Development

Zoning Amendment Invalid for Failure to Take SEQRA 'Hard Look'

Matter of Avy v. Town of Amenia

NYLJ 3/20/06, p. 40, col. 6

AppDiv, Second Dept

(memorandum opinion)

In neighbor's article 78 proceeding to annul Town Board determinations adopting a negative declaration under the State Environmental Quality Review Act (SEQRA), and amending a zoning district designation, the town appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town board had failed to take the 'hard look' required by SEQRA.

Landowners applied for a zoning amendment that would change the classification of their property from residential to General Business in order to relocate an expanding automobile repair business. They proposed to build a 6000 square-foot building and to remove 3000 tons of natural material from the property. The town board concluded that the action was an unlisted action for SEQRA purposes. An environmental assessment form (EAF) identified 14 potential large environmental impacts, and discussed mitigation measures. After public hearings, the town board issued a negative declaration under SEQRA, and then approved the zoning change. Neighbor then brought this article 78 proceeding, and the Supreme Court granted the petition, holding that the board had not taken a hard look at the environmental effects of the project.

In affirming, the Appellate Division emphasized the areas of environmental concern identified in the EAF, and agreed with the Supreme Court's conclusion that the negative declaration was issued without taking a hard look at these issues. As a result, the court annulled both the negative declaration and the resulting amendment.

Cabaret Restrictions Upheld

Festa v. New York City Department of Consumer Affairs

NYLJ 4/7/06, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Stallman, J.)

A sponsor of social dances, together with a number of social dancers and instructors, brought this action challenging the constitutionality of New York City's cabaret laws and zoning restrictions on social dancing. The court denied a preliminary injunction against enforcement of the laws, and dismissed the complaint.

New York City's 'cabaret law' requires a license for rooms or places in which dancing is permitted in connection with the restaurant business. New York City's zoning law limits to four commercial districts the locations in which eating establishments may permit dancing. Plaintiffs in this action contended that these regulations violated the free speech clauses of the federal and state constitutions.

In dismissing the complaint, the court distinguished social dancing from performance, and concluded that social dancing did not constitute speech protected by the First Amendment of the federal constitution or the parallel provision in the state constitution. The court analogized social dancing to participatory sporting events, and rejected the notion that these activities enjoyed constitutional protection. The court went on to hold that locating dancing establishments in limited districts was rational because the presence of people who wish to dance may cause increased noise and congestion.

Zoning Amendment Invalid for Failure to Take SEQRA 'Hard Look'

Matter of Avy v. Town of Amenia

NYLJ 3/20/06, p. 40, col. 6

AppDiv, Second Dept

(memorandum opinion)

In neighbor's article 78 proceeding to annul Town Board determinations adopting a negative declaration under the State Environmental Quality Review Act (SEQRA), and amending a zoning district designation, the town appealed from the Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town board had failed to take the 'hard look' required by SEQRA.

Landowners applied for a zoning amendment that would change the classification of their property from residential to General Business in order to relocate an expanding automobile repair business. They proposed to build a 6000 square-foot building and to remove 3000 tons of natural material from the property. The town board concluded that the action was an unlisted action for SEQRA purposes. An environmental assessment form (EAF) identified 14 potential large environmental impacts, and discussed mitigation measures. After public hearings, the town board issued a negative declaration under SEQRA, and then approved the zoning change. Neighbor then brought this article 78 proceeding, and the Supreme Court granted the petition, holding that the board had not taken a hard look at the environmental effects of the project.

In affirming, the Appellate Division emphasized the areas of environmental concern identified in the EAF, and agreed with the Supreme Court's conclusion that the negative declaration was issued without taking a hard look at these issues. As a result, the court annulled both the negative declaration and the resulting amendment.

Cabaret Restrictions Upheld

Festa v. New York City Department of Consumer Affairs

NYLJ 4/7/06, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Stallman, J.)

A sponsor of social dances, together with a number of social dancers and instructors, brought this action challenging the constitutionality of New York City's cabaret laws and zoning restrictions on social dancing. The court denied a preliminary injunction against enforcement of the laws, and dismissed the complaint.

New York City's 'cabaret law' requires a license for rooms or places in which dancing is permitted in connection with the restaurant business. New York City's zoning law limits to four commercial districts the locations in which eating establishments may permit dancing. Plaintiffs in this action contended that these regulations violated the free speech clauses of the federal and state constitutions.

In dismissing the complaint, the court distinguished social dancing from performance, and concluded that social dancing did not constitute speech protected by the First Amendment of the federal constitution or the parallel provision in the state constitution. The court analogized social dancing to participatory sporting events, and rejected the notion that these activities enjoyed constitutional protection. The court went on to hold that locating dancing establishments in limited districts was rational because the presence of people who wish to dance may cause increased noise and congestion.