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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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THE CONSTRUCTION OF TWO TOWERS, TWICE THE HEIGHT OF SURROUNDING BUILDINGS, DID NOT VIOLATE THE NYC ZONING RESOLUTION, THEREFORE THE NYC PLANNING COMMISSION’S APPROVAL OF THE PROJECT WITHOUT THE NEED FOR A SPECIAL PERMIT WAS NOT ARBITRARY AND CAPRICIOUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined the proposed construction of two towers, twice the height of the surrounding buildings, did not violate the zoning resolution  (ZR). Therefore the approval of the construction by the NYC Planning Commission (CPC) without the need for a special permit was not arbitrary and capricious:

… [T]he ZR authorizes the CPC to issue special permits in the enumerated categories only where a waiver or modification of particular ZR provisions is necessary. It is undisputed that none of those categories applies here. The CPC reviewed the applications and the prior special permits and determined that no new special permit was or could be required under any applicable ZR provision. “We accord deference to the Commission’s rational” interpretation of the ZR … . Accepting petitioners’ argument that a special permit is nevertheless required “would result in the judicial enactment of a new restriction . . . not found in the Zoning Resolution” … . Matter of Council of the City of N.Y. v Department of City Planning of the City of N.Y., 2020 NY Slip Op 04812, First Dept 8-27-20

 

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THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) WAS NOT ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department, dismissing the petition seeking review of the town’s approval of a wind turbine project. determined a second supplemental environmental impact statement (SEIS) was not necessary before approving an increase in the height of the turbines and the placement of the transmission lines underground. The Fourth Department noted that Supreme Court’s failure to address issues raised in the petition constitutes a denial of the related relief, and the petitioners did not cross-appeal those denials:

During the SEQRA [State Environmental Quality Review Act] process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project … . A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” … . “A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary” … , and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … .

We conclude that the Town Board “took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary” … . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence … . The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles. With respect to the buried electrical transmission lines, the materials showed that such a modification would have a significant positive environmental impact, reducing the effect of the project on wetlands. Matter of McGraw v Town Bd. of Town of Villenova, 2020 NY Slip Op 04644, Fourth Dept 8-20-20

 

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LOCAL RESIDENTS OPPOSING THE USE OF A HOTEL AS A HOMELESS SHELTER RAISED A QUESTION OF FACT ABOUT WHETHER THE CONFIGURATION OF THE BUILDING WOULD ALLOW ADEQUATE ACCESS BY FIREFIGHTERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a concurring opinion by Justice Oing, determined that the old Park Savoy Hotel was properly classified as a nontransient apartment hotel for use as a shelter for 150 employed or job-seeking men. However local residents, who brought an Article 78 proceeding objecting to the shelter, raised a question of fact about whether the configuration of the building would allow adequate access by firefighters:

We are asked to decide whether respondents properly permitted the opening of an employment shelter for homeless men in midtown Manhattan. We find that respondents rationally determined that the subject building is a Class A multiple dwelling in the “R-2” occupancy group which represents a continuation of a preexisting use group classification and is grandfathered from compliance with the current New York City Building Code (Administrative Code of City of N.Y. [Building Code] § 310.1). However, we conclude that petitioners have rebutted the presumption that the building as currently configured will not endanger the general safety and welfare of the public. Accordingly, we remand this matter to Supreme Court for further proceedings. Matter of West 58th St. Coalition, Inc. v City of New York, 2020 NY Slip Op 04521, First Dept 8-13-20

 

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THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY COULD NOT REALIZE A REASONABLE RETURN ON THE PROPERTY ABSENT THE USE VARIANCE ALLOWING CONSTRUCTION OF A “DOLLAR STORE;” THE USE VARIANCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the property owners seeking a use variance to build a “Dollar Store” did not demonstrate the existing zoning regulations imposed unnecessary hardship on them. The proof presented to the Zoning Board of Appeals (ZBA) did not demonstrate the owners inability to realize a reasonable return for the property absent a use variance:

… [T]here is no evidence in the record establishing whether respondents could realize a reasonable return on the parcel if it were used for any other conforming use. Indeed, respondents’ expert did not discuss any possible use of the property other than as vacant land. Thus, inasmuch as respondents’ expert failed to discuss the possible return with respect to all uses permitted within the zoning district, respondents failed to meet their burden of demonstrating that they cannot realize a reasonable return on the property without the requested use variance … .

… The fact that respondents’ application for a use variance was limited to the two-acre parcel is “of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime” … . The expert’s failure to address respondents’ ability to obtain a reasonable return on the remaining parts of the parcel, or on other permissible uses within the zoning district, is fatal to the application. Thus, the determination is not supported by substantial evidence … . Matter of Dean v Town of Poland Zoning Bd. of Appeals, 2020 NY Slip Op 04242, Fourth Dept 7-24-20

 

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