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Real Estate & Property Law

New York Zoning and Municipal Law Blog

Articles on recent New York cases and statutes related to zoning, land use, SEQRA, RLUIPA, eminent domain, regulatory takings and other municipal law topics.
By Steven Silverberg and Katherine Zalantis

Post Frequency: 0.3/day

Last Entry: March 14, 2011 at 11:49:33

N.Y. Court of Appeals Broadens Test For Vested Right to Non-Conforming Use

Posted on February 18, 2010
In a decision issued today, the New York Court of Appeals reversed the Appellate Division and found that a non-conforming mining operation had attained vested rights in that use. In Glacial Aggregates LLC v. Town of Yorkshire, the Court concluded that the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area...

Determination to Deny Area Variance Does Not Require Justification in Each of the Five Statutory Factors

Posted on December 25, 2009
The Appellate Division ruled that a zoning board of appeals need not justify the denial of an area variance under all five factors in the balancing test established by Town Law. In Matter of King v/ Town of Islip Zoning Board of Appeals the court upheld the denial of an area variance for a swimming pool finding that there was a rational basis for the decision of the board...

Reassessment of Single Property that is Otherwise Unchanged is Illegal

Posted on December 18, 2009
In the Matter of Harris Bay Yacht Club, Inc. v. The Town of Queensbury the Appellate Division, Third Department found that the town assessor had acted illegally when, after a town wide reassessment in 2005, the Yacht Club was singled out for a further reassessment in 2006 and again in 2007...

Appellate Division Determines Village May Not Discontinue Streets Unless Useless and There Has Been SEQRA Compliance

Posted on December 17, 2009
The New York Appellate Division, Second Department, in Matter of Baker v Village of Elmsford has unanimously held that the Village of Elmsford may not demap and discontinue portions of Vreeland Avenue and River Street unless the Village Board determines the streets are useless and it takes a hard look at the proposed action under the State Environmental Quality Review Act (SEQRA)...

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Court of Appeals Upholds Release of Documents Under FOIL Despite Claim of Exemption

Posted on December 15, 2009
The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL)...

Court Throws Out Condemnation for Columbia University Campus

Posted on December 04, 2009
In a case that appears to break new ground, the Appellate Division, First Department, found that the proposed condemnation of a number of parcels to make way for a new Columbia University Campus should be rejected. In Matter of Kaur v. New York State Urban Development Corporation the split court issued a strongly worded decision finding the "process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court...

New York Court of Appeals Upholds "Atlantic Yards" Condemnation

Posted on November 29, 2009
In a major decision, the New York Court of Appeals put a new gloss on the New York Eminent Domain Procedure Law (EDPL) allowing the condemnation by the Empire State Development Corporation (ESDC) of the so called "Atlantic Yards" area of Brooklyn to proceed...

Property Owner Who Successfully Challenges Finding of Public Purpose for Condemnation May Recover Attorney's Fees and Costs

Posted on November 22, 2009
The New York Court of Appeals ruled last week that a property owner who was successful in defeating an attempt to acquire her property by eminent domain may recover certain of her attorney's fees and costs. In Hargett v. Town of Ticonderoga the Court noted that in a prior action the Appellate Division had ruled that the Town's superintendent of highways had exceeded his authority in attempting to condemn property for purposes unrelated to his position...

New York Court of Appeals Finds Zoning Board Abused Its Discretion in Granting Use Variance

Posted on November 22, 2009
The New York Court of Appeals in In the Matter of Edward J. Vomero v City of New York, et al has unanimously held that the City of New York Board of Standards and Appeals abused its discretion in granting a use variance to use residentially-zoned property for commercial use...

New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge

Posted on October 27, 2009
The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource...

Failure to Exhaust Adminstrative Remedies Bars Claim for Certificate of Occupancy

Posted on October 11, 2009
In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies...

Deceitful Conduct May be a Basis for Denial of an Area Variance

Posted on October 05, 2009
The Appellate Division held that under certain circumstances a zoning board may consider deceitful conduct by an applicant in reaching a determination to deny an area variance. In Matter of Caspian Realty, Inc. v Zoning Board of Appeals of the Town of Greenburgh, the court reiterated that a zoning board of appeals may only apply the five criteria set forth in Town Law section 267-b (3) for granting or denying an area variance but ?an applicant's deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law � 267-b(3)...

Court Allows Some Causes of Action Under 42 USC 1983 to Stand Against the Village of Suffern

Posted on October 04, 2009
The Appellate Division Second Department decided a complex appeal involving cross motions on whether a property owner had sufficiently stated causes of action sounding in violations of constitutional rights under 42 USC 1983 and related causes of action resulting from the denial of a certificate of use...

Property Owner Entitled to Repairs When Pre-Acquisition Emergency Access Is Granted During EDPL Process

Posted on August 13, 2009
An appellate court has ruled that EDPL section 402 [B] [6], which authorizes a court to permit pre-condemnation access to property, also authorizes a court to require a condemnor to correct an unsafe or dangerous condition it has created. In Matter of Village of Saranac Lake, the Appellate Division upheld the right of the court to order the Village to correct a dangerous condition created during pre-acquisition access that was granted to perform emergency repairs to a sewer line, but remitted the matter to the lower court for further factual findings on the need for such repairs...

Town May Prohibit Use of Land Solely for Access to Abutting Parcel

Posted on June 27, 2009
The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use...

Rochester Curfew Law Unconstitutional

Posted on June 10, 2009
The New York Court of Appeals declared a law adopted by the City of Rochester fixing a curfew on minors unconstitutional. In Jiovon Anonymous v. City of Rochester the Court held "we conclude that the crime statistics produced by defendants do not support the objectives of Rochester's nocturnal curfew...

Courts Continue to Defer to Zoning Boards

Posted on May 18, 2009
In another in a long line of cases, last week the Appellate Division again deferred to the decision of a zoning board which had denied an area variance. In DiPaolo v Zoning Board of Appeals of the Town//Village of Harrison, the court found the zoning board had engaged in the required balancing test and therefore had acted appropriately in denying a request for a rear yard setback variance...

Appellate Court Discounts Procedural Missteps by Planning Board in Granting Site Plan Approval

Posted on May 11, 2009
In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval...

Denial of A Permit Cannot Be Based Upon Community Pressure Rather Than Expert Opinion

Posted on May 07, 2009
A court reversed the denial of a wetlands permit based upon the conclusion that the Town Board ?succumbed to community pressure.? In Matter of Moy v. Board of Trustees of Town of Southhold, the Appellate Division, Second Department, found the Town Board relied upon various reports and recommendations which were by parties either unqualified to render such reports or who failed to address the criteria required by the Town?s code in determining whether to grant a permit...

Acquiescence to Nonconforming Use Does not Render It Legal

Posted on May 04, 2009
The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a ?hospice? for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v...

Town May Purchase Property for Town Hall Which Exceeds Present Needs

Posted on May 01, 2009
In Matter of Potter v. Town Board of Aurora, the Appellate Division Fourth Department upheld a resolution by the Town Board, after completing a SEQRA negative declaration, to purchase and renovate a building for a new town hall. The court found that the claim that the town violated State Constitution Article VII section 2, because it was entering into indebtedness for purposes which did not carry out town purposes, due to the fact that building is larger than what is currently required for town purposes, was without merit...

Vacancy Rate Is An Appropriate Criteria In Determining To Issue A Use Variance

Posted on April 29, 2009
In Matter of O?Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses...

No Vested Rights In Nonconforming Sand and Gravel Mine

Posted on April 27, 2009
In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v...

The Lead Agency Has Discretion to Require A Supplemental Environmental Impact Statement

Posted on April 25, 2009
In Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay the Second Department upheld the denial of a special permit. This case has a seven year litigation history with multiple decisions by the Supreme Court and Appellate Division addressing the SEQRA review for a proposed 860,000 square foot mall and an alternate proposal for a 750,000 square foot mall...

Road Improvement Serving Primarily Commercial Vehicles Does not Defeat Eminent Domain

Posted on April 13, 2009
The Appellate Division held that taking of private property by eminent domain fulfilled a public purpose even though the taking primarily benefited commercial traffic. In the Matter of 225 Front Street, Ltd. v. City of Binghamton the court noted the limited scope of judicial review of a proceeding under the EDPL which "must focus on "whether the proceeding was in conformity with constitutional requirements, whether the proposed acquisition is within the statutory jurisdiction or authority of the condemnor, whether the condemnor's determination and findings were made in accordance with the procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed [public] use, benefit or purpose will be served by the proposed acquisition...

Sale of Municipal Property with a Purchase Money Mortgage is Not an Illegal Gift or Loan

Posted on March 31, 2009
The New York Court of Appeals held today that a municipality may sell municipal real property and take back a purchase money mortgage without violating the State Constitutional prohibition against municipalities making a gift or loan. In Matter of 10 E...

Authority of Municipalities to Disclose Verizon?s Quarterly Franchise Reports to Cablevision Pursuant to FOIL

Posted on March 30, 2009
The Appellate Division, Second Department decided two cases last week, Matter of Verizon New York, Inc. v. Devita and Matter of Verizon New York, Inc. v. Mills on the issue of whether quarterly franchise reports submitted to municipalities by Verizon are exempt from disclosure under the Freedom of Information Law (FOIL)...

City's Extension of Credit to Purchase Ferry Service Was Not Illegal

Posted on March 24, 2009
The Appellate Division Fourth Department dismissed a challenge to the City of Rochester using its credit to purchase a ferry service. In Matter of Summers v. City of Rochester, the court dismissed the claim on the grounds of laches but then went on to analyze the City's actions under the N...

Court Upholds Finding That Wind Powered Generators are a Utility

Posted on March 23, 2009
In the emerging area of wind power the Appellate Division upheld the decision of a local zoning board that wind powered generators are a utility. In Matter of Wind Power Ethics Group v. Zoning Board of Appeals of the Town of Cape Vincent, the Court found that the interpretation that wind powered generators fit the definition of utility in the local zoning ordinance was a "rational construction...

Court Voids Denial of Permit Renewal For Failure to Adhere to Administrative Precedent

Posted on March 22, 2009
A determination of the New York City Board of Standards and Appeals (BSA) to deny a permit renewal was reversed by the Appellate Division as arbitrary, capricious and without a rational basis. In Matter of Menachem Realty Inc. v Srinivasan the court found the denial of a permit renewal to complete construction, after a site had been rezoned, was inconsistent with prior determinations of the BSA...

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