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HomeMy WebLinkAboutNew York Land Use Law 2002 Update July 2001 - June 2002 7/1/2001 New York Land Use Law 2002 Update July 2007 - June 2002 Patricia E. Salkin aminirri 1›- --e- - 1 r r r Ii® I _ ___� 1.--00Z Air __ ..... ,..... ... , , . .. .... ___ . ec..._.,__:„..,_ „,..... _ ....._,..„,..„ _ _ _._ ___ —_,,, ,--i „, . ._. __. .. . ... -, r _ _ a ..L. ..P n, z 60 z ... f t- 11 M11 _I 0 1-, --:ii INIIIIIMIIIIIIIIIIIMIIIIIIIIIIIIIB 1111111111111111111.111111 I - .:' : 1 I I r• TABLE OF CONTENTS Accessory Uses Adult Uses 2 Agricultural Uses 8 Airstrips 8 Amending Zoning 8 Americans with Disabilities Act 9 Annexation 10 Bad Faith 10 Building Inspector 11 Building Permits 11 Civil Rights Liability 12 Cellular Towers 12 Compatibility of Dual Office Holding 16 Condemnation 16 Conflicts of Interest 17 County Referrals 18 Definitions 18 Educational Institutions 19 Enforcement 19 Equal Protection 20 Ethics 21 0 Government Law Center of Albany Law School Exhaustion of Administrative Remedies 22 Extraterritorial Jurisdiction 22. Fees 22 Freedom of Information Law 23 Group Homes 23 Groundwater 23 Impact Fees 24 Legislative Equivalency 24 Manufactured Housing 25 Mootness • 25 Moratoria 26 Necessary Parties 28 Nonconforming Uses 28 Open Meetings 30 Regional Planning 30 Religious Uses 30 Res Judicata 32 Restrictive Covenants 33 Rezoning 34 Ripeness 34 SEQRA 36 Signs 36 Site Plan Approval 42 ©Government Law Center of Albany Law School Special Use Permits Spot Zoning 47 Standing 48 Statute of Limitations 51 Subdivision Approval 53 Substantive Due Process 55 Takings 57 Variance -Area 59 Variances— Use 65 Vested Rights 67 Voting 68 Zoning Administrator 69 Zoning — Purposes 69 Zoning Board of Appeals 70 Zoning Law 71 Miscellaneous 71 ®Government Law Center of Albany Law School TABLE OF AUTHORITIES Cases 450 Sunrise Highway, LLC v. Town of Oyster Bay, 287 A.D.2d 714, 732 N.Y.S.2d 83 (2d Dept. 2001) 42 520 East 81st Street Associates v. State of New York, 288 A.D.2d 67, 732 N.Y.S.2d 407 (1st Dept. 2001) 58 7-Eleven, Inc. v. Board of Trustees of the Incorporated Village of Mineola, 289 A.D.2d 250, 733 N.Y.S.2d 729 (2d Dept 2001) 44 Action Redi Mix Corp. v. Davison, 292 A.D.2d 448, 739 N.Y.S.2d 411 (2d Dept. 2002) 22, 70 Aenaes McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d 326 (1998 50 Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D. 2d 293, 534 N.Y.S.2d 791 (3d Dept. 1988) affd 74 N.Y.2d 372, 546 N.E.2d 920, 547 N.Y.S.2d 627 (NY 1989) 24 Anderson v. Town of Clarence and Town Bd. Of Clarence, 740 N.Y.S.2d 907( 4th Dept. 2002) 45 Angiolillo v. Town of Greenburgh, 290 A.D.2d 201, 735 N.Y.S.2d 113 (2d Dept. 2002) 54 Anstu Farm LLC v. Town Board of Town of Washington, 285 A.D.2d 503, 727 N.Y.S.2d 655 (2d Dept. 2001) 71 Association of Friends of Sagaponack v. Zoning Board of the Appeals of the Town of Southampton, 287 A.D.2d 620, 731 N.Y.S.2d 851 (2d Dept. 2001) 67 Association of the Friends of Sagaponack v. Zoning Board of Appeals of the Town of Southampton, 287 A.D.2d 620,731 N.Y.S.2d 851(2d Dept. 2001) 18 Avgush v. Town of Yorktown Building Inspector, 291 A.D.2d 556, 737 N.Y.S.2d 648 (2d Dept. 2002) 71 Barclay Townhouse at Merrick 11 Corp. v. Town of Hempstead, 289 A.D.2d 351, 734 N.Y.S.2d 870 (2d Dept. 2002 23 ©Government Law Center of Albany Law School -i- T Bartolomeo v. Spain, 286 A.D.2d 498, 729 N.Y.S.2d 633 (2d Dept. 2002) 59 Bianco Homes, Inc. v. Weiler, 2002 WL 1334765 (A.D. 2d Dept. 2002 6� Biscardi v. Zoning Board of Appeals of the Town of Hyde Park, 288 A.D.2d 215, 733 N.Y.S.2d 105 (2d Dept. 2001) 59 Board of Trustees of the Village of Spring Valley v. Town of Clarkstown, 292 A.D.2d 450, 738 N.Y.S.2d 699 (2d Dept. 2002) 10 Bower Associates v. Planning Board of the Town of Pleasant Valley, 289 A.D.2d 575, 735 N.Y.S.2d 806 (2d Dept. 2001 55 Brighton Residents Against Violence to Children, Inc. v. MW Properties, LLC, 10/25/2001 NYLJ 25 (col. 3)(Sup. Ct. Monroe Co. 2001 42, 43, 49 Broadway Schenectady Entertainment, Inc. v. County of Schenectady, 288 A.D.2d 672, 732 N.Y.S.2d 703 (3d Dept. 2001) 17 Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001) 6, 7, 51 Bruno v. Zoning Board of Appeals of Town of Islip, 286 A.D.2d 765, 730 N.Y.S2d 728 (2d Dept. 2001 59 Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, 604 N.Y.S.2d 895 (1993) 14 Cilia v. Mansi, 2002 WL 1275122 (Sup. Ct., Suffolk Co. 2002) 70 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) 39 City of Erie v. Pap's A.M., 529 U.S. 277(2000) 5 City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728 (2002) 4 City of Renton v. Playtime Theaters, 475 U.S. 41, 106 S. Ct. 925, 89 L.Ed. 2d 29 (1986). NM 3, 5 Cochran v. Town of Marcy, 143 F. Supp.2d 235 (N.D.N.Y. 2001) 2 Congregacion Mita of New York v. Town Board of the Town of Hempstead, 8/30/2001 NYLJ 21 (col.2), (Sup. Ct. Nassau Co., 2001) 31 Connecticut Yankee Atomic Power Company v. Town of Haddam Planning and Zoning Commission, 19 Fed. Appx. 21, 2001 WL 1167816 (2nd Cir., 2001) 22 ©Government Law Center of Albany Law School -ii- t_ a Crandall v. Town of Mentz, 2002 WL 1301435 (4th Dept. 2002 D & S Realty Development v. Town of Huntington, 743 N.Y.S.2d 147 (2d Dept. 2002) DeRusso v. City of Albany, 2002 WL 1275466 (N.D.N.Y. June 4,2002) 5, 19 Dick's Quarry, Inc. v. Town of Warwick, 739 N.Y.S.2d 464 (2d Dept. 2002) 57 Dittmer v. County of Suffolk, 188 F.Supp. 2d 286 (E.D.N.Y. 2002). 30 Dougherty v. Town of North Hempstead, 282 F.3d 83 (2d Cir. 2002) 34, 35 Dreikausen v. Zoning Board of Appeals of the City of Long Beach, 287 A.D.2d 453, 731 N.Y.S.2d 54 (2d Dept. 2001) 65, 66 East 91' Street Neighbors to Preserve Landmarks, Inc. v. The New York City Board of Standards and Appeals, 740 N.Y.S.2d 876 (1st Dept. 2002) 66 East Timor Action Network v. City of New York, 71 F. Supp.2d 334 (S.D.N.Y.1999) 39 Elliot v. Boycott, 740 N.Y.S.2d 632 (2d Dept. 2002) 43, 53 Engelbert v. Warshefski, 289 A.D.2d 972, 738 N.Y.S.2d 257 (4th Dept. 2001) 45 EPL Associates, LLC. v. Board of Trustees of the Incorporated Village of Great Neck Plaza, 742 N.Y.S.2d 572(Mem.)(2d Dept. 2002) 12 Erie Boulevard Triangle Corporation v. City of Schenectady, 152 F. Supp. 2d 241 (N.D.N.Y. 2001) 7 Falco v. Town of Islip, 289 A.D.2d 490, 734 N.Y.S.2d 643 (2d Dept. 2001 33 Farina v. Zoning Board of Appeals of the City of New Rochelle, 742 N.Y.S.2d 359 (2d Dept. 2002 52 Fifth Avenue Presbyterian Church v. City of New York, 2002 WL 1290839 (2d Cir. 2002) 32 Friends of the Shawangunks, Inc. v. Knowlton, 64 N.Y.2d 387, 487 N.Y.S.2d 543(1985) 13 Fuss v. Hanibal Town Planning Board, 2002 WL 1301554 (A.D. 4th Dept. 2002) 15 Gagliardi v. Village of Pawling, 18 F.3d at 192) (188, 192 (2d Circ. 1994) 56 ©Government Law Center of Albany Law School -iii- Gomez v. Zoning Board of Appeals of the Town of Islip, 740 N.Y.S.2d 139 (2d Dept. 2002) Gormally v. Shiff, et al., 188 Misc. 2d 873, 729 N.Y.S.2d 880 (Sup. Ct. Westchester Co. 2001) 62 Group for the South Fork, Inc. v. Town Board of the Town of Southampton, 285 A.D2d 506, 729 N.Y.S.2d 148 (2d Dept. 2001 43 Hach v. Zoning Board of Appeals of the Town of East Hampton, 287 A.D.2d 500, 731 N.Y.S.2d 219 (2d Dept. 2001 45 Hampton Bays Connections, Inc. v. Duffy, 188 F. Supp. 2d 270 (E.D.N.Y. 2002) 56 Hannafey v. Board of Trustees of the Village of Malverne, 741 N.Y.S.2d 721 (2d Dept. 2002) 45 Harlan Associates v. Incorporated Village of Mineola; 273 F.3d 494 (2d Cir. 2001) .. 11, 18, 21, 56 Herschaft v. Bloomberg, 2002 WL 1204780 (E.D.N.Y. 2002 39 Hill v. YM/YWHA of Northern Westchester Inc., 287 A.D.2d 691, 732 N.Y.S.2d 251 (2d Dept. 2001 29 Home Depot USA, Inc. v. Village of Rockville Centre, 2002 WL 1285972 (2d Dept. 2002) 27 Home Depot, USA, Inc. v. Town of Mount Pleasant, 741 N.Y.S.2d 274 (2d Dept. 2002 43 Hudson Canyon Construction, Inc. v. Town of Cortlandt, 289 A.D.2d 576, 735 N.Y.S2d 807 (2d Dept. 2001) 43 Hudson Valley Nursery, Inc. v. Planning Board of the Town of Orangetown, 5/9/2002 NYLJ 25 (col. 1)(Sup. Ct. Rockland Co. 2002 55 Imperial Improvements, LLC v. Town of Wappinger Zoning Board of Appeals, 290 A.D.2d 507, 736 N.Y.S.2d 409 (2d Dept. 2002) 26, 71 In the Matter of an Administrative Inspection of Property Under the Control of John Kun, 190 Misc.2d 470, 738 N.Y.S.2d 549 (Co. Ct. Green Co., 2002) 19 In the Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the Village of ©Government Law Center of Albany Law School -iv- a Pleasantville, 2002 WL 1401678 (C.A.N.Y. 2002) ___ In the Matter of Philippe Ifrah v. W. Charles Utschig, Jr., 2002 WL 1401712 (C.A.N.Y. 2002) Incorporated Village of Atlantic Beach v. Zoning Board of Appeals of the Town of Hempstead, 292 A.D.2d 608, 739 N.Y.S.2d 615 (2d Dept. 2002 62 Independent Wireless One Corporation v. Town of Maryland Planning Board, 191 Misc.2d 168, 738 N.Y.S.2d 829 (Sup. Ct. Otsego Co. 2002) 13, 18 Indian Rock, LLC v. Zoning Board of Appeals of the Village of Airmont, 287 A.D.2d 629, 731 N.Y.S.2d 864 (2d Dept. 2001) 70 Infinity Outdoor Inc. v. City of New York, 165 F. Supp. 2d 403 (E.D.N.Y. 2001) 38 Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214 (2d Dept. 2001) 33, 62 Karmel v. Delfino, 740 N.Y.S.2d 373 (2d Dept. 2002)• 33, 43 Karmel v. White Plains Common Council, 284 A.D.2d 464, 726 N.Y.S.2d 692 (2d Dept. 2001) 28 Kaufman v. Village of Mamaroneck, 286 A.D.2d 666, 729 N.Y.S.2d 778 (2d Dept. 2001 51 Kittay v. Guiliani, 252 F.3d 645 (2d Cir. 2001 57 Knaust v. City of Kingston, 193 F. Supp. 2d 536 (N.D.N.Y. 2002) 58 Knoeffler v. Town of Mamakating, 87 F.Supp. 2d 322 (S.D.N.Y. 2000 41 Kroll v. Village of East Hampton, 741 N.Y.S.2d 98 (2d Dept. 2002) 19, 52 Levine v. City of New York, 2002 WL 5588 (S.D.N.Y. Jan. 2, 2002) 11 Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12 (2d Cir. 1999 56 Lloyd v. Town of Greece Zoning Board of Appeals, 292 A.D.2d 818, 739 N.Y.S.2d 303 (4th Dept. 2002) 13 Lombardi v. Habicht, 740 N.Y.S.2d 103 (2d Dept. 2002) 11, 68 Long Island Board of Realtors, Inc. v. Incorporated Village of Massapequa Park, 277 F3d 622 (2d Cir. 2002) 37 ©Government Law Center of Albany Law School -v- Long Island Pine Barrens Society, Inc. v. Town Board of the Town of East Hampton, 741 N.Y.S.2d 80 (2d Dept. 2002) 30, 50 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404 (2001 33 Louhal Properties, Inc. v. Strada, 2002 WL 992068 (Sup. Ct. Nassau Co. 2002) 69 Lower Manhattan Anti-Displacement v. Board of Standards and Appeals of the City of New York, NYLJ vol. 227 p. 18 (5/22/2002) (Sup. Ct., New York, 1St Dept.2002) 50 Mahler v. Gulotta, 9/19/2001 N.Y.L.J. 21 (col. 2) (Sup. Ct. Nassau Co. 2001) 72 Manzi Homes, Inc. v. Trotta, 286 A.D.2d 737,730 N.Y.S.2d 451 (2d Dept. 2001) 62 Marathon Outdoor, LLC v. Vesconti, 107 F. Supp. 2d 355 (S.D.N.Y. 2000) 40 Marro v. Zoning Board of Appeals of the City of Long Beach, 287 A.D.2d 506, 731 N.Y.S.2d 628 (2d Dept. 2001) 63 Matter of 150 Washington Avenue Corp. v. Board of Zoning &Appeals of the Village of Mineola, 2002 WL 1335150 (A.D. 2d Dept. 2002) 67 Matter of Bianco Homes 11, Inc. v. Weiler, 2002 WL 1334763 (A.D. 2d Dept. 2002) 64 Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 687 (1996) 50 Matter of Janet Delhomme, 188 Misc.2d 678, 729 N.Y.S.2d 599 (Sup. Ct. Rockland Co. 2001) 20 Matter of Pansa v. Damiano, 14 N.Y.2d 356, 200 N.e.2d 563, 251 N.Y.S.2d 665 N.Y. 1964 52 Matter of Retail Property Trust v Zoning Board of Appeals of the Town of Hempstead, 2002 WL 14017525 (C.A.N.Y. 2002) 67 Matter of Smithtown, LLC v. Planning Board of the Incorporated Village of the The Branch, 7/7/99 N.Y.L.J. 35 (col. 4)(Sup. Ct. Suffolk Co.1999 39 Matter of the Association of Zone A & B Homeowners, Inc. v. The Zoning Board of Appeals of the City of Long Beach, 7/6/2001 NYU 25, (col. 2)(Sup. Ct. Nassau Co. 2001 31 Mayes v. Lace, 287 A.D.2d 934, 731 N.Y.S.2d 676 (3d Dept. 2001) 52 ©Government Law Center of Albany Law School -vi- McCulloch v. New York State Ethics Commission, 285 A.D.2d 236, 728 N.Y.S.2d 850 (3d Dept. 2001) McGann v. Incorporated Village of Old Westbury, 741 N.Y.S.2d 75, (2d Dept. 2002) 32 McKennett v. Hines, 289 A.D.2d 246, 734 N.Y.S.2d 200 (2d Dept. 2001) 54 McNair v. Board of Zoning Appeals of the Town of Hempstead, 285 A.D.2d 553, 728 N.Y.S.2d 73 (2d Dept. 2001) 62 Merritt v. Duffy, 288 A.D.2d 476, 732 N.Y.S.2d 907 (2d Dept. 2001) 63 Mian Enterprises, Inc. v. Easa, et al., 291 A.D.2d 559, 738 N.Y.S.2d 248 (2d Dept. 2002) 45, 63 Michalak v. Zoning Board of Appeals of the Town of Pomfret, 286 A.D.2d 906, 731 N.Y.S.2d 129 ( 4th Dept. 2001) 12, 28 Miller v. Beatty, 291 A.D.2d 560, 739 N.Y.S.2d 575 (2d Dept. 2002 55 Miller v. Board of Appeals of the Inc. Village of Amityville, Index No. 0015185 (Sup. Ct. Suffolk Co. July 26, 2001) 66 Miller v. Kozakiewicz, 289 A.D.2d 494, 735 N.Y.S.2d 176 (2d Dept. 2001) 24 Miller v. Village of Wappingers Falls, 289 A.D.2d 209, 734 N.Y.S.2d 190 (2d Dept. 2001) 69 Mobil Oil Corporation v. Village of Mamaroneck Board of Appeals, 740 N.Y.S.2d 456 (2d Dept. 2002) 63 Morgan v. Town of West Bloomfield, 2002 WL 1301401(A.D. 4th Dept. 2002) 25, 46 Natale v. Duffy, 285 A.D.2d 554, 727 N.Y.S.2d 911 (2d Dept. 2001) 63 Nextel Communications of New York v. The Town of Huntington, 10/15/2001 NYLJ 25 (col. 2) (Sup. Ct. Suffolk Co. 2001) 13 Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dept. 2002 19, 50, 52, 61 Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp. 2d 697.(S.D.N.Y. 2001) 14, 15, 31, 71 ©Government Law Center of Albany Law School -vii- T Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002) 9, 14, 15, 45 Owens v. Stuart, 292 A.D.2d 677, 739 N.Y.S.2d 473 (3rd Dept. 2002) O'Donnell v. Town of Schoharie, 291 A.D.2d 739, 738 N.Y.S.2d 459 (3d Dept. 2002) 48 Pagnozzi v. Planning Board of the Village of Piermont, 292 A.D.2d 613, 739 N.Y.S.2d 742 (2d Dept. 2002) 54 Palazzolo v. Rhode Island(533 U.S. at 636,S.Ct. at 121 2467 (2001) 26 Palmer v. City of Saratoga Springs, 180 F. Supp.2d 379 (N.D.N.Y. 2001) 47 Paradis v. Town of Schroeppel, 289 A.D.2d 1027, 735 N.Y.S.2d 278 (4th Dept. 2001) 24 Passaro v. Lake George Park Commission, 288 A.D.2d 678, 733 N.Y.S.2d 271 (3d Dept. 2001 53 People v. Professional Truck Leasing Systems, 185 Misc.2d 734, 713 N.Y.S.2d 651 (NYC Crim. Ct. 2000) 39 People v. Weinkselbaum, 185 Misc.2d 889, 714 N.Y.S.2d 860 (Suffolk Co. 2000) 40 Pheasant Pond Owners Association, Inc. v. Board of Trustees of Incorporated Village of Southampton, 285 A.D.2d 597, 728 N.Y.S.2d 190 (2d Dept. 2001 35, 44 Phillips v. Town of Clifton Park Water Authority, 286 A.D.2d 834, 730 N.Y.S.2d 565 (3d Dept. 2001), leave to appeal denied, 97 N.Y.2d 834, 730 N.Y.S.2d 565, (3d Dept. 2001) 24 Polsen v. Rosenberg, et al., 2002 WL 1203826 (A.D. 2nd Dept. 2002) 64 Putnam Country Club Associates, LLC v. Planning Board of the Town of Carmel, 742 N.Y.S.2d 847(2d Dept. 2002 55 Ramapo Homeowners Association v. Town of Ramapo, 4/17/2002 NYLJ 31 (col. 2) (Sup. Ct. Rockland Co. 2002) 22, 27, 34, 48 Ramapo Homeowners'Association v. New York State Office of Mental Retardation and Developmental Disabilities, et al., 180 F.Supp. 2d 519 (S.D.N.Y. 2002) 23 ©Government Law Center of Albany Law School -viii- � T • Rayle v. Town of Cato Board, 2002 WL 1303037 (A.D. 4`h Dept. 2002) 48 Regional Economic Community Action Program, Inc. v. City of Middletown, 2002 WL 181154 (2nd Cir. 2002) c, 10 Ren's Realty, Inc. v. Town of Vienna, 2002 WL 120303 (4`h Dept. 2002) 25 Rice v. Mammina, 287 A.D.2d 509, 731 N.Y.S.2d 390 (2d Dept. 2001) 61 RKO Delaware, Inc. v. The City of New York, 2001 WL 1329060 (E.D.N.Y. 2001) ... 35, 36, 59 Rosendale v. luliano, 2002 WL 215656 (S.D.N.Y. 2002) 56 Rubin v. McAlevey, 54 Misc. 2d 338, 282 N.Y.S.2d 564 (Sup. Ct. Rockland Co. 1967), aff'd 29 A.D.2d 874, 288 N.Y.S.2d 519 (2d Dept. 1968) 26 Salino v. Town of Brookhaven Zoning Board of Appeals, 288 A.D.2d 477, 732 N.Y.S.2d 907 (2d Dept. 2001) 29 Sanzoverino v. Bruscella, 291 A.D.2d 502, 738 N.Y.S.2d 360 (2d Dept. 2002) 1 Sautner v. Amster, et al. , 284 A.D.2d 540, 728 N.Y.S.2d 54 (2d Dept. 2001) 61 Save Our Main Street Buildings v. Greene County Legislature, 292 A.D.2d 521, 740 N.Y.S.2d 73 (2d Dept. 2002) 49 Schiavoni v. Village of Sag Harbor, et al. , 285 A.D.2d 638, 728 N.Y.S.2d 399 (2d Dept. 2001 51 Schultz v. Town of Red Hook Zoning Board of Appeals, 740 N.Y.S.2d 235 (2d Dept. 2002) 51 Seventh Regiment Fund v. Pataki, 179 F.Supp. 2d 356 (S.D.N.Y. 2002 57 Sirianno v. New York RSA No. 3 Cellular Partnership, 284 A.D.2d 913, 727 N.Y.S.2d 568 (4th Dept. 2001) 8, 53 Society of Plastics Industry v. County of Suffolk, 77 N.Y. 2d 761, 573 B,E, at 1934m 570 N.Y.D.2d 778 (N.Y. 1991) 49 Sorby v. Zoning Board of Appeals of the Town of Mount Pleasant, 289 A.D.2d 410, 734 N.Y.S.2d 888 (2d Dept. 2001) 61 Soule v. Scald, 288 A.D.2d 585, 732 N.Y.S.2d 662 (3d Dept. 2001 18 ©Government Law Center of Albany Law School -ix- r Spinella v. Town of Paris Zoning Board of Appeals, 2002 WL 1399157 (Sup. Ct. Oneida Co. 2002) Sposato v. Zoning Board of Appeals of the Village of Pelham, 287 A.D.2d 639, 732 N.Y.S.2d 19 (2d Dept. 2001) 29 Sprint Spectrum L.P. v. Mills, 124 F. Supp. 2d 211 (S.D.N.Y. 2000) 15 Sprint Spectrum v. Mills, 283 F.3d 404 (2d Cir. 2002) 16 Staatsburg Water Company v. Dutchess County, 291 A.D.2d 552, 739 N.Y.S.2d 166 (2d Dept. 2002) 58 Stone v. Scarpato, 285 A.D. 2d 467, 728 N.Y.S.2d 61 (2d Dept 2001), leave to appeal denied, 97 N.Y.2d 604, 761 N.E.2d 1035, 736 N.Y.S.2d 308 (N.Y. 2001 48 Sudarsky v. City of New York, 24 Fed. Appx. 28, (2d Cir. 2001) 35 Sugarman v. Village of Chester, 192 F.Supp.2d 282 (S.D.N.Y. 2002) 42 Sundial Asphalt Co., Inc. v. Dark, et al., 742 N.Y.S.2d 891 (2d Dept. 2002) 66 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 SCt. 1465 (2002) 26 Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 N.Y.2d 86, 761 N.E.2d 565, 735 N.Y.S.2d 873 (2001) 69 The City of New York v. Love Shack, 286 A.D.2d 240, 729 N.Y.S.2d 37 (1st Dept. 2002) 3, 4 Throggs Neck Resident Council, Inc. v. Cahill, 290 A.D.2d 324, 736 N.Y.S.2d 358 (1st Dept. 2002 51 Tobin v. Board of Zoning Appeals of the Incorporated Village of Manorhaven, 2002 WL 1334225 (A.D. 2d Dept. 2002) 46, 71 Toussie v. Powell, 6/19/2002 NYLJ 25 (col. 1) (E.D.N.Y. 2002) 12 Town of Conklin v. Ritter, 285 A.D.2d 855, 728 N.Y.S.2d 298 (3d Dept. 2001) 20 Town of Huntington v. Five Towns College Real Property Trust, 740 N.Y.S.2d 107(2d Dept. 2002) 1 ©Government Law Center of Albany Law School -X- Town of Lysander v. Hafner, 96 N.Y.2d 558, 759 N.E.2d 356, 733 N.Y.S.2d 358, (2001) Town of Mentz v. Crandall, 288 A.D.2d 841, 732 N.Y.S.2d 778 (4th Dept. 2001), aff'd, 2002 W.L. 1301435(N.Y.App.Div. 4th Dept. June 14, 2002) Town of Pleasant Valley v. Town of Poughkeepsie Planning Board, 289 A.D.2d 583, 736 N.Y.S.2d 70, 2d Dept. 2001). leave to appeal denied, 2002 W.L.1000718 (N.Y. April 30, 2002) 49 United States v. O'Brien, 391 U.S. 367 (1968) 5 UOB Realty USA Limited v. Chin, 291 A.D.2d 248, 736 N.Y.S.2d 874 (1st Dept. 2002 60 Van Derwerker v. Village of Kinderhook Zoning Board of Appeals, 2002 WL 1225104 (3d Dept. June 6, 2002) 28 Van Schaick v. Trustees of Union College, 285 A.D.2d 859, 728 N.Y.S.2d 275 (3`d Dept. 2001), cert. denied, 79 N.Y.2d 607, 764 N.E.2d 395, 738 N.Y.S.2d 291 (2001) 19, 33 Vimplex Corp. v. Chin, 288 A.D.2d 479, 732 N.Y.S.2d 903(2d Dept. 2001) 60 Wertheimer v. Town of Huntington Zoning Board of Appeals, 287 A.D.2d 511, 731 N.Y.S.2d 80 (2d Dept. 2001) 1 West 95 Housing Corp. v. New York City Department of Housing Preservation and Development, 31 Fed. Appx. 19 (2d Cir. 2002 57 Westchester Creek Corporation v. New York City School Construction Authority, 286 A.D.2d 154, 730 N.Y.S.2d 95 (1st Dept. 2001), motion for leave to appeal granted 97 N.Y.2d 607, 764 N.E.2d 394, 738 N.Y.S.2d 290 (2001) 17 WF Shirley, LLC v. Board of the Zoning Appeals of the Town of Brookhaven, 9/26/2001 NYLJ 25 (col. 4) (Sup. Ct. Suffolk Co. 2001) 44, 60 Wheeler v. Buxton Industrial Equipment, et al., 292 A.D.2d 521, 740 N.Y.S.2d 73 (2d Dept. 2002) 71 Whitton v. Town of Ballston, 289 A.D. 2d 647, 734 N.Y.S.2d 288 (2d Dept. 2001 60 Wilkins v. Babbar, 742 N.Y.S.2d 224 (1st Dept. 2002) 22 Zimmerman v. Planning Board of the Town of Schodack, 742 N.Y.S.2d 431(3d Dept ©Government Law Center of Albany Law School -xi- fi 2002) 53 Statutes Agricultural and Markets Law sec. 301[11] 8 Chapter 546 (S.4729/A.8965 23 Opinions 1 Op. N.Y. Atty.Gen.(Inf.)8(2002) or 2002 W.L. 437994(N.Y.A.G.)(March 4, 2002) 17 2002 N.Y. Op. (Inf.) Atty. Gen. 7 (March 4, 2002) 16 FOIL Op. No. 12388 (2001) 23, 36 11 OML Opinion No. 3276 21, 30 Op. N.Y. Atty. Gen. (Inf.) 2 (2002 25 Op. N.Y. Atty. Gen. (Inf.) 9 (2002) 21 Op. N.Y. Atty. Gen. (Int). 10 (2002) 11 Op. N.Y. Atty. Gen.(Inf.) 7(2002) 21 ©Government Law Center of Albany Law School Accessory Uses The zoning board of appeals properly determined that the applicant satisfied the standards for an accessory apartment and rightfully annulled the revocation and restored the permit since the decision was based upon substantial evidence and had a rational basis where the owner demonstrated that she complied with all of the conditions of the permit and that the "off-street parking requirement" was in fact not subject to a town building permit nor was it a condition for a certificate of occupancy. Wertheimer v. Town of Huntington Zoning Board of Appeals, 287 A.D.2d 511, 731 N.Y.S.2d 80 (2d Dept. 2001). The zoning board's decision that the construction of dormitories by a college was not a permissible accessory use under the Town Code but rather a use that required a special use permit was reasonable, had a rational basis and was made in accordance with the law. Specifically, "the ZBA determined that the applicable provision of the special use statute, specifically mentioning dormitories and imposing conditions on such dormitory use, including a greater minimum lot area, was controlling. The ZBA further found that the college's contrary interpretation would result in rendering the Town Code meaningless..." Town of Huntington v. Five Towns College Real Property Trust, 740 N.Y.S.2d 107(2d Dept. 2002). Where the village code defined "accessory building" as one "subordinate to the main building on a lot and used for purposes customarily incidental to those of the main building," it was an abuse of discretion for the zoning board to determine that the subject structure was a "garage" and, therefore an accessory building since although the structure was first built as a garage in anticipation of a house being built, the "main building" was never constructed and the garage was converted to a dwelling. The court determined that therefore the village code definition of accessory building was not applicable to the use. Sanzoverino v. Bruscella, 291 A.D.2d 502, 738 N.Y.S.2d 360 (2d Dept. 2002). Although two years earlier the trial court determined that a motorcycle racing track is not a customary and accessory use of property in an RR (rural residential) district in the Town of Paris (see, Cole v. Paris, Index#99-1993 (2000)), the trial court found that the use of 135 acres of property in an RR district of recreational vehicles, such as motorcycles, three-wheelers, four wheelers, and other like vehicles, and the concomitant worn paths left by their uses, constitutes a customary accessory use in an RR district in the same town. The property owners argued that they also use these vehicles for the purposes of maintaining their property and for collecting firewood. The Court found that unlike the previous case that involved a racetrack, there was no proof of"racing" involved with the current use, only "recreational, leisure time riding by themselves, their children and certain of their friends." Furthermore, testimony was presented that showed that it is a customary use of property in the RR Districts in the Town to have and use off-road recreational vehicles. Although the Town argued that the repetitive use of the trails and tracks on the property by these vehicles created in ©Government Law Center of Albany Law School 1 essence a racetrack, and attempted to argue that this use was not included in the definition of customary accessory use in the zoning ordinance, the Court concluded that the real issue here was complaints of noise and dust by certain neighbors. The Court said that the appropriate municipal regulation of these types of issues is through the use of noise or nuisance ordinances and stated that the municipality may not employ its zoning ordinance in such a manner that would have the court judicially expand its reach to encompass the law of nuisance. The Court points to the reasoning in Town of Mendon v. Bartholf, Index #1999/5023 (Sup. Ct. Monroe Co. 2000), aff'd 284 A.D.2d 949, 725 N.Y.S.2d 916 (4th Dept. 2001) as persuasive where the court held that the use of cross country motorcycles on a pathways the Town alleged to be a track was a customary accessory use. Spinella v. Town of Paris Zoning Board of Appeals, 2002 WL 1399157 (Sup. Ct. Oneida Co. 2002). Adult Uses The Northern District held a preliminary injunction against adult use ordinance for failure to provide alternate locations. Plaintiff, operator of a business that sells adult and non- adult products, challenged the application of the Town of Marcy's 1997 amendment to its zoning ordinance which restricts the locations where adult uses may operate. The amended law prohibits adult use businesses from operating within 1,500 feet of a residential area or school, nursery school, daycare center, educational institution, house of worship, park or playground, historic or scenic resource, and civil or cultural facility. In addition, no adult use business is permitted to locate within 1,500 feet of another adult use. The District Court granted a preliminary injunction based upon the belief that the ordinance effectively provides no location where adult use businesses may operate. Although the building inspector submitted an affidavit attempting to demonstrate that there were in fact locations where such a use could legally operate, the Court found more compelling the reports of a local real estate agent and a land use expert that determined there were no locations currently available where the plaintiffs business could relocate. Cochran v. Town of Marcy, 143 F. Supp.2d 235 (N.D.N.Y. 2001). Although the Court did not have to reach the issue of secondary effects of adult uses, the Court did note that while it is true that municipalities do not have to conduct their own secondary effects study prior to the adoption of a local law, at a minimum the municipality should provide some evidence that the law was directed toward that purpose. Cochran v. Town of Marcy, 143 F. Supp.2d 235 (N.D.N.Y. 2001). The First Department granted an injunction stating that the 500-foot Rule is applicable to adult use establishments not yet opened. The New York City Zoning Resolution prohibits the location of an adult use establishment within 500 feet of"another adult establishment." The Appellate Division, First Department upheld the determination of the Department of Buildings that the plaintiff obtained a permit under false pretenses since it was not disclosed that the intended use of the warehouse was for an adult use that would have been in violation of the adult use law. In granting preliminary injunctive relief for the City, the Court said that the interpretation of the Department of Buildings is ©Government Law center of Albany Law School 2 entitled to deference since it was neither arbitrary nor unreasonable. The City of New York v. Love Shack, 286 A.D.2d 240, 729 N.Y.S.2d 37 (1st Dept. 2002). On May 13, 2002, the U.S. Supreme Court handed local governments another victory in continuing efforts to combat the secondary negative effects of adult business uses on communities. The latest ruling supports the City of Los Angeles's efforts to restrict the concentration of adult business uses in the same structure by defining "business" to refer to certain types of goods and services sold in adult use establishments, rather than the establishment/building itself. Municipalities routinely conduct what are referred to as "secondary effects studies" to document the justification for the adoption of local laws designed to regulate the establishment and operation of adult business uses such as books stores, video stores, topless bars, movies, sex shops and other related businesses. Justice Kennedy, in his concurring opinion acknowledges that, "Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real." A secondary effects study by the City of Los Angeles in 1977 revealed, among other things, that neighborhoods with larger concentrations of adult businesses had higher crime rates, more robberies, assaults, theft and prostitution. Based upon this study, the City concluded that the concentration of adult entertainment uses was of concern and it enacted a law prohibiting the location of such uses within 1,000 feet of each other and within 500 feet of religious institutions, schools or parks. After discovering a "loophole" in the law, which could arguably allow for "mega adult entertainment venues" since the original law didn't restrict the size of adult uses but merely stated that they couldn't be within 1,000 feet of each other, the City amended the law in 1983 to address the effects of a concentration of adult entertainment uses by restricting the number of uses in any building to one. This would, for example, prevent an adult bookstore and an adult video arcade from sharing one roof. When government attempts to regulate speech, it must do so within the parameters of the First Amendment. In a previous case, the Court set forth a three-part inquiry to determine the constitutionality of adult business regulations. First, courts look to whether the regulation bans adult uses altogether or whether it simply restricts the time, place and manner of such uses. Assuming there is no outright ban, the courts consider whether the regulation is aimed at the content of the adult material or whether the regulation is aimed at secondary effects of such uses on the surrounding community. Lastly, the courts consider whether the local regulation is designed to serve a substantial government interest and that reasonable alternative means of communication are available. (see, City of Renton v. Playtime Theaters, 475 U.S. 41, 106 S. Ct. 925, 89 L.Ed. 2d 29 (1986)). In applying the first test, the U.S. Supreme Court agreed with the Court below that the City's law was not an outright ban on adult businesses but rather one that restricted the time, place and manner of the use. As to the second prong of the test, contrary to the Court of Appeals below, the Supreme Court determined that the City of Los Angeles properly relied upon a report of City crime patterns provided by the L.A. Police Department that clearly demonstrated that crime ©Government Law center of Albany Law School 3 rates increased in parts of the City where the largest concentrations of adult uses were found. The Court also found that "reducing crime is a substantial government interest and that the police department report's conclusions regarding crime patterns may reasonably be relied upon...," but cautioned that municipalities will not be able to "get away with shoddy data or reasoning." The court reiterated an earlier stated position that municipalities must be given a "reasonable opportunity to experiment with solutions" in •,/, addressing the secondary effects of protected speech such as adult uses, and acknowledged that, "the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems." The Court concluded that the City did comply with the evidentiary requirements through 1 the secondary effects study and this particular case was remanded for further review in 1 light of the holding. The plurality opinion was authored by Justice O'Connor, and joined by Chief Justice Rehnquist and Justices Scalia and Thomas. Justice Kennedy offered an opinion concurring in the judgment. The practical effect of this decision is that local governments may continue to use secondary effects studies to demonstrate the negative impacts on communities that face a concentration of adult business/entertainment uses. These studies have now been recognized repeatedly by the Supreme Court as a valid justification for the need to regulate the time, place and manner of adult oriented businesses for the purpose of addressing the secondary effects, not for the purpose of suppressing speech. City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728 (2002). After defendants applied for a building permit and failed to disclose that their intended use was for an adult oriented business, the New York City Department of Buildings learned that the defendants were operating an adult bookstore and notified the defendants that they were in violation of the City Zoning Resolution provision that prohibits the location of an adult establishment within 500 feet of another adult establishment. The defendants argued that they were not in violation since the other use was not yet open, and they argued that "an existing adult establishment" as used in the zoning law means one that is already open for business. The City disagreed with this interpretation, and the Appellate Division, First Department upheld the City's determination since it was neither irrational nor arbitrary. City of New York v. Love Shack, 286 A.D.2d 240, 729 N.Y.S.2d 37 (A.D. 1st Dept. 2001). The Court found that the City of Albany's zoning provision addressing adult entertainment establishments which restricts such businesses to M-1 zoning districts so that that they are located at least 1,000 feet from a church or other place of religious worship, a school, a residential zoning district, a park, playground or playing field; are at least 1,000 feet from another adult entertainment establishment; are not located on the same lot with any other adult entertainment establishment; and do not exceed 10,000 square feet of floor area and cellar space not used for enclosed storage or mechanical equipment; is a content neutral law not aimed at the content of the Plaintiffs expression, but only the negative secondary effects associated with such expression. The Court ©Government Law Center of Albany Law School 4 further found that the law advances a substantial governmental interest in the prevention of negative secondary effects associated with adult entertainment establishments, and reiterated the well established rule that cities need not necessarily conduct their own secondary effects and that they may rely on similar studies conducted by other municipalities. They also found that the law was narrowly tailored to serve the substantial governmental interest because "it only seeks to regulate and control the negative secondary effects necessary to accomplish its purpose." Turning to the question of other alternative avenues of communication, the City asserted that adult entertainment businesses could operate as of right now in 10% of the City's total land area, and although a question of fact remained as to whether this amounted to six potential sites or 13, the Court determined that there was a sufficient reasonable opportunity for adult businesses to operate. DeRusso v. City of Albany, 2002 WL 1275466 (N.D.N.Y. June 4,2002). In reviewing the constitutionality of an ordinance adopted by the City of Rochester to regulate adult entertainment businesses, the Western District of New York applied the four-part test in United States v. O'Brien, 391 U.S. 367 (1968) to the parts of the law that regulated conduct; and it applied the time, place and manner test in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)to those provisions in the law that regulated activities inside the businesses (e.g., those dealing with physical contact between performers and customers, requirements concerning the stage on which dancers perform, payment of tips, etc.). The Court found that Section 98-21 of the City law was unconstitutional. That provision stated that "no person in or on the premises of a sexually oriented business shall engage in any specified sexual activities." "Specified sexual activities" was defined to include, "actual...sexual intercourse" and "fondling...one's own...buttocks or female breasts, whether clothed or unclothed." The Court found that these provisions are aimed at the expressive nature of the conduct in question and that the law "expressly targets the sexual or erotic aspects of the performers' activity, and hence burdens the expression of that activity's erotic message as well." The Court went on to find that there was "no basis upon which one could reasonably conclude that the restrictions on question will in any way further the governmental interest asserted here, i.e., combating the secondary effects," as it was unclear how the secondary effects of crime and unhealthy conditions would be affected by enforcing restrictions on a performer's particular movements. How a performer might chose to convey eroticism is a message that is not the problem or evil that the City sought to address through its ordinance. Distinguishing this case from the facts in City of Erie v. Pap's A.M., 529 U.S. 277(2000), the Court pointed out that in Erie the law banned all public nudity, not simply a prohibition on nude dancing. In adopting the Seventh Circuit's reasoning in Schultz, 228 F.3d 831 (7th Cir. 2000), the Court found that the law directly targets not just conduct alone but the expressive nature of the conduct and therefore it imposes more than a de minimus restriction on the performers' freedom of expression. Pointing out that municipalities may in fact regulate adult entertainment businesses, the Court held that in its present form, the law covered not just non-expressive conduct, but conduct that could be both expressive and non- obscene. Therefore, the prohibition of"any specified sexual activities" contained in the ©Government Law Center of Albany Law School 5 L ordinance, is unconstitutional. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). Provisions in the City's adult business ordinance concerning the physical separation of performers and customers, as well as stage barrier requirements are reasonable time, place and manner restrictions. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). 1 Provisions in the City's adult business ordinance that prohibit performers from soliciting gratuities , and prohibit customers from tipping while the performer is performing nude or semi-nude, "are reasonable restrictions that further the City's interest in preventing prostitution." Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). A city may require owners and employees of sexually oriented businesses to obtain a license from the city prior to operating or working. However, some of the city's disabling provisions, e.g., that non-sex crimes would prevent someone from obtaining a license, bears no reasonable relation to furthering the governmental interest at stake (e.g., the negative secondary effects associated with adult businesses). The Court found that no connection between that interest and whether an applicant has been convicted of enterprise corruption, money laundering, gambling offenses, or drug offenses. The Court did find a valid connection with the following prior convictions: prostitution, obscenity, sexual performance by a child, possession or distribution of child pornography, offenses against public sensibilities, sex offenses, and unlawfully dealing with a child. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). The mere fact that a license application has been denied cannot serve as a justification for precluding that person from submitting another application for a full year as each application should be considered on its merits. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). It is reasonably related to the City's legitimate governmental interest to provide that individuals under the age of 18 may not be granted a license to operate an adult business establishment. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). Where the discretion granted to the licensing authority (e.g., the Chief of Police) was challenged as being overly broad, the Court found that under the terms of the ordinance, the Chief of Police was required to issue the permit unless any of the enumerated disabling provisions were found to be present. The way the law was drafted, the Court agreed that the Chief of Police did not have much discretion at all. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). The Court enjoined the City from enforcing the following licensure conditions in its adult business ordinance requiring: each individual with 20% or greater interest in the ©Government Law Center of Albany Law School 6 I — business sign the license application and qualify for the license; disclosure of information concerning the names of all principal shareholders of a corporate applicant; disclosure of whether applicant has been convicted of a specified criminal activity; disclosure of whether an applicant has had a license previously denied, suspended or revoked; residential address and residential phone number of the applicant; four photographs of the applicant's face; the provision of a driver's license number and a state or federally issued tax identification number; the applicant's place of birth; the date, issuing state and number of driver's license and other identification card information; disclosure of whether applicant has been convicted of specified criminal activity; denial if applicant has had license denied within one year from date of application; where license has been denied, a waiting period of one year from date of denial; denial if applicant has been convicted of a specified crime; prohibition of specified sexual activities in or on the premises of a sexually oriented business; and prohibition that licensees and managers may not allow persons to violate the provision prohibiting specified sexual activities in or on premises of sexually oriented businesses. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). In granting a preliminary injunction against the enforcement of amended adult business ordinances against the owners of two adult bookstores in the City, the Northern District of New York noted that while municipalities are not required to conduct new studies or produce new evidence independent of that generated by other municipalities, there must be a reasonable nexus between the evidence relied upon and the problem the City seeks to address in the ordinance(s). Where the City submitted no evidence that its amendments to the adult use law in 1999 and 2000 were designed to address secondary effects of adult businesses within the City which were not addressed by the initial version of the adult ordinance, or that the businesses in question are responsible for any adverse secondary effects in their current grandfathered location the Court found that the City would be unlikely to prove a substantial likelihood of success on merits. The Court also found that the plaintiffs demonstrated a likelihood of irreparable harm as they have been operating at the same location for over 28 years. Erie Boulevard Triangle Corporation v. City of Schenectady, 152 F. Supp. 2d 241 (N.D.N.Y. 2001). Contact the New York Planning Federation for a complimentary 12-page technical memorandum on adult entertainment. 800-366-NYPF. NYS Department of State Legal Memorandum, "Municipal Regulation of Adult Uses After the Stringfellow's Decision," (LU03, Counsel's Office) available at http:www.dos.state.ny.us/cnsl/adultuse.html (site visited 7/01/02). ©Government Law center of Albany Law School 7 L Agricultural Uses The Court of Appeals ruled that a local zoning ordinance is an unreasonable restriction on farm operations within an agricultural district and that the local zoning ordinance is superceded by Agriculture and Markets Law sec. 305. Defendant Paul Hafner, a farmer, operates an 800 acre farm in an agricultural district in the Town of Lysander. In 1998 Hafner received a temporary permit to place two mobile homes on the farm property for the purpose of housing migrant farmworkers. The Town refused to extend the permits in 1999 and denied Hafner's request to add five more single-wide trailers on the grounds that the town zoning ordinance requires that all one-story single family dwellings have a minimum living area of 1,100 square feet. Agriculture & Markets Law sec. 305 (a)(1)(a) states in part that, "Local governments, when exercising their powers to enact and administer comprehensive plans and local laws, ordinances, rule or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened." (emphasis added) "Farm operations" is defined under state statutes as "the land and on-farm buildings, equipment and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise." (See, Agricultural and Markets Law sec. 301[11]). Relying in part on an amicus brief submitted by the Commissioner of the Department of Agriculture and Markets which stated the Commissioner's view, that mobile homes used for farmworker residences are protected as "on farm" buildings, and which further opined that the area requirement of 1,100 square feet, insofar as it would prohibit the siting of mobile homes for farmworkers, unreasonably restricts farm operations. The Court reversed the two lower courts and held that the local zoning ordinance was pre-empted by state law. Town of Lysander v. Hafner, 96 N.Y.2d 558, 759 N.E.2d 356, 733 N.Y.S.2d 358, (2001). Local Legislative Bodies may look to guidance offered from the Department of Agriculture and Markets regarding farm worker housing. The following guidelines for review of local laws affecting farm worker housing is reprinted from the Department: Airstrips Where the plaintiffs private airport was not registered with the Federal Aviation Administration at the time the defendants sought approval of the FAA to build a cell tower, the plaintiffs may not assert that the Town Code's provision that prohibits the construction of a tower over 150 feet in height within 6,000 feet of a runway "so as to constitute an obstruction or hazard to the operation of aircraft," is preempted by federal regulations. Sirianno v. New York RSA No. 3 Cellular Partnership, 284 A.D.2d 913, 727 N.Y.S.2d 568 (4th Dept. 2001). Amending Zoning ®Government Law Center of Albany Law School 8 t Ji Where the City Council ignored both the procedures set forth in General City Law sec. 83 for the amendment of regulations established under any ordinance or law, as well as Section 300-56 of the City of Peekskill Zoning Code, their actions were deemed null and void as beyond their statutory authority. Specifically, the City Council sought to unilaterally change a local law that granted to the Director of Public Works the authority to issue building permits for cellular applications, and to vest within itself that authority. The Council did not follow the provisions of its Code which provide that no amendment may be made to the Code unless on the motion of the Common Council, upon the recommendation of the planning commission or upon petition. Further, every proposed amendment is to be referred by the Council to the planning commission for a report prior to a public hearing. Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). Americans with Disabilities Act The Second Circuit reiterated that the Federal Fair Housing Act, the Americans with Disabilities Act and the Rehabilitation Act all apply to municipal zoning decisions. Regional Economic Community Action Program, Inc. v. City of Middletown, 2002 WL 181154 (2"d Cir. 2002). The Second Circuit, in reversing the District Court, determined that based upon evidence in the record, a reasonable juror could conclude that the City's reasons for denying applicant's special use permit was unlawful discrimination based upon their status as recovering alcoholics (protected under the FHA, ADA and Rehabilitation Act). The Court noted numerous statements that had been made by various public officials including the Mayor, the counsel to the planning board, and members of the planning board, that supported possible discriminatory intent. Focusing on disparate treatment, the Second Circuit agreed with the District Court that the defendants then met their burden of articulating legitimate, non-discriminatory reasons for denial of the permit. However, the Court disagreed with the District Court's finding that the plaintiffs did not introduce evidence that raises a genuine issue of material fact as to whether the proffered reasons were a pretext for unlawful discrimination. Based upon evidence in the record, the Court found that "a reasonable juror could refuse to credit the defendants' stated reasons for denying RECAP a special-use permit and find that the real reason was discrimination based on the identity of RECAP's clients. The evidence would also suffice to permit a rational juror to find that the defendants denied RECAP the permit solely because of RECAP's clients' disabilities..." Therefore, the Second Circuit held that the District Court erred in granting summary judgment to the defendants. Regional Economic Community Action Program, Inc. v. City of Middletown, 2002 WL 181154 (2"d Cir. 2002). In upholding the determination of the District Court that the defendants' actions failed to give rise to a disparate impact claim, the Second Circuit offered the following example how a zoning law might have such an impermissible impact under the ADA and FHA: "...a handicapped person might challenge a zoning law that prohibits elevators in @ Government Law Center of Albany Law School 9 residential dwellings. That neutral law might have a disproportionate impact on such a plaintiff and others with similar disabilities, depriving them of an equal opportunity to use and enjoy dwellings there." Regional Economic Community Action Program, Inc. v. City of Middletown, 2002 WL 181154 (2" Cir. 2002). In addressing the issue of reasonable accommodations, the Circuit Court again uses a zoning example to demonstrate how to make a claim of failure to provide a reasonable accommodation. The court explains, "a proper reasonable accommodation claim might assert that the zoning authority should have waived or modified its rule against elevators in residential dwellings to permit those who need them to use them and thereby have full access to and enjoyment of residences there." The Court noted that in the present case, the zoning rules did not prohibit the proposed halfway houses, rather, the crux of the complaint is the board's decision to deny a special use permit for discriminatory reasons. Regional Economic Community Action Program, Inc. v. City of Middletown, 2002 WL 181154 (2nd Cir. 2002). Annexation The Second Department upheld a proposed annexation of five acres by a village from the town as the acquisition was in the public interest. The owner of the property wanted to build 50 to 60 multifamily units on the property. The Town zoning would not allow for this and the Town denied the landowners request for a zoning change. The property was adjacent to the Village where more dense development was consistent with the character of the Village and the nearby property. The Court found that the Village met its burden of proving that the annexation was in the overall public interest by showing that both the Village and the Town would benefit economically from the annexations by increased tax revenues. In taking a proactive stance for affordable housing, the Court also found that "the opportunity provided by the proposed annexation to develop the property with affordable multi-family houses would satisfy the needs of a growing segment of the population in the community. Although the property could be developed under existing Town zoning laws, the permissible construction would not satisfy such community needs." Board of Trustees of the Village of Spring Valley v. Town of Clarkstown, 292 A.D.2d 450, 738 N.Y.S.2d 699 (2d Dept. 2002). Bad Faith Plaintiffs equal protection claim based upon bad faith was premised upon three claims to support its allegation of malicious intent: community opposition to the proposed use; the Mayor's participation in the Board's consideration of the application while the Mayor resided on the same street as the property; and reasons given by the Board in its formal decision not mentioned in its information decision. The Second Circuit concluded that these claims were wholly speculative. The Court noted that there was no claim of any personal conflict between the government actors and the applicant, but rather that the entire claim of animus was based upon the reaction of the Board and the community to the business use. The Court said that animus towards a business use is not protected ©Government Law Center of Albany Law School 10 t by equal protection since equal protection claims only vest in individuals, not businesses. As to the second allegation, the Court found no prohibited conflict of interest with the Mayor's vote based solely on the proximity of his residence to the proposed use since there were no allegations of financial or familial conflicts of interest. Lastly, the Court found no merit in the last allegation that the written reasons were different from the informal reasons discussed at the public meeting since they were essentially the same just with varying degrees of detail. Harlan Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001). Building Inspector A building inspector may conduct plumbing inspections if the plumbing inspector is unavailable, provided that the building inspector meets the qualifications of/for and has been properly appointed as a plumbing inspector. Op. N.Y. Atty. Gen. (Int). 10 (2002). Building Permits The Southern District upheld New York City Building Department's Professional Certification and Express Service programs. The New York City Department of Buildings instituted new programs designed to improve the construction and development process in the City by making it easier to obtain building permits through, among other things, a priority filing system. The new system allows architects and engineers to "move to the head of the line" when they visit the Department and when they file projects, and it extends extra business hours for architects and engineers. Plaintiff "code consultant," who is not an architect nor an engineer, alleged that this system violates the equal protection clause. The Southern District, in applying the rational relationship test (since there was neither a suspect class nor a fundamental interest at stake) found that the City's preferential treatment for licensed professionals was rationally related to the City's desire to "ultimately improve the standard of living for people who live and/or work in New York City." The court analogized the policy to the state court policy that allows attorneys to enter courthouses without waiting in the general line. Levine v. City of New York, 2002 WL 5588 (S.D.N.Y. Jan. 2, 2002). The Supreme Court, Suffolk County issued an order directing the Village Board of Trustees to comply with the judgment and to issue a building permit. The Village did not act in contempt of the order when they thereafter filed a notice of appeal of the order and further issued a stop-work order to the petitioner's upon learning that work was continuing at the site as well as summonses with respect to other work on the property that was outside the scope of the building permit that had been issued. The Village had a right to challenge the Supreme Court's determination and in so doing and in issuing the stop work order and the summonses, their actions do not warrant a contempt finding. Lombardi v. Habicht, 740 N.Y.S.2d 103 (2d Dept. 2002). The Board of Trustees acted in an arbitrary and capricious manner when it required petitioner to delete parking spaces on the parcel as a condition precedent to receiving a ©Government Law Center of Albany Law School 11 permit of compliance that is needed to indicate that the building to be constructed conforms with the Village Code. The Court found no rational basis for the Board's determination that the incidental use of the subject parcel as parking for a nearby shopping center would bring the parcel within the intendment of a section of the Village Code enacted to preserve scarce off-street parking spaces in the Village. EPL Associates, LLC. v. Board of Trustees of the Incorporated Village of Great Neck Plaza, 742 N.Y.S.2d 572(Mem.)(2d Dept. 2002). Civil Rights Liability In an interesting case, the Eastern District of New York ruled that a private citizen who allegedly conspired with the Town Supervisor to pressure the zoning board of appeals to revoke a variance it had granted and to convince the town board to amend its zoning code in manner that would make it more difficult for the plaintiff to develop its property could be sued under 42 U.S.C. sec. 1982 as the citizen in this case was acting under color of state law. The Court reiterated that the activities of a private citizen can become state action when the citizen acts a "willful participant on joint activity with the State or its agents." Since the complaint states that the citizen acted with the supervisor, the court found sufficient allegations supporting a possible conspiracy or joint activity. Furthermore, the Court found that the private citizen would not automatically be entitled to qualified immunity and that in the present situation the citizen failed to argue that there is a "firmly rooted tradition of immunity that applies to private individuals in his position..." In denying the defendant's motion to dismiss, the District Court allowed further proceedings on the merits. Toussie v. Powell, 6/19/2002 NYLJ 25 (col. 1) (E.D.N.Y. 2002). Cellular Towers The Fourth Department ruled that the granting of a special use permit to replace antennas on a preexisting nonconforming cellular tower does not constitute a change in volume or intensity broadening or expanding the use. The cellular tower in question, located in the Town of Pomfret, was built prior to the enactment of the local Telecommunications Facilities Article that was added to the zoning law. Once the law was enacted, the tower became a preexisting nonconforming use as it is now located in an area where such towers are not permitted. Although the Telecommunications Facilities Article provides that where there is a conflict between the Article and the zoning law that the Article is to control with respect to telecommunications facilities, the Article does not specifically address the procedure for changing a preexisting nonconforming use. The Court stated that it would not disturb the interpretation of the code enforcement officers and the zoning board of appeals that, pursuant to the Telecommunications Facilities Article, the zoning board of appeals had jurisdiction to grant a permit to replace antennas on the cellular tower. Furthermore, the court held that the replacement of the antennas to 200 feet did not constitute an impermissible expansion of a previously existing non-conforming use since the tower was already nonconforming at a height of 150 feet. Michalak v. Zoning Board of Appeals of the ©Government Law Center of Albany Law School 12 t Town of Pomfret, 286 A.D.2d 906, 731 N.Y.S.2d 129 ( 4th Dept. 2001). Where it was determined that reliable PCS service required the construction of a base station in the Town to remedy an existing seven mile gap in service, the petitioners undertook a study of potential sites in the Town and determined that a 125 foot monopole tower on the proposed site would best remedy the existing coverage gap. The petitioner's request for site plan and special permit approval was improperly delayed in violation of the Telecommunications Act sec. 332 ( c)(7)(B)(ii) where all required studies and reports were filed by March 8, 2001 and the planning board refused to consider the matter while the Town Board was attempting to pass a new, more restrictive local cell tower law. Independent Wireless One Corporation v. Town of Maryland Planning Board, 191 Misc.2d 168, 738 N.Y.S.2d 829 (Sup. Ct. Otsego Co. 2002). A local cell tower law is a zoning law that triggers the referral requirement to the county planning board under GMI sec. 239m. Independent Wireless One Corporation v. Town of Maryland Planning Board, 191 Misc.2d 168, 738 N.Y.S.2d 829 (Sup. Ct. Otsego Co. 2002). The Appellate Division Fourth Department upheld the granting of an area variance and special permit for the construction of a 135-foot cell tower disguised as a flagpole as the determination had a rational basis and was supported by substantial evidence. The Court also reminds that "As a public utility, AT&T qualifies for the diminished standard of review for its area variance application..." and comments that the proposed site fills gaps in the grid and presents a minimal intrusion into the community. Lloyd v. Town of Greece Zoning Board of Appeals, 292 A.D.2d 818, 739 N.Y.S.2d 303 (4th Dept. 2002). The adoption of a 180-day moratorium on the issuance of permits governing communication, transmission and reception antennas was invalid since the Court found no valid crisis or emergency before the board dealing with the siting of cell towers. In fact, the Town Board had previously enacted a 60-day moratorium for the purpose of bringing the Town Code into compliance with the Telecommunications Act of 1996. Further, the Court found that the petitioner is charged as a utility with providing cellular service to the public, and the enactment of the moratorium prevents it from so doing. Nextel Communications of New York v. The Town of Huntington, 10/15/2001 NYLJ 25 (col. 2) (Sup. Ct. Suffolk Co. 2001). A resolution denying a special permit for the location of cellular antennae is not supported by substantial evidence where in the absence of local and state authority the City Council chose to analyze and evaluate a private contractual relationship between the cellular service provider and a private owner's corporation. (citing the long-standing rule in New York that it is impermissible to deny a special permit based on an allegation of a claim that the approval would violate the private rights of a third party, see, Friends of the Shawangunks, Inc. v. Knowlton, 64 N.Y.2d 387, 487 N.Y.S.2d 543(1985)). Furthermore, the Southern District found that the residents opposing the permit failed to ©Government Law Center of Albany Law School 13 1 present any substantial evidence to the Council that 1) was related to zoning, and 2) gave rise to a valid reason to deny the permit. Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). "The test for "substantial evidence" in New York is essentially the same as that under the TCA." The City Council failed to meet this standard when they neglected to reach their decision based upon impartial and reasoned analysis of the application, but rather yielded to the pressure of a small but vocal group of residents. Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). In New York, a gap in service exists where the particular provider is able to demonstrate that there is a gap in service for its customers. In Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, 604 N.Y.S.2d 895 (1993) the Court of Appeals ruled that, "(1) cellular telephone companies are "public utilities"; (2) the Matter of Consolidated Edison test applies to all pubic utilities; and (3) the Matter of Consolidated Edison applies to entirely new sitings of facilities, as well as modifications of existing facilities." The Southern District notes that in following these two cases, "wireless service providers must demonstrate that its proposed tower would remedy gaps in a particular provider's service area in order to prove that the tower is a 'public necessity'." Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp. 2d 697 (S.D.N.Y. 2001). On a claim of unreasonable delay, the Southern District acknowledged that there was no question that the City Council unreasonably delayed final action of a cellular application when the initial application was filed on June 24, 1999. The Council did not take any action on the application until March 27, 2000 and that was a conditioned approval. On December 11, 2000 the Council denied the application for failure to satisfy all of the conditions. However, the Southern District said while if requested, they would have entered an injunction compelling immediate final action, "Congress could not have intended for plaintiff to bring a claim that a Board's action was both a final denial of[its] application and a delay that had the effect of a denial. By waiting until after the final decision was rendered, Plaintiff forwent a claim of unreasonable delay," citing New York SMSA Limited Partnership v. Town of Clarkstown, 99 F. Supp. 2d 381, 395 (S.D.N.Y. 2000). Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). It was unreasonable discrimination among providers where the City's practice was to waive the review of permits for personal wireless facilities that would be located on municipally-owned property. The City Council must treat applications of providers of functionally equivalent services exactly the same in all circumstances, and it is legally unfounded to suggest that "municipally-owned buildings are not subject to local regulation in the context of building permits for personal wireless facilities." Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). ®Government Law Center of Albany Law School 14 "By making Omnipoint comply with numerous unprecedented conditional requests, and by providing a "fast-track" application process to other service providers who chose to rent space from the municipality, the Common Council unreasonably discriminated against Omnipoint. Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). Although not directly addressed yet by the Second Circuit, the Southern District Court determined that a violation of the Telecommunications Act can support a sec. 1983 claim for damages. In applying the three-prong test in Blessing v. Freestone, 520 U.S. 329, 177 S.Ct. 1353 (1997), the Court determined that the TCA did give rise to a federal right since: 1) the TCA was intended to protect the plaintiff; 2) the enforcement of the TCA would not strain judicial competence; and 3) the TCA imposes binding obligations on state and local governments with the use of the word "shall" in the statute. Once these three prongs have been satisfied, there is a rebuttable presumption that the federal right is enforceable under sec. 1983. Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp. 2d 697 (S.D.N.Y. 2001). Although Petitioners attempted to annul the determination of the planning board granting a special use permit for the construction of a cell tower on the grounds that they failed to consider alternative sites for the proposed tower, the Appellate Division, Fourth Department found that there was no provision in the local zoning law that requires the planning board to consider alternate sites. Further, although an EIS (environmental Impact statement) prepared under SEQRA requires a detailed statement setting forth alternatives, an EIS was not required here where the planning board issued a negative declaration. Fuss v. Hanibal Town Planning Board, 2002 WL 1301554 (A.D. 4th Dept. 2002). In a case related to Sprint Spectrum L.P. v. Mills, 124 F. Supp. 2d 211 (S.D.N.Y. 2000) (referred to as Sprint l), Sprint had entered into a renewable five-year lease with the Ossining School District in September 1998 permitting Sprint to locate a cell site on the roof of the High School in exchange for$30,000 rent in year one, with an increase in rent of 3% each following year as well as the provision of three Sprint PCS wireless telephones to the school free of charge. Sprint also agreed to disguise the antenna as a flagpole to make it aesthetically and structurally unobtrusive. One month later, Sprint and the School District agreed to an addendum to the lease which basically limited the allowable maximum levels of radio emissions from the proposed antenna. The litigation in Sprint I arose because under state law, the State Department of Education had to approve the lease since its value was over $10,000. When the State Education Department refused to approve the lease, Sprint sued and was successful in obtaining an order directing the State to issue the required permits allowing Sprint to build the tower at the High School (See, Sprint l). In March of 2000, Sprint informed the School District that changes in available equipment required a modification of the original plan and that one of the changes would result in an increase in the previously agreed to RF emissions, although the higher level would still be in compliance with federal safety standards. When Sprint crews attempted to begin work on the facility in July 2000, they ®Government Law Center of Albany Law School 15 •1 were denied access to the site as the District refused to allow Sprint to construct the facility with higher than agreed to RF emissions. Sprint then brought suit in District Court petitioning under the All Writs Act for an order compelling the School District to allow Sprint to install the antenna alleging that failure to do so would frustrate the order of the Court in Sprint I. The Second Circuit Court of Appeals determined that the School District's position with respect to its lease agreement with Sprint is not preempted by The Telecommunications Act since the actions of the School District in 11 entering into the lease agreement were plainly proprietary and Sprint voluntarily agreed to the RF limitation. The Court concluded that "the Telecommunications Act does not preempt nonregulatory decisions of a local governmental entity or instrumentality acting in its proprietary capacity." Sprint Spectrum v. Mills, 283 F.3d 404 (2d Cir. 2002). Contact the New York Planning Federation for a complimentary copy of their model cellular tower ordinance. 800-366-NYPF Compatibility of Dual Office Holding The Attorney General has opined that the position of senior typist in the city building department is incompatible with membership on the city zoning board of appeals where the typist's supervisor's duties are subject to review by the zoning board of appeals. While the General City Law sec. 81 permits a municipal official (except a member of the City's legislative body) or employee to serve as a member of the zoning board of appeals if there is no conflict between the duties of the two positions, in the facts presented, the typist is presented with such a conflict. In the specific case, the typist's supervisor is the building inspector who also serves as the zoning administrator. The senior typist's duties include reviewing zoning board applications to: ensure that all required information is provided on the applications; advising members of the public as to what board approvals are required; tracking applications before the zoning board; and typing information that ultimately comes before the zoning board for review. The Attorney General found sufficient indirect supervision by the zoning board of the senior typist so as to create an appearance of a conflict of interest. In addition, the position of senior typist in this situation would be reviewing determinations made by the supervisor (building inspector and zoning administrator) who although not directly responsible for employment decisions concerning the senior typist, has influence with the city manager which ultimately creates an environment for the appearance that the employee's I authority to review the supervisor's determinations might not be exercised impartially. 2002 N.Y. Op. (Inf.) Atty. Gen. 7 (March 4, 2002). Condemnation The First Department ruled that land acquired for public use in connection with an urban development project can subsequently be condemned for use as a public school. In a case of first impression, the Appellate Division, First Department ruled that land in an urban renewal district zoned for industrial, manufacturing and commercial purposes could be condemned under the Eminent Domain Procedure Law for the purpose of ©Government Law Center of Albany Law School 16 ir a - — it using the land as a public school since the use of property for a school is favored under Public Authorities Law sec. 1747. While the Court noted that urban renewal projects also enjoy favored status, nothing in the law suggests that school construction is any less a "superior" public use, and in fact the court found that the acquisition of land for construction of a public school is "special, unusual and peculiar" within the contemplation of the New York City School Construction Act. Westchester Creek Corporation v. New York City School Construction Authority, 286 A.D.2d 154, 730 N.Y.S.2d 95 (1st Dept. 2001), motion for leave to appeal granted 97 N.Y.2d 607, 764 N.E.2d 394, 738 N.Y.S.2d 290 (2001). The Third Department upheld a county condemnation of property where the lessee who intended to use the property to open an adult bookstore claimed that the condemnation was made solely to prevent its aforementioned use. After the petitioner-lessee announced a plan to operate an adult bookstore at the property in question, the County Legislature voted to acquire the property for use as a community policing center. Petitioner alleged that the decision to acquire the parcel was made solely to prevent him from opening the adult business, and that the decision was therefore "corrupt, made in bad faith or palpably irrational." Petitioner also pointed out that under a 1999 City Law, the subject parcel was only one of 14 properties available in the City where an adult business use could be established. The Eminent Domain Procedure Law limits the scope of review to whether the government's acquisition was within its statutory authority, whether the determination was made in accordance with the statutory procedures, and whether there was a public use, benefit or purpose to be served by the acquisition. In refusing to "look behind" the County Legislature's validly stated reason for acquiring the property, the Court said that the "...alleged bad faith consists merely of unsubstantiated allegations of suspicious timing." Petitioner failed to offer proof that the County's acquisition was made without the requisite statutory authority. Broadway Schenectady Entertainment, Inc. v. County of Schenectady, 288 A.D.2d 672, 732 N.Y.S.2d 703 (3d Dept. 2001). Conflicts of Interest The Attorney General has opined that a member of a village design review board, who is also a professional architect, need not resign from his/her position on the board if the architectural firm in which he/she is a partner infrequently accepts projects over which the board has jurisdiction. On the occasion when his/her firm is involved in a project requiring review by the board, he/she should recuse himself/herself from review of the project. 1 Op. N.Y. Atty.Gen.(Inf.)8(2002) or 2002 W.L. 437994(N.Y.A.G.)(March 4, 2002). Where the plaintiff attempted to state an equal protection claim alleging, among other things, that the Mayor should have recused himself from participation in the hearing since he resided on the same street where the applicant's proposed 7-Eleven convenience store would be located, the Second Circuit said, "While the Mayor might have recused himself, the record does not show and Harlen does not claim that the ©Government Law Center of Albany Law School 17 Mayor had a financial or family related interest in the application. The proximity to his residence alone is not a disqualifier. The office he holds does not eliminate his rights as a resident citizen to express his views. Also, as an elected official, the Mayor has an obligation to show concern for the safety of school children. As a Board member, the Mayor has an obligation to vote responsibly. Furthermore, the Mayor's vote only made the decision unanimous; his vote was not decisive. Therefore, the conflict of interest charge here does not suggest a constitutional violation." Harlan Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001). County Referrals A local cell tower law is a zoning law that triggers the referral requirement to the county planning board under GMI sec. 239m. Independent Wireless One Corportation v. Town of Maryland Planning Board, 191 Misc.2d 168, 738 N.Y.S.2d 829 (Sup. Ct. Otsego Co. 2002). Definitions The zoning board of appeals may properly determine that the design of a house and the nature of occupancy (e.g., a large oceanfront mansion) was a single-family residence within the meaning of the zoning code. The fact that the proposed house was over 40,000 square feet and that it contained an accessory structure more than 10,000 square feet in size was considered by the ZBA in reaching their conclusion that the use was still within the single family definition. Association of the Friends of Sagaponack v. Zoning Board of Appeals of the Town of Southampton, 287 A.D.2d 620,731 N.Y.S.2d 851(2d Dept. 2001). According to the village zoning ordinance, a "tourist accommodation" is defined as "A building intended, designed, and used as a private residence within which are rented from time to time for the overnight accommodation of guests. Includes Tourist Homes and Bed and Breakfast Accommodations." Such uses are permitted by special use permit in the district where the petitioner's building was located. The Court concluded that the zoning board of appeals properly determined that the word "rooms" was missing from the definition and that they could read it into the ordinance to prevent inconsistency, unreasonableness and unconstitutionality of the law. However, the zoning board's conclusion that "transient rentals were in and of themselves sufficient to render petitioner's apartment house a tourist accommodation within the meaning of the Zoning Ordinance is without a rational basis given the absence of such a restriction therein." Petitioner's apartment house satisfied the definition of multiple-family dwelling in the ordinance (defined as "[a] residence designed for or occupied by three or more families, living independently of one another, with separate housekeeping and cooking facilities.") and without more evidence, there is nothing to suggest petitioner used their property as a "tourist accommodation" which would have triggered the need for a special use permit. Soule v. Scalci, 288 A.D.2d 585, 732 N.Y.S.2d 662 (3d Dept. 2001). ©Government Law Center of Albany Law School 18 Where the district allowed a permitted use, "specialty retail and person service uses," "discount retailing operations," and "light industry," the zoning board of appeals properly interpreted this to allow for an express tire and lube use within the definition of "discount retailing operations" as it would be part of a Wal-Mart Supercenter. Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dept. 2002). Plaintiff claimed that the term "go-go dancers" included in the definition of "adult cabaret" is unconstitutional because it would categorically eliminate all manner of dance without regard to character. The Northern District of New York found that such interpretation would only be feasible if read out of context with the law. The Court stated that terms must be interpreted in the context in which they appear in the ordinance, and when so considered, the term "go-go dancers" takes on a "clear, independent meaning." DeRusso v. City of Albany, 2002 WL 1275466 (N.D.N.Y. 2002). Educational Institutions "Although the issue has apparently not been addressed at the appellate level in this State, we conclude that the operation of an administrative office for a private, not-for- profit college or university is not a business use." Van Schaick v. Trustees of Union College, 285 A.D.2d 859, 728 N.Y.S.2d 275 (3`d Dept. 2001), cert. denied, 79 N.Y.2d 607, 764 N.E.2d 395, 738 N.Y.S.2d 291 (2001). Enforcement Absent state statute to authorize administrative search warrants, municipalities must seek a search warrant from the local criminal court to enable a building inspector to inspect a private dwelling. To obtain the warrant, the Town Attorney properly provided to the court a copy of the Town's Junk Ordinance which provides for a penalty for violation of the ordinance, along with a notice of violation of the Town ordinance and a notice of violation of the State Building Code (which also contains violations). The Court agrees with an opinion of the Attorney General that opined that since CPL sec. 690.05 allows public servants acting in the course of their official duties to apply for a search warrant, that while a building inspector could request a warrant, the plain reading of the statute would dictate that only police officers may execute the warrants. (see, 1985 Op. (inf.) Atty Gen 71). Therefore, the Court determined that it will issue a warrant to "any police officer having jurisdiction to enforce the local laws of the Town..., who may be accompanied during its execution by any of the officers and employees requested to be designated." In the Matter of an Administrative Inspection of Property Under the Control of John Kun, 190 Misc.2d 470, 738 N.Y.S.2d 549 (Co. Ct. Green Co., 2002). "...to the extent that the petition seeks to have the Village Code Enforcement Officer enforce the Village's zoning ordinances, it is in essence a request for relief in the nature of mandamus (CPLR 7803[1]), which does not lie to compel the performance of a discretionary act." Kroll v. Village of East Hampton, 741 N.Y.S.2d 98 (2d Dept. 2002). ©Government Law Center of Albany Law School 19 Petitioners sought an order staying or suspending the execution of a judgment after they were found guilty in justice court for violating certain provisions of the zoning code and the State Building Code relating to a swimming pool and an adjacent pool deck at their residence and were subsequently fined $10,000 in May 1999. The judgment was never appealed and petitioners applied for a writ of error coram nobis to set aside the judgment of a criminal court pending determination of an appeal. The Court determined that the denial of a writ of coram nobis is not a judgment or sentence from which a stay can be requested pending determination of an appeal pursuant to CPL sec. 460.50. Matter of Janet Delhomme, 188 Misc.2d 678, 729 N.Y.S.2d 599 (Sup. Ct. Rockland Co. 2001). The maintenance provisions of the State Uniform Fire Prevention and Building Code are applicable to buildings that were in existence prior to the enactment of the Code. Town of Conklin v. Ritter, 285 A.D.2d 855, 728 N.Y.S.2d 298 (3d Dept. 2001). Where the local Junkyard Law provides that "the town constable, building inspector, town clerk, zoning officer, or any authorized representative shall be granted access to the licensed premises at all reasonable hours to inspect the same for compliance herewith," the code enforcement officer's refusal to issue a junkyard license was not arbitrary and capricious where the petitioner refused to allow the code enforcement officer to inspect his books and records pursuant to his application for a renewal of his license for the year. The court further found that since the Junkyard Law only requires access with respect to those records relevant in determining compliance with the law, it does not violate the 4th Amendment's proscription against unreasonable searches and seizures. Crandall v. Town of Mentz, 2002 WL 1301435 (4th Dept. 2002). Equal Protection Leaving for another day the issue of whether to prevail on a claim of violation of equal protection based upon selective enforcement a plaintiff must show that the government action was motivated by personal animus (as is the position of some other circuit courts and the Eastern District of New York) or whether after Village of Willowbrook v O/ech, 528 U.S. 562 (2000) the requirement to prove malice or bad faith is removed where there is a class of one (the 2d Circuit's view in dictum), The Second Circuit said that the plaintiffs claimed equal protection violation failed since the plaintiff could not demonstrate that there was no rational basis for the unequal treatment received or that the denial was motivated by animus. In the present case, the record contained a number of legitimate reasons for the board's denial of a special permit to the plaintiff for the operation of a 7-Eleven convenience store. Based upon the record, the Second Circuit disagreed that the only reason for the board's denial of the permit was generalized community opposition. Further, the court reiterated, with respect to the plaintiffs second claim that the board acted arbitrarily in denying its application based upon the fact that school children nearby were more likely to walk to the convenience store than to the dry-cleaner's or gas station, that federal courts will not become zoning • boards of appeal to review non-constitutional determinations by local legislative and ©Government Law Center of Albany Law School 20 A administrative agencies. The Court said that this claim addresses the merits of the Board's decision rather than its constitutionality and that this claim would be better raised in a state court challenge. Harlan Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001). Ethics The Appellate Division, Third Department determined that under the revolving door provision of the Public Officers Law, a former government employee (e.g., the former senior planner for the Tug Hill Commission, and executive branch state agency devoted to regional land use control), is prohibited from rendering services to a Town, now that he has left State employment, because the services he was asked to render relate to the preparation and administration of a grant for that Town while he was employed for the State agency. The plain language of the Public Officers Law prohibits former state employees from rendering services on behalf of any individual or entity before any Agency which relates to any matter that the individual was involved with while employed at the State, and it also prohibits employees from rendering compensated services on behalf of any individual or entity in any setting which related to any matter the individual was involved with. The Court further found that the fact that the petitioner did not render services on behalf of the Town before his former employer (Agency) was irrelevant. McCulloch v. New York State Ethics Commission, 285 A.D.2d 236, 728 N.Y.S.2d 850 (3d Dept. 2001). Where a member of a zoning board of appeals recuses himself or herself from consideration of a matter before the board due to the possibility of a conflict of interest, they cannot be directed to leave the meeting room while the matter was being discussed. As a member of the public, neither the town attorney nor any other person or entity has the authority to preclude someone from remaining in an open meeting of the board. Similarly, even if the matter could properly be considered in an executive session, as a member of the board, one has the right to be present. OML Opinion No. 3276. An individual serving as a senior typist in a municipality's building department where s/he is supervised by the building inspector/zoning admininstrator, is not eligible to also serve as a member of the zoning board of appeals. Under these circumstances, there would be at least an appearance that the employee's authority to review her supervisor's determinations is not being exercised impartially. Op. N.Y. Atty. Gen.(Inf.) 7 (2002). If a member of a local legislative body owns property within the municipality's business improvement district, s/he has a substantial, direct personal interest in the outcome of the board's vote on the business improvement district's annual budget. Thus, the Attorney General opined that recusal from participating in the board's deliberations and voting on the business improvement district's annual budget is the appropriate course of action. Op. N.Y. Atty. Gen. ('Inf.) 9 (2002). ©Government Law Center of Albany Law School 21 It is not enough for a complaint to merely allege that a member of the planning board had a conflict of interest that would result in an invalidation of the recommendation of the board. To state a cause of action, the petitioner must allege the nature of the alleged conflict and identify the party or parties that were conflicted. Ramapo Homeowners Association v. Town of Ramapo, 4/17/2002 NYLJ 31 (col. 2) (Sup. Ct. Rockland Co. 2002). Exhaustion of Administrative Remedies As a commercial nuclear power electric generating facility was in the process of decommissioning, it asked the Town Board to rezone a portion of its property to allow the construction of a dry cask storage facility on its premises. The Town denied this request. The facility owners never requested a building permit for the facility since they believed it would be futile as the property was zoned residential. The Second Circuit held that since the facilityowners never gave the municipality an opportunity to grant or deny a building permit, the case was not ripe for review. Connecticut Yankee Atomic Power Company v. Town of Haddam Planning and Zoning Commission, 19 Fed. Appx. 21, 2001 WL 1167816 (2nd Cir., 2001). • Since petitioners instituted a proceeding to challenge the revocation of a building permit without first appealing the Department of Buildings determination to the Board of Standards and Appeals pursuant to the City Charter sec. 666(6), the case was dismissed for failure to exhaust administrative remedies. Wilkins v. Babbar, 742 N.Y.S.2d 224 (1st Dept. 2002). Exhaustion of administrative remedies is not mandated when the "...challenge to an agency's action raises a real constitutional issue, or when resort to an administrative remedy would be futile." The question of whether a particular use is a non-conforming use is a factual inquiry that does require administrative agency review prior to court review. Wilkins v. Babbar, 742 N.Y.S.2d 224 (1st Dept. 2002). Extraterritorial Jurisdiction Although property may be partially located in more than one municipality, a municipality may not impose its zoning regulations upon that portion of the land outside its territorial limits. However, each of the municipalities where the parcel of land is partially located is entitled to notice of proceedings regarding the use of the property in neighboring jurisdictions. Action Redi Mix Corp. v. Davison, 292 A.D.2d 448, 739 N.Y.S.2d 411 (2d Dept. 2002). Fees The Second Department ruled that where the zoning board of appeals requires private waste disposal, the town cannot collect taxes for said service for the property. Where the zoning board of appeals adopted a resolution requiring, among other things, that the ©Government Law Center of Albany Law School 22 plaintiff maintain individual in-ground refuse containers for each townhouse unit and that refuse removal be conducted by a private sanitation service, the levy of taxes for garbage collection services for the property is invalid. The Town may not assess and collect a tax on the plaintiff's property for a service it does not provide. Barclay Townhouse at Merrick II Corp. v. Town of Hempstead, 289 A.D.2d 351, 734 N.Y.S.2d 870 (2d Dept. 2002). Freedom of Information Law The Committee on Open Government opined that a filed draft EIS is a record that must be disclosed under the Freedom of Information Law even where it has not been accepted by the municipality as complete. FOIL Op. No. 12388 (2001) Group Homes A Homeowners' Association brought an action pursuant to 42 U.S.C. sec. 1983 alleging that its member's constitutional rights have been violated under the Commissioner's enforcement of the Padavan Law, arguing that this siting law denies the "associational and economic liberties" of its members. Furthermore, the Association alleged that the state statute provides no standard and that no standards have been enacted by regulation to guide the Commissioner in defining the meaning of terms such as "undue concentration," "the nature and character of the area," "area," "neighborhood," "need," "over-concentration," or "substantial alteration," and as a result, with no "objective standard" the law violates due process and equal protection. Finding that the claims must be dismissed on jurisdictional grounds since OMRDD may not be sued in federal court under the Eleventh Amendment, the Court continued that no federal rights were impinged upon in the case. It dismissed the Association's First Amendment claims stating that "there is no authority for the proposition that it has a constitutional right to exclude them from the community." The Court determined that the Padavan Law does not confer any property rights, that the State did not confer a "liberty interest" on the Association, and that there was no merit to the Association's claims that the "constitution somehow confers upon parents a liberty interest in raising and educating their children without an allegedly 'chilling' presence of the developmentally disabled." Ramapo Homeowners'Association v. New York State Office of Mental Retardation and Developmental Disabilities, et al., 180 F.Supp. 2d 519 (S.D.N.Y. 2002). Groundwater On December 12, 2001 Governor Pataki signed Chapter 546 (S.4729/A.8965) which provides that any land use regulation enacted by a town or village located within a special groundwater protection area, must include a definition of open space which is protective of water quality in the area. ©Government Law Center of Albany Law School 23 Impact Fees The Third Department ruled that water source and storage [impact] fees assessed on owners of commercial property proposed for subdivision constitutes an illegal tax. The Town of Clifton Park Water Authority assessed a $22,000 "source" and "storage" fee on two newly constructed office buildings pursuant to the Authority's 1992 "Water Fee Service Schedule" setting forth charges for its integrated water system. The schedule assessed "all property proposed for subdivision or change in use" the standard turn-on, meter inspection and hook-up fees in addition to the one-time "source" and "storage" fees. Relying on Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D. 2d 293, 534 N.Y.S.2d 791 (3d Dept. 1988) affd 74 N.Y.2d 372, 546 N.E.2d 920, 547 N.Y.S.2d 627 (NY 1989), the Court concluded that the source and storage fees imposed an impermissible tax on the property owners since the fees actually fund and benefit everyone in the water district therefore offsetting the general governmental functions. The Court noted in a footnote that even where a fee may be imposed, it must bear a reasonable correlation to the associated cost of the service provided. The Court stated that it finds no authority for the premise that it would be lawful for petitioners to contribute their fair share to past costs associated with the development and maintenance of the intact water system, stating that "the law simply does not permit charging a fee only to newcomers to equalize g the financial burden between them and long-time residents who have paid for an existing infrastructure. Phillips v. Town of Clifton Park Water Authority, 286 A.D.2d 834, 730 N.Y.S.2d 565 (3d Dept. 2001), leave to appeal denied, 97 N.Y.2d 834, 730 N.Y.S.2d 565, (3d Dept. 2001). Legislative Equivalency The Second and Fourth Departments addressed claims of violation of the doctrine of legislative equivalency and reached the opposite conclusions to zoning amendments by resolution. Upon alleging, among other things, that the town had violated the doctrine of legislative equivalency which typically requires existing legislation to be amended in the same manner it was enacted, the Appellate Division, 2d Dept. said that although the town used a resolution to amend the zoning ordinance, it did not violate the doctrine since the town board followed the procedural formalities as set forth in Town Law secs. 264 and 265 for enacting a zoning amendment. Miller v. Kozakiewicz, 289 A.D.2d 494, 735 N.Y.S.2d 176 (2d Dept. 2001). In the Fourth Department case, the town board amended the zoning law in 1991 and in 1999 by resolution. Although the local zoning law authorized amendment via the use of resolution, the court found that this was in violation of the doctrine of legislative equivalency as set forth in section 10(1)(ii)(d)(3) of the Municipal Home Rule Law. The court determined that the zoning law permitted amendment on the zoning maps by resolution, and this is not the procedural equivalent of another local law. Paradis v. Town of Schroeppel, 289 A.D.2d 1027, 735 N.Y.S.2d 278 (4th Dept. 2001). ©Government Law center of Albany Law School 24 Manufactured Housing The Town amended its zoning ordinance to create three manufactured home park districts encompassing existing manufactured home parks in the Town, and the law further provided that "at no time shall the number of housing units in manufactured home parks exceed 25% of all single-family dwellings situated on privately owned lots." The Court determined that such a law did not constitute exclusionary zoning even though the plaintiffs property was not located in the manufactured home park district since the law allowed manufactured home parks as a permitted use in the Town. The Court also found that the restriction on the number of manufactured housing units in the Town was in accordance with the Town's Master Plan that encourages a housing mix and the record revealed that the 31.5% of the housing units in the Town are located in manufactured housing parks, a percentage well above the county average of 13.8%. The Town's decision not to include the plaintiffs property in one of the manufactured housing districts is a legislative determination that is afforded a strong presumption of validity, and here the record revealed that the property in question was located outside of the development areas identified in the Master Plan and in an area that the Plan recommended that residential growth be "strictly controlled." In fact, the plaintiffs property is located in a rural-agricultural area where the Plan urges that residential uses be permitted only at low density, and a section of the property contains identified prime agricultural land where development is even further restricted. Morgan v. Town of West Bloomfield, 2002 WL 1301401(A.D. 4th Dept. 2002). Where the Town rescinded an ordinance that prohibited the issuance of permits for the placement of mobile homes that were more than five years old at the time of the permit application, the plaintiffs application for money damages alleging a taking of his property was dismissed since the court noted that when the law was challenged as void and unconstitutional, the Town rescinded it two months later. By the plaintiffs own admission, the ordinance affected only about five of the 30 spaces in his mobile home park and as a result of the ordinance, only one or two prospective tenants were turned away during the period in question. Ren's Realty, Inc. v. Town of Vienna, 2002 WL 120303 (4th Dept. 2002). A municipality may regulate the use of old mobile homes or trailers as fixed-based storage facilities by establishing a procedure whereby each trailer is investigated for safety, applying standards established in the local law. Removal of unsafe trailers may be ordered only after the due process procedural standards for the regulation of unsafe buildings have been satisfied. Op. N.Y. Atty. Gen. (Inf.) 2 (2002). Mootness Where the development project was substantially complete, the Second Department dismissed a challenge as academic. After the subject project, construction of a supermarket, was substantially complete, petitioners challenge to review the determination of the planning board and the zoning board of appeals was dismissed as ©Government Law Center of Albany Law School 25 li academic. The petitioners failed to request a preliminary injunction to enjoin the construction at the trial court level, and they failed to request a preliminary injunction to preserve the status quo pending the appeal to the Second Department. Since the project was substantially complete by the time the Second Department got the case, the Court determined that even if the petitioner were to prevail, the prejudice to the respondent would be substantial. Imperial Improvements, LLC v. Town of Wappinger Zoning Board of Appeals, 290 A.D.2d 507, 736 N.Y.S.2d 409 (2d Dept. 2002). Moratoria On April 23, 2002, the U.S. Supreme Court handed local governments a major victory in continuing efforts to plan for smart growth. (See, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002)). Recognizing that locally enacted moratoria, or temporary delays in the issuance of building permits pending further study, are an essential tool of successful development, the High Court said, "To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth." The Court went on to warn, however, that although a moratorium in effect for more than one year was held to not be an unconstitutional taking based on the facts in the case before it, whether a general rule limiting the allowable duration of a moratoria j is a good idea is a task best left to the state legislatures. The Tahoe case does not present an across the board victory, nor does it bless every moratoria under every set of circumstances. The Court clearly states that although there was no per se regulatory taking of the petitioners' land in the present case, "...we do not hold that the temporary nature of a land-use restriction precludes a finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other." The Court opts to follow Justice O'Connor's approach in last year's case of Palazzolo v. Rhode Island(533 U.S. at 636,S.Ct. at 121 2467 (2001) where she suggests that the determination of whether a government regulations constitutes a temporary taking "requires careful examination and weighing of all the relevant circumstances." This type of inquiry can only occur when there is a case-by- case factual inquiry rather than a strict statutorily crafted time frame. Absent a statute in New York, the courts have long upheld the validity of locally enacted moratoria as "...a sensible and practical way to insure that decisions on land usage...can be effective..." (see, Rubin v. McAlevey, 54 Misc. 2d 338, 282 N.Y.S.2d 564 (Sup. Ct. Rockland Co. 1967), affd 29 A.D.2d 874, 288 N.Y.S.2d 519 (2d Dept. 1968)). Generally, so long as municipalities follow proper procedures for the enactment of moratoria, and so long as the moratorium remains in effect for a "reasonable" period of time and the municipality can demonstrate that a planning process is ongoing, the courts will uphold these local laws, also referred to as "stop gap" or "interim zoning." Just as some moratoria have been upheld by the courts, many have been struck down as overly burdensome in duration or invalid since there was no "good faith" planning ©Government Law Center of Albany Law School 26 r effort taking place while the moratoria remained in effect. What is clear from the rhetoric on land use list serves is that the planning communities are claiming victory in the U.S. Supreme Court, and those often associated with pro "property rights" sympathies are concerned about "moratoria madness." Only ten states have chosen to regulate the use of local moratoria by statute. These laws vary in their approach to specific time limits for moratoria, ranging from a short span of six months (renewable) to a lengthy three years. While a state statute could provide some clear temporal parameters for the use of moratoria, such an approach could also prove unrealistic given the underlying planning needs for a particular area (such is the example in the Tahoe case that involved an inter-state compact and regional planning agency charged with developing a plan for the protection and preservation of a significant natural resource). The U.S. Supreme Court recognized that "the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel." This language reiterates the recognition of the importance of regional land use planning. The debate on moratoria will undoubtedly find its way into the state legislative process in New York. In all likelihood, non-governmental real'estate development advocates will seek the legislative solution mentioned by the U.S. Supreme Court. Municipal and preservation advocates will attempt to preserve the status quo in New York, a common- law or judicial inquiry into the reasonableness of the duration of locally adopted land use moratoria. The American Planning Association's recently released "Growing Smart Legislative Guidebook" offers three alternative legislative approaches to dealing with moratoria that may be of some drafting assistance (see, Chapter 8). Whether or not a legislative solution is right for New York, the U.S. Supreme Court did validate a long- standing and important planning tool that can help to ensure quality communities across the State. The decision of whether to use a moratoria is discretionary and permissive, and it is up to the town board to decide if and how to exercise this power. Therefore, petitioner's allegation that the town board failed to impose a moratorium on zoning changes during a period when a new comprehensive plan was being investigated fails to state a cause of action. Ramapo Homeowners Association v Town of Ramapo, 4/17/2002 NYLJ 31 (col. 2) (Sup. Ct. Rockland Co. 2002). The Village did not impose a moratorium in bad faith when it enacted a six month moratorium (as well as when it extended the moratorium for six months), as permitted by its zoning law, on the issuance of any building permits for the development of commercial property uses occupying a gross floor area of 40,000 square feet or more. Rather, the Court found that the moratorium imposed was a valid exercise of the Village's police power and a legitimate response to the uncertainty created by the appellant's challenge to the application of the zoning ordinance amendments to pending building permit applications. Home Depot USA, Inc. v. Village of Rockville Centre, 2002 WL 1285972 (2d Dept. 2002). ©Government Law center of Albany Law school 27 Necessary Parties Where the City Common Council granted site plan approval to the First Assembly of God Church, the petitioners' appeal was dismissed when they failed to join the Church as a necessary party since an adverse ruling against the City would have an adverse impact on the Church and its ability to comply with parking requirements set forth in the City zoning ordinance. Since the Church did not voluntarily appear or participate in the proceeding and since the applicable statute of limitations has expired, the Supreme Court properly dismissed the petition. Karmel v. White Plains Common Council, 284 A.D.2d 464, 726 N.Y.S.2d 692 (2d Dept. 2001). Even where a petition does not challenge a permit, variance, license or other similar approval issued to the landowner and tenant, they are nonetheless a necessary party since they have interests that may be inequitably or adversely affected by a potential judgment in the Article 78 proceeding. Where the statute of limitations has expired and parties can longer be joined, the court will dismiss the petition. Van Derwerker v. Village of Kinderhook Zoning Board of Appeals, 2002 WL 1225104 (3d Dept. June 6, 2002). Nonconforming Uses The Fourth Department ruled that the granting of a special use permit to replace antennas on a preexisting nonconforming cellular tower does not constitute a change in volume or intensity broadening or expanding the use. The cellular tower in question located in the Town of Pomfret, was built prior to the enactment of the local Telecommunications Facilities Article that was added to the zoning law. Once the law was enacted, the tower became a preexisting nonconforming use as it is now located in an area where such towers are not permitted. Although the Telecommunications Facilities Article provides that where there is a conflict between the Article and the zoning law that the Article is to control with respect to telecommunications facilities, the Article does not specifically address the procedure for changing a preexisting nonconforming use. The Court stated that it would not disturb the interpretation of the code enforcement officers and the zoning board of appeals that, pursuant to the Telecommunications Facilities Article, the zoning board of appeals had jurisdiction to grant a permit to replace antennas on the cellular tower. Furthermore, the court held that the replacement of the antennas to 200 feet did not constitute an impermissible expansion of a previously existing non-conforming use since the tower was already nonconforming at a height of 150 feet. Michalak v. Zoning Board of Appeals of the Town of Pomfret, 286 A.D.2d 906, 731 N.Y.S.2d 129 (4th Dept. 2001). The Second Department ruled that where the local zoning code allows for replacement of a non-conforming structure where the non-conformity is not increased, the zoning board is granted deference in its interpretation of the code. The Town of Pelham's zoning code provides that, "A nonconforming structure that is ...devoted to a conforming use may be reconstructed, structurally altered, restored or repaired, in whole or in part, ©Government Law Center of Albany Law School 28 provided that such action does not increase the degree of nonconformity thereof." Therefore, the zoning board of appeals properly granted the applicant's request to replace the non-conforming roof of her garage with another non-conforming use that did not increase the degree of non-conformity. Replacing the roof as proposed did not require a variance. Sposato v. Zoning Board of Appeals of the Village of Pelham, 287 A.D.2d 639, 732 N.Y.S.2d 19 (2d Dept. 2001). The Appellate Division, Second Department upheld the lower court's remittal to the zoning board of appeals for a determination as to whether the issuance of a certificate of compliance for boiler and chimney installations on the subject property extended the non-conforming use and whether the non-conforming use on the subject property had been abandoned or discontinued pursuant to the town code. Salino v. Town of Brookhaven Zoning Board of Appeals, 288 A.D.2d 477, 732 N.Y.S.2d 907 (2d Dept. 2001). Where the defendants operated a day camp pursuant to special permits prior to the enactment of the Town of Cortlandt Code in 1994, the camp was exempt from the application of the 1994 law pursuant to the Code sec. 307-105[B]. Hill v. YM/YWHA of Northern Westchester Inc., 287 A.D.2d 691, 732 N.Y:S.2d 251 (2d Dept. 2001). It was an error to grant an injunction prohibiting the defendant from continuing to use his property as a junkyard where the Town enacted a Local Junkyard Law in 1994 and issued the defendant junkyard licenses on a yearly basis since 1996. The 1994 law set forth certain fencing and set-back requirements but also provided that if the property could not be brought into compliance "said requirement[s] shall be deemed waived and inapplicable." Since defendant's property was not brought into compliance and he still received permits every year since 1996 and there is some dispute as to whether the property constituted a prior nonconforming use, it was improper to grant a permanent injunction. Town of Mentz v. Crandall, 288 A.D.2d 841, 732 N.Y.S.2d 778 (4th Dept. 2001), affd, 2002 W.L. 1301435(N.Y.App.Div. 4th Dept. June 14, 2002). The Court of Appeals ruled that where there was evidence in the record to support the determination by the zoning board of appeals that the current use of property where a prior nonconforming use had operated is not qualitatively similar to the previous use, the board's finding that the petitioner impermissibly exceeded the scope of the prior nonconforming use should be upheld. In its memorandum decision, the Court reiterates the view that while nonconforming uses are tolerated, the public policy of zoning is aimed at their eventual elimination. In the Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the Village of Pleasantville, 2002 WL 1401678 (C.A.N.Y. 2002). ©Government Law Center of Albany Law School 29 Open Meetings Where a member of a zoning board of appeals recuses himself or herself from consideration of a matter before the board due to the possibility of a conflict of interest, they cannot be directed to leave the meeting room while the matter was being discussed. As a member of the public, neither the town attorney or any other person or entity has the authority to preclude someone from remaining in an open meeting of the board. Similarly, even if the matter could properly be considered in an executive session, as a member of the board, one has the right to be present. OML Op. No. 3276 (2001). Regional Planning The Eastern District upheld the constitutionality of Long Island Pine Barrens Protection Act. Surviving yet another challenge, the Long Island Pine Barrens Protection Act does violate the equal protection rights of 168 small landowners who own property inside the designated 50,000 acre Core Preservation Area. The equal protection claim stems from an allegation that the boundary lines of the Core Preservation Area were gerrymandered in favor of influential landowners who owned larger parcels against the small property owners. In applying the rational basis test, the Court ruled that the Act, along with the land conservation plan developed pursuant thereto, "furthers a legitimate state interest, preservation of a unique ecosystem and the sole source of drinking water for several million people." Dittmer v. County of Suffolk, 188 F.Supp. 2d 286 (E.D.N.Y. 2002). Once again the courts are urging the Legislature to find a solution to the problem of the Court's inability to consider the cumulative impacts of development in the Long Island Pine Barrens. The Appellate Division Second Department said, "The instant case demonstrates the legal barriers to securing any cumulative impact review of development in the Long Island Pine Barrens. The petitioner's frustration with the legal process is understandable. However, it is the province of the Legislature to fashion a solution to this problem." Long Island Pine Barrens Society, Inc. v. Town Board of the Town of East Hampton, 741 N.Y.S.2d 80 (2d Dept. 2002). Religious Uses The Southern District determined that the Religious Land Use and Institutionalized Persons Act does not bestow upon a religious congregation the right to intervene in a proceeding regarding the siting of a monopole with antennas and associated equipment. The Kol Ami Congregation proposed to intervene in a proceeding brought to challenge the denial of a permit to build a 150 foot monopole on adjacent property. The congregation argued that the monopole would disturb its view, and argued that it had standing under the recently enacted federal Religious Land Use and Institutionalized Persons Act (RLUIPA) asserting that the construction of the pole on property not owned by the Congregation, would adversely affect its right to worship. In ©Government Law Center of Albany Law School 30 IIMMEMMIIMMw 11 finding that the RLUIPA does not apply in this instance, the District Court, in reviewing the purpose behind the enactment of the Act and stressing that it applies when imposing or implementing a land use regulation which results in a substantial burden on religious exercise, found that the proposed monopole neither discriminates against Kol Ami in its status as a religious organization, nor does it place a substantial burden on religious exercise. Furthermore, the Court said that the issuance of a permit would not constitute a "land use regulation" that would totally exclude religious assemblies from the City, would not pose unreasonable limits on such assemblies, and would not substantially burden the religious exercise of the congregation. Here, the Congregation's concerns were purely aesthetic, and such concerns are not protected under the RLUIPA. Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp.2d 697 (S.D.N.Y. 2001). The Zoning Board of Appeals of the City of Long Beach properly granted variances to the respondent Yeshiva, a religious institution that operates a religious school and rabbinical college, for the demolition of an existing dormitory and single-family home that would be replaced with a new three story residence dormitory that would contain several classrooms, study halls, guest accommodations and an infirmary. The zoning board determined that the removal of the existing two buildings would have a positive effect on the community, and found that the proposed replacement building would not be out of the character of the community and that since the number of students would not increase there would be no impact on parking. Although the petitioners argued that the proposed structure was housing and therefore should not qualify as an authorized religious and/or educational use, and that furthermore such use was not an accessory use since it was located "off-site," the Court reiterated the long standing rule in New York that religious institutions are afforded special treatment and enjoy constitutionally protected status with respect to residential zoning ordinances. The Court went on to state that the dormitory "affords more than mere housing, and is but an essential element and integral part of the overall experience..." Matter of the Association of Zone A & B Homeowners, Inc. v. The Zoning Board of Appeals of the City of Long Beach, 7/6/2001 NYLJ 25, (col. 2)(Sup. Ct. Nassau Co. 2001). The Court found that the Town Board acted in an arbitrary and capricious manner when it denied an application to build a church with off-street parking on the grounds that they 1,1 refused to repeal restrictive covenants on the property. The Court found that the Board had to hold a public hearing prior to their denial of consent to repeal the covenants and that such denial could not be based on the extensive community opposition to the proposed use. The Court stated that, "The concerns raised by the community regarding traffic, parking, noise and congestion should the petitioner be allowed to construct its church are legitimate but not relevant to the subject petition." The court asserted that these considerations are more appropriate in determining whether the Church would be entitled to certain variances that would be needed for the proposed use, not for purposes of determining whether the restrictive covenants should be lifted. Congregacion Mita of New York v. Town Board of the Town of Hempstead, 8/30/2001 NYLJ 21 (col.2), (Sup. Ct. Nassau Co., 2001). ©Government Law Center of Albany Law School 31 The Roman Catholic Diocese of Rockville Centre purchased 97 acres for the proposed use as a cemetery although the Village zoning ordinance did not allow for cemeteries in the district. Upon denial of their request for a zoning change, the Diocese appealed to the Court and the trial court determined that the use of the subject property as a Catholic cemetery was a "religious use" entitling the Diocese to additional consideration and accommodation. In reaching the determination that the use was in fact a "religious use," the Court found that its use is conduct with a religious purpose as evidence was adduced at trial demonstrating that the Roman Catholic Church believes in the "Second Coming of Christ and Resurrection of the Dead," and that its followers "...entrust their 1 bodily remains to the Catholic Church in its cemeteries in accordance with that belief..." Furthermore, the Court determined that "Catholic cemeteries are a place of worship no different from a church or other similar edifice." McGann v. Incorporated Village of Old Westbury, 741 N.Y.S.2d 75, (2d Dept. 2002). Although a religious use is entitled to preferential treatment, where as in this case the proposed use is a 97 acre cemetery, the proposed use qualifies as a Type I Action under SEQRA (in that the Diocese seeks a zoning change or change in permissible uses affecting 25 or more acres), the trial court erred in directing the Board of Trustees of the Village to simply issue the special permit to the Diocese without further review. Citing language from Cornell University v. Bagnardi, 68 N.Y.2d 583, 595;503 N.E.2d 509, 510 N.Y.S.2d 861(N.Y. 1986). The Court reminded that "The presumed beneficial effects may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like." McGann v. Incorporated Village of Old Westbury, 741 N.Y.S.2d 75, (2d Dept. 2002). The Second Circuit agreed with the District Court's findings that on the record, a church properly demonstrated that where it allowed the homeless to sleep on its steps, there was a "likelihood of success in establishing that its provision of outdoor sleeping space for the homeless effectuates a sincerely held religious belief and therefore is protected under the Free Exercise Clause." The Court further agreed that the invitation to the homeless to sleep on outdoor property did not fall within the state definition of a homeless shelter under 18 N.Y.C.R.R. secs. 485.1 and 491.1 that would trigger licensing requirements. Furthermore, the Court would not allow the City to assert on appeal that the outdoor sanctuary for the homeless is not a permissible accessory use of the property under the zoning resolution since the City failed to raise that argument below. Fifth Avenue Presbyterian Church v. City of New York, 2002 WL 1290839 (2d Cir. 2002). Res Judicata Where the petitioner's issues were essentially identical to the previously sought application for an area variance, the petitioner is barred under the doctrine of res judicata from seeking review of the determination even where the petitioner alleges that the Town failed to consider the report of her inspector. The report by the petitioner's inspector may enhance the quality and amount of proof submitted, but a proceeding ©Government Law center of Albany Law School 32 s r simply to cure defects in proof and to improve quality thereof is not a distinction which precludes the application of res judicata. Falco v. Town of Islip, 289 A.D.2d 490, 734 N.Y.S.2d 643 (2d Dept. 2001). The doctrine of res judicata does not apply to the petitioner's application for area variances where previously area variances were sought from the board by different applicants, for different proposals and before the Town Law was amended to set forth the requirements for an area variance. Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214 (2d Dept. 2001). Where the petitioner's challenge to the granting of a site plan approval for the extension of a Church was dismissed on the grounds that the petitioner failed to join the church as a necessary party and where the statute of limitations has since expired, the petitioner is barred under the doctrine of res judicata from now raising that claim since a dismissal on statute of limitations grounds is considered a dismissal on the merits. Karmel v. Delano, 740 N.Y.S.2d 373 (2d Dept. 2002). Restrictive Covenants • A restrictive covenant prohibited that erection on the premises "having a frontage of less than [70] feet and a depth of less than [140] feet, any buildings except one private one- family dwelling house and out buildings thereof, and no building erected on said premises or any part thereof shall at any time be used except for such purposes; and no dwelling house with its outbuildings as aforesaid shall at any time be erected or be allowed or suffered to remain on any part of the premises hereby conveyed unless it be on a lot the side lines of which are at least [70] feet apart at all points and having a depth of at least [140] feet and unless it shall cost not less than Six Thousand Dollars, and subject also to the following covenants...." The covenant went on, "(4) That said premises or nay buildings erected or to be erected thereon shall not at any time be used for the purpose of any trade, manufacture or business of any description, excepting that the same may be used for offices for the practice of medicine or other professional work." The owner of the properties in question, a non-profit higher-educational institution, sought to convert two existing residential structures into an administrative office building and themed student housing. The Court rejected that plaintiffs assertion that the covenant prohibits the school from constructing any buildings or using the existing buildings for any purpose other than single-family residences. The Appellate Division, Third Department, also agreed with the Court below that the proposed use of one of the properties as administrative offices was incidental to the operation of a school and that a school is not a business within the meaning of the restrictive covenant here. The Court said, "It is well established that where language used in a restrictive covenant is capable of more than one interpretation, all doubts must be resolved in favor of free use of the property." Van Schaick v. Trustees of Union College, 285 A.D.2d 859, 728 N.Y.S.2d 275 (3rd Dept. 2001), cert. denied, 79 N.Y.2d 607, 764 N.E.2d 395, 738 N.Y.S.2d 291 (2001). ©Government Law Center of Albany Law School 33 Rezoning The mere similarity of result between a rezoning and the granting of a use variance does not diminish the fact that the town board has the power to adopt and amend zoning ordinances and the board may amend its ordinance through a rezoning rather than considering whether it should entertain a request for an area variance(s) in the district. Ramapo Homeowners Association v Town of Ramapo, 4/17/2002 NYLJ 31 (col. 2) (Sup. Ct. Rockland Co. 2002). Ripeness A property owner brought a suit under 42 U.S.C. secs. 1983 and 1985 claiming a violation of equal protection and due process where the Town denied his request for a building permit on the grounds that such request would constitute an enlargement of a nonconforming use in violation of the zoning code. Although the Town initially denied the request, during ongoing litigation the building inspector did issue a permit, and after the property owner opposed the Town's motion to dismiss the complaint, the Town revoked the building permit. Although the property owner's request for a building permit was administratively denied, he failed to exhaust administrative remedies by not seeking a variance from the zoning board, which the record reveals was recommended that he do. The Second Circuit agreed with the District Court that the Williamson test for ripeness is not confined to only a claim for an unconstitutional taking, and it has been extended to equal protection and due process claims asserted in the context of land use challenges. Dougherty v. Town of North Hempstead, 282 F.3d 83 (2d Cir. 2002). In the context of a First Amendment claim for retaliation, the Williamson test for ripeness will not apply. Where the landowner suffered a 51/2 year delay in large part by an unjustified requirement that he file an EIS, where he was required to remove not only a four-by-four addition he built onto a nonconforming use but was also required to remove an addition made by the prior owner, and where a permit to allow construction was revoked as soon as the landowner opposed the Town's motion papers in a court proceeding, the Second Circuit noted that the First Amendment claim of retaliation is significantly different from the equal protection and due process claims. The court found that the landowner "suffered an injury at the moment the defendants revoked his permit," and that "pursuit of a further administrative remedy would do nothing to further refine his injury. " Dougherty v. Town of North Hempstead, 282 F.3d 83 (2d Cir. 2002). The Second Circuit held that the plaintiffs taking claim will never be ripe where his properties were downzoned in 1987 and in 1988 he sold the properties recovering his purchase price of approximately $12 million, but claiming a loss of$10 million in development costs. The Court said that the plaintiff will never be able to show that the government's regulation was a taking of his property by "going too far," since he sold the property before seeking the required determination. He never requested a variance from the new zoning requirements nor did he submit any other proposal other than the ©Government Law Center of Albany Law School 34 r 1 original 17 story structure which was denied. Since he will never be able to show that the downzoning went too far, the Court said his claim will never be ripe. Sudarsky v. City of New York, 24 Fed. Appx. 28, (2d Cir. 2001). **** Where petitioners sought to prohibit the Village from further developing a park prior to an environmental review, the mere announcement by the Village of a proposed plan and a scheduled public hearing is not sufficient to satisfy the ripeness requirement that there be a final determination under CPLR Art. 78. Pheasant Pond Owners Association, Inc. v. Board of Trustees of Incorporated Village of Southampton, 285 A.D.2d 597, 728 N.Y.S.2d 190 (2d Dept. 2001). The Second Circuit agreed with the District Court that the Williamson test for ripeness in takings claims has been extended to apply to equal protection and due process claims asserted in the context of land use challenges. Although the Court reached this conclusion, the Court noted that it was not unsympathetic to complaints about the 5% year delay, alleged unfair treatment, and claims of considerable damages. However, the Court found that the claim was not ripe as the plaintiff failed to request a variance. Dougherty v. Town of North Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). In a case of first impression, the Second Circuit held that the Williamson test for ripeness does not apply to a First Amendment retaliation claim where the petitioner alleged that the government actions were aimed at him personally. Whereas due process and equal protection claims raise a question of administrative finality, the Court found that the First Amendment claim in this case was based upon an immediate injury. Dougherty v. Town of North Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). The Eastern District of New York reiterated that the Second Circuit has yet to determine the precise contours of the futility exception to the ripeness rule that requires final agency action in a takings case. Where the plaintiff alleged that the Landmark Commission refused to issue renovation permits to it because, according to a spokesman for the Borough President, the property was "eyed for a possible Education Construction Fund Site which would allow it to be developed as a public school and commercial venture," the Court said this was insufficient to invoke the futility doctrine since there were no concrete facts to support this statement and the statement was made fourteen years after the plaintiff first received a permit to begin renovation work on the premises. In addition, the Court found that since the plaintiff did not allege any facts that would support that it had made a "meaningful application" to the Commission, they may not successfully invoke the futility exception to the final decision requirement. RKO Delaware, Inc. v The City of New York, 2001 WL 1329060 (E.D.N.Y. 2001). Where the plaintiff never sought compensation for a takings claim in state court, their federal claim for a taking is not yet ripe for review. RKO Delaware, Inc. v The City of New York, 2001 WL 1329060 (E.D.N.Y. 2001). ©Government Law Center of Albany Law School 35 To be ripe, claims of substantive due process violations based upon arbitrary and capricious government conduct must satisfy the Williamson prong for final agency action. RKO Delaware, Inc. v The City of New York, 9/21/2001 N.Y.L.J. (col. 2)(E.D.N.Y. 2001). SEQRA Where a draft environmental impact statement has been filed with a town but not yet accepted as complete, it must be disclosed irrespective of whether it has been accepted or is complete. FOIL Opinion No. 12388. Signs The Second Circuit upheld a village sign ordinance regulating the display of signs in residential districts as a valid regulation of commercial speech. The Long Island Board of Realtors challenged the Village of Massapequa Park's regulation on the use of commercial signs on residential property. Specifically, the Board challenged the following provisions of the law: a requirement that no more than one sign permit shall be in effect at any one time for any single parcel of property unless the property contains an identification sign or professional sign; a requirement that the proposed sign not be located more than three feet from the dwelling or building line in residential districts; a requirement that the applicant submit a proposed drawing of the sign when applying for a sign permit; signs larger than 15 inches by 15 inches in a residential district are prohibited; the top of the sign may not extend beyond the top of the pole which shall not be more than four feet from the ground; signs must be removed within 24 hours of transfer of title to the property or the giving of possession, whichever occurs first; a limitation on the number of signs allowed on residential property including specific instructions regarding the location of the signs; and a prohibition of off-site commercial advertisements on residential property. The District Court found these provisions to be content-neutral, narrowly tailored to serve a significant governmental interest and not overly restrictive. Following the recent U.S. Supreme Court case, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404 (2001), the Second Circuit applied the four-part Central Hudson test for regulation of commercial speech (see, 447 U.S. 557, 100 S. Ct. 2343 (1980)). As to the first two prongs, the parties agreed that the speech was lawful and truthful, and that there were substantial governmental interests advanced (e.g., aesthetics and safety). The Village had the burden of satisfying the third and fourth prongs: that the restriction directly and materially advances the substantial governmental interest; and that the restriction is not more extensive than necessary to serve those interests. The law does not require that the Village use the least restrictive means. With respect to the third prong, the Second Circuit found that the regulation of the number, size and location of signs on residential property and the duration for which signs may be on the property, as well as the prohibition of off-site commercial ©Government Law Center of Albany Law School 36 oL I � advertisement on residential property did on their face directly advance the Village's interests of aesthetics and safety. Finally, as to the fourth prong, the Court determined that the regulations were not more extensive than necessary to serve the Village's interests leading to a finding that there was in fact "a reasonable fit between the Village's ends and the means it has chosen to accomplish those ends." Long Island Board of Realtors, Inc. v. Incorporated Village of Massapequa Park, 277 F3d 622 (2d Cir. 2002). Infinity Outdoor advertising, the largest outdoor advertising company in North America, brought a facial challenge to the New York City zoning ordinance and its enforcement provisions that banned the placement of off-site commercial signs near highways and parks while allowing non-commercial and on-site signs in these areas, alleging an unconstitutional burden on commercial speech and a violation of the Equal Protection Clause. At the time of the lawsuit, Infinity Outdoor owned 42 sign structures near a highway or park in New York City. New York City modified its zoning regulations in 1998 and 2001 that, among other things, divided signs into three categories: off-site signs (referred to as "advertising signs") or signs designed to draw attention to a business that is not located on the same lot as the sign; on-site commercial signs (referred to as "accessory use signs") that identify a business located on the same lot as the sign; and non-commercial signs that direct attention to something other than a business or commodity. In addition, the City's law provides that signs require a permit before they may be displayed, and the implementing regulations contain a presumption that signs placed by non-commercial speakers are non-commercial, but non- commercial messages by commercial entities are also treated as non-commercial. The new regulations, in part, served to close a loop-hole in the law that allowed members of the outdoor advertising industry to obtain permits for accessory use and non- commercial signs and then illegally convert them into advertising signs. The regulations further require the Department of Buildings to act on the permit application within 40 days, or if there is good cause for an extension, within 60 days. Applicants may appeal to the Board of Standards and Appeals. Newly enhanced civil penalties of up to $15,000 for the first day of violation of the sign regulation and $25,000 for each subsequent day of violation were also adopted. Addressing the First Amendment claim, the Eastern District of New York found no dispute that the first two steps of Central Hudson inquiry were met(e.g., the regulated commercial speech did not involve any activity that was unlawful or misleading, and that there was no dispute as to the substantiality of the City's interest in regulating signs...to wit, "to improve traffic safety and the aesthetic quality of the City, while at the same time allowing businesses to identify their presence on a particular lot and allowing some off-site advertising signs, in a manner constitutional under Metromedia."). The Court then determined that the City satisfied the third prong of Central Hudson as the regulations directly and materially advanced the asserted governmental interest. This inquiry was satisfied through documented problems with signs in the Planning Commission's December 2000 report. Finally, the Court found that the fourth step in Central Hudson, that there be a reasonable fit between the City's goals and the means chosen to accomplish them, was met and that the needs were 0 Government Law Center of Albany Law School 37 narrowly tailored to achieve the goal. The Court even noted that the City did stop short of prohibiting signs within 200 feet of highways and parks outright, choosing instead to regulate based upon distance, and that sign structures were grandfathered under the new regulations. Further, the Court noted that the City is not simply concerned with removal of signs, but it seeks to combat the further proliferation of signs in the future. Therefore the City's law which prohibits sign structures from containing advertising copy will reduce the construction of new sign structures because there will be less demand for the new structures. The Court distinguished the City regulation from the newsrack regulation in Discovery Networks, 507 U.S. 410 (1993), since in that case the City of Cincinnati banned only commercial newsracks. Under the present law in New York City, commercial speech is allowed on signs, and it is constitutionally regulated. Turning to the Plaintiffs Equal Protection claim, that that City law allows civic, philanthropic, educational and religious groups to display a "flag, pennant or insignia" without regulation, thereby allegedly giving preferential treatment to some non- commercial speech over other non-commercial speech, the Court said that without any evidence that this "minimal exception" has been allowed for a discriminatory purpose or that the zoning law has been employed in a discriminatory function. The Court agreed with the Seventh Circuit Court of Appeals that these were common-sense exceptions. (citing Lavey, 171 F.3d at 1116). The Court found that the City's law is not determining the subject matter of public debate nor does it restrict the subject matter of public debate. Plaintiffs allegations that the City's sign regulations were unconstitutionally vague and that they were internally inconsistent were also determined to be baseless by the Court. The Court found that ultimately the law requires determinations to be made in accordance with standards contained in the zoning resolution. Plaintiffs allegation that the City's law is in effect a prior restraint on speech is also unfounded since the permit system was not enacted to censor speech and there was no evidence presented that the permit system has been used so as to favor one point of view over another. In conducting a further prior restraint analysis since the law did allow for the potential that the Department of Buildings could erroneously deny a permit to a non-commercial sign, the Court found that the law provides enough standards to guide permitting officials in distinguishing from non-commercial speech, and that the law provides for procedural protections required from non-censorship licensing schemes (e.g., the time limits within which decisions must be rendered on applications, and prompt access to judicial review under an Art. 78 action). Lastly, since no fine was imposed and no enforcement proceedings had been initiated, the Court declined to rule on whether the fines for violations were excessive since this issue was not ripe. Infinity Outdoor Inc. v. City of New York, 165 F. Supp. 2d 403 (E.D.N.Y. 2001). Plaintiff sought injunctive relief, challenging the constitutionality of a certain New York City anti-posting statute. The Statute made it unlawful to post, paste, print, or nail, any handbill, poster, notice, sign, or advertisement, upon any curb, gutter, flagstone, tree, lamppost, awning post, etc...except for those posted by or under the direction of the city council or a city agency. Plaintiff contends that the statute unconstitutionally limits his ©Government Law center of Albany Law School 38 r - a right of free speech and his right to campaign. The Court found the City ordinances to be permissible as content-neutral time, place, and manner restrictions. Citing the Supreme Court in City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Court re-iterated that " lampposts can of course be used as signposts, but the mere fact that government property can be used as a vehicle for communication does not mean that the constitution requires such uses to be permitted." Herschaft v. Bloomberg, 2002 WL 1204780 (E.D.N.Y. 2002). Plaintiff non-profit organization sought to supplement existing street signs (hanging a blue street name sign next to or near the official sign) with the names "Free East Timor" and "1991 Santa Cruz Massacre". The proposed streets to be supplemented were within a close proximity to the Indonesian Consulate Office. Plaintiffs' application was denied, and although the City Department of Transportation allows for temporary, supplemental street names to be added, they will be rejected if it promotes products, commercial entities, political parties, and or candidates. Feeling that the proposed signs were too political and too controversial the DOT rejected the application. The first issue the Court addressed was whether or not the street signs constituted a public or private forum. Since it did not lay clearly within either boundary, the Court found that through its previous supplementing of street signs, and by authorizing persons to apply for a supplemental renaming, the City has created a "limited public forum" which is available to the plaintiff. Since they created this forum, the City must obey the boundaries they set for themselves. By allowing street names such as "Tiananmen Square Corner" (near the Chinese embassy), as well as a number of such commemorative names, to be placed throughout the city, the Court held that the plaintiffs proposed signs cannot be determined to fall within one of the prohibited categories, and must be allowed. East Timor Action Network v. City of New York, 71 F. Supp.2d 334 (S.D.N.Y.1999). A city ordinance prohibited the operation, standing, or parking of a vehicle on any street for the purpose of commercial advertising. The City stated its interests in passing such an ordinance were to promote traffic safety and alleviate congestions on the roadways. Defendant is a truck-leasing company that leases trucks to a company named "Streetblimbs." The purpose of Streetblimbs is mobile advertising. The Court found that the ordinance directly advances the City's interest in controlling traffic, and that it was sufficiently narrowly tailored to remove a class of vehicles from the street. Passing the Central Hudson Test, the ordinance was upheld. People v. Professional Truck Leasing Systems, 185 Misc.2d 734, 713 N.Y.S.2d 651 (NYC Crim. Ct. 2000). A planning board may properly impose sign color restrictions as part of a site plan review process so long as the restriction is reasonable and supported by an adequate basis in the record. Matter of Smithtown, LLC v. Planning Board of the Incorporated Village of the The Branch, 7/7/99 N.Y.L.J. 35 (col. 4)(Sup. Ct. Suffolk Co.1999). In June 1999, NYC's Dept of Buildings approved plaintiffs applications and issued permits for the construction of a V-shaped billboard structure along the Sheridan ©Government Law Center of Albany Law School 39 Expressway in the Bronx. Based upon the approval, plaintiff entered into a 10 year lease for the property at a cost of $24,000 per year, and spent approx. $300,000 on the construction. In March 2000, the Department notified the plaintiff by letter that the approval and permits would be revoked within 10 days under the Administrative Code, unless plaintiff could prove compliance with the Code. Plaintiff did not submit any evidence of compliance within the 10 days, and litigation ensued. Finding that the plaintiff's takings claim failed on ripeness grounds, the court went on anyway to state that plaintiff had no property right to assert since "an invalidly granted permit vests no right in contravention of the zoning ordinance in the person obtaining the permit." As to the Equal Protection claims raised, the Court said that a zoning ordinance may treat flagpoles, chimneys, steeples and towers differently than billboard signs without violating the Clause since Equal Protection does not require things which are different to be treated in law as if they are the same. Marathon Outdoor, LLC v. Vesconti, 107 F. Supp. 2d 355 (S.D.N.Y. 2000). After the defendant was charged in a criminal action for placing a sign on his front lawn that read, "Stop Police Harassment & Brutality in Suffolk County. Children & Teens Have Rights Too!," he challenged the Town's sign law as unconstitutional and a violation of his First Amendment rights. The Babylon Town Code sec. 213-397 states that no signs are permitted to be erected in any residential district with the following five exceptions: 1) aviation signs; 2) professional name plates; 3) signs in connection with sale, rental, construction or improvement of the premises; 4) house numbers and nameplates; and w 5) signs that have cautionary messages such as beware of dog, no trespassing, or no peddlers. Temporary signs for a duration of thirty days are allowed under a local permit system, and these type of signs typically include political messages [See the section below for a new case on regulation of political signs]. Section 213-386 of the Town Code states that the legislative intent of the sign provisions is to protect the public health, safety and welfare by promoting aesthetic values, and by promoting safety by avoiding visual distractions, physical obstructions and mistakes or confusion with authorized traffic signs. The Suffolk County Supreme Court found that the Code provisions were narrowly tailored without regard to content and that they accomplish legitimate governmental purposes, and therefore dismissed the claim that said provisions were unconstitutional. People v. Weinkselbaum, 185 Misc.2d 889, 714 N.Y.S.2d 860 (Suffolk Co. 2000). A town ordinance that allowed for certain on-site advertising signs, but required a permit from the zoning board of appeals for signs in the interest of public information and convenience (e.g., political signs), is content-based and could not survive strict scrutiny as it was not necessary to serve a compelling state interest, nor was it narrowly drawn to meet that interest. The Court also observed that, "the ordinance vests unbridled ©Government Law Center of Albany Law School 40 V discretion in the Building Inspector and the ZBA to grant or deny temporary permits for signs in the public interest..." and that it provided no standards to guide them in their decision to grant or deny a permit again in violation of the First Amendment. The town amended its ordinance during the dispute, requiring a permit for all signs whether commercial or noncommercial, but still exempted 18 classes of signs. This also was determined to be content-based and in violation of the First Amendment. Knoeffler v. Town of Mamakating, 87 F.Supp. 2d 322 (S.D.N.Y. 2000). The New York State Department of State issued a Legal Memorandum on the restrictions on election signs several years ago (see, http://www.dos.state.ny.us/cnsl/signs.html) warning that local governments that are attempting to deal with the clutter of election campaign signs by limiting the period in which they may be posted as well as the number of signs will face difficulties if these laws are challenged. The Department stated, "The main flaw in a local law that applies specifically to election signs is that it imposes restrictions based on the content or message." The Department foreshadowed the unconstitutionality of 8 local sign ordinances in Orange County, New York. A description of the 2002 case follows: Plaintiff was running for political office in Orange County, and ordered 5000 signs to help her campaign. She was informed by a local code enforcement officer that her signs violated some of the local ordinances, and would be taken down. Plaintiff, concerned that negative press would hurt her campaign, decided to bring the signs into compliance, and challenge the local ordinances afterwards. The Court stated that political speech was entitled to the highest form of protection, and proceeded to examine each of the named municipal ordinances: 1. Greenwood Lake: These ordinances were content-neutral, time, place and manner restrictions, narrowly tailored to meet the aesthetics and public safety. The fee requirement was fine because it was a refundable deposit to ensure that the signs were promptly taken down. The Court found a problem, however, with the discretionary authority of the town in deciding to grant a permit for a temporary sign. Applying the test in Freedman, the court found the ordinance unconstitutional as it failed to provide sufficient safeguards to ensure permit decisions are made expeditiously. 2. Village of Goshen: This ordinance contained size restrictions that distinguished political signs from others. Because these restrictions were based on content, they were subject to strict scrutiny, and failed to pass constitutional muster. 3. Town of Hamptonburgh: Provisions contain content-based durational limitations. Under strict scrutiny, this ordinance is also unconstitutional. ©Government Law Center of Albany Law School 41 4. Town of New Windsor: Just like Hamptonburgh, these provisions contained content-based durational limitations and were hence unconstitutional. y 5. Town of Walkill: Ordinances allowed exemptions from permit requirements, but alas, the exempt classes were overly broad. While some of the exemptions were content neutral, others were not, rendering the ordinance unconstitutional. 6. Village of Warwick: Contained durational limitations based on content of the signs and is unconstitutional 7. City of Middletown: Impermissibly favored certain types of commercial signs over certain types of political signs by exempting certain types of commercial signs from the regulations, is therefore unconstitutional. 8. Village of Chester: Content based size limitations failed to survive strict scrutiny and is therefore unconstitutional. Sugarman v. Village of Chester, 192 F.Supp.2d 282 (S.D.N.Y. 2002). Site Plan Approval The Second Department reiterates that generalized community objections may not be used as the basis for denial of site plan approval. Although scientific or other expert testimony is not required in each instance to support a determination of the zoning board, where the petitioner presents expert testimony and the only basis for the Board's denial appears to be generalized community objection uncorroborated by any empirical data or expert testimony, the Court determined that the Board's decision was not supported by substantial evidence. 450 Sunrise Highway, LLC v. Town of Oyster Bay, 287 A.D.2d 714, 732 N.Y.S.2d 83 (2d Dept. 2001). The erection of an earth covered bomb barrier on respondent's property was more than a mere "berm" as it was referred by the Town Planner who erroneously granted approval with the zoning board for the addition finding that it was a "minor." The Court determined that the construction of a large inground bomb proof barrier needed to protect the use as an abortion clinic, was indeed not minor, and that such major determinations are reserved for the planning board. Brighton Residents Against Violence to Children, Inc. v. MW Properties, LLC, 10/25/2001 NYLJ 25 (col. 3)(Sup. Ct. Monroe Co. 2001). Where a use as a doctor's office was approved, a clinic engaging in and soliciting ©Government Law Center of Albany Law School 42 2 abortions is a new and different use that was not considered by the planning board and as such (nor was such intention disclosed to the Board), the use of the "doctor's office" as an abortion clinic requires further review by the Town including planning board approval. Furthermore, the Court determined that the siting of the abortion facility with a concrete reinforced embankment on the site presented numerous land use and environmental issues that were simply not considered initially for the use as a doctor's office. Brighton Residents Against Violence to Children, Inc. v. MW Properties, LLC, 10/25/2001 NYLJ 25 (col. 3)(Sup. Ct. Monroe Co. 2001). The Town properly denied Home Depot's site plan based on the finding that the proposed development was out of character with the surrounding area. The Town determined that the proposed project was a destructive and constrictive development pattern that was caused due to the insufficient site selected for the project area. The petitioner admitted that the project design was "shoehorned" to fit the proposed site. Based upon the Board's finding that the project was out of character and the petitioner's admission that the project was "shoehorned" to fit, the Court determined that the denial of site plan approval was not arbitrary and capricious. Home Depot, USA, Inc. v. Town of Mount Pleasant, 741 N.Y.S.2d 274 (2d Dept. 2002). The City Council properly granted the First Assembly of God a one year extension of their site plan approval for the Church's expansion after the Supreme Court determined that the petitioner's claims that the extension was invalid and that public notice and a hearing were required on the church's application were without merit. Karmel v. Delfino, 740 N.Y.S.2d 373 (2d Dept. 2002). Where the record was devoid of any documentary evidence to support the planning board's determination to impose 14 of the 15 conditions on petitioner's site plan approval, the court annulled the 14 conditions on the grounds that they were arbitrary and capricious. Hudson Canyon Construction, Inc. v. Town of Cortlandt, 289 A.D.2d 576, 735 N.Y.S.2d 807 (2d Dept. 2001). The fact that conditional site plan approval is granted does not lessen the impact of the approval on the petitioner or make it any less final or conclusive for purposes of the 30 day statute of limitations for challenging the decision. Elliot v. Boycott, 740 N.Y.S.2d 632 (2d Dept. 2002). Where the planning board's approval of a site plan is subject to review in a CPLR Art. 78 proceeding brought within 30 days of the determination (see, Town Law sec. 274-a [11]), the petitioners failed to properly challenge the approval when they merely attempted to amend their court petition challenging the enactment of the underlying local law that allowed for such determination. Group for the South Fork, Inc. v. Town Board of the Town of Southampton, 285 A.D.2d 506, 729 N.Y.S.2d 148 (2d Dept. 2001). The Appellate Division, Second Department, found that the Village properly conducted an environmental review and determined that a site development plan for parkland that m Government Law Center of Albany Law School 43 previously included the construction of Little League, softball and soccer fields, and a parking lot, and the presently proposed restroom/storage building, playground with equipment and fitness trail, was part of the initial overall comprehensive development for the parkland and that the later development of the park did not give rise to a claim of improper segmentation under SEQRA. Pheasant Pond Owners Assoc., Inc. v. Board of Trustees of Incorporated Village of Southampton, 2002 WL 1287673 (A.D. 2nd Dept.). Special Use Permits The Second Department affirmed that a Board's denial of a special use permit is arbitrary and capricious where the applicant meets the standards in the zoning ordinance. The lower court properly ordered the granting of a special use permit where the applicant met all of the stated conditions in the zoning law. The initial denial, based upon traffic congestion was arbitrary and capricious since there was no evidence that the proposed use of the property for a convenience store would cause a greater traffic impact than an as-of-right use, and the proposed parking plan satisfied the applicable zoning law provision. 7-Eleven, Inc. v. Board of Trustees of the Incorporated Village of Mineola, 289 A.D.2d 250, 733 N.Y.S.2d 729 (2d Dept 2001). The zoning board of appeals abused its discretion in refusing to grant a special use permit to allow for outdoor storage to accommodate the accessory use of a Home Depot garden center where such use was approved under the environmental assessment form, the project is designed to revitalize a distressed shopping mall area, and where the project was in compliance with the Town's comprehensive land use plan. The Court reiterated that a denial based on generalized community objections is impermissible, and found that there was no rational basis supported by the evidence to deny the request since petitioner's complied with all of the conditions for the special permit. WF Shirley, LLC v. Board of the Zoning Appeals of the Town of Brookhaven, 9/26/2001 NYLJ 25 (col. 4) (Sup. Ct. Suffolk Co. 2001). After petitioner had spent roughly $40,000 on other proposed solutions, the zoning board of appeals improperly denied an application for a natural resources special permit to offset the effects of both natural and coastal erosion, alleged impacts of government dredging, and general protection from storm surge damage near the beachfront. The homeowner requested permission to construct a rock revetment measuring 247 feet in length, 42 feet in width, and 14 feet in height parallel to the waterline on his land. The landowner proposed a stone "infrastructure" that would be covered by 890 cubic yards of sand and beach grasses to augment an existing bluff and to appear as a "natural dune." Petitioner presented corroborative expert evidence that this solution was essential to preventing the home from being destroyed. The zoning board denied the permit request even though members did not refute that this solution would be appropriate to accomplish the goal, but because the members believed that if the sand was not maintained under the rocks, this proposed solution could exacerbate problems on adjacent lands. The Court determined that the petitioner met his burden under the East Hampton Town Code that required a showing that the property was in imminent ©Government Law Center of Albany Law School 44 r . danger absent a coastal erosion structure, that the zoning board had granted revetment requests for neighboring parcels, and that a significant amount of money had been expended on other solutions. Evidence in the record also showed that a feared erosion on adjacent properties would be minimized through the maintenance of the revetment, and that the petitioner possesses both the will and the financial wherewithal to guarantee that the reventment would be properly maintained. Therefore, the Court found that there was no rational basis for requiring the petitioner to spend more money on proven ineffective solutions. The Court remitted the matter back to the zoning board to determine the most appropriate conditions for the permit as well as a guarantee to ensure compliance. Hach v. Zoning Board of Appeals of the Town of East Hampton, 287 A.D.2d 500, 731 N.Y.S.2d 219 (2d Dept. 2001). The Town Board improperly revoked a special use permit that was initially granted "subject to stipulations of the Planning Board." Where the planning board provided no conditions, the town board may not revoke the permit because the municipal authority granting the special use permit has the responsibility to clearly state the conditions upon which it is granted, and the town may not rely upon "incorporation by reference" statements made by the applicant at the hearing. It was therefore arbitrary and capricious for the Board to determine that the petitioners violated conditions attached to the permit. Anderson v. Town of Clarence and Town Bd. Of Clarence, 740 N.Y.S.2d 907( 4th Dept. 2002). The Board of Trustee's denial of a special use permit was upheld where the court determined that denial was rationally based and the Board did not act in an arbitrary or capricious manner. Hannafey v. Board of Trustees of the Village of Malveme, 741 N.Y.S.2d 721 (2d Dept. 2002). Although the opinions of the parties' experts concerning the proposed restaurant's effects on the surrounding community differed, the zoning board of appeals did not act in an arbitrary and capricious manner in denying petitioner's application for special use permits and areas variances. Mian Enterprises, Inc. v. Easa, et al., 291 A.D.2d 559, 738 N.Y.S.2d 248 (2d Dept. 2002). The zoning board of appeals properly granted a special use permit to the respondent to permit mining operations and they properly filed their decision in the Office of the City Clerk 30 days later. Engelbert v. Warshefski, 289 A.D.2d 972, 738 N.Y.S.2d 257 (4th Dept. 2001). The City Council may not condition a special use permit for a cellular telephone company on the "allegation that an approval would violate the private property rights of a third party, or based upon matters that are unrelated to the purpose of zoning." Furthermore, any amount of pressure the affected residents attempt to apply to the City Council is also irrelevant to the application process. Omnipoint Communications, Inc. v. Common Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). ©Government Law Center of Albany Law School 45 Since a special use permit does not create an entitlement as a matter of right, the special facts doctrine is not applicable. Morgan v. Town of West Bloomfield, 2002 WL 1301401 (A.D. 4th Dept. 2002). The zoning board of appeals acted outside of the scope of its authority to issue a special use permit where activity that was proposed did not fall within the special use activities contemplated by the zoning code. Specifically, the Code allowed, by special permit, petitioner to conduct "auto, truck and vehicle parts, repair and body work...excluding dismantling and parts storage and sales." The proposed manufacturing activity did not fall within the definition of the term "repair" as described in the Code. Tobin v. Board of Zoning Appeals of the Incorporated Village of Manorhaven, 2002 WL 1334225 (A.D. 2d Dept. 2002). The Planning Board improperly denied petitioner's request for a special use permit to reasonably accommodate his amateur communication needs by allowing him to erect a 47-foot radio antenna tower in his backyard in contravention of FCC regulation PRB-1. The City's zoning ordinance allowed antennas as accessory uses in any zoning district, provided that they did not exceed 20 feet in height, width or depth. All other antennas required a special use permit. Petitioner's first application for a special use permit resulted in a denial for failure to satisfy four special use standards under the zoning ordinance. After the filing of legal proceedings challenging the decision, negotiations resulted in the planning board agreeing to reconsider the application for a special use Permit if the applicant submitted the following: 1) four separate Pr osaI for placement of the tower; 2) payment of staff fees for the review of new materials and costs associated with notice requirements; 3) identification of any television, radio or telephone interference problems that could be caused by the proposed antenna; 4) information on the effect, if any, the tower may have on property values; and 5) proof of liability insurance that covers any damage caused by the antenna. Plaintiff complied with four of these requests, and on the issue of interference, alleged that federal law preempts municipalities from denying a permit for amateur radio towers based on interference concerns. Although the applicant also agreed to purchase a new antenna for $650 to replace the tower proposed that consisted of two antennas —which would also lower the height by 3 feet, and he promised to retract the antenna when not in use, install a fence around the tower and install screening around the tower as well as paint the tower to minimize visual impact, the planning board again denied the application following additional public hearings. During these last proceedings, the applicant also agreed plant trees around the tower at a cost of$1,160, but would not agree to operate his radio only at night, since this would severely curtail his ability to communicate via the radio on weekends when he most often used the equipment. The Northern District of New York explained that the federal government issued PRB-1 as a way to balance the tensions between local zoning laws and federal interests that favor the interests of amateur radio operators whose volunteer efforts "afford reliable emergency preparedness, national security, and disaster relief communications." The Court said that PRB-1 declares a "limited preemption of state and local regulations which preclude amateur communications." The relevant language of PRB-1 provides: ©Government Law center of Albany Law School 46 T4.1 Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna configurations require more substantial installations than others if they are to provide the amateur operator with the communications that he/she desires to engage in...We will not, however, specify any particular height limitations below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to reasonably accommodate amateur communication, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose. (emphasis added) Noting that the Second circuit has not yet considered the validity of the limited pre-emptive effect of this ruling on local regulations, the Court found that the City failed to meet all three prongs of the reasonable accommodation standard which requires the municipality to: 1) consider the application; 2) make factual findings; and 3) attempt to negotiate a satisfactory compromise with the applicant. Here the Court determined that the City failed to demonstrate that it satisfied the third prong of the test. The Court stated that although it might appear that the City was attempting to negotiate with the applicant, the planning board engaged, "strictly in a one-sided negotiation consisting of inflexible demands and the construction of hoop after hoop for Palmer to jump through." The District Court declared the applicable section of the City's zoning ordinance preempted as applied to the applicant, and based upon the long contentious history of the proceedings before the planning board, the Court enjoined the Board from taking further action interfering with the application and ordered the Board to grant the application with the conditions already agreed to by the application. Palmer v. City of Saratoga Springs, 180 F. Supp.2d 379 (N.D.N.Y. 2001). Spot Zoning The Second Department found that a zoning change was made in accordance with a comprehensive plan for the development of the Village and therefore not impermissible spot zoning. The Village Board approved a zoning change and a special use permit with numerous conditions enabling the applicant to assemble parcels for the purpose of building an assisted living residence for senior citizens. The rezoning changed the use from residential to commercial to authorize the proposed use. Petitioner-residents challenged the rezoning as spot zoning, alleging the action was not in accordance with the Village's "master plan." The Court reiterated the rule in Udell v. Haas, 21 N.Y.2d 463, 235 N.E.2d 897, 288 N.Y.S.2d 888 (N.Y. 1968), that while a village must exercise its zoning power in accordance with a "comprehensive plan," such a plan need not be contained in a single document. Further, citing Asian Amercans for Equality v. Koch, 72 N.Y.2d 121, 527 N.E.2d 265, 531 N.Y.S.2d 782 (N.Y. 1988), the Court reminded that, "Zoning legislation is tested not by whether it accords with a [comprehensive] plan ©Government Law Center of Albany Law School 47 but by whether it accords with a [comprehensive] plan for the development of the community." Since the board found that the zoning change was in the public interest of all of the residents of the Village, it was not impermissible spot zoning. Stone v. Scarpato, 285 A.D. 2d 467, 728 N.Y.S.2d 61 (2d Dept 2001), leave to appeal denied, 97 N.Y.2d 604, 761 N.E.2d 1035, 736 N.Y.S.2d 308 (N.Y. 2001). The Town Board properly granted the proposed rezoning of five acres to a Planned Development District as the determination to rezone was based upon specific legislation that the Town enacted to allow planned development districts to meet the need for more flexible land use and the Town's stated desire to "encourage maximum efficiency in development." After a review of the application by the Planning Board, the board recommended that the Town Board grant the application, which it subsequently did including the imposition of some restrictions to minimize aesthetic impacts. The Appellate Division, Fourth Department, found that this approval did not constitute illegal spot zoning since the determination was part of a well considered and comprehensive plan designed to serve the general welfare of the Town. Furthermore, the Court found that the petitioners failed to establish that the rezoning would have a detrimental effect on the surrounding property. Rayle v Town of Cato Board, 2002 WL 1303037 (A.D. 4th Dept. 2002). In determining whether a rezoning constitutes illegal spot zoning, the courts must consider whether the rezoning is in concert with the local comprehensive plan. Where there are sufficient allegations plead that require the Court as finder of fact to examine the Town's comprehensive plan to determine whether the rezoning is in accordance with the plan, a motion to dismiss the cause of action was denied. Ramapo Homeowners Association v Town of Ramapo, 4/17/2002 NYLJ 31 (col. 2) (Sup. Ct. Rockland Co. 2002). Standing The Third Department ruled that parties in close proximity to a business park have standing to challenge a zoning action thereon and that petitioners waited too long to challenge the granting of a permit by the ZBA. In first addressing the issue of standing to seek judicial review of a zoning determination, those petitioners who lived adjacent to or directly across the highway from the business park at issue were able to meet their burden by demonstrating that they are aggrieved by the zoning action. The Third Department denied standing to those petitioners who did not live within this zone and who asserted that they will be "environmentally impacted" as a basis for standing. Furthermore, where the petitioners challenged the granting of an April 2000 special permit by the zoning board of appeals to allow for a gasoline station in the planned industrial development district as violative of the zoning ordinance, the Court found that the petitioners should have challenged the underlying 1997 special permit which did list a gasoline station as a permitted use. Finding that the lower court properly dismissed the petition, the Appellate Division said that the failure to raise the issuance of the 1997 permit renders the proposed use of the gasoline station unassailable. O'Donnell v. ©Government Law Center of Albany Law School 48 s Town of Schoharie, 291 A.D.2d 739, 738 N.Y.S.2d 459 (3d Dept. 2002). Nearby residential owners and nearby commercial tenants or owners are in close enough proximity to a medical office that was being used as an abortion clinic to have standing to challenge the use of the property. The court determined that "Many of the other petitioner's members, although not adjoining owners, are still close enough to the subject property that their safety, property and business values will be impacted and genuinely affected by the use made of the subject property." Brighton Residents Against Violence to Children, Inc. v. MW Properties, LLC, 10/25/2001 NYLJ 25 (col. 3)(Sup. Ct. Monroe Co. 2001). Petitioners, an unincorporated association organized to preserve the historic and cultural resources of the Village, and individual members of the organization who live in the Village's East Side Historic District, challenged the County's decision to demolish 10 buildings on or adjacent to the Main Street in the Historic District after the County issued a negative declaration under SEQRA. The Court reiterated the rule that since the present case claimed violation was of SEQRA and not of a zoning enactment, to have standing the parties must allege a specific environmental injury which is in some way different from that of the public. Since there are no zoning related issues in the present challenge, the party's close proximity is insufficient to grant standing. The Court further determined that standing could not be granted on the grounds that there would be an adverse visual impact on their residences or buildings since the petitioners' would not be directly affected by such adversity, and standing cannot be based upon a claim that a project would indirectly impact traffic patterns, noise levels, air quality and aesthetics throughout a wide area. Save Our Main Street Buildings v. Greene County Legislature, 292 A.D.2d 521, 740 N.Y.S.2d 73 (2d Dept. 2002). A Town, as an involved agency in an environmental review, has standing to challenge the land use determinations of the planning board in a neighboring town. Town of Pleasant Valley v. Town of Poughkeepsie Planning Board, 289 A.D.2d 583, 736 N.Y.S.2d 70, 2d Dept. 2001). leave to appeal denied, 2002 W.L.1000718 (N.Y. April 30, 2002). In a proceeding before the zoning board, petitioner claimed standing based on the proximity of his property to a proposed Wal-Mart Supercenter (approximately 530 feet). In the proceeding before the planning board petitioner asserted proximity to the proposed use and additionally claimed that he would be "affected by the environmental impacts of the Supercenter, some decline in police and fire protection and increasing traffic, and 'the expected change in the character of the community."' The Appellate Division, Third Department found that the petitioner did not have standing on two grounds: 1) In Society of Plastics Industry v. County of Suffolk, 77 N.Y. 2d 761, 573 B,E, at 1934m 570 N.Y.D.2d 778 (N.Y. 1991), the Court of Appeals rejected standing based upon community-wide effects as it proclaimed, "In land use matters, especially, [the Court of Appeals has] long imposed the limitation that the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different ®Government Law Center of Albany Law School 49 from that of the public at large." In this case, the Court rejected the standing claims based upon indirect effects of traffic patterns, noise levels, air quality and aesthetics; 2) the claim of proximity to the subject property alone is not enough to justify standing requirements and here, the petitioner failed to articulate any specific harm that he would suffer based upon his proximity to the subject property. In fact, the Court notes that the two properties are separated by at least seven residential lots and a set of railroad tracks. Lastly, a challenge brought by a community organization also lacked standing to sue since they failed to satisfy that one or more of its members had standing to sue. Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dept. 2002). In an effort to secure a cumulative impact review of development in the region, petitioners did not meet their burden of establishing standing to sue "since they failed to indicate how the proposed land uses would cause them injury in fact, different from that suffered by the public at large, within the zone of interest that SEQRA is intended to • protect." Long Island Pine Barrens Society, Inc. v. Town Board of the Town of East Hampton, 741 N.Y.S.2d 80 (2d Dept. 2002). The Appellate Division, First Department, in ruling on respondent's affirmative defense challenging petitioner's standing, reiterated that, "the Court of Appeals has expressed its discomfort with the dismissal of zoning litigation on the ground of a lack of standing..." and that it is preferable that zoning disputes be resolved on the merits rather than based upon lack of standing. In reviewing the applicable caselaw, the Court reiterated that "Generally, standing to challenge an administrative action turns on a showing that the action will have a harmful effect on the challenger and that the interest to be asserted is within the zone of interest to be protected by the statute." Citing, Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 687 (1996). The Court further noted that "standing may be inferred from proximity to the site at issue, which makes the challenger stand out from the broader community." The Court found that the where members of the petitioner organization LMADC live in the community where the proposed structure would be built (some live within a few blocks) and where many of them also work in that community, they have standing to sue. The Court found that LMADC met the three prong test in Aenaes McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d 326 (1998) as they 1) have standing to sue in their own right; 2) the interested asserted are germane to the organizational purpose which is to prevent displacement in the communities in lower Manhattan; and 3) it is not necessary that any of the individual members of LMADC be participants in the proceeding as LMADC can assert the claims on their behalf. As to a second petitioner, GOLES, a neighborhood organization, the Court found that it did not have standing to sue in its own right since they made no showing as to how close to the side their members reside and the area which their services extends is many blocks from the site. Lower Manhattan Anti-Displacement v. Board of Standards and Appeals of the City of New York, NYLJ vol. 227 p. 18 (5/22/2002) (Sup. Ct., New York, 1' Dept.2002). The Western District of New York determined that the operators of three adult use establishments had standing to facially challenge the City of Rochester's licensing ©Government Law Center of Albany Law School 50 requirement for these establishments since the licensing law allegedly vests unbridled discretion in a governmental official over whether to permit or deny expressive activity. Furthermore, the Court found that plaintiffs need not apply for the license first and be denied as plaintiffs were asserting that it was a violation of their rights to be required to disclose the information requested by the City (e.g., criminal conviction records). The Court also found that the plaintiffs had standing to assert First Amendment claims with respect to the enforcement of the law to activities inside the adult establishments as the owners and not as the performing artists since they present the performances the law is designed to regulate. Brownell, et al. v. City of Rochester, 190 F. Supp. 2d 472 (W.D. N.Y. 2001). Statute of Limitations The Second Department reiterated that a cause of action involving the issuance of a building permit accrues when the permit is issued. Where suit is initiated against a municipality regarding the issuance of a building permit, the proper statute of limitations is four months under the CPLR, not ninety days as set forth in General Municipal Law sec. 50-e. Further, the cause of action accrues when the building permit is initially issued and it does not constitute a continuing wrong. Kaufman v. Village of Mamaroneck, 286 A.D.2d 666, 729 N.Y.S.2d 778 (2d Dept. 2001). The four month statute of limitations for challenging the City Planning Commission's approval of a project that represented a final determination of environmental issues begins to run on the date of the final approval by the Planning Commission, not on a subsequent date when the City Comptroller registered, in accordance with the City Charter provision, a concession agreement of the parties. Throggs Neck Resident Council, Inc. v. Cahill, 290 A.D.2d 324, 736 N.Y.S.2d 358 (1st Dept. 2002). Where the plaintiffs purchased property in 1982 after their application for a use variance was granted in 1981 subject to certain conditions, plaintiffs action in 1989 claiming that some of the conditions were confiscatory and arbitrary is time-barred. Schiavoni v. Village of Sag Harbor, et al. , 285 A.D.2d 638, 728 N.Y.S.2d 399 (2d Dept. 2001). Where the zoning enforcement officer filed a determination on April 4, 2000 that the proposed development of a supermarket across the street from the petitioners was a permitted use pursuant to the zoning regulations, the petitioners had 60 days from the filing date to submit an appeal of the determination under Town Law 267-a. Although the petitioners claimed that they did not know of the filed decision until May 15, 2000, they waited until June 23, 2000 to file their appeal, without an explanation as to why they could not file timely within the three weeks remaining after May 15, 2000. Therefore, the court found that there was no unfairness in applying the express terms of Town Law 267-a and found the petitioner's appeal untimely. Schultz v. Town of Red Hook Zoning Board of Appeals, 740 N.Y.S.2d 235 (2d Dept. 2002). Although the petitioners did file a petition and notice of claim in their proceedings ©Government Law Center of Albany Law School 51 against the village zoning board of appeals within the 30 day statute of limitations provided for in Village Law secs. 7-712-c(1) and 7-725-a(11), there was a jurisdictional defect in that when served on defendants, the petition failed to "specify the time and place of the hearing on the petition" as required by CPLR 403(a) and therefore the case was dismissed. Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dept. 2002). Petitioner's claims that the zoning board of appeals acted improperly in granting approval for activities that in essence unlawfully modified, enhanced or enlarged nonconforming uses on at least four occasions (1980, 1982, 1994 and 1998) are time barred since Village Law sec.7-712-c(1) provides that the applicable period within which to challenge a decision of the zoning board of appeals is 30 days from the date the decision is filed in the Office of the Village Clerk. Furthermore, the Court noted that the petitioners had personal knowledge of the various applications as they participated at public hearings. In addition, the Court noted that the fact that the approvals contained conditions did not extend the statute of limitations. Kroll v. Village of East Hampton, 741 N.Y.S.2d 98 (2d Dept. 2002). Petitioner's challenge to the enactment of a local law•was barred by the four month statute of limitations. Mayes v. Lace, 287 A.D.2d 934, 731 N.Y.S.2d 676 (3d Dept. 2001). Petitioner's, out-of-possession landowners of a parcel of property, objected to the granting of a building permit to their neighbors. The permit was issued in December 1999 following a 1998 approval to resubdivide the property. Although the petitioners were aware of the 1998 approval, they did not become aware of the December 1999 permit until early March 2000 when they were informed by their tenant that development had begun on the neighboring property. On March 27, 2000 the petitioners applied to the zoning board for an administrative review of the issuance of the building permit, alleging that a variance was required before the permit could be issued. On April 21, 2000 the building inspector notified the petitioners that their application would not be heard because the property had been granted subdivision approval years earlier. The Appellate Division, Second Department determined that the petitioners were not chargeable with knowledge of the issuance of the building permit until March 2000, and thus their March 27, 2000 appeal over the issuance of the permit was in fact timely. Although General City Law sec. 81-a(5)(b) provides that an administrative appeal from "any order, requirement, decision, interpretation or determination of the administrative official," must be taken within 60 days of the filing of such order, the Court said that "It is well settled law...that where a party seeks revocation of a building permit issued to another, the prescriptive period should be computed from the date such party received notice that his objections had been overruled." (citing, Matter of Pansa v. Damiano, 14 N.Y.2d 356, 200 N.e.2d 563, 251 N.Y.S.2d 665 N.Y. 1964)). Farina v. Zoning Board of Appeals of the City of New Rochelle, 742 N.Y.S.2d 359 (2d Dept. 2002). Where the location of a proposed road was approved by the planning board in January ©Government Law Center of Albany Law School 52 1999, and where the construction of such was substantially complete by November 1999, and the record reveals that the petitioner had actual knowledge of the road's location by June 2000 when she was in attendance at the planning board meeting and complained about the glare from cars in her house, the statute of limitations under Town Law sec. 282 had long expired by the time petitioner commenced her lawsuit in November of 2000, over 22 months after the subdivision plat was approved, nearly a year after the road was constructed, and 5 months after she voiced objections at a planning board meeting. Zimmerman v. Planning Board of the Town of Schodack, 742 N.Y.S.2d 431(3d Dept. 2002). Where petitioner alleged that Lake George Park Commission's letter suggesting that petitioner withdraw a marina permit application since the zoning board failed to grant the petitioner a necessary use variance, to the extent that the petitioner suggests that the March 1999 letter was a denial of his application, he had four months from the date of such denial to commence an Article 78 proceeding, therefore the present proceeding that was initiated in February 2000 is time barred. Passaro v. Lake George Park Commission, 288 A.D.2d 678, 733 N.Y.S.2d 271 (3d Dept. 2001). Plaintiffs have 30 days to challenge the granting of an area variance by the zoning board of appeals. Plaintiffs may not couch their requested relief as a request for a declaratory judgment to allow for a 6 year statute of limitations since Town Law sec. 267-c[1] specifically provides that special proceedings to challenge the granting of a variance must be made within 30 days of when the decision is filed with the Clerk. Sirianno v. New York RSA No. 3 Cellular Partnership, 284 A.D.2d 913, 727 N.Y.S.2d 568 (4th Dept. 2001). In a challenge to a rezoning, the plaintiffs exclusive remedy is not an Article 78 challenge with a four month statute of limitations. Rather, where the plaintiffs bring a 42 USC sec. 1983 claim, the statute of limitations is three years. D & S Realty Development v. Town of Huntington, 743 N.Y.S.2d 147 (2d Dept. 2002). Where the building inspector issued a building permit pursuant to site plan approval the 30-day statute of limitations began to run on the date when the site plan approval was filed pursuant to Village Law sec. 7-725-all 1]. Elliot v. Boycott, 740 N.Y.S.2d 632 (A.D. 2"d Dept. 2002). Subdivision Approval The Second Department upheld a planning board's subdivision approval and reinforced that a landowner cannot be compelled to dedicate part of his private property to the "coordinated development" of the village. The village planning board granted the applicant's request for subdivision approval without requiring the applicant to provide access to a road for an adjacent property owner who had requested that the board impose this as a condition of the approval. In reversing the lower court decision that held that the board's determination was arbitrary and capricious since the board should ©Government Law Center of Albany Law School 53 have conditioned the approval on the access road, the Appellate Division, Second Department said that the board acted properly since they have authority to impose conditions on approval only when there is a reasonable relationship between the problem sought to be alleviated and the application concerning the specific property. In the present situation, no such relationship existed. The Court concluded, "Although the coordinated development of the Village is a public concern, it is not one which can be alleviated by requiring [the applicant]to dedicate a portion of[his] property to public use." McKennett v. Hines, 289 A.D.2d 246, 734 N.Y.S.2d 200 (2d Dept. 2001). The Second Department affirmed that the combination of substandard nonconforming lots to create conforming lots is a new subdivision requiring planning board approval and that land for park purposes is not the same as land for parkway purposes. In 1950, the State of New York acquired land for the construction of the Sprain Brook Parkway. Some of this land had been located on an approved 1929 subdivision map. In 1999, the Department of Transportation auctioned some of the land as "surplus property." The land, bought by a developer, consisted of several nonconforming lots, as the Town had previously increased the minimum lot size from 2,500 square feet to 7,500 square feet. The developer received permits from the Town to create five single-family conforming building lots through combining the smaller non-conforming lots. The Second Department ruled that such approval was in error as the combination of substandard lots changed the lot lines that had been approved on the 1929 map, now necessitating new subdivision approval. The court rejected the Town's argument that the planning board approval was only required where there is a change to the external boundaries of the plat. Turning to the issue of whether the land acquired for purposes of parkway construction is inalienable parkland, the court determined that the petitioners failed to satisfy their burden of proof that there was an express or implied dedication of the subject property for parkland. Rather, relying on Transportation Law sec. 71(7) and Highway Law sec. 30(18) which authorize the sale of lands deemed not necessary for parkways or highways, the Court determined that developers are not precluded from building on the lands. Anglolillo v. Town of Greenburgh, 290 A.D.2d 201, 735 N.Y.S.2d 113 (2d Dept. 2002). The planning board improperly denied the petitioner's application for a two-lot subdivision on the grounds that the proposed lots were too small to be built upon and that the lots would be incompatible with the surrounding area and the master plan of the village, where the petitioner's lots would not be substandard if the planning board considered the petitioner's rights to lands that were under water. The Court determined that since the zoning code did not address the use of land underwater to satisfy bulk area requirements, the petitioner is entitled to use the area of the land underwater to satisfy the requirements. The court also found nothing in the record to indicate any evidence of an adverse impact on the community should the subdivision be approved. Pagnozzi v. Planning Board of the Village of Piermont, 292 A.D.2d 613, 739 N.Y.S.2d 742 (2d Dept. 2002). ©Government Law Center of Albany Law School 54 The Appellate Division, Second Department, upheld the planning board's determination that conditions placed on the approval of a proposed subdivision plat were not satisfied in a timely manner, and the Board's decision to deny the petitioner's request for two 90- day extensions within which to meet the conditions was not illegal, arbitrary and capricious, nor an abuse of discretion. Putnam Country Club Associates, LLC v. Planning Board of the Town of Carmel, 742 N.Y.S.2d 847(2d Dept. 2002). Where the only reason for denial of a subdivision application was generalized community opposition, and where the record revealed that the petitioner met all of the required conditions for approval, the planning board's decision was arbitrary and capricious and not supported by evidence in the record. Bower Associates v. Planning Board of the Town of Pleasant Valley, 289 A.D.2d 575, 735 N.Y.S.2d 806 (2d Dept. 2001). Where the planning board granted subdivision approval over the objections of the county planning department, the Court determined that the Board did so with a proper vote and based upon extensive evidence it had collected. The court noted that the Board set forth its reasoning and that the action therefore was not arbitrary and capricious. Hudson Valley Nursery, Inc. v. Planning Board of the Town of Orangetown, 5/9/2002 NYLJ 25 (col. 1)(Sup. Ct. Rockland Co. 2002). Since the Town failed to make a decision on an application for preliminary plat approval within the 62 days following the close of a public hearing as required by Town Law sec. 276(1), the trial court properly determined that the application must be approved pursuant to the default approval conditions in Town Law sec. 276(8). The Appellate Division, Second Department, modified the ruling only to the extent that the court below should have directed the petitioners to reimburse the Town for its consulting fees of $1,763.75 incurred in the processing and review of the application. Miller v. Beatty, 291 A.D.2d 560, 739 N.Y.S.2d 575 (2d Dept. 2002). New York State Department of State, "Subdivision Lessons," Legal Memorandum LU11 (available at http://www.dos.state.ny.us/cnsl/subdivless.html) (site visited 7/01/02). Substantive Due Process The Southern District reiterated that there is no required property interest in a discretionary zoning action for purposes of supporting a substantive due process claim. After the zoning board of appeals granted a series of permits to authorize the establishment of a rod and gun club in the town, the plaintiff who is an adjacent land owner (where he has a house and a farm), brought suit in federal court alleging, among other things, that his substantive due process rights were violated when the town failed to enforce its zoning law and the conditions it imposed upon the issuance of the initial permit to defendant landowner. Plaintiff also alleged claims of procedural due process violations and nuisance. The plaintiff raised concerns that the code enforcement officer ©Government Law Center of Albany Law School 55 failed to investigate his claims of noise from the shooting operation of the rod and gun club from 1991 to 2000. Plaintiff claimed that the defendants failed to enforce conditions attached to the special use permit, town building and zoning law noise ordinances, and a state law regulating noise. To make a valid substantive due process claim in a land use case, a plaintiff must demonstrate that they have a property interest and that there is entitlement to the relief sought. In this case, the plaintiff is not entitled to the benefit sought because the town, as local regulator, has discretion with regard to the benefit at issue (see, e.g., Gagliardi v. Village of Pawling, 18 F.3d at 192) (188, 192 (2d Circ. 1994)), specifically the decision to enforce zoning codes rests in the discretion of the enforcement officer under both state law and under the provisions of the local zoning code at issue. The Court concluded that "While a government entity may not always make the right decision, the question of where a particular decision was right, so long as the entity in question possesses discretion in reaching this decision 'does not raise a federal question...[F]ederal courts should not become zoning boards of appeal.'" citing Harlan Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001). Because the federal claim was dismissed, the court declined to grant pendent jurisdiction to nuisance claims that were based on state law. Rosendale v. luliano, 2002 WL 215656 (S.D.N.Y. 2002). • To make a valid claim that substantive due process rights have been violated in the Second Circuit, the plaintiff must satisfy a two-prong test: 1) that they had a valid property interest in a benefit that was entitled to constitutional protection at the time they were deprived that benefit; and 2) whether the deprivation of that valid property interest was so outrageously arbitrary to be a gross abuse of governmental authority. (see, Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12 (2d Cir. 1999)) In examining the second prong of the test, the Eastern District of New York, upon reargument, said that denial of a building permit by the building inspector because the application fails to meet the requirements set forth by the planning board is not an arbitrary government action, but is rather a legitimate government action taken, in this case, in apparent good faith. The Court considered language in a letter the building inspector had provided to the plaintiffs explaining the reasons for the denial, information which the Court did not previously have when it rendered an earlier decision that the plaintiffs had stated a substantive due process claim. The Court now reverses that decision. Hampton Bays Connections, Inc. v. Duffy, 188 F. Supp. 2d 270 (E.D.N.Y. 2002). Plaintiffs substantive due process rights were not violated when the board denied the requested special use permit. To state a valid claim plaintiff must show both a valid property interest in the granting of the permit and that the defendants infringed that property interest in an arbitrary or irrational manner. The plaintiff does not have an entitlement to a special use permit under New York law, and therefore cannot claim a valid property interest. Furthermore, under the Village Law, the board is vested with discretion in the granting of special permits, and may only grant the permit after notice, public hearing and the consideration of enumerated factors in the Village zoning law. Harlan Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001). ©Government Law Center of Albany Law School 56 a Takings The Southern District dismissed a takings case on ripeness grounds where there has been no final agency action and where state remedies have not been pursued. Three non-profit agencies that claim an ownership interest in the Seventh Regiment Armory, challenged the issuance by the State of a request for proposals (RFP) to developers who might be interested in a long term lease of the Armory on the grounds that such action would impair or destroy their property rights in the Armory and/or its contents in violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution. Since there is no proposal for redevelopment of the Armory accepted by the State, there is no demonstration of any final state action. Furthermore, since the plaintiffs have not pursued any state remedies in respect of any perceived taking of their property, the District Court determined that the claim was not ripe for adjudication under Williamson County, 473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed. 2d 126 (1985), and Kittay v. Guiliani, 252 F.3d 645 (2d Cir. 2001). In dicta, the Court reminds the parties that under New York law there are two possible methods for obtaining compensation for takings claims: following the procedures set forth in the Eminent Domain Procedures Law, and/or bringing an action under Art. I, Sec. 7 of the N.Y.S. Constitution. Seventh Regiment Fund v Pataki, 179 F.Supp. 2d 356 (S.D.N.Y. 2002). Plaintiffs claim that a local law which rezoned a number of properties from manufacturing to agricultural constituted an unconstitutional, uncompensated and de facto taking of their property is not ripe for review since the plaintiffs have not yet applied for a variance to determine whether the Town would allow the recommencement of mining activities on a dormant quarry located on their land. Although the plaintiffs believed this effort would be futile, the Court said that "their unsupported beliefs do not satisfy their heavy burden of proof." Dick's Quarry, Inc. v. Town of Warwick, 739 N.Y.S.2d 464 (2d Dept. 2002). The Second Circuit Court of Appeals affirmed the judgment of the Southern District rejecting plaintiffs facial challenge to the state rent stabilization law (Mitchell-Lama) explaining that because the rent stabilization law (RSL) "regulates land use rather than affecting a physical occupation, it is unconstitutional only if it 'has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole,' the determination of which 'entails complex factual assessments' of the purposes and economic effects of the RSL on all Mitchell-Lama property owners." (citing to Yee v. City of Escondido, 503 U.S. 519, 523, 112 S.Ct. 1522, 118 L.Ed. 2d 153 (1992)). Finding that the plaintiffs did not plead facts that would support such a complex factual assessment and noting that there would be great difficulty in conducting such an assessment for all property owners, the Court indicated that this suggests that "a widely applicable rent control regulation such as the RSL is not susceptible to facial constitutional analysis under the Takings Clause." West 95 Housing Corp. v. New York City Department of Housing Preservation and Development, 31 Fed. Appx. 19 (2d Cir. 2002). ©Government Law Center of Albany Law School 57 Where an unconstitutional taking was found in December 2000 awarding compensation equal to the difference between the aggregate value of the subject residential apartments on August 1 , 1985 and October 20, 1994, the date the applicable law was deemed unconstitutional, the claimant is not entitled to statutory interest on the 1985 market value of the apartments over the nine-year period of the taking because the claimant continued to collect rents over the nine-year period of the taking. To award such interest would constitute a form of double recovery. 520 East 81st Street Associates v. State of New York, 288 A.D.2d 67, 732 N.Y.S.2d 407 (1st Dept. 2001). Where the Court had determined that the plaintiffs do not "own" the waters in a subterranean lake beneath their property, but they do have a right to the reasonable use of that water, plaintiffs may not bring a takings claim against the City alleging that the approval of a storm water management system could contaminate the water since they do not in fact own the water. Further, the Court found that to the extent that the plaintiffs claim that the storm water management system interfered with their right to reasonably use the water in the subterranean lake, they produced no evidence to support that claim. Lastly, the Court found that the takings claim with respect to the application of the City's zoning law to the property that would allegedly render the parcel valueless and would not allow plaintiffs to use their property in the manner they choose, was not ripe for review since the plaintiffs never sought any relief from the City's zoning law (to wit, they never applied for a zoning change, a use variance or a site plan approval). Knaust v. City of Kingston, 193 F. Supp. 2d 536 (N.D.N.Y. 2002). In order to state a claim for a taking of property in violation of the just compensation clause, the landowner must show that he/she unsuccessfully attempted to obtain just compensation through the procedures available under state law, e.g., the Eminent Domain Procedures Law, and since the petitioners failed to demonstrate that they attempted to obtain just compensation, their takings claim is dismissed. Staatsburg Water Company v. Dutchess County, 291 A.D.2d 552, 739 N.Y.S.2d 166 (2d Dept. 2002). Plaintiff, owner of a building in New York City with a Landmark Commission designated historic lobby, was issued a stop work order by the Commission when renovations to the theater were being made in violation of the permit that had been obtained. Negotiations then took place over the course of several years in an effort by the plaintiff to secure another permit to continue the renovations. The Plaintiff alleged an unconstitutional taking of the property by the Landmark Commission claiming that the requirement that it restore the landmark lobby before it can do any work on any other part of the premises constitutes a final agency decision and that it denies the owner all economically viable use of the property. The Eastern District of New York found that the fact that the owner could not derive beneficial use from the property more than ten years after the Commission placed the condition on the property "is arguably a result of the plaintiffs own failure to maintain the property." Furthermore, the Court was not convinced that there was final agency action here since the Landmark Commission had discretion to allow the plaintiff to continue work on the premises and the plaintiff did not ©Government Law Center of Albany Law School 58 -11111•11Nmnimerimill a allege that it was precluded from submitting another proposal. RKO Delaware, Inc. v. The City of New York, 2001 WL 1329060 (E.D.N.Y. 2001). A condition on development of property can constitute a taking where either the condition is not rationally related to the government's purpose for the regulation or if the burden created by the condition is not roughly proportionate to the government's justification for the regulation. Where the plaintiff alleged a taking based upon a condition imposed by the Landmark Commission that plaintiff restore the landmark lobby damaged by previous construction work before any other work may be conducted on the premises, the Eastern District Court held that the condition was rationally related to the government's policy of landmark preservation. The Court further found that the burden of restoring the landmark lobby, which occupies only 2% of the premises, is not roughly disproportionate to the benefit of preserving the landmark. RKO Delaware, Inc. v. The City of New York, 2001 WL 1329060 (E.D.N.Y. 2001). Variance -Area The Second Department upheld the denial of an area variance where the petitioner was keeping and caring for a horse and three goats on his property where the zoning ordinance required a minimum of five acres for such activities and the petitioner had only 1.83 acres. The court determined that the magnitude of the variance was significant, and that evidence was submitted to the zoning board that the animals could potentially and may have already affected the physical and environmental conditions of the neighborhood. The Court found that the ZBA did not act in an arbitrary or capricious manner in denying the request. Biscardi v. Zoning Board of Appeals of the Town of Hyde Park, 288 A.D.2d 215, 733 N.Y.S.2d 105 (2d Dept. 2001). Where the Supreme Court remands the question of the granting of an area variance back to the zoning board of appeals, the members of the ZBA may not challenge the remand on appeal as of right since this is a non-final court order. Bartolomeo v. Spain, 286 A.D.2d 498, 729 N.Y.S.2d 633 (2d Dept. 2002). On April 19, 2000, the zoning board of appeals filed a decision with the town clerk denying petitioner's request for three variances since the petitioners twice denied code enforcement officers access to the premises to enable the board to determine whether there was an outstanding code violation on the property. On May 9, 2000, the inspectors were able to inspect the premises and determined that there was no violation. A request for a rehearing was denied and on May 18 the petitioners filed a notice of petition and a petition seeking to review the zoning board's determination. They served the petition on the Town Clerk on June 16, 2000. The Court dismissed the petition as untimely since the petitioners had only until May 19, 2000 to commence the proceeding under Town Law sec. 282. Bruno v. Zoning Board of Appeals of Town of Islip, 286 A.D.2d 765, 730 N.Y.S.2d 728{2d Dept. 2001). The zoning board of appeals did not abuse its discretion in determining that an ©Government Law Center of Albany Law School 59 applicant's request for an area variance would not have a detrimental affect upon the petitioner's property even where the petitioner commissioned an independent report from an engineer that concluded that the petitioner's property would be flooded as a result of the variance approval. The Appellate Division reasoned that Town Law sec. 267-b[3][b] requires that the zoning board consider and weigh various factors, and even though the zoning board never directly addressed the engineer's report obtained by the petitioner, the record revealed that the town engineer had considered the report and disagreed with its conclusions, choosing instead to rely on a report by another engineer that reached a different conclusion. The zoning board's decision not to table the variance request for individual review of the petitioner's report was not irrational. Whitton v. Town of Ballston, 289 A.D. 2d 647, 734 N.Y.S.2d 288 (2d Dept. 2001). The zoning board of appeals abused its discretion in refusing to grant an area variance request to reduce the number of parking spaces from 1291 to 931 where such reduction was approved under the environmental assessment form, where the project is designed to revitalize a distressed shopping mall area, and where the applicant could meet all five criteria to be considered in the issuing of a variance. The Court reiterated that a denial based on generalized community objections is impermissible, and found that there was no rational basis supported by the evidence to deny the variance request. WF Shirley, LLC v. Board of the Zoning Appeals of the Town of Brookhaven, 9/26/2001 N.Y.L.J. 25 (col. 4) (Sup. Ct. Suffolk Co. 2001). The Board of Standards and Appeals did not act in an arbitrary and capricious manner by denying an area variance to permit the erection of a building only inches from an adjacent home where the appellants obtained building permits based upon submission of inaccurate surveys that incorrectly depicted the side-yard set-backs of the adjacent home. Vimplex Corp. v. Chin, 288 A.D.2d 479, 732 N.Y.S.2d 903(2d Dept. 2001). The Board of Standards and Appeals properly granted the applicant's request for a variance where it determined that the minimum variance necessary to remedy the property's inefficient elevator service was to allow for a new elevator bank in the external tower in the rear yard of the building after the board determined that due to the unique physical condition of the building, it was impractical to install a new elevator bank in the building's interior. The Court rejected the petitioner's argument that the zoning resolution's requirement that there be "unique physical conditions" related only to the land and not to buildings. UOB Realty USA Limited v. Chin, 291 A.D.2d 248, 736 N.Y.S.2d 874 (1st Dept. 2002). The Appellate Division, Second Department, determined that the zoning board of appeals acted in an arbitrary manner when it denied the applicant's request for area variances to subdivide one lot into two where the zoning district required a minimum lot size of 22,5000 square feet and the resulting two lots would be 18,726 square feet and 17,501 square feet. Although the ZBA denied the requested variances applications on the grounds that the variances were substantial in size, and that they would result in a downzoning of the subject premises which would cause an undesirable change in the ©Government Law Center of Albany Law School 60 neighborhood, the Court considered the evidence petitioners introduced at the public hearing that showed that there were a large number of lots in the surrounding neighborhood that were similar in size to the proposed lots. In addition, the Court found in the record evidence that there was a gas station diagonally across from the subject property and that part of the subject property that was being used as basically a dumping ground, would be cleaned up if the variances were granted. The Court concluded that there was no basis for a finding that the variances would create an undesirable change in the character of the community or that it would cause a significant impact on the rest of the neighborhood. Sautner v. Amster, et al. , 284 A.D.2d 540, 728 N.Y.S.2d 54 (2d Dept. 2001). Where the record established that the requested area variance would not produce an undesirable change in the character of the neighborhood, especially since the majority of homes in the area were built on substandard lots, the denial of the variance by the zoning board of appeals was not supported by substantial evidence. Sorby v. Zoning Board of Appeals of the Town of Mount Pleasant, 289 A.D.2d 410, 734 N.Y.S.2d 888 (2d Dept. 2001). The Appellate Division, Second Department upheld the determination by the zoning board of appeals which granted petitioners an area variance subject to the condition that the fence not contain a gate. The Court stated that the condition "directly concerns the use of land and is a corrective measure designed to protect neighboring properties against possible adverse effects." Rice v. Mammina, 287 A.D.2d 509, 731 N.Y.S.2d 390 (2d Dept. 2001). Although the petitioners claimed that the zoning board of appeals failed to consider the detriment to the community that would result from the granting of a sign variance and that there might be alternatives available that would have less of an impact on the community, the Court upheld the granting of the variance since the record showed that the zoning board of appeals considered the five factors set forth in Village Law sec. 7- 712-b(3)(b) and that the board made a well reasoned decision based upon full consideration of all of the evidence before it. Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dept. 2002). The zoning board abused its discretion when it granted to the petitioner an area variance to allow the construction of a two-story residence on a parcel of property smaller than that required under the zoning law, but on the condition that the residence be limited to a single story so as not to accentuate the substandard size of the parcel. The Court relied on the fact that most of the homes in the area are two-story homes and concluded that the proposed residence would be no different. Therefore, the Court determined that the condition imposed was neither rational nor supported by substantial evidence. Gomez v. Zoning Board of Appeals of the Town of Islip, 740 N.Y.S.2d 139 (2d Dept. 2002). Where the record does not reveal that the zoning board of appeals considered the five D Government Law Center of Albany Law School 61 _. statutory factors set forth in Town Law sec. 267-b(3)(b) the court below properly remitted the matter back to the board for new determination on the application for area variances. Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214 (2d Dept. 2001). The zoning board of appeals providently exercised its discretion in granting the requested area variance as it engaged in the appropriate balancing test pursuant to Town Law and its decision was supported by substantial evidence on the record when read as a whole. Incorporated Village of Atlantic Beach v. Zoning Board of Appeals of the Town of Hempstead, 292 A.D.2d 608, 739 N.Y.S.2d 615 (2d Dept. 2002). The decision of the zoning board of appeals to deny an area was upheld because the decision was neither illegal, arbitrary and capricious, nor an abuse of discretion. Although the petitioner argued that the property had been held in single and separate ownership, this claim was based largely on documents not before the zoning board of appeals. Manzi Homes, Inc. v. Trotta, 286 A.D.2d 737,730 N.Y.S.2d 451 (2d Dept. 2001). The new standards for the granting of an area variance in state statute creates a subtle distinction in that the previous test required the petitioner to place substantial evidence of practical difficulties the petitioner faced in the record of proceedings before the zoning board of appeals. Under the new standards necessitating a balancing test, there must be substantial evidence in the record of proceedings before the zoning board and evidence that the board did in fact undertake the required balancing of factors. Accordingly, the lack of evidence in the record falls to the Board rather than to the petitioner, and "the Board must see to it that the record contains sufficient factual details of its consideration of the elements to be weighed in each area variance case before it." In dicta, the Court said that "...it would behoove the ZBA to provide sufficient detail in its decision upon the variance request to show how the ZBA related the facts elicited at the public hearing to its considerations in the balancing test." Gormally v. Shiff, et al., 188 Misc. 2d 873, 729 N.Y.S.2d 880 (Sup. Ct. Westchester Co. 2001). Petitioners purchased two contiguous lots which then merged upon the purchase (single ownership). A single-family dwelling on one lot had direct access to the street. The petitioners constructed a garage on the other lot, which was landlocked, later converting the garage to a single-family dwelling without obtaining a permit. Subsequently, the petitioners applied for area variances to subdivide their property and to covert the garage. The petitioners needed variances since the proposed side yards did not comply with the area variances, and they sought to create an easement over the front lot to allow access to the landlocked garage which also did not comply with the applicable zoning. The Court determined that the zoning board acted properly when it denied the variance requests since the Board did not act in an illegal, arbitrary or capricious manner, nor did they abuse their discretion. The Court found that the zoning board determined that the requested variances were substantial, that the alleged difficulties were self-created and that the proposed changes would have an undesirable effect on the character of the neighborhood. McNair v. Board of Zoning Appeals of the m Government Law center of Albany Law School 62 Town of Hempstead, 285 A.D.2d 553, 728 N.Y.S.2d 73 (2d Dept. 2001). It was neither illegal, arbitrary an capricious nor an abuse of discretion for the zoning board to deny petitioner's application for area variances on the ground that the application was really for use variances and that petitioner failed to meet the statutory criteria for the use variances. Merritt v. Duffy, 288 A.D.2d 476, 732 N.Y.S.2d 907 (2d Dept. 2001). A request for a variance for a canopy over three gas pumping stations is a request for an area variance, not a use variance since the petitioner is not seeking to change the essential use of the property. Mobil Oil Corporation v. Village of Mamaroneck Board of Appeals, 740 N.Y.S.2d 456 (2d Dept. 2002). While a self-imposed hardship is fatal to an application for a use variance, it is a relevant, but non-determinative factor in a request for an area variance where the Court must weigh all of the statutory factors. Mobil Oil Corporation v. Village of Mamaroneck Board of Appeals, 740 N.Y.S.2d 456 (2d Dept. 2002). The zoning board abused its discretion in denying petitioner an area variance for the placement of canopies over its gasoline pumps. Prior to the request for the variance, the zoning board had granted a similar variance to another gasoline company for a pumping station in an identically zoned district adjacent to a residential district. Although the predecessor owner of the property had twice been denied the requested variances, these requests were made and denied prior to the approval granted to the other gas company, so that the prior denials to the petitioner's predecessors are not relevant as evidence of the Board's "attitude" towards the application. Furthermore, this alleged "attitude" cannot be the basis for a finding of a self-created hardship. The Board (cited before for same principle) failed to properly distinguish its prior determination granting an area variance to the other gas company. Mobil Oil Corporation v. Village of Mamaroneck Board of Appeals, 740 N.Y.S.2d 456 (2d Dept. 2002). Although the opinions of the parties' experts concerning the proposed restaurant's effects on the surrounding community differed, the zoning board of appeals did not act in an arbitrary and capricious manner in denying petitioner's application for special use permits and areas variances. Mian Enterprises, Inc. v. Easa, et al., 291 A.D.2d 559, 738 N.Y.S.2d 248 (2d Dept. 2002). It was proper for the zoning board of appeals to consider a request for relief from parking requirements as an area variance and not a use variance. Further, the zoning board's determination to grant the requested variance was upheld as it was not illegal, arbitrary and capricious, nor an abuse of discretion. Marro v. Zoning Board of Appeals of the City of Long Beach, 287 A.D.2d 506, 731 N.Y.S.2d 628 (2d Dept. 2001). The determination of the zoning board of appeals should not be disturbed where it is not illegal, arbitrary and capricious, nor an abuse of discretion. Natale v. Duffy, 285 A.D.2d ©Government Law Center of Albany Law School 63 554, 727 N.Y.S.2d 911 (2d Dept. 2001). Where the zoning board properly considered all of the factors set forth in Village Law sec. 7-712-b(3)(b), the Board's determination that the detriment to the community would outweigh the benefit to the petitioners if the variances were granted was supported by substantial evidence in the record and had a rational basis and therefore the denial of the requested area variances was not arbitrary and capricious. Polsen v. Rosenberg, et al., 2002 WL 1203826 (A.D. 2nd Dept. 2002). Where petitioner failed to act on an area variance that required action within 90 days, the code enforcement officer denied the subsequent request for a building permit citing this reason along with four other substantive reasons. After the zoning board of appeals refused to overturn the decision of the code enforcement officer, the petitioner made an Article 78 appeal to the Supreme Court challenging only the 90 day sunset provision of the variance. The municipality failed to inform the Court of the three other substantive grounds for denial of the permit and based on the information before it, the trial court found for the petitioner. When the municipality failed to grant the permit, the trial court entertained a contempt proceeding during which time they discovered that there were three other grounds for denial. The court sua sponte reversed its original decision. On appeal, the Appellate Division, Third Department said that the trial court does not have jurisdiction to vacate its own judgment and noted that it was incumbent upon the municipality to disclose any defects in the factual allegations in the original petition and that they failed to do so. Owens v. Stuart, 292 A.D.2d 677, 739 N.Y.S.2d 473 (3`d Dept. 2002). Since Village Law sec. 7-712-b(3)(b) requires a balancing of five factors in the determination of whether to grant an area variance, the mere fact that the hardship was self-created is not in and of itself the sole determination on which to base the denial of the requested area variance without a balancing of the other four factors. Bianco Homes, Inc. v. Weiler, 2002 WL 1334765 (A.D. 2d Dept. 2002). Where the zoning board of appeals fails to engage on the statutory balancing test requiring a weighing of factors for the granting of an area variance, the trial court properly annulled its determination. However, since the trial court also determined that the board's decision was not supported by substantial evidence, the court should have directed the Village to issue the area variance rather than remanding the matter back to the zoning board for a new determination. Matter of Bianco Homes 11, Inc. v. Weiler, 2002 WL 1334763 (A.D. 2d Dept. 2002). The Court of Appeals reiterated that when determining whether to grant an area variance, the zoning board of appeals is required to engage in a statutory balancing test of five factors. When making its decision, the zoning board of appeals must not act in an illegal, arbitrary or capricious manner, and its decision must have a rational basis and be supported by substantial evidence. The Court reiterates that while expert testimony is not necessary to support a determination, a board may not base its ©Government Law center of Albany Law School 64 1 decision solely upon generalized community objections. The Court of Appeals reversed the Appellate Division's findings that the zoning board's decision to deny area variances to the applicant was not based upon substantial evidence. The Court of Appeals noted that the record revealed a number of different detrimental impacts on the character of the neighborhood should the variances be granted. Furthermore, the Court noted that the dissent below pointed to ample evidence in the record that the variances sought were substantial (approximately 60% deviation in lot size), the hardship was self- created, and that the petitioner would not be denied the ability to make productive use of the property as it already contains a habitable single-family residence. The Court found that when weighing the benefit to the petitioner against the detriment to the neighborhood, that the benefit would be a profit to the applicant in being able to construct a second home on a subdivided vacant lot. Finding that the zoning board did in fact balance all of the factors as required under town law, the Court concluded that the Board could rationally conclude that the detriment posed to the neighborhood outweighed the benefit to the petitioner, and that the denial of the requested variances was not arbitrary or capricious. In the Matter of Philippe Ifrah v. W. Charles Utschig, Jr., 2002 WL 1401712 (C.A.N.Y. 2002). Variances — Use Where the respondent, Bay Club of Long Beach, Inc., sought a use variance to make residential use of commercially zoned property, the Appellate Division, Second Department upheld the zoning board's decision to grant the use variance since the Bay Club sufficiently showed unnecessary hardship and that the property would not yield a reasonable return without the use variance. The dissent criticized the majority asserting that there was not sufficient dollars and cents proof other than what the property would yield if the variance were to be granted, and the fact that the property could yield a higher return if put to a different use is not a ground for the granting of a variance. Dreikausen v. Zoning Board of Appeals of the City of Long Beach, 287 A.D.2d 453, 731 N.Y.S.2d 54 (2d Dept. 2001). The Court of Appeals dismissed the appeal as moot in June 2002 finding that around the time that the Court of Appeals granted leave to appeal in January 2002, 12 of the units had been completed and the remaining 8 were in various stages of completion. While a mootness defense will not survive where there was a race to completion for the purposes of frustrating administrative review, the courts will look to the facts in each case to determine and weigh the relevant actions of the parties. In this case, the petitioners failed to seek a temporary restraining order or preliminary injunctive relief while the matter was pending in Supreme Court. Further, petitioners did not contest the issuance of the permits or the fact that the property would be put to residential use. Rather, the petitioners protested that the proposed use was too intensive. The respondents acted in accordance with the use variance and unchallenged building permits when they proceeded to make improvements to the property. Since petitioners half-hearted request for injunctive relief was made only after the Appellate Division upheld the Supreme Court's determination, and the Court now finds that there has been substantial completion of the project, under these facts the appeal is dismissed as moot. Also worth noting, the Court states at the end of the Government Law Center of Albany Law School 65 opinion, "we note that our decision today in no way signals a retreat from the well- established rule that a landowner seeking a variance must demonstrate by 'dollars and cents' proof that it cannot obtain a reasonable return under existing permissible uses." Dreikausen v. Zoning Board of Appeals of the City of Long Beach, 2002 WL 1227199 (N.Y. June 6, 2002). Where a private school sought and obtained a variance for the construction of an 85 foot high, 3268 square foot tower to be located in a portion of the school's side yard between the school's buildings, and the school later sought to modify its variance as it was seeking only a minor modification to the previously approved request, it was not arbitrary and capricious for the Board of Standards and Appeals to grant the modification without requiring the school to file a new variance application. East 91st Street Neighbors to Preserve Landmarks, Inc. v. The New York City Board of Standards and Appeals, 740 N.Y.S.2d 876 (1st Dept. 2002). Where substantial evidence exists to support the denial of a use variance request to allow for a concrete crusher based upon the zoning board's finding that the nonconforming use would adversely impact the surrounding neighborhood and that the need was a self-created hardship, the determination has a rational basis and the Appellate Division, Second Department upheld the denial. Sundial Asphalt Co., Inc. v. Dark, et al., 742 N.Y.S.2d 891 (2d Dept. 2002). Where the property owner requested a use variance to allow it to reduce a buffer zone from 50 feet to 25 feet for employee parking, and where the 50 foot buffer was a required condition to a previously approved use of the property for an auto dealership in a residential zone, the Court found that the applicant failed to show that it would suffer hardship or economic loss if the use variance was not granted. Furthermore, in finding that the zoning board's granting of the variance was arbitrary and lacked a reasonable basis, the Court also found that the applicant failed to show that a substantial change in circumstances warranted a modification of the buffer zone. Miller v. Board of Appeals of the Inc. Village of Amityville, Index No. 0015185 (Sup. Ct. Suffolk Co. July 26, 2001). ***see, NYU 5/6/02. Petitioner sought a use variance to legalize the occupancy of its two-family house since the house had been occupied by two or three families since the petitioner's predecessor in interest purchased the property. Petitioner also sought a special use permit since the driveway of the property has been used to store landscaping equipment, including dump trucks and pick-up'trucks which was allowable in the zoning district pursuant to a special permit. He zoning board of appeals granted the use variance subject to two conditions: 1) that the petitioner provide the required off-street parking spaces for tenants; and 2) that all business and commercial storage on the premises would be prohibited. The petitioner appealed only the second condition. The Appellate Division, Second Department, found that the zoning board improperly imposed this condition as it was not consistent with the spirit and intent of the zoning code, and was outside the Board's authority to impose reasonable conditions that "relate directly to the use of the ©Government Law Center of Albany Law School 66 I land in question, and are corrective measures designed to protect neighboring properties against the possible adverse effects of that use." Matter of 150 Washington Avenue Corp. v. Board of Zoning & Appeals of the Village of Mineola, 2002 WL 1335150 (A.D. 2d Dept. 2002). The Court of Appeals, in noting the difference between a variance and a special exception explained, that unlike a variance which gives permission to use the property in a manner inconsistent with the local zoning ordinance, a special exception gives permission to use the property in a manner consistent with the zoning, but not necessarily as of right. Since, as the Court points out, with a special exception, the "inclusion of the permitted use is the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood, " citing Matter of North Shore Steak House v Board of Appeals of Thomaston, 30 N.Y.2d 238, 243 (1972) the Court continued that "the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance...." as the person seeking a special exception need only show compliance with a legislatively imposed condition, yet the owner seeking a variance must show undue hardship. The court reiterated that, "Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception." Matter of Retail Property Trust v Zoning Board of Appeals of the Town of Hempstead, 2002 WL 14017525 (C.A.N.Y. 2002). The Court will not substitute its judgment for that of the zoning board of appeals so long as there is substantial evidence in the record to support the board's decision. The fact that there were generalized community objections to the granting of a special exception permit is not sufficient grounds to overturn the board's decision where there were other reasons supported by substantial evidence with which the board based its denial. Even where there were competing expert reports put into the evidence, the board had the discretion to follow the findings and conclusions of one report that also pointed to the weaknesses in the other report. Matter of Retail Property Trust v Zoning Board of Appeals of the Town of Hempstead, 2002 WL 14017525 (C.A.N.Y. 2002). Vested Rights Petitioners were collaterally estopped from challenging the zoning board of appeals' determination that the landowner had "diligently pursued construction pursuant to a lawful permit, had undertaken substantial construction and made substantial expenditures," prior to the enactment of a new, more restrictive zoning law and that therefore their rights in the building permits had vested. Association of Friends of Sagaponack v. Zoning Board of the Appeals of the Town of Southampton, 287 A.D.2d 620, 731 N.Y.S.2d 851 (2d Dept. 2001). A new zoning ordinance adopted where an appeal or other proceeding is pending will not apply where the property owner has acquired vested rights. Vested rights will attach when the property owner has "undertaken substantial construction and made ©Government Law Center of Albany Law School 67 1 substantial expenditures prior to the effective date of the amendment..." and the petitioners acquired vested rights by virtue of the major expenditures they made and the completion of 80% of the construction of their home pursuant to what was a validly issued permit. Lombardi v. Habicht, 740 N.Y.S.2d 101 (2d Dept. 2002). ' Voting The Court of Appeals ruled that when a quorum of the board is present and participates in a vote on an application for a variance, a vote of less than a majority of the board is deemed a denial of the application. Petitioner, Tall Trees Construction Corp., applied to the seven member Town zoning board of appeals for area variances to divide one 1.94 acre parcel of land into two buildable lots. After a hearing, the Board failed to come to a '� majority vote on the application with two members voting "no"; two voting "yes", two members were absent, and one member abstained since the subject property abutted a lot he owned. Following the vote, the Board issued a "No Action" decision. After two courts below held that the tie vote was a non-action that required another vote and after the petitioner commenced a contempt proceeding against the Board for failure to take another vote, the Board decided to consider the matter again, and one more time the Board issued a "No Action" determination failing again to reach a majority vote either for or against the application. Relying on General Construction Law sec. 41 which "allows a valid action by a body so long as there is participation by 'a majority of the whole number"'(emphasis added), and Town Law sec. 267-a(4) which requires that a "concurring vote of a majority of the members of the [zoning] board of appeals shall be necessary to reverse any * * * determination of any * * * administrative official [charged with the enforcement of any zoning ordinance or local law], or to grant a use variance or area variance..." (emphasis added), the Court concluded that "although the participation of a majority of the Board is necessary for the Board to exercise its authority in considering a variance application, as long as a quorum is present and votes, a concurring vote of the majority is not required for that vote to constitute a denial of the application." The Court reasoned that the General Construction Law mandates only majority participation, not majority vote, and that Town Law sec. 276-a(4) only mandates a majority vote for 1) reversals of decisions of administrative officials such as a building inspector; and 2) the granting of a variance. The Court noted that "Section 267-a(4) conspicuously fails to require the same majority vote concurrence for the denial of an application. Thus, if after participation and voting by a majority of the Board, no concurring vote of the majority exists to grant an application, the application must be, a fortiori, denied." Addressing the fact that this zoning board of appeals has a history of "no action" tie votes which, in effect, block the applicant's right to judicial review, the Court of Appeals noted that to view the vote as anything other than a denial would leave the applicant in "zoning purgatory," unable to escape without the cooperation of the board, and that this is not what the statutes contemplate. ©Government Law Center of Albany Law School 68 The Court went on to agree with the trial court finding that the variance denials in this case were arbitrary and capricious and an abuse of discretion since the Board failed to provide factual findings either supporting or opposing the requested variances as the Board neglected to apply the statutory balancing test under Town Law 267-b(3)(b). Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 N.Y.2d 86, 761 N.E.2d 565, 735 N.Y.S.2d 873 (2001). Zoning Administrator The Second Department affirmed that the dismissal of a zoning administrator by a newly elected administration must not be due in substantial part to the administrator's political affiliation. The Village zoning administrator was active in Republican local party matters when he was appointed to the position of zoning administrator by a Republican- controlled board. He was terminated less than a year later by a newly elected Democratically controlled board. In a civil rights lawsuit brought against the Village for wrongful termination, the Second Department agreed with the lower court in denying the Village's request for dismissal. The Village alleged that the zoning administrator was a probationary employee and could therefore be terminated anytime. The Court held that there is a genuine issue of material fact as to whether the zoning administrator's political affiliation had a substantial part in the decision to terminate him since even a probationary employee cannot be fired for constitutionally impermissible reasons. Miller v. Village of Wappingers Falls, 289 A.D.2d 209, 734 N.Y.S.2d 190 (2d Dept. 2001). Zoning — Purposes Zoning may be enacted in accordance with authority granted pursuant to Village Law sec. 7-700. The enabling legislation relates to the physical use of land, and not to extraneous issues that have the effect of regulating the manner and operation of a business or other enterprise. Where the Village attempted to regulate the use of property by creating a new category of land use, namely a 24 hour use, by citing the negative impact of such land on neighboring uses, the Court determined that the restriction in the zoning ordinance on the hours of operation is an impermissible attempt to regulate the details of the operation of a business and is an invalid exercise of the zoning power. Where the Village also tried to regulate the hours of operation of the proposed 7-Eleven under general legislation, the Court also found that this attempt failed the lenient standard of reasonableness held applicable to the regulation of business operations as the Village could not prove that that there was a "real or substantial evil" that the regulation was designed to cure, and that there was a "reasonable relation between such menace and the remedy proposed." The court found the general legislation overly broad and not well adapted to solve the problem it purports to address (e.g., noise, light, traffic and loitering...not the operation of the business itself). The Court offered that the Village could have promoted its goals through less onerous and more effective means such as the adoption and enforcement of laws specifically designed to address the levels of light and noise near residential property. Louhal Properties, Inc. v. Strada, 2002 WL 992068 (Sup. Ct. Nassau Co. ©Government Law Center of Albany Law School 69 -411 2002). Zoning Board of Appeals The interpretation by the zoning board of appeals that the zoning ordinances required accessory parking to be accessory to a principal use located within the Village was consistent with the language of the zoning ordinances and was therefore neither irrational nor unreasonable. Indian Rock, LLC v. Zoning Board of Appeals of the Village of Airmont, 287 A.D.2d 629, 731 N.Y.S.2d 864 (2d Dept. 2001). The Supreme Court, Suffolk County, held that "where detailed technical documentation was received at a public hearing, without an opportunity being afforded to opponents to analysis and refute same, although requested, coupled with the acceptance by the Zoning Board of critical post-hearing submissions that were not offered at a public hearing, the Zoning Board failed to properly perform its quasi-judicial function." The Court noted that since proceedings before the zoning board of appeals is quasi-judicial, all parties, including the opponents, must be given an opportunity to refute evidence presented. The Court went on to state, with respect to zoning boards of appeal, that it is important that "parties in interest have their full day in court before those tribunals and be given a complete opportunity to meet all the issues there presented. The court faulted the zoning board for authorizing a one-sided presentation with critical documentation accepted after the hearing and out of the view of the public. The Court sent the case back to the zoning board for further review. Cilia v. Mansi, 2002 WL 1275122 (Sup. Ct., Suffolk Co. 2002). The decision of the zoning board of appeals that petitioner's operation of a cement batching plant is not in compliance with the City's zoning code was not supported by substantial evidence where the property on which the plant was located in more than one municipality and that portion of the property in the City was zoned for industrial uses that include a trucking terminal and the storage of industrial vehicles or construction supplies. The Court noted that the petitioner's use of this portion of the property was for its concrete trucks to have ingress and egress to the plant, and where the trucks were loaded, washed and parked as well as for some temporary storage of some raw materials. The Court found that these uses were consistent with the permissible uses in the zoning code. Action Redi Mix Corp. v Davison, 292 A.D.2d 448, 739 N.Y.S.2d 411 (2d Dept. 2002). 4 The zoning board of appeals properly denied the petitioner's request for a building permit where the petitioner could not demonstrate that the subject property possessed the required 100 feet of frontage on an appropriate street pursuant to Town Law sec. 280-a (1) and (2). This section of the Town Law requires that a "street...giving access to...[the] proposed structure has been duly placed on the official map or plan," and that such street "shall have been suitably improved to the satisfaction of the town board or planning board...as adequate in respect to the public health, safety and general welfare for the special circumstances of the particular street." The zoning board properly ©Government Law Center of Albany Law School 70 determined that the street upon which petitioner claimed the property had 100 foot frontage was not a street that had been suitably improved to the satisfaction of the zoning board, and that therefore, absent a variance (which was not requested in the present proceeding), the building permit was properly denied. Avgush v. Town of Yorktown Building Inspector, 291 A.D.2d 556, 737 N.Y.S.2d 648 (2d Dept. 2002). A zoning board's determination that is made upon mere conclusory statements without any findings of fact is insufficient. Tobin v. Board of Zoning Appeals of the Incorporated Village of Manorhaven, 2002 WL 1334225 (A.D. 2d Dept. 2002). Zoning Law The planning board may properly consider the purpose section of the zoning ordinance so long as that is not the only section of the ordinance that is relied upon as the basis of a denial of an applicant's permit request. Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp. 2d 697 (S.D.N.Y. 2001). Miscellaneous A town zoning ordinance cannot be used to assert liability in a wrongful case. Although the zoning ordinance required that the property be "suitably shrubbed, landscaped and neatly maintained," this law was not intended to protect drivers on adjacent roads from the hazards of overgrown vegetation obstructing their view. Wheeler v. Buxton Industrial Equipment, et al., 292 A.D.2d 521, 740 N.Y.S.2d 73 (2d Dept. 2002). Where the petitioners failed to move for a preliminary injunction to enjoin the construction of a supermarket and where they failed to request that the Appellate Division preserve the status quo pending review, petitioners failed to preserve its rights pending judicial review and the appeal was dismissed as academic because the subject project was essentially complete and if petitioner was to ultimately prevail, it would be at substantial prejudice to the respondent. Imperial Improvements, LLC v. Town of Wappinger Zoning Board of Appeals, 290 A.D.2d 507, 736 N.Y.S.2d 409 (2d Dept. 2002). Where a local zoning ordinance became effective during the pendency of the proceeding and effectively prohibited the construction of private heliports, the new ordinance is controlling since the petitioner was not entitled to a permit for a heliport as of right prior to the enactment of the ordinance. Anstu Farm LLC v. Town Board of Town of Washington, 285 A.D.2d 503, 727 N.Y.S.2d 655 (2d Dept. 2001). The Nassau County Legislature may not amend its County Charter to effect a transfer of zoning authority from the Town of Hempstead to the Village of Atlantic Beach where the Village does not posses zoning authority within its jurisdiction since it was not incorporated at the time the County Charter took effect. The Court agreed with the Town of Hempstead that the proposed legislative action to amend the Charter violates ©Government Law Center of Albany Law School 71 L .. the State Constitution Art. 9, sec. 2(d) as it constitutes an impairment of the power of the Town. The Court held that the the Nassau County Charter is "a state statute which cannot be amended by local law which would, in effect, divest and impair the zoning authority presently held by the Town for the purpose of vesting same in the plaintiff Village of Atlantic Beach." Mahler v. Gulotta, 9/19/2001 N.Y.L.J. 21 (col. 2) (Sup. Ct. Nassau Co. 2001). • 4 ©Government Law Center of Albany Law School 72