion, it needed to acquire the “right” to do so … . The zoning map amendment for parcel 1 provided just that; it would be the green light to reignite development plans. … [T]he potential development of the parcel here was not so attenuated from the zoning map amendment that reviewing an expansion of the hospital constituted permissible segmentation … . Thus, the City Council was “obligated to consider the impacts to be expected from such future development at the time of rezoning, even absent a specific site plan for the project proposal” … . Matter of Evans v City of Saratoga Springs, 2022 NY Slip Op 01079, Third Dept 2-17-22​

 

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THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners had standing to contest the renovation and operation of a concrete plant:

Supreme Court improperly determined that the Hill & Dale petitioners and the Veteri petitioners lacked standing to challenge the ZBA’s determination. The Hill & Dale petitioners alleged environmental injuries to a private lake owned by Hill & Dale, which was situated directly across from the subject property, as well as interference with recreational activities enjoyed in and around the lake, and impacts to their properties from increased noise, truck traffic, dust, and pollutants from the concrete manufacturing use. These alleged injuries were different from those suffered by the public at large … , and fell within the zone of interests protected by the Town’s zoning laws … . Similarly, the Veteri petitioners sufficiently alleged that they would be adversely affected by the ZBA’s determination and that their alleged injuries fell within the zone of interests protected by the zoning laws. Matter of Veteri v Zoning Bd. of Appeals of the Town of Kent, 2022 NY Slip Op 01030, Second Dept 2-16-22

 

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PETITIONER FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES AFTER THE APPLICATION FOR A BUILIDING PERMIT WAS DENIED BY APPEALING TO THE ZONING BOARD OF APPEALS; THE FAILURE WAS NOT EXCUSED ON THE GROUND THAT A CONSTITUTIONAL ISSUE WAS AT STAKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner did not exhaust the available administrative remedies before bringing an Article 78 proceeding. Petitioner’s application for a building permit, apparently for a gas station, was denied by the village building inspector. Supreme Court, pursuant to the Article 78, granted the petition. The Second Department held that petitioner’s failure to appeal the building inspector’s ruling to the zoning board of appeals rendered the petition abandoned. Petitioner’s argument that the failure to exhaust administrative remedies should be excused because a constitutional issue was at stake was rejected:

“The exhaustion rule … is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” … . …

 “‘A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established'” … . “Further, the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief” … . Matter of 5055 N. Blvd., LLC v Incorporated Vil. of Old Brookville, 2022 NY Slip Op 00424, Second Dept 1-26-22

 

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A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances:

Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA is without jurisdiction to hear an appeal … . * * *

…[W]e conclude on this record that there was no determination … affording jurisdiction to the ZBA to hear petitioner’s appeal … . Matter of Webster Citizens for Appropriate Land Use, Inc. v Town of Webster, 2021 NY Slip Op 07370, Fourth Dept 12-23-21