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.

In upholding the rejection of a draft environmental impact statement submitted pursuant to SEQRA, the appellate division reiterated the long standing rule that when a zoning law is amended, after submission of an application and before a decision, the courts must apply the new law and there is no vested right in development under the old law. In Matter of Jul-Bet Enterprises, LLC v. Town Board of Town of Riverhead, the Appellate Division Second Department also noted that the failure to act, as required, within 45 days of submission of the DEIS did not constitute an automatic acceptance of the DEIS.

Last week the Appellate Division Second Department reversed and remitted for retrial a 42 USC 1983 regulatory takings claim in the case Noghrey v. Town of Brookhaven. Plaintiff had purchased 2 parcels in 1985 that were zoned for shopping plazas with the intention of building shopping plazas. After adopting a moratorium to study the zoning of these parcels and others, the Town rezoned plaintiff’s property to residential use. Plaintiff then brought a regulatory takings claim. A trial was held and the jury found a partial taking based upon the Supreme Court’s ruling in Penn. Cent. Transportation v. City of New York.

The Appellate Division reversed and remanded the case for a new trial finding that the jury charge on the takings issue was inadequate. The Court stated that for there to be even a partial taking, the diminution in value must be “one step short of complete.” Noting that courts have rejected cases where the diminution in value even “approached or exceeded 90% of the pre-regulation value” the Court found the trial court failed to explain to the jury the true standard to be applied.

In remitting the case the Court ordered a new trial and directed that the trial court instruct the jury that “mere diminution in value” is not adequate to prove a taking. Rather the jury should be instructed that the test is whether the regulation has left only a “bare residue” of economic value.

The New York Court of Appeals ruled this week, in a case involving a contested annexation of land by one municipality from another that an informal petition by the residents of the area to be annexed was inadequate. In Matter of the City of Utica v. Town of Frankfort the Court found that the practice of the appellate divisions of waiving special elections in certain instances violated the clear mandate of Article IX § 1 (d) of the New York State Constitution which provides that annexation may not take place "until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum."

The Court concluded that the special election must be held "no matter how few eligible voters there are or how superfluous such an election might be."

The Second Circuit Court of Appeals upheld dismissal of the challenge to condemnation of private property for the Atlantic Yards Project in Brooklyn stating in the case Goldstein v. Pataki, decided on February 1, 2008: “…eminent domain has its costs, it has its benefits, and in all but the most extreme cases, Supreme Court precedent requires us to leave questions of how to balance the two to the elected representatives of government, notwithstanding the hardships felt by those whose property is slated for condemnation.” The Court found that neither the fact that the area at issue would be developed privately nor the fact that the individual property owners’ lots are not themselves blighted changed the public purposes of the project to remove blight and provide affordable housing.

The well publicized proposal is to construct a new sports arena for the New Jersey Nets, sixteen high rise apartment buildings and several office towers in a portion of downtown Brooklyn which the Court described as being “afflicted for decades with substantial blight.” Plaintiffs are 15 property owners whose homes or businesses are in a less blighted portion of the project area which are slated for condemnation.

Plaintiffs claimed violations of the “Public Use Clause” of the Fifth Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, along with a New York State law claim. The basis for the action was the allegation that the “public use” for the project is merely a pretext and any incidental public benefit is secondary to the primary purpose of the project, which Plaintiffs’ claim is to allow a private taking in order to advance the personal fortune of the developer, Bruce Ratner.

The District Court, on a motion to dismiss, dismissed the federal claims and declined to retain supplemental jurisdiction over the state claim. Finding that “pretext” was an argument that could be advanced under the Supreme Court decision in Kelo v. City of New London, the District Court determined a reasonable juror could not conclude removal of blight and construction of 2,250 new units of affordable housing were mere pretexts. The District Court also concluded, based upon a prior holding by the Circuit Court in Brody v. Port Chester, that the due process challenge to the New York Eminent Domain Procedure Law would fail.

On appeal, Plaintiffs claimed that government officials had abdicated their eminent domain authority and had been co-opted by Mr. Ratner in order to increase his personal profit. While the Circuit Court noted that the Fifth Amendment requirement that private property may not be taken without just compensation has been understood to include the prohibition of taking private property for the benefit of another private person without “a justifying public purpose” the court also observed that “the primary mechanism for enforcing the public-use requirement has been the accountability of political officials to the electorate, not the scrutiny of the federal courts.”

The Court concluded the role of the Courts is the narrow one of determining if the exercise of eminent domain is “rationally related to a conceivable public purpose” (citing Hawaii Housing Authority v. Midkiff). It found the Complaint on its face conceded “several well-established categories of public uses, among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass-transit movements.”

Finally, the Court determined that the “single sentence” in the Kelo decision referring to pretext did not open the door “to require federal courts in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motives of the various government officials who approved it.”

The Westchester County Planning Department has posted a new Web Page which it hopes will be a planning tool for local communities and assist in regional planning. The site states: "[w]hether you are a planner or a concerned resident, you will find tools on these web pages that assist in understanding your community, defining its character and envisioning the future."

The site (http://www.westchestergov.com/w2025.htm) contains links to all 43 Westchester municipalities and data on each municipality, with the intention that additional information will be added. Claimed to be the first site of its kind in the State of New York, it will be interesting to see if it is utilized and its impact on planning in the County.

After a five year struggle in the Courts, the Village of Mamaroneck settled the RLUIPA claim of the Westchester Day School by agreeing to pay 4.75 million dollars in three installments. After the Village lost in the Second Circuit Court of Appeals this law firm was brought in to handle the case and evaluate the claim by the Day School for an estimated 22 million dollars in damages, including over three million dollars in attorneys fees. The Village Board voted last night to settle the case and approval of the settlement by the Day School Board is expected later this week. See our earlier Blogs about the decisions in the case under the topic heading RLUIPA.

For what others think about the case and the settlement see: http://harringtononline.blogspot.com/