A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval.

Planning Boards are authorized to make a determination, under appropriate circumstances, that developers should dedicate parkland for recreational purposes or that the developer should pay a fee in lieu of dedicating parkland. The court found that the practice of the particular planning board to make such determination at the time of final approval, rather than preliminary approval, is not arbitrary and capricious. The decision was also influenced by the fact that the applicant was told prior to preliminary approval that a fee would be fixed and that the same procedure was followed for a nearby development by the same applicant.

Reiterating that “vested rights cannot be acquired in reliance upon an invalid permit” the Appellate Division of the First Department upheld a determination of the New York City Board of Standards and Appeals (“BSA”) in the case In re GRA, LLC v. Srinivasan.

The petitioner owned property in the R6 district which initially permitted buildings of up to 12 stories. The neighborhood consists of mostly one and two family homes. As a result of petitioners proposed project the neighbors lobbied for a rezoning to prohibit such construction. As the court noted “a race ensued” to see whether petitioner could complete enough of the building to obtain vested rights under the existing zoning before the rezoning took effect. Initially it appeared the petitioner had won the race as it was able to complete enough of the foundation to obtain a vested right to complete the building under the old zoning.

However apparently in an effort to save time and win the race petitioner used a “Sanborn Map” stamped by his architect as accurate, as opposed to a survey as required by regulations. It turned out the map was inaccurate and as a result the foundation was placed closer to the property line than is permitted under the regulations. When the petitioner produced an actual survey this error was confirmed. The department of buildings therefore rejected the claim by petitioner of vested rights to complete the building under the old zoning based upon percentage of completion of the structure before the new zoning went into effect.

Thereafter the BSA denied the petitioner’s appeal. In upholding the BSA the court found that the department of buildings and BSA had acted properly and were not being arbitrary. It was noted they were even willing to accept the Sanborn Map, which did not comply with the regulation requiring a survey, if it could be demonstrated that the information in the Sanborn Map was in fact accurate. It was only after the Sanborn Map was demonstrated, by an actual survey, to be in accurate that the department of buildings refused to acknowledge any vested rights.

The BSA noted that it was not the filing of the Sanborn Map, instead of a survey, that was critical to the decision but “the fact that the architect filed for an erroneous street wall setback” albeit based upon the Sanborn Map. Thus, it was ultimately the setback error, not the use of the Sanborn Map, which invalidated the permit and precluded a claim of vested rights. In responding to a vigorous dissent the court stated equitable principles require noting “that Owner created the very condition leading to revocation of the permit by attesting to a Sanborn Map as accurate without verifying whether that assertion was true.”

In July, 2008 the rules governing Adverse Possession in New York were modified by Chapter 269 of the Laws of 2008. As a result of a number of judicial decisions over the last several years which added further confusion to an already complex legal concept, the Legislature obviously felt it was time to try to add some clarity to this evolving area of the law.

The amendments to several provisions of the Real Property Actions and Proceedings Law (“RPAPL”) more clearly define adverse possession (section 501) including that one may be an adverse possessor “with or without knowledge of the other’s superior ownership rights.” Sections 512 and 522 were changed by taking out the requirement that the property be cultivated or improved by the adverse possessor and instead inserting a provision that in order to claim adverse possession there must “have been acts sufficiently open to put a reasonably diligent owner on notice.”

While disagreement over what constitutes “sufficiently open” and a “reasonably diligent owner” may cause additional litigation, the amendment to section 543 of the RPAPL may provide some relief and clarity in an area that is probably the most common cause of adverse possession claims. The new provisions of section 543 state:

“1. Notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed permissive and non-adverse.
2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining owner’s property shall be deemed permissive and non-adverse.”

It appears that at least the issue of a neighbor’s fence or shrubs encroaching slightly onto another property has been put to rest, although no doubt there will be litigation over what constitutes a de minimus encroachment.

The Legislature has clarified a long contentious issue over the availability of electronic media under the New York Freedom of Information Law (FOIL). In Chapter 223 of the 2008 legislative session, which became law on July 7, 2008, the Legislature expanded FOIL to include electronic data that must be complied by government agencies. The new law requires government agencies and municipalities to “provide records in the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service.” The law also allows the agency to charge back the cost of the storage media, the actual cost of an outside service to retrieve the data or in some instances at least part of the salary of the person doing the retrieval.

It has often been a claim by agencies that records could not be retrieved because to do so would be “unduly burdensome” The new law provides in part that an: “agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside staffing service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph ( c ) of subdivision one of section eighty-seven of this article” (Public Officers Law).

This provision should result in some interesting litigation as agencies and individuals wrangle over whether the documents could be retrieved under these circumstances or whether the charges by outside vendors or for employee salaries are too high.

In a recent decision by the Appellate Division Second Department that Court again reminded litigants that variances run with the land and zoning boards can only place conditions on variances that relate to the property involved and the purpose of zoning. In Fowlkes v Zoning Board of Appeals of the Town of North Hempstead the Court went through the usual balancing test and found that the zoning board had, despite certain conclusory findings, “appropriately considered the other statutory factors and concluded that the detriment to the neighborhood outweighed the benefit to the petitioner.”

However, the petitioner apparently also argued that a balance could be struck in her favor if the variances sought were limited to her term of ownership. In rejecting that argument the Court pointed out: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….”

In a detailed analysis of New York’s Freedom of Information Law (FOIL) the Appellate Division First Department held that certain communications from a consultant hired by the Empire State Development Corporation (ESDC) were not exempt from release under FOIL as intra-agency communications. Noting that while there is generally such an exemption “such communications lose their exemption if there is reason to believe that the consultant is communicating with the agency in its own interest or on behalf of another client whose interests might be affected by the agency action addressed by the consultant” the court held that because the consultant was also hired as a consultant by Columbia University to assist with the same project the communications sought under FOIL were subject to release under FOIL.

The issues in the case arose in the context of a proposed project by Columbia University which also requires approvals and assistance through ESDC in order to be fully implemented. The action entitled Tuck It Away Associates L.P. v Empire State Development Corp. involves an attempt by the largest property owner impacted by the Columbia University proposal (along with others) to obtain documents from ESDC related to its proposal to implement the Columbia University project. ESDC claimed certain documents, consisting of communications from a consultant hired to assist ESDC with a blight study preparatory to ESDC exercising eminent domain on behalf of the Columbia University project were exempt from FOIL as intra-agency communications. The Court noted that the consultant (AKRF) had also been retained by Columbia University to assist with other aspects of the same project, which were ultimately related to the ESDC adopting the General Project Plan (GPP) for Columbia University.

The Court found that “the question to be answered is whether the fact that AKRF represents both ESDC and Columbia, albeit, allegedly in separate areas related to the same massive project, constitutes a conflict such that AKRF is not capable of rendering a truthful, objective expert study of neighborhood conditions irrespective of its impact on Columbia’s plan.” The Court went on to make findings that it is “undisputed that AKRF has worked to promote ESDC’s adoption of Columbia’s GPP and that AKRF acted as Columbia’s consultant, agent and representative in all phases of environmental review under SEQRA” and that “Columbia’s interest in an agency finding of blight is virtually inseparable from its interest in ESDC’s adoption of its GPP.” The Court therefore held that the communications between ESDC and AKRF are not subject to intra-agency exemptions under FOIL because “the gargantuan size of the project, the layers of conflict between Columbia and ESDC and the difficulty of offering perfectly objective advice while serving two masters elevates this FOIL appeal beyond the average agency-consultant relationship that FOIL exemptions are designed to foster and protect.”

A note, in the interest of full disclosure it should be noted that, while this firm did not participate in this action, this firm is lead counsel to Tuck It Away in a challenge presently pending in New York State Supreme Court related to the SEQRA/CEQRA findings adopted by the New York City Planning Commission for the same project.

In upholding the decision of a zoning board denying an area variance, the Appellate Division in Fowlkes v Board of Zoning Appeals of the Town of North Hempstead noted that the variance could not have been limited in time to the term of ownership of the present applicant. Instead the Court noted: “the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it.”

This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage. The property owners applied to the zoning board for the necessary variances, which was opposed by neighbors. Based largely on a statement by the Village attorney that similar applications had been granted in the past, the zoning board granted the application.

The neighbors brought an Article 78 proceeding challenging the variances and for the first time claimed that the lot in question did not have the required lot area. In modifying the decision of the Supreme Court, the Appellate Division held this issue should not have been considered as it was neither a question of law nor “apparent from the face of the record.” The Court noted that in an Article 78 proceeding the court’s review is “limited to the arguments and record adduced before the agency” and that a litigant is require to exhaust all possible relief through administrative review before resorting to the courts.

However the Court still remitted the case to the zoning board noting that it was not clear from the record that the zoning board had considered the five factor balancing test required by Village Law section 7-712 (b) in granting the variances. Further, on the contention that the zoning board was compelled to follow its precedent in granting similar variances, the Court found: “other than the conclusory statement from the Village Attorney, it was never established that applications for area variances involving similar factual circumstances had been granted in the past….”

The case acts as a reminder of two important and related points: (1) the zoning board has to make a clear record of the reasons for its decision and (2) those appearing before a zoning board have to make a clear record of the relevant issues. Absent a well developed record the court will either reject the arguments outright or remit the matter for further proceedings.

A zoning amendment which permitted hot mix asphalt facilities as a special use in all industrial districts in the Town of Babylon was held not to be spot zoning by the Appellate Division this week. In the case, Matter of Little Joseph Realty, Inc. v Town Board of the Town of Babylon, the court found the amendment was not enacted to benefit a single owner for a specific purpose only.

The Court noted that spot zoning is “the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners.” In affirming the decision of the Supreme Court, the Appellate Division found that the lower court had correctly determined that “the zoning amendments did not allow for a use that was different from that allowed in the surrounding area and was in conformity with the comprehensive plan calculated to serve the general welfare of the community.”

Due to a busy litigation schedule, we fell short in reporting a number of SEQRA and zoning cases that came down during March of 2008. So we thought we would provide a brief summary of some of the cases decided by New York appellate courts during March of 2008, in case you missed them also.

Rossi v. Town Bd. of Ballston, 2008 NY Slip Op 02740 (3d Dep’t Mar. 27, 2008). SEQRA-the burden is on the party challenging a SEQRA determination to provide evidence to refute expert testimony.

Muir v. Town of Newburgh Planning Board, 2008 NY Slip Op 02596 (2d Dep’t Mar. 18, 2008). SEQRA-a full review of environmental impacts of a prior proposal that did not proceed was sufficient for a SEQRA “hard look” at a new scaled down proposal for the same site.

Allstate Properties, LLC v. Board of Zoning Appeals of Vill. of Hempstead, 2008 WL 669808; 2008 N.Y. Slip Op. 02412 (Mar. 11, 2008). Area Variances-the five part balancing test before granting an area variance.

Joann London v. Zoning Board of Appeals of Town of Huntington, 2008 WL 740523; 2008 NY Slip Op 02593 (2d Dep’t Mar. 18, 2008). Variance precedent- zoning board properly distinguished prior variance requests in denying a request for a lot area variance.

Red Hook /Gowanis Chamber of Commerce v. NYC Bd. of Standards and Appeals, 2008 WL 740514; 2008 NY Slip Op 02600 (March 18, 2008). Use Variance- what constitutes “dollars and cents” proof.

The Appellate Division Second Department held in the case Overton v. Town of Southampton that a town board is authorized to create the position of police commissioner as chief administrative officer of the police department by local law. The court determined that the local law creating the position of police commissioner was not barred by the Civil Service Law provision requiring that a town maintain the position of chief of police. Here the chief of police kept his position but the local law requires the chief to report to a single police commissioner.

The court noted it had previously held that nothing in the Civil Service Law prevents a local government from requiring that the chief report to other local officials. Further, Town Law section 150(2) authorizes a town board to delegate supervision over the police department to a board of police commissioners. The court found that the Town properly invoked its authority under Municipal Home Rule Law section 22 to supersede the provision of Town Law permitting a board of commissioners and instead create the position of police commissioner by local law.

The Court of Appeals held, for purposes of allocating costs of New York’s “one-call” system for locating underground pipes, cables wires etc. before excavating, a water district created by Town Law is not a municipality. In Jericho Water District v. One Call Users Council, Inc. the Court held that a water district is therefore not exempt from contributing to the cost of maintaining the one-call system.

General Business Law section 761 provides for maintaining the one-call system with cost being shared among operators of underground facilities, except “municipalities and authorities that operate underground facilities and any operator of underground facilities that provides water service to less than four thousand customers.” The Jericho Water District was created pursuant to Town Law section 190 with the commissioners elected rather than being appointed by the Town Board. The court noted that various statutes define municipality either narrowly to include only counties, cities, towns, villages and school districts, or more broadly to also include specialized government units like a water district. However, the provision of the General Business Law at issue does not include a definition of municipality.

The court found that both general usage and the General Construction Law (which defines “municipal corporation”) would apply a more narrow definition, which would not include a water district as a municipality. While the General Construction Law defines municipal corporation rather than municipality the court construed the terms as synonymous. It therefore concluded, absent a definition in the specific statute to be applied, the narrow definition in the General Construction Law applies as “exceptions to generally applicable statutory provisions should be strictly construed…”

Occasionally, early in the process of reviewing an application, everyone on the municipal board knows that an application is not likely to be granted. Then the question occurs, do we have to require that the applicant go through a full environmental review under SEQRA before we turn down the application? This is a practical question as an environmental review can be time consuming and incredibly expensive for an applicant. On April 8, 2008, in the case Matter of Joseph Logiudice v. Southold Town Board, the Appellate Division Second Department reminded us that if the application is denied there is no action requiring a review under SEQRA.

SEQRA requires that no action by a government agency be approved without first complying with SEQRA’s obligation to take a hard look at potential significant environmental impacts and eliminating or mitigating those impacts. In upholding the denial of the application for a special permit by Logiudice, the Appellate Division noted: “ because the Board determined to deny the petitioner's application, “no action having a significant effect on the environment was undertaken,” and, as such, 'it was unnecessary for the Board, as lead agency, to comply with the requirements of the State Environmental Quality Review Act' ( Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 301 A.D.2d 530, 531-532; see Matter of Cappelli Assoc. v. Meehan, 247 A.D.2d 381, 382; Matter of Wade v. Kujawski, 167 A.D.2d 409, 410)."

An article entitled " 'Atlantic Yards' Condemnation Upheld," written by Steven Silverberg, founding partner of Silverberg Zalantis LLP, is featured in the March, 2008 ALM Law Journal Newsletter, New York Real Estate Law Reporter. The article discusses the recent decision by the Second Circuit Court of Appeals to dismiss the challenge by several property owners to the condemnation of their properties in order to construct a huge private development in downtown Brooklyn, New York. See: http://www.lawjournalnewsletters.com/newsletters/home/ljn_nyrelaw.html

The Appellate Division, Second Department rejected as unreasonable a condition on an area variance that a parking lot be chained at night to prevent overnight parking. In Matter of Voetsch v. Craven the petitioner sought area variances for a parking lot adjacent to a professional office.

The Zoning Board denied a variance for a 4 foot stockade fence but granted the other area variances for the parking lot, contingent upon petitioner putting a chain at the entrance at night to prevent overnight parking on the lot when the offices were not open. The Court upheld the denial of the stockade fence but reversed that portion of the decision which required the chain across the lot at night to prevent parking.

The Court noted that a zoning board may impose reasonable conditions “directly related to and incidental to the proposed use” but that unreasonable conditions must be annulled. The court found that a condition preventing overnight parking was reasonable to minimize adverse impacts on the neighborhood. However, it held “there was no such rational basis” for also having to chain the parking lot. The decision is silent as to why the court found this condition unreasonable. This writer suspects that other parking lots in the town are not required to be chained to prevent overnight parking and that this was a unique requirement for this specific property.