Development

Zoning Amendment Does Not Require Supermajority

Eadie v. Town Board of the Town Of North Greenbush

NYLJ 7/6/06, p. 25, col. 2

Court of Appeals

(Opinion by R.S. Smith, J.)

In neighbors' article 78 petition challenging a zoning amendment to permit retail development, neighbors appealed from the Appellate Division's reversal of the Supreme Court's grant of the petition. The Court of Appeals affirmed, holding that neighbors' SEQRA claims were timely but without merit, and that the zoning amendment did not require approval by a supermajority of the Town Board.

Landowners sought an amendment to permit construction of retail stores on their property. The Town prepared a draft generic environmental impact statement (DGEIS) to address the area-wide rezoning of many parcels in the area. The DGEIS focused on 'access management.' Responding to comments on the DGEIS, the town included a plan ' articulated in the final generic environmental impact statement (GEIS) 'to construct several access roads and other improvements. On April 28, 2004, the town adopted a findings statement approving a project that included the rezoning. On May 4, the town board held a public hearing on the proposed zoning change. Opponents presented a protest petition, invoking section 265(1) of the Town Law, and contending that approval of the zoning amendment would require the approval of three-quarters of the Town Board. The town rejected the contentions of the opponents and, on May 13, enacted the zoning amendment by a vote of 3-2. On Sept. 10, 2004, neighbors brought this petition, alleging that the amendment had not been lawfully enacted, both because the amendment did not garner the required 75% vote and because the amendment did not comply with SEQRA. Supreme Court granted the petition and annulled the amendment based on Town Law section 265(1). The Appellate Division reversed and dismissed the petition. Neighbors appealed.

In affirming, the Court of Appeals first held that the neighbors had not met the requirements of Town Law section 265(1). A petition signed by owners of 20% of the land within 100 feet of the 'land included in such proposed change' triggers the 75% supermajority requirement. In this case, however, the zoning amendment did not affect all of the land owned by petitioning landowners; the amendment included a buffer zone in which permitted uses were left unchanged. The Court of Appeals held that the statute required petition by owners of 20% of the land within 100 feet of the rezoned area, not 100 feet of the parcels in which the rezoned area is located. The court reasoned that the buffer zone was designed to insulate other landowners from the effect of the ordinance, and the statute was designed to protect only those landowners immediately adjacent to the rezoned parcel.

With respect to neighbors' SEQRA claims, the court held that the petition was timely because the 4-month period ran from the date on which the Town Board approved the zoning amendment, not the date on which it made its SEQRA findings. The court, relying on Save the Pine Bush v. City of Albany, 70 NY2d 193, concluded that the neighbors suffered no concrete injury until the Town Board amended the ordinance. On the merits, however, the court held that the town board had taken the requisite hard look at environmental factors, including traffic issues, and that the town's action was not arbitrary or capricious.

 

4-Month Statute of Limitations Applies to Procedural Challenge

P & N Tiffany Properties, Inc. v. Village of Tuckahoe

NYLJ 6/22/06, p. 26, col. 1

AppDiv, Second Dept

(opinion by Spolzino, J.)

In landowner's action for a declaration that a local law should be declared invalid because it was enacted in violation of the notice provisions of Village Law sec.21-2100, landowner appealed from Supreme Court's dismissal of the complaint. The Appellate Division affirmed, holding that CPLR article 78's 4-month statute of limitations applies to procedural challenges to enactment of local laws.

In 1999, the village enacted a local law incorporating by reference the provisions of Village Law sec. 20-2006(1-a) with respect to fines and penalties for local code violations. Prior to enacting the local law, the village published a notice but, due to publisher error, the notice did not completely identify the local code provision to be amended. Subse-quently, landowner was fined for a local code violation. Landowner then brought this declaratory judgment action, contending that the local law was invalid for failure to comply with statutorily required notice provisions. The village moved to dismiss on statute of limitations grounds, and Supreme Court dismissed the complaint.

In affirming, the Appellate Division acknowledged that an article 78 proceeding is not generally available to challenge a legislative act, and that article 78's short statute of limitations did not generally apply to such challenges. But the court held that when the defect in the statute is procedural rather than substantive, an article 78 proceeding is available, and the four-month statute of limitations is applicable. Here, the court treated the notice provision as procedural, and concluded that landowner's action was time-barred.

COMMENT

Although a landowner may not bring an article 78 proceeding to challenge the substance of a local legislative action, a landowner who challenges the procedures surrounding the enactment of local legislation must proceed in a CPLR article 78 proceeding, and is subject to article 78's four-month statute of limitations. In Matter of Save the Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193, the court dismissed as untimely two SEQRA challenges to the city's enactment of legislation that would render the Pine Bush vulnerable to commercial development. The court held that the environmental challenges were procedural, and therefore subject to the article 78 statute of limitations. In addition to environmental violations, notice infringements and voting infractions are also procedural. For instance, in Matter of Llana v. Town of Pittstown, 234 A.D.2d 881, the court held that once the 4-month article 78 statute of limitations had expired, landowner could not add additional parties to its declaratory judgment action challenging enactment of amendments to a subdivision ordinance because the challenges ' that the town did not comply with supermajority and notice requirements, failed to hold the requisite public hearing, and did not properly prepare an environmental impact statement ' were procedural. Landowner's attempt to style the action as a declaratory judgment action did not permit escape from the 4-month statute, so that landowner could not add as parties homeowners who had received permits under the challenged ordinance. Similarly, in Matter of Clear Channel Outdoor, Inc. v. Town of Windham, 9 A.D.3d 802, the court held that landowner's challenge to a new sign ordinance was time-barred because landowner's claim that the town had failed to publish notice following adoption of the new ordinance was procedural and therefore subject to article 78's 4-month statute. In light of these principles, Annenberg v. Environmental Control Bd. Of City of N.Y., 220 A.D.2d 634, is no longer good law. Annenberg had held that failure to give requisite notice substantively invalidated a local law conferring authority on the Environmental Control Board to penalize the landowner for sanitation violations he had received, and that this action therefore could be brought as a declaratory judgment rather than an article 78 proceeding. It is now clear that improper notice is a procedural, not substantive error.

By contrast, when the landowner's challenge is substantive, article 78 relief is not available, and landowner is not subject to the article 78 statute of limitations. Landowner may instead bring a declaratory judgment action. Thus, declaratory relief is available for constitutional claims. For example, in Detmer v. Acampora, 207 A.D.2d 477, the court held that petitioner's claims that an amended zoning law was 'unreasonable, arbitrary, confiscatory, and that it serve[d] no legitimate governmental purpose' were substantive due process challenges, and were appropriately brought as declaratory judgments actions, while simultaneously dismissing as untimely a procedural challenge by the same landowner And in McCarthy v. Town of Niskayuna, 283 A.D.2d 857, the court upheld landowner's right to bring a declaratory judgment action challenging the validity of a zoning ordinance requiring that all professional buildings have access to arterial highways on the ground that the ordinance was contrary to the ordinance drafters' intent and had been applied inconsistently in the past. The court held that this claim was substantive and thus not subject to the article 78 statute of limitations. Similarly, when landowner contends that a local ordinance has been pre-empted by state law, landowner may bring a declaratory judgment action. Thus, in Ames v. Smoot, 98 A.D.2d 216, where petitioners challenged a local pesticide regulation, claiming it was pre-empted by state law, the court converted landowner's article 78 proceeding into a declaratory judgment action, concluding that the challenge was substantive and therefore inappropriate for article 78 review.

In the constitutional and pre-emption cases, the landowner in effect contends that the municipality lacked power to enact the challenged ordinance no matter what procedures the municipality followed. These challenges are therefore not procedural challenges, and not subject to the article 78 statute of limitations. By contrast, when landowner contends that the municipality lacked power to enact the ordinance, but the supposed lack of power could have been cured by following different procedure, the challenge is subject to the article 78 limitation period. Thus, in Atkins v. Town of Rotterdam, 266 AD2d 631, landowner challenged enactment of an ordinance on the ground that the town lacked power to enact the ordinance because it had failed to hold a referendum before enacting the ordinance. The court dismissed the challenge as time-barred, concluding that the challenge was procedural.

 

No Deference to Local Board On Pure Question of Law

Matter of Brancato v. Zoning Board of Appeals

NYLJ 6/19/06, p. 33, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to review a determination by the Zoning Board of Appeals (ZBA) revoking a building permit, neighbors appealed from Supreme Court's judgment granting the petition and reinstating the building permit. The Appellate Division affirmed, concluding that because the issues involved were pure questions of legal interpretation, no deference was due to the determination of the ZBA.

Neighbors sought to revoke a building permit granted to landowner on the ground that the subject property does not front on a street recorded on the official city map, and on the ground that the lot was a 'flag lot' not permitted by the ordinance. The zoning ordinance defines a street as a 'vehicular and/or pedestrian right-of-way shown on the Official Map' of the city. Landowner's parcel fronts on an unimproved street that would provide access to a public road. Moreover, the zoning code prohibits flag lots, defined as a lot 'which does not meet the minimum lot width requirements and where access from the lot to the public road is by means of a narrow private right-of-way or driveway.' Supreme Court held that landowner's lot met the requirement of the zoning ordinance.

In affirming, the Appellate Division started by acknowledging that typically a zoning board's interpretation of its ordinance is entitled to great deference, and judicial review is limited. The court went on, however, to recognize an exception when the question 'is one of pure legal interpretation of statutory terms.' In cases falling within the exception, deference to board determinations is not required. The court held that because there were no disputed facts in this case, the case came within the scope of the exception. The court went on to hold that the unimproved street met the definition of street within the meaning of the ordinance, and that the lot width was not below the required minimum, so that the flag lot provision was inapplicable.

COMMENT

When a court reviews the interpretation of a zoning ordinance, the court usually gives deference to the zoning board's interpretation when it turns on a matter requiring the expertise of the zoning board, but does not defer to the zoning board where a pure legal interpretation of a statutory term is involved. Matter of Toys 'R' Us v. Silva, 89 N.Y.2d 411, illustrates both principles. Landowner challenge a determination by the Board of Standards and Appeals (BSA) that its pre-existing
non-conforming commercial use had been abandoned, requiring landowner to conform to the residential zoning restrictions now applicable to the parcel. The Court of Appeals held that the meaning of language in the ordinance ' had 'active operation of substantially all the non-conforming uses' been 'discontinued' ” was a pure question of legal interpretation for courts, with no deference due to the BSA. Nevertheless, the court adhered to the BSA's determination that substantial and not complete abandonment of the non-conforming use was enough to trigger loss of non-conforming use status. At the same time, the court held that because of the BSA's expertise in administering the ordinance, deference was due to the BSA's determination that the warehouse use involved in the case actually had been substantially abandoned.

Matter of Teachers Insurance and Annuity Assn. of America v. City of New York, 82 N.Y.2d 35, also illustrates the limited scope of the deference rule. Landowner challenged the landmarks preservation commission's decision to landmark the interior of the Four Seasons restaurant pursuant to a statute that gave the commission power to designate an interior 'customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value.' The Court of Appeals upheld the designation, but applied two different standards in reaching its conclusion. The court held that no deference was due to the commission's determination that the interior was 'customarily open or accessible to the public' because this determination turned on a pure question of legal interpretation of this statutory phrase. By contrast, the court deferred to the landmarks commission's determination that particular interior fixtures of the building that were of 'special historical or aesthetic interest,' noting the commission's expertise and concluding that the commission had drawn a clear and rational distinction between the interior items that were designated and those that were not.

In Toys 'R' Us and Teachers Insurance, the Court of Appeals went out of its way to explain the limited scope of deference to agency interpretation even though the court ultimately upheld the administrative determination. By contrast, in Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98, the court annulled a determination by the Board of Standards and Appeals that a habitable room at the cellar level should be included as floor area in determining the size of the building permitted on a parcel. The court concluded that the question was purely one of legal interpretation, and held that even a consistent past interpretation of the statute by the BSA did not justify the BSA's 'strained' construction of statutory language. (The statute had provided, in express terms, that 'cellar space' should be excluded from floor area ratio calculations).

Zoning Amendment Does Not Require Supermajority

Eadie v. Town Board of the Town Of North Greenbush

NYLJ 7/6/06, p. 25, col. 2

Court of Appeals

(Opinion by R.S. Smith, J.)

In neighbors' article 78 petition challenging a zoning amendment to permit retail development, neighbors appealed from the Appellate Division's reversal of the Supreme Court's grant of the petition. The Court of Appeals affirmed, holding that neighbors' SEQRA claims were timely but without merit, and that the zoning amendment did not require approval by a supermajority of the Town Board.

Landowners sought an amendment to permit construction of retail stores on their property. The Town prepared a draft generic environmental impact statement (DGEIS) to address the area-wide rezoning of many parcels in the area. The DGEIS focused on 'access management.' Responding to comments on the DGEIS, the town included a plan ' articulated in the final generic environmental impact statement (GEIS) 'to construct several access roads and other improvements. On April 28, 2004, the town adopted a findings statement approving a project that included the rezoning. On May 4, the town board held a public hearing on the proposed zoning change. Opponents presented a protest petition, invoking section 265(1) of the Town Law, and contending that approval of the zoning amendment would require the approval of three-quarters of the Town Board. The town rejected the contentions of the opponents and, on May 13, enacted the zoning amendment by a vote of 3-2. On Sept. 10, 2004, neighbors brought this petition, alleging that the amendment had not been lawfully enacted, both because the amendment did not garner the required 75% vote and because the amendment did not comply with SEQRA. Supreme Court granted the petition and annulled the amendment based on Town Law section 265(1). The Appellate Division reversed and dismissed the petition. Neighbors appealed.

In affirming, the Court of Appeals first held that the neighbors had not met the requirements of Town Law section 265(1). A petition signed by owners of 20% of the land within 100 feet of the 'land included in such proposed change' triggers the 75% supermajority requirement. In this case, however, the zoning amendment did not affect all of the land owned by petitioning landowners; the amendment included a buffer zone in which permitted uses were left unchanged. The Court of Appeals held that the statute required petition by owners of 20% of the land within 100 feet of the rezoned area, not 100 feet of the parcels in which the rezoned area is located. The court reasoned that the buffer zone was designed to insulate other landowners from the effect of the ordinance, and the statute was designed to protect only those landowners immediately adjacent to the rezoned parcel.

With respect to neighbors' SEQRA claims, the court held that the petition was timely because the 4-month period ran from the date on which the Town Board approved the zoning amendment, not the date on which it made its SEQRA findings. The court, relying on Save the Pine Bush v. City of Albany , 70 NY2d 193, concluded that the neighbors suffered no concrete injury until the Town Board amended the ordinance. On the merits, however, the court held that the town board had taken the requisite hard look at environmental factors, including traffic issues, and that the town's action was not arbitrary or capricious.

 

4-Month Statute of Limitations Applies to Procedural Challenge

P & N Tiffany Properties, Inc. v. Village of Tuckahoe

NYLJ 6/22/06, p. 26, col. 1

AppDiv, Second Dept

(opinion by Spolzino, J.)

In landowner's action for a declaration that a local law should be declared invalid because it was enacted in violation of the notice provisions of Village Law sec.21-2100, landowner appealed from Supreme Court's dismissal of the complaint. The Appellate Division affirmed, holding that CPLR article 78's 4-month statute of limitations applies to procedural challenges to enactment of local laws.

In 1999, the village enacted a local law incorporating by reference the provisions of Village Law sec. 20-2006(1-a) with respect to fines and penalties for local code violations. Prior to enacting the local law, the village published a notice but, due to publisher error, the notice did not completely identify the local code provision to be amended. Subse-quently, landowner was fined for a local code violation. Landowner then brought this declaratory judgment action, contending that the local law was invalid for failure to comply with statutorily required notice provisions. The village moved to dismiss on statute of limitations grounds, and Supreme Court dismissed the complaint.

In affirming, the Appellate Division acknowledged that an article 78 proceeding is not generally available to challenge a legislative act, and that article 78's short statute of limitations did not generally apply to such challenges. But the court held that when the defect in the statute is procedural rather than substantive, an article 78 proceeding is available, and the four-month statute of limitations is applicable. Here, the court treated the notice provision as procedural, and concluded that landowner's action was time-barred.

COMMENT

Although a landowner may not bring an article 78 proceeding to challenge the substance of a local legislative action, a landowner who challenges the procedures surrounding the enactment of local legislation must proceed in a CPLR article 78 proceeding, and is subject to article 78's four-month statute of limitations. In Matter of Save the Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193, the court dismissed as untimely two SEQRA challenges to the city's enactment of legislation that would render the Pine Bush vulnerable to commercial development. The court held that the environmental challenges were procedural, and therefore subject to the article 78 statute of limitations. In addition to environmental violations, notice infringements and voting infractions are also procedural. For instance, in Matter of Llana v. Town of Pittstown, 234 A.D.2d 881, the court held that once the 4-month article 78 statute of limitations had expired, landowner could not add additional parties to its declaratory judgment action challenging enactment of amendments to a subdivision ordinance because the challenges ' that the town did not comply with supermajority and notice requirements, failed to hold the requisite public hearing, and did not properly prepare an environmental impact statement ' were procedural. Landowner's attempt to style the action as a declaratory judgment action did not permit escape from the 4-month statute, so that landowner could not add as parties homeowners who had received permits under the challenged ordinance. Similarly, in Matter of Clear Channel Outdoor, Inc. v. Town of Windham, 9 A.D.3d 802, the court held that landowner's challenge to a new sign ordinance was time-barred because landowner's claim that the town had failed to publish notice following adoption of the new ordinance was procedural and therefore subject to article 78's 4-month statute. In light of these principles, Annenberg v. Environmental Control Bd. Of City of N.Y., 220 A.D.2d 634, is no longer good law. Annenberg had held that failure to give requisite notice substantively invalidated a local law conferring authority on the Environmental Control Board to penalize the landowner for sanitation violations he had received, and that this action therefore could be brought as a declaratory judgment rather than an article 78 proceeding. It is now clear that improper notice is a procedural, not substantive error.

By contrast, when the landowner's challenge is substantive, article 78 relief is not available, and landowner is not subject to the article 78 statute of limitations. Landowner may instead bring a declaratory judgment action. Thus, declaratory relief is available for constitutional claims. For example, in Detmer v. Acampora, 207 A.D.2d 477, the court held that petitioner's claims that an amended zoning law was 'unreasonable, arbitrary, confiscatory, and that it serve[d] no legitimate governmental purpose' were substantive due process challenges, and were appropriately brought as declaratory judgments actions, while simultaneously dismissing as untimely a procedural challenge by the same landowner And in McCarthy v. Town of Niskayuna, 283 A.D.2d 857, the court upheld landowner's right to bring a declaratory judgment action challenging the validity of a zoning ordinance requiring that all professional buildings have access to arterial highways on the ground that the ordinance was contrary to the ordinance drafters' intent and had been applied inconsistently in the past. The court held that this claim was substantive and thus not subject to the article 78 statute of limitations. Similarly, when landowner contends that a local ordinance has been pre-empted by state law, landowner may bring a declaratory judgment action. Thus, in Ames v. Smoot, 98 A.D.2d 216, where petitioners challenged a local pesticide regulation, claiming it was pre-empted by state law, the court converted landowner's article 78 proceeding into a declaratory judgment action, concluding that the challenge was substantive and therefore inappropriate for article 78 review.

In the constitutional and pre-emption cases, the landowner in effect contends that the municipality lacked power to enact the challenged ordinance no matter what procedures the municipality followed. These challenges are therefore not procedural challenges, and not subject to the article 78 statute of limitations. By contrast, when landowner contends that the municipality lacked power to enact the ordinance, but the supposed lack of power could have been cured by following different procedure, the challenge is subject to the article 78 limitation period. Thus, in Atkins v. Town of Rotterdam, 266 AD2d 631, landowner challenged enactment of an ordinance on the ground that the town lacked power to enact the ordinance because it had failed to hold a referendum before enacting the ordinance. The court dismissed the challenge as time-barred, concluding that the challenge was procedural.

 

No Deference to Local Board On Pure Question of Law

Matter of Brancato v. Zoning Board of Appeals

NYLJ 6/19/06, p. 33, col. 1

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to review a determination by the Zoning Board of Appeals (ZBA) revoking a building permit, neighbors appealed from Supreme Court's judgment granting the petition and reinstating the building permit. The Appellate Division affirmed, concluding that because the issues involved were pure questions of legal interpretation, no deference was due to the determination of the ZBA.

Neighbors sought to revoke a building permit granted to landowner on the ground that the subject property does not front on a street recorded on the official city map, and on the ground that the lot was a 'flag lot' not permitted by the ordinance. The zoning ordinance defines a street as a 'vehicular and/or pedestrian right-of-way shown on the Official Map' of the city. Landowner's parcel fronts on an unimproved street that would provide access to a public road. Moreover, the zoning code prohibits flag lots, defined as a lot 'which does not meet the minimum lot width requirements and where access from the lot to the public road is by means of a narrow private right-of-way or driveway.' Supreme Court held that landowner's lot met the requirement of the zoning ordinance.

In affirming, the Appellate Division started by acknowledging that typically a zoning board's interpretation of its ordinance is entitled to great deference, and judicial review is limited. The court went on, however, to recognize an exception when the question 'is one of pure legal interpretation of statutory terms.' In cases falling within the exception, deference to board determinations is not required. The court held that because there were no disputed facts in this case, the case came within the scope of the exception. The court went on to hold that the unimproved street met the definition of street within the meaning of the ordinance, and that the lot width was not below the required minimum, so that the flag lot provision was inapplicable.

COMMENT

When a court reviews the interpretation of a zoning ordinance, the court usually gives deference to the zoning board's interpretation when it turns on a matter requiring the expertise of the zoning board, but does not defer to the zoning board where a pure legal interpretation of a statutory term is involved. Matter of Toys 'R' Us v. Silva, 89 N.Y.2d 411, illustrates both principles. Landowner challenge a determination by the Board of Standards and Appeals (BSA) that its pre-existing
non-conforming commercial use had been abandoned, requiring landowner to conform to the residential zoning restrictions now applicable to the parcel. The Court of Appeals held that the meaning of language in the ordinance ' had 'active operation of substantially all the non-conforming uses' been 'discontinued' ” was a pure question of legal interpretation for courts, with no deference due to the BSA. Nevertheless, the court adhered to the BSA's determination that substantial and not complete abandonment of the non-conforming use was enough to trigger loss of non-conforming use status. At the same time, the court held that because of the BSA's expertise in administering the ordinance, deference was due to the BSA's determination that the warehouse use involved in the case actually had been substantially abandoned.

Matter of Teachers Insurance and Annuity Assn. of America v. City of New York, 82 N.Y.2d 35, also illustrates the limited scope of the deference rule. Landowner challenged the landmarks preservation commission's decision to landmark the interior of the Four Seasons restaurant pursuant to a statute that gave the commission power to designate an interior 'customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value.' The Court of Appeals upheld the designation, but applied two different standards in reaching its conclusion. The court held that no deference was due to the commission's determination that the interior was 'customarily open or accessible to the public' because this determination turned on a pure question of legal interpretation of this statutory phrase. By contrast, the court deferred to the landmarks commission's determination that particular interior fixtures of the building that were of 'special historical or aesthetic interest,' noting the commission's expertise and concluding that the commission had drawn a clear and rational distinction between the interior items that were designated and those that were not.

In Toys 'R' Us and Teachers Insurance, the Court of Appeals went out of its way to explain the limited scope of deference to agency interpretation even though the court ultimately upheld the administrative determination. By contrast, in Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98, the court annulled a determination by the Board of Standards and Appeals that a habitable room at the cellar level should be included as floor area in determining the size of the building permitted on a parcel. The court concluded that the question was purely one of legal interpretation, and held that even a consistent past interpretation of the statute by the BSA did not justify the BSA's 'strained' construction of statutory language. (The statute had provided, in express terms, that 'cellar space' should be excluded from floor area ratio calculations).