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Case Law Update
2006 Land Use Cases Year in Review
John R. Nolon and Jessica A. Bacher
[John Nolon is a Professor at Pace University School of Law, Counsel to its
This column collects and describes over two dozen of the most significant land use cases decided by the
In Land Master Montgomery I, LLC v. Town of
In the Matter of Anderson v. Lenz as the Mayor of the City of Saratoga Springs and as Chairperson of the Saratoga Springs City Council et al., the city council changed the zoning of a privately owned 44-acre parcel from high-density residential to rural residential. 811 N.Y.S.2d 210 (N.Y. App. Div. 2006). Petitioners challenged the rezoning claiming that the council failed to take a “hard look” at the rezoning’s impact on affordable housing as required by SEQRA. The court held that the council discharged its obligation under SEQRA. The council determined that the new zone would allow for two-family units and that numerous other opportunities existed in the city to create new infill affordable housing or to create more affordable housing through the renovation of existing properties.
In Mendel v. Henry Phipps Plaza W., Inc., the Court of Appeals found that plaintiffs, a small group of low and moderate income tenants, did not have standing to enforce a provision of a Land Disposition Agreement (LDA) as third-party beneficiaries. 811 N.Y.S.2d 294 (N.Y. 2006). The tenants claimed that the LDA required
Statute of Limitations
In the Matter of Boland v. Town of Northampton, the court dismissed petitioner’s Article 78 based on the statute of limitations. 807 N.Y.S.2d 205 (N.Y. App. Div. 2006). The petitioner challenged the Town of Northampton Zoning Board of Appeals’ issuance of a special use permit for the construction of residential condominiums under the town’s revised zoning ordinance and map, which designates that area as “Medium Density Residential.” Petitioner claimed the town failed to comply with Town Law requirements in revising the map in 1986, claiming, therefore, that the 1973 “Lakefront Residential” zone and map remain in full force and effect. The claim was time barred because the statute of limitations began to run on the date the map was revised. Additionally, the court held that to contest the revisions, petitioner should have joined all necessary parties, which include “the numerous property owners who might be adversely affected by a potential judgment invalidating such revisions.”
In Matter of Arrandale Civic Ass’n v. Zoning Bd. of Appeals of the Vill. of Great Neck, the court dismissed petitioner’s Article 78 petition to review the zoning board of appeals’ approval of a use variance. 812 N.Y.S.2d 133 (N.Y. App. Div. 2006). It found that pursuant to Village Law § 7-712-c(1), “a proceeding pursuant to CPLR Article 78 to review a determination of a board of appeals ‘shall be instituted within thirty days after the filing of a decision of the board in the office of the village clerk.’” Failure to indicate how each board member voted in the filed record does not delay the running of the statute of limitations.
In Matter of Haberman v. Zoning Bd. of Appeals of City of Long Beach, the court determined that “the Zoning Board of Appeals had a rational basis for finding that the stipulation purporting to extend the prior variance was unenforceable.” 813 N.Y.S.2d 460 (N.Y. App. Div. 2006). The ZBA had awarded the petitioners a variance. Petitioners were to request a building permit within five years from the issuance of the variance. More than five years later, the petitioners were issued a building permit pursuant to a stipulation with the City of
In Matter of Hunt v. Bd. of Zoning Appeals of Inc. Vill. of Malverne, the court found that the ZBA properly treated the variance application as “materially different” from a previous application by the same property owners. 812 N.Y.S.2d 581 (N.Y. App. Div. 2006). Thus, the ZBA proceeding was not precluded by the doctrine of res judicata, which binds a tribunal from hearing and determining an issue that has already been decided. Additionally, because the present application was “materially different,” it did not “implicate the unanimity requirement for rehearings under Village Law § 7-712-a(12),” which requires “[a] unanimous vote of all members of the [ZBA] then present” for such a rehearing to occur. Kreisberg v. Scheyer, 808 N.Y.S.2d 889 (N.Y. Sup.
Village had standing to challenge town planning board’s findings under SEQRA. The village board of trustees was able to demonstrate a showing of an in-fact injury that fell within the zone of interest sought to be protected by SEQRA. The court found that the village board had standing to challenge the town planning board’s findings regarding an application by Wal-Mart under SEQRA because it would suffer environmental harm different in kind and nature from that suffered by the general public. The village was concerned about the traffic impacts of the development.
In Bd. of Trustees of Vill. of Sackets Harbor v. Sackets Harbor Leasing Co., LLC, the defendant appealed from a supreme court order, which “directed defendant to remove docks installed in violation of the
City’s adoption of road widening map did not amount to an unconstitutional taking of property. Plaintiffs failed to show that their property had lost all of its value as a result of the new map. Plaintiffs claimed they were unable to sell their home. They had not advertised it in the newspaper, placed a for sale sign in front of their home, or entered into an agreement with a broker to sell the home. This constituted a failure to carry their burden of proving complete loss of economic value. Royal v. City of
Property owner had a vested interest in a building permit. The permit had been legally issued, and the petitioner had made substantial improvements and incurred substantial expenses in reliance on the issued permit. The permit had been illegally revoked in 1994 and the town zoning board’s decision not to renew the permit was arbitrary and capricious, denying the plaintiff due process of the law. Vecce v. Town of
In Matter of City of Kingston Common Council v. Town of Ulster, the Third Department was called upon to determine “whether the proposed annexation of certain property now located in the Town of Ulster to the City of Kingston is in the overall public interest,” pursuant to General Municipal Law § 712. 807 N.Y.S.2d 708 (N.Y. App. Div. 2006). The court noted that the “over-all public interest” test considers the benefit or detriment to (a) the annexing municipality, (b) the territory proposed to be annexed, and (c) the remaining governmental unit from which the territory would be taken. The court found that the land owners proved they would personally benefit from the annexation, but failed to carry the statutory burden of showing that the annexation was in the overall public interest. The landowner was interested in connecting to the city’s water and sewer because it is less expensive than the options available in the town. The same school district covered the lot whether located in the city or the town and there are no significant differences in the town and city fire departments. In addition, the annexation would not significantly increase tax revenues or stimulate development in the city.
The Court of Appeals held that the landowner’s use of property for religious training purposes complied with town’s zoning ordinance that allowed for a conference and training center. Prior owners used the property as a training and conference center without objection from the town. The property was sold to a church, a tax-exempt entity, which sought to use the property for the same purposes. The town objected to the use of the property by the church without a special permit, arguing that a two-year course of study to be offered on the property was better described as a college or seminary rather than a conference and training center. The Appellate Division found that the only difference between the prior and present uses was the duration of the visitors’ presence. The court found that nothing in the zoning code stated expressly or implied that only short-term visitation was permitted. Town of
The developer applied for final subdivision approval more than 12 years after final and supplemental environmental impact statements were issued and after several regulatory changes that affected the site. Under SEQRA, the lead agency, in these circumstances, does not meet its obligations if it issues the subdivision approval without further environmental impact analysis. The planning board failed to take the requisite “hard look” at all environmental impact issues presented; it should have undertaken another supplemental environmental impact analysis. In re Riverkeeper, Inc., et al. v. Planning Board of Town of Southeast, et al., 820 N.Y.S.2d 113 (N.Y. App. Div. 2006).
Review of Local Board Actions
Where a town board decides to designate as a landmark a site that it had previously denied such status, the board must adequately explain its departure from its own precedent, especially where the underlying facts have not changed. “A determination of an administrative agency that neither adheres to its prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.” In re
The zoning board of appeals has broad discretion in determining what uses constitute incidental and subordinate uses accessory to the principal use. Here, the court upheld a ZBA denial of an application to operate a propane filling station as an accessory use to a nursery/garden center. The board’s decision will be upheld as long as it is not arbitrary, capricious, or an abuse of discretion. DeCaro Capital Investment Group, LLC v. Voekler, 821 N.Y.S.2d 610 (N.Y. App. Div. 2006).
A variance granted by the zoning board of appeals permitting construction of a single-family home that exceeded the maximum height limitation of the village’s zoning code was arbitrary and capricious. The court found that the ZBA failed to make issue specific findings supporting its determination to grant the variance and failed to perform the statutorily required balancing test under N.Y. Town Law § 267-b(3). Margaritis v. Zoning Board of Appeals of the Incorporated Village of Flower Hill, 821 N.Y.S.2d 611 (N.Y. App. Div. 2006).
The planning commission’s denial of an application for re-subdivision and site plan approval was arbitrary and capricious. The commission based its decision to deny approval on certain design features of the proposal “which are intrinsic to a school building or educational use of the property.” The court found that citing these inherent design features amounted to an objection to the use itself, which was permitted by the zoning code, and found that decision was arbitrary and capricious.
The Town of
Other land use cases of interest decided by the