Development

Single And Separate Ownership Doctrine Does Not Entitle Owner To Develop Substandard Lot

Planned Investors Corp. v. Incorporated Village of Massapequa Park

NYLJ 9/8/04, p. 19, col. 1

Supreme Ct., Nassau Cty

(Jonas. J.)

In an action by a landowner against the village for damages resulting from an alleged taking, both parties sought summary judgment. The court awarded summary judgment to the village, holding that the landowner was not entitled to develop his lot based on the “single and separate ownership' doctrine.

In 1985, the landowner purchased the subject lot, which is less than 60-feet wide, for $25,000. Although the zoning ordinance in effect at that time required a 60-foot minimum width, the landowner alleged that he purchased with the expectation that he would be permitted to build based on the “single and separate ownership” doctrine, which, he alleged, permits the owner of what was once a buildable lot to obtain a variance, as a matter of right, to use the property for residential purposes. When the landowner applied for a variance in 1999, the zoning board of appeals denied the variance, emphasizing that the zoning ordinance was designed to prevent overcrowding, that the proposed house would increase congestion, and that any hardship was self-created. The Supreme Court and the Appellate Division upheld the variance denial, and the landowner then brought this taking claim, seeking damages from the village.

In awarding summary judgment to the village, the court first noted that a municipality has no obligation to provide a single-and-separate ownership exemption in its zoning ordinance, and that the Court of Appeals has refused to adopt a common law rule to protect landowners who own lots that no longer comply with the zoning ordinance. Turning to the landowner's taking claim, the court noted that even his own expert conceded that the parcel had a current value of $22,000 without the requested variance, and that he had not established the market value of the property at the time he acquired it. The court then noted that because the landowner purchased a lot he knew to be substandard, he could not assert any disappointment of reasonable expectations when the village enforced the pre-existing ordinance. Accordingly, the court held that the landowner's takings claim could not succeed.

COMMENT

In Palazzolo v. Rhode Island, 533 U.S. 606, 627, the United States Supreme Court, in an opinion by Justice Kennedy for a five-justice majority, held that the transfer of property after enactment of a regulation that places an unreasonable limitation on the use and value of land would not defeat the new owner's right to challenge the restriction. Id. However, in separate concurring opinions, Justice O'Connor and Justice Scalia disagreed about whether the fact that the ownership of the property had changed hands was entitled to any consideration in evaluating the taking claim. Justice Scalia argued that the mere fact that title to the property was transferred has no bearing on the court's analysis and should never impair a takings claim. Justice O'Connor, by contrast, contended that the change in ownership was entitled to some consideration, along with other factors that were elucidated by the Supreme Court in Pennsylvania Central Trans. v. New York City, 438 U.S. 104, but that the change in ownership could not serve as an absolute bar to a taking claim.

The Court of Appeals decisions that the court relied upon in Planned Investor predate Palazzolo and are completely inconsistent with both readings of the Supreme Court's ruling in Palazzolo. In Anello v. Zoning Bd. of Appeals, 89 N.Y.2d 535 and Gazza v. New York State Dep't of Environment Protection, 89 N.Y.2d 603, the Court of Appeals held that since the buyer in each case had purchased the land with knowledge of the restriction and at a price that reflected the existence of the restriction, no taking could occur.

Planned Investor appears to apply the standards articulated in Gazza and Anello, as if Palazzolo had never been decided. Other New York courts, too, have failed to recognize that the United States Supreme Court has effectively overruled Gazza and Anello. Thus, in Matter of Friedenburg v. New York State Dep't of Environmental Conservation, 3 A.D.3d 86, the court took the trouble to distinguish Gazza in holding that the estate of a deceased landowner could challenge wetlands regulations enacted after the decedent had acquired the subject parcel. Id. at 97-98. In light of Palazzolo, there would appear to be no need for New York courts to distinguish cases like Gazza and Anello.

ZBA Properly Precluded Expansion of Pre-Existing Use

Matter of Mueller v. Zoning Board of Appeals

NYLJ 9/28/04, p. 26, col. 3

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to review a determination by the zoning board of appeals (ZBA) annulling grant of a building permit, the town appealed from a Supreme Court judgment granting the petition and reinstating the building permit. The Appellate Division reversed and denied the petition, holding that the Supreme Court had improperly substituted its judgment for that of the ZBA in determining that the proposed use was not an expansion of a pre-existing agricultural use.

The landowner, a noted chef, purchased the property in 1997, in part to grow organic produce for his own use and for sale to restaurants.

Before that time, Suffolk County had acquired development rights to most of the parcel as part of its Farmland Development Rights Program. After the purchase, the landowner sought to build greenhouses to extend the growing season for some of the produce. The landowner sought and received permission from the Suffolk County Farmland Committee, and began to build. Not until the town learned of the greenhouses did the landowner apply for a building permit from the Town Building Inspector, who granted the permit. Upon an appeal by neighbors, however, the ZBA concluded that site plan approval was required before a building permit could be issued. The ZBA stated that the greenhouses would increase the intensity of use, which would require site plan approval. The Supreme Court annulled that determination, and the town appealed.

In reversing and denying the petition, the Appellate Division first emphasized the broad authority accorded zoning boards in interpreting local zoning ordinances. Here, the court noted that the purpose of the greenhouses was concededly to extend the growing season for certain crops. As a result, the court could not label irrational the ZBA's determination that the greenhouses constituted an increase in intensity of use, mandating site plan approval.

SEQRA Claim Unripe for Review

Hell's Kitchen Neighborhood v. New York City Department of Planning

NYLJ 9/27/04, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Cahn, J.)

A community group sought to enjoin the city Department of Planning from conducting public hearings concerning the Number 7 Subway Extension — Hudson Yards Rezoning and Development Program. The court denied the injunction, holding that the group's claim under the State Environmental Quality Review Act (SEQRA) was not yet ripe for review.

The project at issue would promote redevelopment of the Hudson Yards on the West Side of Manhattan, including extension of the Number 7 Subway line and expansion of the Javits convention center. The municipal defendants have prepared a Draft Environmental Impact Statement (DEIS) evaluating the environmental effects of the project. The Department then scheduled public hearings to consider the project. The community group brought this action, and sought to enjoin the hearings, contending that the DEIS was inadequate, and that the inadequacies would make it difficult for objectors to participate meaningfully at the public hearings.

In denying the requested injunction, the court emphasized that in this case, the community group has not yet suffered any concrete injury. The court observed that if final approval for the project were ultimately granted, the agency's action would then be subject to judicial review. Moreover, the court emphasized that the overall review process is subject to time limits, and granting the petition in this case would adversely affect the review process.

Single And Separate Ownership Doctrine Does Not Entitle Owner To Develop Substandard Lot

Planned Investors Corp. v. Incorporated Village of Massapequa Park

NYLJ 9/8/04, p. 19, col. 1

Supreme Ct., Nassau Cty

(Jonas. J.)

In an action by a landowner against the village for damages resulting from an alleged taking, both parties sought summary judgment. The court awarded summary judgment to the village, holding that the landowner was not entitled to develop his lot based on the “single and separate ownership' doctrine.

In 1985, the landowner purchased the subject lot, which is less than 60-feet wide, for $25,000. Although the zoning ordinance in effect at that time required a 60-foot minimum width, the landowner alleged that he purchased with the expectation that he would be permitted to build based on the “single and separate ownership” doctrine, which, he alleged, permits the owner of what was once a buildable lot to obtain a variance, as a matter of right, to use the property for residential purposes. When the landowner applied for a variance in 1999, the zoning board of appeals denied the variance, emphasizing that the zoning ordinance was designed to prevent overcrowding, that the proposed house would increase congestion, and that any hardship was self-created. The Supreme Court and the Appellate Division upheld the variance denial, and the landowner then brought this taking claim, seeking damages from the village.

In awarding summary judgment to the village, the court first noted that a municipality has no obligation to provide a single-and-separate ownership exemption in its zoning ordinance, and that the Court of Appeals has refused to adopt a common law rule to protect landowners who own lots that no longer comply with the zoning ordinance. Turning to the landowner's taking claim, the court noted that even his own expert conceded that the parcel had a current value of $22,000 without the requested variance, and that he had not established the market value of the property at the time he acquired it. The court then noted that because the landowner purchased a lot he knew to be substandard, he could not assert any disappointment of reasonable expectations when the village enforced the pre-existing ordinance. Accordingly, the court held that the landowner's takings claim could not succeed.

COMMENT

In Palazzolo v. Rhode Island, 533 U.S. 606, 627, the United States Supreme Court, in an opinion by Justice Kennedy for a five-justice majority, held that the transfer of property after enactment of a regulation that places an unreasonable limitation on the use and value of land would not defeat the new owner's right to challenge the restriction. Id. However, in separate concurring opinions, Justice O'Connor and Justice Scalia disagreed about whether the fact that the ownership of the property had changed hands was entitled to any consideration in evaluating the taking claim. Justice Scalia argued that the mere fact that title to the property was transferred has no bearing on the court's analysis and should never impair a takings claim. Justice O'Connor, by contrast, contended that the change in ownership was entitled to some consideration, along with other factors that were elucidated by the Supreme Court in Pennsylvania Central Trans. v. New York City, 438 U.S. 104, but that the change in ownership could not serve as an absolute bar to a taking claim .

The Court of Appeals decisions that the court relied upon in Planned Investor predate Palazzolo and are completely inconsistent with both readings of the Supreme Court's ruling in Palazzolo. In Anello v. Zoning Bd. of Appeals, 89 N.Y.2d 535 and Gazza v. New York State Dep't of Environment Protection, 89 N.Y.2d 603, the Court of Appeals held that since the buyer in each case had purchased the land with knowledge of the restriction and at a price that reflected the existence of the restriction, no taking could occur.

Planned Investor appears to apply the standards articulated in Gazza and Anello, as if Palazzolo had never been decided. Other New York courts, too, have failed to recognize that the United States Supreme Court has effectively overruled Gazza and Anello. Thus, in Matter of Friedenburg v. New York State Dep't of Environmental Conservation, 3 A.D.3d 86, the court took the trouble to distinguish Gazza in holding that the estate of a deceased landowner could challenge wetlands regulations enacted after the decedent had acquired the subject parcel. Id. at 97-98. In light of Palazzolo, there would appear to be no need for New York courts to distinguish cases like Gazza and Anello.

ZBA Properly Precluded Expansion of Pre-Existing Use

Matter of Mueller v. Zoning Board of Appeals

NYLJ 9/28/04, p. 26, col. 3

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding to review a determination by the zoning board of appeals (ZBA) annulling grant of a building permit, the town appealed from a Supreme Court judgment granting the petition and reinstating the building permit. The Appellate Division reversed and denied the petition, holding that the Supreme Court had improperly substituted its judgment for that of the ZBA in determining that the proposed use was not an expansion of a pre-existing agricultural use.

The landowner, a noted chef, purchased the property in 1997, in part to grow organic produce for his own use and for sale to restaurants.

Before that time, Suffolk County had acquired development rights to most of the parcel as part of its Farmland Development Rights Program. After the purchase, the landowner sought to build greenhouses to extend the growing season for some of the produce. The landowner sought and received permission from the Suffolk County Farmland Committee, and began to build. Not until the town learned of the greenhouses did the landowner apply for a building permit from the Town Building Inspector, who granted the permit. Upon an appeal by neighbors, however, the ZBA concluded that site plan approval was required before a building permit could be issued. The ZBA stated that the greenhouses would increase the intensity of use, which would require site plan approval. The Supreme Court annulled that determination, and the town appealed.

In reversing and denying the petition, the Appellate Division first emphasized the broad authority accorded zoning boards in interpreting local zoning ordinances. Here, the court noted that the purpose of the greenhouses was concededly to extend the growing season for certain crops. As a result, the court could not label irrational the ZBA's determination that the greenhouses constituted an increase in intensity of use, mandating site plan approval.

SEQRA Claim Unripe for Review

Hell's Kitchen Neighborhood v. New York City Department of Planning

NYLJ 9/27/04, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Cahn, J.)

A community group sought to enjoin the city Department of Planning from conducting public hearings concerning the Number 7 Subway Extension — Hudson Yards Rezoning and Development Program. The court denied the injunction, holding that the group's claim under the State Environmental Quality Review Act (SEQRA) was not yet ripe for review.

The project at issue would promote redevelopment of the Hudson Yards on the West Side of Manhattan, including extension of the Number 7 Subway line and expansion of the Javits convention center. The municipal defendants have prepared a Draft Environmental Impact Statement (DEIS) evaluating the environmental effects of the project. The Department then scheduled public hearings to consider the project. The community group brought this action, and sought to enjoin the hearings, contending that the DEIS was inadequate, and that the inadequacies would make it difficult for objectors to participate meaningfully at the public hearings.

In denying the requested injunction, the court emphasized that in this case, the community group has not yet suffered any concrete injury. The court observed that if final approval for the project were ultimately granted, the agency's action would then be subject to judicial review. Moreover, the court emphasized that the overall review process is subject to time limits, and granting the petition in this case would adversely affect the review process.