Development

Taxpayer Action to Enjoin Zoning Violation Not Barred by Town's
Commencement of Criminal Proceeding

Phair v. Sand Land Corporation

NYLJ 11/10/08, p. 28, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action by three neighboring taxpayers to enjoin landowner from using its land for waste management services in violation of the town's zoning ordinance, taxpayers appealed from the Supreme Court's dismissal of the complaint. The Appellate Division reversed, holding that the town's subsequent commencement of a criminal proceeding did not require dismissal of the taxpayer action.

The three taxpayers served the town with notice that landowner was using its land in violation of the zoning ordinance. When the town permitted more than ten days to elapse without taking any action, taxpayers brought this action, invoking Town Law '268(2) to assert a claim for violation of the zoning ordinance, and also advancing a claim for common law nuisance. Section 268 permits a town to bring an action to restrain violation of its zoning ordinance, and also authorizes taxpayers to bring an action “upon the failure or refusal of the proper local officer ' to institute an such appropriate action.” After taxpayers brought the action, the Town commenced a criminal proceeding against landowner. The Supreme Court then dismissed the taxpayer action, relying on the criminal proceeding. Taxpayers appealed.

In reversing, the Appellate Division held that once the taxpayers satisfied the statutory requirement that they wait ten days after providing written notice to the town officials, subsequent commencement of proceedings by the town did not require dismissal of an action properly brought. The court then held that criminal proceedings were not an “appropriate action” within the meaning of '268 because criminal proceedings were designed for punishment, not for abatement of the violation. Finally, the court held that action by the town provided no basis for dismissal of the taxpayers' common law nuisance action.

COMMENT

A private property owner who suffers special damages from the violation of a zoning ordinance may seek injunctive relief and damages against the violator. In Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, the court held that a landowner whose property had been invaded by dust and soot had standing to enjoin an adjoining property owner, Posillico, from violating a zoning ordinance by maintaining an asphalt plant on a parcel located in a district that prohibited such use.

Whether a landowner must establish special damages to prevail in a taxpayer action under Town Law '268 remains a subject of controversy. The statute permits three “jointly or severally aggrieved” taxpayers to seek injunctive relief for violation of a zoning ordinance upon failure or refusal of the proper local officer to institute an appropriate action. In Little Joseph, the Court of Appeals rejected the argument that Town Law '268(2) provided the exclusive remedy for a landowner aggrieved by a zoning ordinance, concluding that the statute should not be construed to limit the right of a landowner who has suffered special damages. That dictum in Little Joseph might be read as a statement that in an action under '268(2), taxpayers do not have to prove special damages. That reading appears especially reasonable, because if taxpayers have to prove special damages, '268(2) is largely superfluous, because Little Joseph establishes that a landowner who suffers special damages does not need '268(2) to establish standing. Nevertheless, a number of courts have construed '268(2) to require proof of special damages. For example, in Zupa v. Paradise Point Assn, Inc., 22 AD2d 843, the court held that a taxpayer whose property was more than a half mile away from the zoning violation lacked standing for failure to prove special harm. Similarly, in Shepardson v. Kenville, 167 Misc.2d 247, the court held that a plaintiff is required to show special damages and found that a plaintiff located 800 feet from the property which was the subject of the litigation was too far away to show special damages.

Taxpayers may not proceed under '268(2) when municipal officials have determined that the challenged use is permitted. When taxpayers are dissatisfied with a municipal interpretation of the ordinance, their remedy is to bring an article 78 proceeding, not a proceeding under '268(2). In Marlowe v. Elmwood, Inc., 12 A.D.3d 742, the court dismissed a proceeding brought pursuant to '268(2) by resident taxpayers who objected to Elmwood Country Day School's operation of a summer camp adjacent to their property. On three separate occasions, the taxpayers had written to town officials, requesting that the officials institute a proceeding against the school, alleging that the camp did not qualify as an “educational building” under the town's zoning ordinance. On each occasion, town officials replied that the use was legally permitted and no enforcement action would be undertaken. In dismissing the proceeding, the court indicated that the taxpayer's remedy was to seek an interpretation from the zoning board of appeals, and, thereafter, to bring an article 78 proceeding.

However, where municipal officials have determined that the challenged use is not permitted, or have made no determination, taxpayers may seek review directly from a court without seeking administrative relief. The court in Eggert v. LeFever, 222 A.D.2d 1043, found that taxpayers had a right of action under '268(2) because the town had refused to enforce its zoning ordinance against a landowner operating a construction business in a Residential-Agricultural District. Rather than enforcing its zoning ordinance, the town started the process to amend the ordinance to permit construction contractor businesses as specially permitted uses in the district. The court determined that this was not a reasonable means of enforcing the zoning ordinance, and therefore, the taxpayers had the right to enforce the ordinance through a taxpayer action under '268(2).

Town Board Lacks Power to Grant Variances and Site Plan Approval

Matter of Riverhead PGC LLC v. Town of Riverhead

NYLJ 10/21/08, p. 28, col. 1

Supreme Ct., Suffolk Cty

(Whelan, J.)

In a hybrid article 78 proceeding/declaratory judgment action, neighboring shopping center owner challenged the town board's grant of variances and approval of a site plan to permit construction of a Wal-Mart Supercenter with a motor vehicle repair shop and a 54-seat food shop. The court granted the petition, holding that the Town Board lacked power to grant the variances and site plan approval.

The subject property is located in a Destination Retail Center (DRC) district in the Town of Riverhead. Permitted uses in a DRC district include retail stores, hotels, car dealerships, and banks. The town has also adopted a TDR program that enables commercial users to use agricultural preservation credits. Section 108-332 of the town code provides that the town board shall be the administrator for agricultural preservation certificates, and gives the town board power to vary development standards when a developer seeks to use preservation credit certificates. The code provision specifies that it is adopted pursuant to the Municipal Home Rule Law, and is intended to supersede the provisions of Town Law '276.

When Headriver LLC applied for site plan approval for construction of a Wal-Mart Supercenter on the subject parcel, Walmart sought to use TDRs to increase the size of its project. The Town Board applied the TDRs, but also granted six additional variance items, including changes in parking stall dimensions, greater impervious surface area than permitted by the code, and less landscaped area. The Town Board then approved Headriver's site plan. The owner of a neighboring shopping center brought this hybrid proceeding to challenge the town's approval.

The court held invalid the town code provision authorizing the town board to issue variances, and annulled the board's site plan approval. The court first held that the shopping center owner had standing to bring the proceeding even though the shopping center was more than two miles away from the proposed Walmart and more than a mile away from the parcel “sending” the TDRs to be used for the project. The court held that shopping center owner had established that it would suffer special harm as a result of the traffic congestion generated by the project. Turning to the merits, the court held that the town board had no power to reserve for itself, in '108-332, the authority to grant variances from provisions of the zoning code. Instead, '274-a vests exclusive power to grant variances in the zoning board of appeals. As a result, the town's grant of variances was invalid. The court did not consider claims of supersession because the town had argued that the supersession language in the '108-332 was superfluous.

COMMENT

Municipal Home Rule Law '10 grants towns and villages the power to adopt local property ordinances, provided the State Legislature has not preempted local law. A state statute may preempt local law expressly, but even when state legislation does not expressly pre-empt local law, courts imply pre-emption where the purpose and scope of the state's legislative scheme and the need for uniformity in state law demonstrate that the legislature did not intend to permit local variation. Oil Heat Institute of Long Island, Inc. v. Town of Babylon, 156 AD2d 352, illustrates express preemption. There, the Second Department held that the State Petroleum Bulk Storage Code, which expressly declared that “any local law or ordinance which is inconsistent with any provision of this title ' shall be preempted” expressly preempted Babylon's regulations on the installation, maintenance and abandonment of fuel oil storage tanks.

The Court of Appeals has held that Town Law '267(b) and Village Law '7-712(b) impliedly preempt local development of standards for the grant of area variances. In Matter of Cohen v. Board of Appeals of the Vil. of Saddle Rock, 100 NY2d 395, the Court of Appeals held that the newly amended Village Law evinced intent by the Legislature to occupy and preempt the field of area variance review. The village board of appeals had denied a property owner's variance application using an “undue hardship” and “practical difficulties” test provided by local law. The Court overturned the board's determination, holding that local law had been preempted by the multi-factor balancing test laid out in Village Law '7-712-b. The court emphasized that the legislature had set out to reduce the “turmoil and uncertainty” that had plagued variance determinations. Matter of Cohen, however, addressed only the standards to be applied in evaluating area variances and did not reach the issue of which government body had power to grant area variances. Cohen suggests, but does not require, the conclusion reached by the court in Riverhead: that the Town Law and the Village Law, which only authorize the building inspector and zoning board of appeals to grant area variances, would preempt village ordinances that reserve variance powers to the local board. In particular, the reason that led to the pre-emption conclusion in Cohen ' reducing “turmoil and uncertainty” ' applies more clearly to variance standards than to the body charged with making variance determinations.

Even if the town board lacks power to grant variances, a town board generally may amend its zoning ordinances to vary development standards and area requirements under Town Law '264. In fact, the presumption of validity for zoning ordinances is quite strong: the presumption of a zoning ordinance's constitutionality must be rebutted by proof beyond a reasonable doubt. See, generally, Marcus Associates, Inc. v. Town of Huntington, 45 N.Y.2d 501. However, town boards may not amend zoning ordinances to target a single parcel of land for the benefit of the owner of such property unless the rezoning is part of a comprehensive plan. Thus, in Cannon v. Murphy, 196 A.D.2d 498, the Second Department invalidated a zoning ordinance that re-zoned a property owner's parcel to permit construction of 107 single-family residential units on land currently containing one single-family residence. The court noted the zoning ordinance was inconsistent with the proposed master plan concerning housing density, benefited only the parcel owner, and constituted spot zoning.

Taxpayer Action to Enjoin Zoning Violation Not Barred by Town's
Commencement of Criminal Proceeding

Phair v. Sand Land Corporation

NYLJ 11/10/08, p. 28, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action by three neighboring taxpayers to enjoin landowner from using its land for waste management services in violation of the town's zoning ordinance, taxpayers appealed from the Supreme Court's dismissal of the complaint. The Appellate Division reversed, holding that the town's subsequent commencement of a criminal proceeding did not require dismissal of the taxpayer action.

The three taxpayers served the town with notice that landowner was using its land in violation of the zoning ordinance. When the town permitted more than ten days to elapse without taking any action, taxpayers brought this action, invoking Town Law '268(2) to assert a claim for violation of the zoning ordinance, and also advancing a claim for common law nuisance. Section 268 permits a town to bring an action to restrain violation of its zoning ordinance, and also authorizes taxpayers to bring an action “upon the failure or refusal of the proper local officer ' to institute an such appropriate action.” After taxpayers brought the action, the Town commenced a criminal proceeding against landowner. The Supreme Court then dismissed the taxpayer action, relying on the criminal proceeding. Taxpayers appealed.

In reversing, the Appellate Division held that once the taxpayers satisfied the statutory requirement that they wait ten days after providing written notice to the town officials, subsequent commencement of proceedings by the town did not require dismissal of an action properly brought. The court then held that criminal proceedings were not an “appropriate action” within the meaning of '268 because criminal proceedings were designed for punishment, not for abatement of the violation. Finally, the court held that action by the town provided no basis for dismissal of the taxpayers' common law nuisance action.

COMMENT

A private property owner who suffers special damages from the violation of a zoning ordinance may seek injunctive relief and damages against the violator. In Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, the court held that a landowner whose property had been invaded by dust and soot had standing to enjoin an adjoining property owner, Posillico, from violating a zoning ordinance by maintaining an asphalt plant on a parcel located in a district that prohibited such use.

Whether a landowner must establish special damages to prevail in a taxpayer action under Town Law '268 remains a subject of controversy. The statute permits three “jointly or severally aggrieved” taxpayers to seek injunctive relief for violation of a zoning ordinance upon failure or refusal of the proper local officer to institute an appropriate action. In Little Joseph, the Court of Appeals rejected the argument that Town Law '268(2) provided the exclusive remedy for a landowner aggrieved by a zoning ordinance, concluding that the statute should not be construed to limit the right of a landowner who has suffered special damages. That dictum in Little Joseph might be read as a statement that in an action under '268(2), taxpayers do not have to prove special damages. That reading appears especially reasonable, because if taxpayers have to prove special damages, '268(2) is largely superfluous, because Little Joseph establishes that a landowner who suffers special damages does not need '268(2) to establish standing. Nevertheless, a number of courts have construed '268(2) to require proof of special damages. For example, in Zupa v. Paradise Point Assn, Inc., 22 AD2d 843, the court held that a taxpayer whose property was more than a half mile away from the zoning violation lacked standing for failure to prove special harm. Similarly, in Shepardson v. Kenville, 167 Misc.2d 247, the court held that a plaintiff is required to show special damages and found that a plaintiff located 800 feet from the property which was the subject of the litigation was too far away to show special damages.

Taxpayers may not proceed under '268(2) when municipal officials have determined that the challenged use is permitted. When taxpayers are dissatisfied with a municipal interpretation of the ordinance, their remedy is to bring an article 78 proceeding, not a proceeding under '268(2). In Marlowe v. Elmwood, Inc., 1 2 A.D.3d 742, the court dismissed a proceeding brought pursuant to ' 268(2) by resident taxpayers who objected to Elmwood Country Day School's operation of a summer camp adjacent to their property. On three separate occasions, the taxpayers had written to town officials, requesting that the officials institute a proceeding against the school, alleging that the camp did not qualify as an “educational building” under the town's zoning ordinance. On each occasion, town officials replied that the use was legally permitted and no enforcement action would be undertaken. In dismissing the proceeding, the court indicated that the taxpayer's remedy was to seek an interpretation from the zoning board of appeals, and, thereafter, to bring an article 78 proceeding.

However, where municipal officials have determined that the challenged use is not permitted, or have made no determination, taxpayers may seek review directly from a court without seeking administrative relief. The court in Eggert v. LeFever, 222 A.D.2d 1043, found that taxpayers had a right of action under ' 268(2) because the town had refused to enforce its zoning ordinance against a landowner operating a construction business in a Residential-Agricultural District. Rather than enforcing its zoning ordinance, the town started the process to amend the ordinance to permit construction contractor businesses as specially permitted uses in the district. The court determined that this was not a reasonable means of enforcing the zoning ordinance, and therefore, the taxpayers had the right to enforce the ordinance through a taxpayer action under '268(2).

Town Board Lacks Power to Grant Variances and Site Plan Approval

Matter of Riverhead PGC LLC v. Town of Riverhead

NYLJ 10/21/08, p. 28, col. 1

Supreme Ct., Suffolk Cty

(Whelan, J.)

In a hybrid article 78 proceeding/declaratory judgment action, neighboring shopping center owner challenged the town board's grant of variances and approval of a site plan to permit construction of a Wal-Mart Supercenter with a motor vehicle repair shop and a 54-seat food shop. The court granted the petition, holding that the Town Board lacked power to grant the variances and site plan approval.

The subject property is located in a Destination Retail Center (DRC) district in the Town of Riverhead. Permitted uses in a DRC district include retail stores, hotels, car dealerships, and banks. The town has also adopted a TDR program that enables commercial users to use agricultural preservation credits. Section 108-332 of the town code provides that the town board shall be the administrator for agricultural preservation certificates, and gives the town board power to vary development standards when a developer seeks to use preservation credit certificates. The code provision specifies that it is adopted pursuant to the Municipal Home Rule Law, and is intended to supersede the provisions of Town Law '276.

When Headriver LLC applied for site plan approval for construction of a Wal-Mart Supercenter on the subject parcel, Walmart sought to use TDRs to increase the size of its project. The Town Board applied the TDRs, but also granted six additional variance items, including changes in parking stall dimensions, greater impervious surface area than permitted by the code, and less landscaped area. The Town Board then approved Headriver's site plan. The owner of a neighboring shopping center brought this hybrid proceeding to challenge the town's approval.

The court held invalid the town code provision authorizing the town board to issue variances, and annulled the board's site plan approval. The court first held that the shopping center owner had standing to bring the proceeding even though the shopping center was more than two miles away from the proposed Walmart and more than a mile away from the parcel “sending” the TDRs to be used for the project. The court held that shopping center owner had established that it would suffer special harm as a result of the traffic congestion generated by the project. Turning to the merits, the court held that the town board had no power to reserve for itself, in '108-332, the authority to grant variances from provisions of the zoning code. Instead, '274-a vests exclusive power to grant variances in the zoning board of appeals. As a result, the town's grant of variances was invalid. The court did not consider claims of supersession because the town had argued that the supersession language in the '108-332 was superfluous.

COMMENT

Municipal Home Rule Law '10 grants towns and villages the power to adopt local property ordinances, provided the State Legislature has not preempted local law. A state statute may preempt local law expressly, but even when state legislation does not expressly pre-empt local law, courts imply pre-emption where the purpose and scope of the state's legislative scheme and the need for uniformity in state law demonstrate that the legislature did not intend to permit local variation. Oil Heat Institute of Long Island, Inc. v. Town of Babylon, 156 AD2d 352, illustrates express preemption. There, the Second Department held that the State Petroleum Bulk Storage Code, which expressly declared that “any local law or ordinance which is inconsistent with any provision of this title ' shall be preempted” expressly preempted Babylon's regulations on the installation, maintenance and abandonment of fuel oil storage tanks.

The Court of Appeals has held that Town Law '267(b) and Village Law '7-712(b) impliedly preempt local development of standards for the grant of area variances. In Matter of Cohen v. Board of Appeals of the Vil. of Saddle Rock, 100 NY2d 395, the Court of Appeals held that the newly amended Village Law evinced intent by the Legislature to occupy and preempt the field of area variance review. The village board of appeals had denied a property owner's variance application using an “undue hardship” and “practical difficulties” test provided by local law. The Court overturned the board's determination, holding that local law had been preempted by the multi-factor balancing test laid out in Village Law '7-712-b. The court emphasized that the legislature had set out to reduce the “turmoil and uncertainty” that had plagued variance determinations. Matter of Cohen, however, addressed only the standards to be applied in evaluating area variances and did not reach the issue of which government body had power to grant area variances. Cohen suggests, but does not require, the conclusion reached by the court in Riverhead: that the Town Law and the Village Law, which only authorize the building inspector and zoning board of appeals to grant area variances, would preempt village ordinances that reserve variance powers to the local board. In particular, the reason that led to the pre-emption conclusion in Cohen ' reducing “turmoil and uncertainty” ' applies more clearly to variance standards than to the body charged with making variance determinations.

Even if the town board lacks power to grant variances, a town board generally may amend its zoning ordinances to vary development standards and area requirements under Town Law '264. In fact, the presumption of validity for zoning ordinances is quite strong: the presumption of a zoning ordinance's constitutionality must be rebutted by proof beyond a reasonable doubt. See, generally , Marcus Associates, Inc. v. Town of Huntington, 45 N.Y.2d 501. However, town boards may not amend zoning ordinances to target a single parcel of land for the benefit of the owner of such property unless the rezoning is part of a comprehensive plan. Thus, in Cannon v. Murphy, 196 A.D.2d 498, the Second Department invalidated a zoning ordinance that re-zoned a property owner's parcel to permit construction of 107 single-family residential units on land currently containing one single-family residence. The court noted the zoning ordinance was inconsistent with the proposed master plan concerning housing density, benefited only the parcel owner, and constituted spot zoning.