Zoning – Page 8 – New York Appellate Digest

Administrative Law, Civil Procedure, Contract Law, Land Use, Municipal Law, Zoning

CORRESPONDENCE BETWEEN THE TOWN AND THE PROPERTY OWNER AMOUNTED TO AN AGREEMENT TO AGREE, NOT AN ENFORCEABLE SETTLEMENT AGREEMENT ALLOWING CONSTRUCTION; SUPREME COURT’S DIRECTIVES TO THE TOWN ENCROACHED UPON THE TOWN’S ADMINISTRATIVE AUTHORITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) the correspondence between the property owner (PCP) and the town concerning proposed construction created an agreement to agree, not an enforceable settlement agreement allowing construction; and (2), Supreme Court’s directing what the town could and could not consider with respect to the construction project encroached upon the town’s administrative authority:

… [T]he letters that the court found to have memorialized the settlement agreement did not contain all the material terms of the settlement and constituted no more than an agreement to agree … . [The town] stated therein only that it was “now in a position to agree to a settlement of the mass and scale issues,” but that first it would “need to receive, review and approve all of the items that it normally reviews in connection with any application it receives.” Any agreement was further conditioned on [the town’s] receipt of additional documentation from PCP, including “an accurate, to-scale site plan” and further roof specifications … .

We further conclude that, in the absence of an enforceable settlement agreement, the court’s hearing on the issues of mass and scale, subsequent decision rendering findings of fact related to PCP’s new application for a certificate of approval, and remittal to [the town] for consideration of that application with specific directives regarding what [the town] could and could not consider were impermissible intrusions into respondents’ administrative domain … . Matter of Pittsford Canalside Props., LLC v Village of Pittsford Zoning Bd. of Appeals, 2020 NY Slip Op 01812, Fourth Dept 3-13-20

March 13, 2020

Civil Procedure, Land Use, Zoning

LOCAL LAW CREATING A SENIOR LIVING DISTRICT (SLD) WAS INVALID BECAUSE APPROVAL BY A SUPERMAJORITY OF THE TOWN BOARD WAS REQUIRED; BECAUSE THE COMPLAINT SOUGHT A DECLARATORY JUDGMENT DISMISSAL OF THE COMPLAINT WAS NOT PROPER, SUPREME COURT SHOULD HAVE RULED ON THE DECLARATORY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, in a matter of first impression, determined a local law rezoning agricultural land as a senior living district (SLD) where a senior living community could be constructed was invalid. In order to avoid the requirement that the local law be approved by a supermajority (as opposed to a simple majority) of the town board, the local law called for a 100-foot buffer between the SLD and the surrounding properties. However, in this case, the land in the 100-foot buffer was to be used for access roads and other purposes which exclusively served the SLD. In that situation, the Third Department held, the approval of the local law requires a supermajority and the local law was therefore invalid. The Third Department also noted that, because the complaint sought a declaratory judgment, dismissal of the complaint was not proper. A ruling on the declaratory judgment was required:

… [T]he SLD cannot be used for its intended purpose without improvements in the buffer zone that will serve only uses in the SLD and will provide no public benefit. Under these circumstances, we do not find that the purported buffer zone is sufficient to defeat the supermajority requirements of Town Law § 265. Notably, in holding that the distance of a buffer zone from neighboring properties should be measured from the boundary of the rezoned area rather than that of the buffer zone, the Court of Appeals found that this statutory interpretation “is fair, because it makes the power to require a supermajority vote dependent on the distance of one’s property from land that will actually be affected by the change” (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d at 315 [emphasis added]). Here, land within the buffer zone will actually be affected by the rezoning in such a way that it would neither be fair nor consistent with the spirit and intent of Town Law § 265 to deprive neighboring landowners of the power to require a supermajority vote. We find that where, as here, a proposed buffer zone will contain improvements that benefit only the rezoned area and are necessary to the intended uses of the rezoned area, Town Law § 265 should be interpreted to require the 100-foot distance to opposing and adjacent properties to be measured from the boundary of the buffer zone rather than that of the rezoned area … . Dodson v Town Bd. of the Town of Rotterdam, 2020 NY Slip Op 01234, Third Dept 2-20-20

February 20, 2020

Environmental Law, Land Use, Real Property Law, Zoning

UNRESOLVED QUESTIONS OF FACT CONCERNING WHETHER THE CONSTRUCTION OF A WHOLE FOODS STORE IN THE VICINITY OF A RECREATIONAL TRAIL AND A PUBLIC USE EASEMENT VIOLATES THE PUBLIC TRUST DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined petitioner’s violation of the public trust doctrine causes of action should not have been dismissed. The action relates to the construction of a Whole Foods store in the vicinity of a recreational trail and a public use easement:

… [T]he court erred by granting a declaration in favor of respondents on petitioner’s … causes of action … which allege violations of the public trust doctrine, because there are unresolved factual issues concerning the impact of the Whole Foods development on a recreational trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail ,,, , Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754, Fourth Dept 1-31-20

January 31, 2020

Land Use, Landlord-Tenant, Zoning

USE OF A SINGLE FAMILY HOME FOR MOSTLY WEEKEND SHORT-RENTALS IS NOT A LEGAL NONCONFORMING USE OF THE PROPERTY (SECOND DEPT).

The Second Department determined the zoning board properly held that petitioner’s. Cradit’s, use of her property for short-term guests was not a legal nonconforming use:

… [W]e agree with the Board’s determination that Cradit’s use of her property was not a legal nonconforming use. Contrary to Cradit’s argument, in renting out the residence on the property on a short-term basis, she was not using the residence as a one-family dwelling. A one-family dwelling is a building that contains a single dwelling unit (see Southold Town Code § 280-4[B]). Where property is used as “a boarding- or rooming house, . . . hotel, motel, inn, lodging or nursing or similar home or other similar structure[, it] shall not be deemed to constitute a dwelling unit'” (id.). The Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280-4 and 280-111(J), Southold Town Code § 280-8(E) specifically provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, because Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use is a legal nonconforming use … . Matter of Cradit v Southold Town Zoning Bd. of Appeals, 2020 NY Slip Op 00588, Second Dept 1-29-20

January 29, 2020

Constitutional Law, Land Use, Zoning

ZONING LAWS WHICH PROHIBITED DEFENDANT FROM USING HIS RURAL-DISTRICT LAND TO HOST A LARGE, THREE-DAY MUSIC AND CAMPING EVENT DID NOT VIOLATE HIS FIRST AMENDMENT RIGHTS AND WERE NOT VOID FOR VAGUENESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the town zoning laws which prohibited a landowner from holding a three-day music and camping on his rural property did not unconstitutionally restrict his First Amendment rights and were not void for vagueness:

Defendant Ian Leifer owns a 68-acre property containing a single-family home and undeveloped land within the boundaries of plaintiff Town of Delaware. In 2016, he planned to sponsor on the property a three-day event named “The Camping Trip” — which he had hosted twice before in previous years — over the course of an August weekend. … Meals would be provided at the site through food truck vendors and a religious nonprofit organization would lead in Jewish religious ceremonies. … [P]reparations included off-site parking at a local school and rental of shuttle buses to transport attendees to the event site, a party tent for inclement weather, security at both the parking lot and event, $2,000,000 event insurance, 16 portable toilets, a 30-cubic-yard dumpster, EMTs on site and an ambulance on standby. * * *

None of the principal or accessory uses specifically permitted in the Rural District encompass defendant’s three-day outdoor music and camping festival. Such an event cannot reasonably be characterized as a customary accessory use associated with defendant’s single-family residence. … [U]nless the provisions are unconstitutional, his proposed use is clearly prohibited in the Rural District under the Town of Delaware Zoning Law and the Town was entitled to enjoin the event … . * * *

Defendant’s constitutional challenges … largely focus on a single land use defined in the Zoning Law that is prohibited in the Rural District but permitted in other zoning districts: the “theater” land use. This approach misses the mark because the Town did not rely exclusively on the theater provision but cited the Zoning Law as a whole to show that certain uses are prohibited in a Rural District but expressive aspects of the event, such as the musical presentations, are permitted in other districts. Considering this context, neither the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional rights. Town of Del. v Leifer, 2019 NY Slip Op 08446, CtApp 11-21-19

November 21, 2019

Civil Rights Law, Land Use, Zoning

THE ZONING BOARD OF APPEALS’ RULING THAT A BREAKWALL AND RETAINING WALLS ON LAKEFRONT PROPERTY WERE FENCES WHICH VIOLATED THE CODE WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ANNULLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Zoning Board of Appeals’ (ZBA’s) ruling that the breakwall and retaining walls on lakefront property were fences which violated the code was not supported by substantial evidence. The matter was brought as a hybrid CPLR article 78 proceeding and action under 42 USC §§ 1983, 1985, and 1988:

… [T]he undisputed relevant evidence establishes that the walls do not fall within the plain meaning of fences as defined by Code former § 77-1 inasmuch as they were not erected for the purpose of enclosing or dividing a piece of land …. Instead, the breakwall was constructed to maintain the shoreline of the lake in light of the future construction of a house on petitioner’s property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field, and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. We thus conclude that the ZBA’s determination affirming the order to remedy with respect to the violations of the Code that depend on the walls being considered fences lacks a rational basis and is not supported by substantial evidence. Matter of Fox v Town of Geneva Zoning Bd. of Appeals, 2019 NY Slip Op 07160

October 4, 2019

Land Use, Zoning

ZONING BOARD DID NOT CONSIDER ALL THE STATUTORY FACTORS; DENIAL OF APPLICATION FOR VARIANCES TO ALLOW NEW CONSTRUCTION ANNULLED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the zoning board did not consider all the statutory factors before rejecting Ressa-Cibants’ request for variances for new construction:

In determining whether to grant an area variance, a village zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b] …). In making that determination, the board must 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, the record does not reflect that the Board weighed the benefit to Ressa-Cibants against the detriment to the health, safety, and welfare of the neighborhood by considering the five factors enumerated in the Village Law § 7-712-b(3)(b) … . In particular, the Board’s determinations do not reflect that the Board considered whether there was no feasible method to achieve the benefit sought by Ressa-Cibants without height and coverage area variances. Matter of Pangbourne v Thomsen, 2019 NY Slip Op 06159, Second Dept 8-21-19

August 21, 2019

Land Use, Zoning

PLANNING BOARD HAD THE AUTHORITY TO RECONSIDER A SUBDIVISION AND SITE PLAN APPROVAL BASED UPON NEW INFORMATION, DESPITE THE FACT THE APPROVAL HAD BEEN RESCINDED (THIRD DEPT).

The Third Department determined that the village planning board had the authority to reaffirm a subdivision and site plan approval based upon new evidence, despite the fact the plan had previously been rescinded:

Petitioners argue that the Village Planning Board lacked the authority to reaffirm the 2010 subdivision and site plan approval. We disagree. “Despite the lack of statutory authority, a planning board may reconsider a determination if there has been a material change of circumstances since its initial approval of the plat or new evidence is presented” (Matter of 1066 Land Corp. v Planning Bd. of Town of Austerlitz, 218 AD2d 887, 887 [1995] [citations omitted]). Given that the record discloses that the Village Planning Board was presented with new information in the amended subdivision and site plan, we find that it was authorized to reaffirm the approval notwithstanding the fact that it had been previously rescinded. Matter of Town of Mamakating v Village of Bloomingburg, 2019 NY Slip Op 05732, Third Dept 7-18-19

July 18, 2019

Civil Procedure, Environmental Law, Judges, Land Use, Zoning

HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the Article 78 petition for a hardship waiver to allow petitioner to build a single family residence on property within the core preservation area of the Long Island Central Pines Barrens was properly denied. However, the accompanying declaratory judgment action (alleging the denial of the waiver was an unconstitutional taking) should not have been summarily dismissed by the judge absent a motion for that relief:

… [C]ontrary to the petitioner’s contention, the Commission’s determination to deny its application for an extraordinary hardship waiver had a rational basis and was not arbitrary and capricious. In particular, the Commission rationally found, inter alia, that the alleged hardship was not the result of any unique circumstances peculiar to the subject property (see ECL 57-0121[10][a][i] …) and, in any event, that the alleged hardship was self-created (see ECL 57-0121[10][a][ii], [iii] …). The Commission also rationally found that the application did not satisfy the requirements of ECL 57-0121(10)(c) and reasonably distinguished the application from prior applications for which it granted an extraordinary hardship waiver … . …

“In a hybrid proceeding and action, separate 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” … . Matter of Armand Gustave, LLC v Pavacic, 2019 NY Slip Op 05125, Second Dept 6-26-19

June 26, 2019

Administrative Law, Civil Procedure, Land Use, Zoning

THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript:

The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided “a copy of a transcript from the proceeding, . . . any of the submissions that he may have made in support of the requests, including the applications for any variances themselves” and had “also not provided an affidavit from a person with knowledge in support of [his] petition.”

CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.” Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381, Second Dept 6-5-10

June 5, 2019