Development

Exclusion Of Schools from Commercial Districts Held Unconstitutional

Albany Preparatory Charter School v. City of Albany

NYLJ 7/21/06, p. 22, col. 1

AppDiv, Third Dept

(Opinion by Mugglin, J; concurring opinion by Spain, J.)

In landowner's article 78 proceeding/declaratory judgment action challenging denial of use and area variances, the city appealed from a Supreme Court determination awarding landowner a special permit for use of the property as a school. The Appellate Division modified to reverse the grant of a special use permit, and to remit to the Board of Zoning Appeals (BZA) for further proceedings, holding unconstitutional an absolute exclusion of school uses from commercial districts.

The subject parcel, which straddles two commercial districts, had been used as a public school for 70 years before its conversion to commercial use. The zoning ordinance does not list a school as a permitted principal, accessory, or special permit use in either commercial district. Landowner sought to convert the parcel for use as a private school, and sought variances for that purpose. The BZA denied the variances, concluding that landowner had demonstrated neither need nor hardship. Landowner then brought this proceeding/action contending that the determination was arbitrary and capricious, and seeking a declaration that the zoning ordinance provisions excluding schools from commercial districts were unconstitutional on their face. Su-preme Court granted the requested judgment, and ordered the BZA to issue a special permit.

In modifying, the Appellate Division held that the general principles that prevent a municipality from excluding schools in residential districts apply with equal force when a municipality attempts to exclude schools in commercial districts. In particular, because of the inherently beneficial nature of educational institutions, an applicant must be given an opportunity to demonstrate that its proposed educational sue is consistent with the public good. The court, however, held that Supreme Court should not have awarded a special permit to landowner because that action improperly stripped the BZA of its ability to evaluate the proposed educational use against other legitimate interests. Hence, the court held that a special permit application should be submitted to the BZA to engage in the relevant balancing. Justice Spain, concurring, did not agree that a blanket prohibition of schools in commercial areas was unconstitutional, but concluded that in light of the ordinance provisions permitting churches and residential uses as permitted uses in commercial districts, there was no basis for excluding schools.

COMMENT

New York courts, relying on the limited nature of the constitutional grant of police power to the state, have held that the police power does not authorize blanket exclusion of schools from residential areas, because absolute exclusion does not advance the public health, safety, morals, or welfare. Thus, in Diocese of Rochester v. Planning Board, 1 NY2d 508, the Court of Appeals annulled determinations of the local planning board and zoning board of appeals denying the diocese's applications for subdivision approval and a variance to build a church and school in a residential district. The court indicated that a zoning ordinance may not wholly exclude churches and synagogues from residential districts, and found that the two boards had not adduced any reasons for denying these permits that would promote health, safety, morals, or welfare. The court emphasized that residential districts are 'usually the quietest and least congested areas of a town.' Later, in Cornell University v. Bagnardi (68 N.Y.2d 583), the court reaffirmed the principal that a zoning ordinance may not include a blanket exclusion of churches and synagogues from residential areas, and may not consider the applicant's 'need' to expand in evaluating applications for special permits or variances. At the same time, the court emphasized that the town could consider potential harm to the community in evaluating applications by churches and schools, ultimately remanding to the Zoning Board of Appeals (ZBA) to balance the public benefit of the proposed college expansion into a residential area with the potential harm to the community. Most recently, in Pine Knolls Alliance Church v. Zoning Board of Appeals, 5 NY3d 407, the court upheld denial of a special use permit to a church to construct a second driveway as part of an expansion plan, emphasizing the municipality's right to consider traffic concerns. The court, however, reiterated its disapproval of blanket bans of religious and educational uses from residential districts.

The arguments against blanket bans of religious and educational uses in residential districts may not apply with equal force when considering such exclusions in commercial zones. In Diocese of Rochester, the court emphasized that residential areas were typically among the quietest and least congested. By contrast, the increased congestion in commercial areas may pose a greater threat to the safety of the students, potentially providing a public safety justification for an absolute ban on churches and schools. The majority in Albany, however, was unwilling to accept such an argument.

 

Town Bound By Earlier Landmark Determination

Matter of Corona Realty

Holdings, LLC. v. Town of

North Hempstead

NYLJ 8/7/06, p. 38, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding by country club owner challenging designation of the club as a historic landmark,, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town had failed to explain its departure from its earlier failure to designate the club as a landmark.

In 1992, the town landmark preservation commission denied an application to designate the clubhouse and surrounding 10 acres as a landmark. In 1993, the commission and the Town Board approved an application for landmark status of the clubhouse building, but the Appellate Division ultimately annulled that determination for failure to follow the procedures outlined in the town ordinance. In 1996, the town board denied an application to designate the clubhouse and 1.6 surrounding acres as a landmark. Then, in 2000, the town board approved an application to designate the entire 10 acres as a landmark. The Appellate Division annulled that determination for failure to indicate reasons for reaching a different result from that reached in 1996. In 2004, the town board again accepted a recommendation of the landmark preservation commission and designated the entire 10 acres as a landmark. Owner of the club brought this article 78 proceeding challenging the designation, and Supreme Court annulled the determination. The club owner appealed.

In affirming, the Appellate Division noted that an administrative agency determination that neither adheres to its own prior precedent nor indicates its reason for reaching a different result on the same facts is arbitrary and capricious. In this case, the court concluded that the town board's determination was based on the same facts presented to the board in 1996 when the board rejected landmark status. As a result, the board's failure to offer explanation for failure to follow its earlier precedent required that the permit be annulled.

COMMENT

A zoning board of appeals is bound by principles of res judicata in making quasi-judicial determinations on applications for variances and special permits. For instance, in Pettit v. Board of Appeals, 160 AD2d 1006, the court upheld the board's refusal to consider landowner's four variance applications when landowner's predecessor had applied for the same variances less than a year earlier. The court concluded that because there had been no material changes in facts or circumstances, the board was within its power to refuse to hear the second application. See also Kam Lee v. Zoning Board of Appeals, 1 AD3d 600.

Moreover, landowner's submission of additional proof to support its position is not sufficient to avoid the effect of res judicata. In Freddolino v. Village of Warwick, 192 AD2d 839, the court sustained a board's denial of a variance application after the board had concluded that landowner had not demonstrated facts or circumstances that had changed since a prior variance denial. Landowner had conceded that the parties, issues, facts, and relief sought were the same in the two variance applications, but argued that the quality of proof submitted was different. The court noted that commencement of a new proceeding to cure defects in proof does not permit a party to avoid res judicata.

If, however, there have been significant changes in the nature of the application, res judicata does not apply. Thus, in Freeman v. Ithaca Zoning Board of Appeals, 61 AD2d 1070, the court sustained the board's grant of an application to construct a medical clinic, despite a prior denial to the same applicant, emphasizing that landowner's new plans rotated the building by 90 degrees and relocated the parking lot. The court emphasized that it is generally up to a board to determine what changes in facts and circumstances are sufficient to warrant a different determination on a subsequent application.

Supplemental EIS Required

Matter of Riverkeeper, Inc. v. Planning Board

NYLJ 8/14/06, p. 37, col. 3

AppDiv, Second Dept

(3-1 decision; memorandum opinion; dissenting memorandum by Spolzi-no, J.)

In an article 78 proceeding brought by individuals and environmental groups to annul a determination by the planning board declining to require preparation of a supplemental environmental impact statement (SEIS), petitioners appealed from Supreme Court's dismissal of the petition. A divided Appellate Division reversed and granted the petition, holding that changes in potential environmental impact and changes in the regulatory environment during the 12 years since preparation of the original environmental impact statement were sufficient to mandate preparation of an SEIS.

In 1989, after developer initially sought subdivision approval, the planning board declared itself lead agency for purposes of the State Environmental Quality Review Act (SEQRA). In 1991, the board approved both a final environmental impact statement (FEIS) and an initial supplemental environmental impact statement. The board issued a statement of findings deferring analysis of storm-water pollution and runoff impacts from the subdivision. In 1997, the New York City Department of Environmental Protection (DEP) was granted authority over approval of storm-water pollution protection plans, sewage treatment plants, and sewage disposal systems for subdivisions located within the New York City watershed. By 1998, the planning board had approved four other subdivisions totaling 68 lots, and in 2000, the State Department of Environmental Conser-vation (DEP) tightened restrictions on phosphorus discharges into waters within the city watershed.

In 2001, developer applied for final subdivision approval, reducing the total number of building lots from 139 to 104,and reducing the acreage of natural wetlands that would be disturbed during construction. The planning board received reports from its own consultant indicating that more information on storm-water drainage was necessary. Nevertheless, the planning board granted final conditional subdivision approval. Environmental groups and individuals then brought an article 78 proceeding contending that the board had not taken the requisite hard look and seeking preparation of an SEIS. Supreme Court granted the petition, and directed the planning board to take a hard look at eight areas of environmental concern. In response, the board concluded that it had taken the requisite hard look, but had failed to make a written recitation to that effect. As a result, the board did not require preparation of an SEIS, resulting in the instant article 78 proceeding. Supreme Court denied the petitions and dismissed the petitions, and petitioners appealed.

In reversing, the Appellate Division majority emphasized both that environmental impacts and the regulatory environment had changed since preparation of the FEIS. The court also concluded that the planning board had abdicated responsibility when it decided not to investigate areas of environmental concern because those areas would be examined by other involved agencies in their own permit application proceedings. Justice Spolzino, dissenting, concluded that the planning board had properly based its determination to forego preparation of an SEIS on evidence and expert opinion contained in the administrative records of other agencies.

 

Fair Housing Act Claim Against Village and County Survives Motion to Dismiss

ACORN v. County of Nassau

NYLJ 8/2/06, p. 27, col. 1

U.S. District Ct., E.D.N.Y.

(Bianco, J.)

In an action by a civil rights organization, a developer, and a number of individuals alleging violation of the Fair Housing Act and the Civil Rights Acts, defendants Village of Garden City and County of Nassau moved to dismiss for lack of standing and for failure to state a claim. The court denied both motions, holding that the organizations had standing and had stated a claim.

When Nassau County decided that county-owned property within the Village of Garden City was no longer needed for county purposes, the Garden City Board of Trustees appointed a zoning committee to address issues relating to the subject property, known as the Mineola Complex. The Board appointed a planning consultant, which recommended a Proposed Zoning plan that would have permitted one unit of multi-family housing for very 3000 square feet of land area, ultimately permitting a maximum of 355 affordable multi-family units. Neighborhood opposition to the Proposed Zoning plan surfaced, and ultimately, the Board of Trustees approved a Special Zoning amendment that would have permitted only 36 multi-family units. After the Special Zoning amendment was adopted, Nassau County issued a Request for Proposals (RFP) for the site, with an asking price of $30 million. Plaintiff developer and civil rights organization then med with county officials and proposed an alternative that would comply with the Proposed Zoning, but not the Special Zoning, and that would permit construction of multi-family housing. Developer never submitted a proposal in response to the Nassau County RFP, and the county selected another developer who would develop only luxury single-family dwellings and townhouses. Plaintiffs then brought this action, contending that the plan would perpetuate and reinforce racial and ethnic housing segregation in Garden City and Nassau County. The village and the county moved to dismiss.

In holding that the developer had standing, the court concluded that developer's proposal of an alternative plan for a particularized site was sufficient to confer standing. Failure to submit a formal response to the RFP did not deprive the developer of standing, because any response would have been futile because, according to the developer, the discriminatory zoning made it financially impossible to build low-income housing on the site. On these facts, the court concluded that the developer had standing to challenge the actions of the local officials. The court also held that the civil rights organization and the individualized plaintiffs had demonstrated adequate injury in fact, because the developer's action establishes a likelihood that affordable housing will be built if the plaintiffs prevail. The court then denied defendants' motion to dismiss for failure to state a claim, noting that in a claim under the federal Civil Rights Act an the federal Fair Housing Act, once a plaintiff alleges racial animus, the burden shifts to defendants to demonstrate a legitimate bona fide interest, and to demonstrate that no alternative would satisfy that interest with less discriminatory intent. Here, the court noted that the complaint adequately pled intentional discrimination.

 

Zoning Not Consistent with Comprehensive Plan

Infinity Consulting Group, Inc. v. Town of Huntington

NYLJ 8/11/06, p. 25, col. 1

Supreme Ct., Suffolk Cty

(Hudson, J.)

Landowner brought an action contending that zoning of its parcel violated both the equal protection clause and the statutory requirement that zoning be in accordance with a comprehensive plan. After a non-jury trial, the court held that landowner had established a statutory violation because its parcel was no longer consistent with the town's comprehensive plan.

Landowner owns a parcel of land on Route 110, a commercial thoroughfare. The parcel is zoned for residential use on parcels of at least one acre. On one of the town's planning maps, the parcel had been designated for a zoning change to a mixture of commercial use along Route 110 and moderate density residential use toward the rear of the parcel, but the town has never rezoned the parcel. Almost every other parcel on Route 110 is zoned for commercial use. Against that background, landowner brought this action contending that the current zoning violated both the equal protection clause and Town Law sections 263 and 272-a, which require a town to create a comprehensive zoning plan and authorize a town planning board to prepare a master plan.

In holding that the town had violated the Town Law provisions, the court noted that the town's principal reason for not rezoning the parcel was to maintain a buffer for the residential owners behind lot 110. But the court concluded that this was an inadequate basis for requiring land-owner to maintain residential use on a site on which residential use had become unsuitable. The court, however, found no equal protection violation because landowner had not demonstrated that landowner's treatment was motivated by impermissible considerations like race, religion, or bad faith intent to injure a person.

Exclusion Of Schools from Commercial Districts Held Unconstitutional

Albany Preparatory Charter School v. City of Albany

NYLJ 7/21/06, p. 22, col. 1

AppDiv, Third Dept

(Opinion by Mugglin, J; concurring opinion by Spain, J.)

In landowner's article 78 proceeding/declaratory judgment action challenging denial of use and area variances, the city appealed from a Supreme Court determination awarding landowner a special permit for use of the property as a school. The Appellate Division modified to reverse the grant of a special use permit, and to remit to the Board of Zoning Appeals (BZA) for further proceedings, holding unconstitutional an absolute exclusion of school uses from commercial districts.

The subject parcel, which straddles two commercial districts, had been used as a public school for 70 years before its conversion to commercial use. The zoning ordinance does not list a school as a permitted principal, accessory, or special permit use in either commercial district. Landowner sought to convert the parcel for use as a private school, and sought variances for that purpose. The BZA denied the variances, concluding that landowner had demonstrated neither need nor hardship. Landowner then brought this proceeding/action contending that the determination was arbitrary and capricious, and seeking a declaration that the zoning ordinance provisions excluding schools from commercial districts were unconstitutional on their face. Su-preme Court granted the requested judgment, and ordered the BZA to issue a special permit.

In modifying, the Appellate Division held that the general principles that prevent a municipality from excluding schools in residential districts apply with equal force when a municipality attempts to exclude schools in commercial districts. In particular, because of the inherently beneficial nature of educational institutions, an applicant must be given an opportunity to demonstrate that its proposed educational sue is consistent with the public good. The court, however, held that Supreme Court should not have awarded a special permit to landowner because that action improperly stripped the BZA of its ability to evaluate the proposed educational use against other legitimate interests. Hence, the court held that a special permit application should be submitted to the BZA to engage in the relevant balancing. Justice Spain, concurring, did not agree that a blanket prohibition of schools in commercial areas was unconstitutional, but concluded that in light of the ordinance provisions permitting churches and residential uses as permitted uses in commercial districts, there was no basis for excluding schools.

COMMENT

New York courts, relying on the limited nature of the constitutional grant of police power to the state, have held that the police power does not authorize blanket exclusion of schools from residential areas, because absolute exclusion does not advance the public health, safety, morals, or welfare. Thus, in Diocese of Rochester v. Planning Board , 1 NY2d 508, the Court of Appeals annulled determinations of the local planning board and zoning board of appeals denying the diocese's applications for subdivision approval and a variance to build a church and school in a residential district. The court indicated that a zoning ordinance may not wholly exclude churches and synagogues from residential districts, and found that the two boards had not adduced any reasons for denying these permits that would promote health, safety, morals, or welfare. The court emphasized that residential districts are 'usually the quietest and least congested areas of a town.' Later, in Cornell University v. Bagnardi (68 N.Y.2d 583), the court reaffirmed the principal that a zoning ordinance may not include a blanket exclusion of churches and synagogues from residential areas, and may not consider the applicant's 'need' to expand in evaluating applications for special permits or variances. At the same time, the court emphasized that the town could consider potential harm to the community in evaluating applications by churches and schools, ultimately remanding to the Zoning Board of Appeals (ZBA) to balance the public benefit of the proposed college expansion into a residential area with the potential harm to the community. Most recently, in Pine Knolls Alliance Church v. Zoning Board of Appeal s, 5 NY3d 407, the court upheld denial of a special use permit to a church to construct a second driveway as part of an expansion plan, emphasizing the municipality's right to consider traffic concerns. The court, however, reiterated its disapproval of blanket bans of religious and educational uses from residential districts.

The arguments against blanket bans of religious and educational uses in residential districts may not apply with equal force when considering such exclusions in commercial zones. In Diocese of Rochester, the court emphasized that residential areas were typically among the quietest and least congested. By contrast, the increased congestion in commercial areas may pose a greater threat to the safety of the students, potentially providing a public safety justification for an absolute ban on churches and schools. The majority in Albany, however, was unwilling to accept such an argument.

 

Town Bound By Earlier Landmark Determination

Matter of Corona Realty

Holdings, LLC. v. Town of

North Hempstead

NYLJ 8/7/06, p. 38, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding by country club owner challenging designation of the club as a historic landmark,, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town had failed to explain its departure from its earlier failure to designate the club as a landmark.

In 1992, the town landmark preservation commission denied an application to designate the clubhouse and surrounding 10 acres as a landmark. In 1993, the commission and the Town Board approved an application for landmark status of the clubhouse building, but the Appellate Division ultimately annulled that determination for failure to follow the procedures outlined in the town ordinance. In 1996, the town board denied an application to designate the clubhouse and 1.6 surrounding acres as a landmark. Then, in 2000, the town board approved an application to designate the entire 10 acres as a landmark. The Appellate Division annulled that determination for failure to indicate reasons for reaching a different result from that reached in 1996. In 2004, the town board again accepted a recommendation of the landmark preservation commission and designated the entire 10 acres as a landmark. Owner of the club brought this article 78 proceeding challenging the designation, and Supreme Court annulled the determination. The club owner appealed.

In affirming, the Appellate Division noted that an administrative agency determination that neither adheres to its own prior precedent nor indicates its reason for reaching a different result on the same facts is arbitrary and capricious. In this case, the court concluded that the town board's determination was based on the same facts presented to the board in 1996 when the board rejected landmark status. As a result, the board's failure to offer explanation for failure to follow its earlier precedent required that the permit be annulled.

COMMENT

A zoning board of appeals is bound by principles of res judicata in making quasi-judicial determinations on applications for variances and special permits. For instance, in Pettit v. Board of Appeals, 160 AD2d 1006, the court upheld the board's refusal to consider landowner's four variance applications when landowner's predecessor had applied for the same variances less than a year earlier. The court concluded that because there had been no material changes in facts or circumstances, the board was within its power to refuse to hear the second application. See also Kam Lee v. Zoning Board of Appeals, 1 AD3d 600.

Moreover, landowner's submission of additional proof to support its position is not sufficient to avoid the effect of res judicata. In Freddolino v. Village of Warwick, 192 AD2d 839, the court sustained a board's denial of a variance application after the board had concluded that landowner had not demonstrated facts or circumstances that had changed since a prior variance denial. Landowner had conceded that the parties, issues, facts, and relief sought were the same in the two variance applications, but argued that the quality of proof submitted was different. The court noted that commencement of a new proceeding to cure defects in proof does not permit a party to avoid res judicata.

If, however, there have been significant changes in the nature of the application, res judicata does not apply. Thus, in Freeman v. Ithaca Zoning Board of Appeals, 61 AD2d 1070, the court sustained the board's grant of an application to construct a medical clinic, despite a prior denial to the same applicant, emphasizing that landowner's new plans rotated the building by 90 degrees and relocated the parking lot. The court emphasized that it is generally up to a board to determine what changes in facts and circumstances are sufficient to warrant a different determination on a subsequent application.

Supplemental EIS Required

Matter of Riverkeeper, Inc. v. Planning Board

NYLJ 8/14/06, p. 37, col. 3

AppDiv, Second Dept

(3-1 decision; memorandum opinion; dissenting memorandum by Spolzi-no, J.)

In an article 78 proceeding brought by individuals and environmental groups to annul a determination by the planning board declining to require preparation of a supplemental environmental impact statement (SEIS), petitioners appealed from Supreme Court's dismissal of the petition. A divided Appellate Division reversed and granted the petition, holding that changes in potential environmental impact and changes in the regulatory environment during the 12 years since preparation of the original environmental impact statement were sufficient to mandate preparation of an SEIS.

In 1989, after developer initially sought subdivision approval, the planning board declared itself lead agency for purposes of the State Environmental Quality Review Act (SEQRA). In 1991, the board approved both a final environmental impact statement (FEIS) and an initial supplemental environmental impact statement. The board issued a statement of findings deferring analysis of storm-water pollution and runoff impacts from the subdivision. In 1997, the New York City Department of Environmental Protection (DEP) was granted authority over approval of storm-water pollution protection plans, sewage treatment plants, and sewage disposal systems for subdivisions located within the New York City watershed. By 1998, the planning board had approved four other subdivisions totaling 68 lots, and in 2000, the State Department of Environmental Conser-vation (DEP) tightened restrictions on phosphorus discharges into waters within the city watershed.

In 2001, developer applied for final subdivision approval, reducing the total number of building lots from 139 to 104,and reducing the acreage of natural wetlands that would be disturbed during construction. The planning board received reports from its own consultant indicating that more information on storm-water drainage was necessary. Nevertheless, the planning board granted final conditional subdivision approval. Environmental groups and individuals then brought an article 78 proceeding contending that the board had not taken the requisite hard look and seeking preparation of an SEIS. Supreme Court granted the petition, and directed the planning board to take a hard look at eight areas of environmental concern. In response, the board concluded that it had taken the requisite hard look, but had failed to make a written recitation to that effect. As a result, the board did not require preparation of an SEIS, resulting in the instant article 78 proceeding. Supreme Court denied the petitions and dismissed the petitions, and petitioners appealed.

In reversing, the Appellate Division majority emphasized both that environmental impacts and the regulatory environment had changed since preparation of the FEIS. The court also concluded that the planning board had abdicated responsibility when it decided not to investigate areas of environmental concern because those areas would be examined by other involved agencies in their own permit application proceedings. Justice Spolzino, dissenting, concluded that the planning board had properly based its determination to forego preparation of an SEIS on evidence and expert opinion contained in the administrative records of other agencies.

 

Fair Housing Act Claim Against Village and County Survives Motion to Dismiss

ACORN v. County of Nassau

NYLJ 8/2/06, p. 27, col. 1

U.S. District Ct., E.D.N.Y.

(Bianco, J.)

In an action by a civil rights organization, a developer, and a number of individuals alleging violation of the Fair Housing Act and the Civil Rights Acts, defendants Village of Garden City and County of Nassau moved to dismiss for lack of standing and for failure to state a claim. The court denied both motions, holding that the organizations had standing and had stated a claim.

When Nassau County decided that county-owned property within the Village of Garden City was no longer needed for county purposes, the Garden City Board of Trustees appointed a zoning committee to address issues relating to the subject property, known as the Mineola Complex. The Board appointed a planning consultant, which recommended a Proposed Zoning plan that would have permitted one unit of multi-family housing for very 3000 square feet of land area, ultimately permitting a maximum of 355 affordable multi-family units. Neighborhood opposition to the Proposed Zoning plan surfaced, and ultimately, the Board of Trustees approved a Special Zoning amendment that would have permitted only 36 multi-family units. After the Special Zoning amendment was adopted, Nassau County issued a Request for Proposals (RFP) for the site, with an asking price of $30 million. Plaintiff developer and civil rights organization then med with county officials and proposed an alternative that would comply with the Proposed Zoning, but not the Special Zoning, and that would permit construction of multi-family housing. Developer never submitted a proposal in response to the Nassau County RFP, and the county selected another developer who would develop only luxury single-family dwellings and townhouses. Plaintiffs then brought this action, contending that the plan would perpetuate and reinforce racial and ethnic housing segregation in Garden City and Nassau County. The village and the county moved to dismiss.

In holding that the developer had standing, the court concluded that developer's proposal of an alternative plan for a particularized site was sufficient to confer standing. Failure to submit a formal response to the RFP did not deprive the developer of standing, because any response would have been futile because, according to the developer, the discriminatory zoning made it financially impossible to build low-income housing on the site. On these facts, the court concluded that the developer had standing to challenge the actions of the local officials. The court also held that the civil rights organization and the individualized plaintiffs had demonstrated adequate injury in fact, because the developer's action establishes a likelihood that affordable housing will be built if the plaintiffs prevail. The court then denied defendants' motion to dismiss for failure to state a claim, noting that in a claim under the federal Civil Rights Act an the federal Fair Housing Act, once a plaintiff alleges racial animus, the burden shifts to defendants to demonstrate a legitimate bona fide interest, and to demonstrate that no alternative would satisfy that interest with less discriminatory intent. Here, the court noted that the complaint adequately pled intentional discrimination.

 

Zoning Not Consistent with Comprehensive Plan

Infinity Consulting Group, Inc. v. Town of Huntington

NYLJ 8/11/06, p. 25, col. 1

Supreme Ct., Suffolk Cty

(Hudson, J.)

Landowner brought an action contending that zoning of its parcel violated both the equal protection clause and the statutory requirement that zoning be in accordance with a comprehensive plan. After a non-jury trial, the court held that landowner had established a statutory violation because its parcel was no longer consistent with the town's comprehensive plan.

Landowner owns a parcel of land on Route 110, a commercial thoroughfare. The parcel is zoned for residential use on parcels of at least one acre. On one of the town's planning maps, the parcel had been designated for a zoning change to a mixture of commercial use along Route 110 and moderate density residential use toward the rear of the parcel, but the town has never rezoned the parcel. Almost every other parcel on Route 110 is zoned for commercial use. Against that background, landowner brought this action contending that the current zoning violated both the equal protection clause and Town Law sections 263 and 272-a, which require a town to create a comprehensive zoning plan and authorize a town planning board to prepare a master plan.

In holding that the town had violated the Town Law provisions, the court noted that the town's principal reason for not rezoning the parcel was to maintain a buffer for the residential owners behind lot 110. But the court concluded that this was an inadequate basis for requiring land-owner to maintain residential use on a site on which residential use had become unsuitable. The court, however, found no equal protection violation because landowner had not demonstrated that landowner's treatment was motivated by impermissible considerations like race, religion, or bad faith intent to injure a person.