Development

No Standing to Challenge Variance

Matter of Shelter Island Assn v. Zoning Board of Appeals

NYLJ 1/2/09, p. 37, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging grant of an accessory apartment variance, petitioner neighbors and neighborhood association appealed from the Supreme Court's denial of the petition and dismissal of the proceeding for lack of standing, and from the Supreme Court's denial of a motion for leave to amend to add other petitioners who might have standing. The Appellate Division affirmed, holding that neither the original nor the additional petitioners had standing to challenge the variance.

When neighbors and a neighborhood association brought this action challenging the variance, the ZBA moved to dismiss for lack of standing. When the Supreme Court concluded that none of the individual petitioners, and none of the members of the neighborhood association, would suffer harm different from the public at large, the petitioners sought leave to amend to add other petitioners, including one who lived within 250 feet of the subject premises. The Supreme Court denied leave to amend, and dismissed the petition. The petitioners appealed.

In affirming, the Appellate Division acknowledged that adding additional petitioners would not have caused surprise or prejudice to the ZBA, and that the motion was not barred by the statute of limitations. But the court held that the Supreme Court's denial of the motion was nevertheless correct, because even the new petitioners did not have standing. Although one of those petitioners lived in close proximity to the subject premises, the court held that none of the allegations about increased traffic and harm to the water table were sufficient to establish harm that is different from that suffered by the public at large. As a result, none of the petitioners had standing to challenge grant of the variance.

Summary Judgment Granted In SLAPP Suit

311 West Broadway LLC v. Jacob Cram Cooperative, Inc.

NYLJ 1/9/09, p. 26, col. 3

Supreme Ct., N.Y. Cty

(Cahn, J.)

In an action by a developer against a neighboring co-op for breach of contract, the co-op sought summary judgment. The court granted the co-op's motion, holding that the developer's action was a SLAPP suit (Strategic Lawsuit Against Public Participation).

The developer planned to build a condominium on a parking lot adjacent to the 110-year-old co-op building, which contains artists' lofts. The proposed condominium building did not conform to the city's zoning ordinance, and as a result, the developer was required to obtain a number of permits from the city. During the permit process, the co-op expressed concern that construction of a proposed underground parking garage would affect the structural integrity of its building. After consultation with their respective engineers, the co-op and the developer executed an agreement that required the developer to use specified foundation piles, to maintain a ten-foot berm of undisturbed soil adjacent to the co-op building, and to monitor vibrations and other impact of its work. Paragraph 5 of the agreement provided acceptable tolerances for vertical movement and vibration, and paragraph 6 provided that “[i]n the event of exceedance, as set forth in paragraph 5,” the parties' engineers would meet as soon as possible to agree upon a course of action, and if they could not agree, they would refer the matter to a third engineer. The co-op contended that the agreement was a condition for the city's approval of developer's permit.

The co-op contended that in January 2007, the developer violated the agreement by excavating in the berm and by installing piles different from those mandated by the agreement. The co-op wrote to the developer seeking remedial action, and indicating that if the developer did not remedy the problem, the co-op would seek rescission of the city's approval. When the developer did not respond, the co-op reported a shifting of its building to the Department of Buildings (DOB), which resulted in a stop work order by the DOB. On March 30, 2007, the DOB vacated its order after the developer submitted certain documents. On the same day, developer brought this action, seeking $10 million in damages, contending that the co-op breached the agreement by reporting the problem to the DOB rather than permitting the parties' respective engineers, in accordance with paragraph 6 of the agreement, to resolve the problems. The co-op board sought summary judgment, contending that paragraph 6's provisions applied only to tolerances for vertical movement and vibration, not to other breaches of the agreement.

In awarding summary judgment to the co-op, the court relied on section 76-a of the Civil Rights Law and CPLR 3212(h). The court held that the developer's action was one involving public participation and petition, and then held that developer had failed to establish that the action had “a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” In particular, the court held that the complaint included only conclusory allegations about how the co-op breached the agreement, which were insufficient to meet the standards of the statutes designed to deter SLAPP suits.

COMMENT

When an applicant for a land use or other permit brings an action “materially related” to a defendant's efforts to comment, report on, challenge, or oppose the permit, section 76-a of the Civil Rights Law (the SLAPP statute) deems the action to be an “action involving public petition and participation.” Once the action qualifies as a SLAPP action, the statute provides that the applicant may not prevail unless the applicant demonstrates, by clear and convincing evidence, that any statement made by the defendant “was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.” Moreover, CPLR 3212(h) then provides that in a SLAPP action, a defendant's motion for summary judgment should be granted unless plaintiff establishes, by clear and convincing evidence, that the action “has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”

CPLR 3212(h)'s standard would require dismissal of actions that would probably survive CPLR 3212(b)'s ordinary standard, which provides that a summary judgment motion should be denied “if any party shall show facts sufficient to require a trial of any issue of fact.” Consider, for instance, T.S. Haulers Inc. v. Kaplan, 295 AD2d 595, in which a permit applicant brought a defamation action against an environmental group and employees of the group who opposed the permit. The complaint alleged that defendant made statements with reckless disregard for their truth, an issue that would ordinarily raise a question of fact and preclude summary judgment under CPLR 3212(b). The court nevertheless awarded summary judgment to defendant pursuant to CPLR 3212(h), in part because plaintiff had not come forward with clear and convincing evidence that the statements were made with reckless disregard for their truth. In the absence of such evidence, there would be no substantial basis in fact and law for plaintiff's action.

Town's Rezoning Ultra Vires

BLF Associates LLC v. Town of Hempstead

NYLJ 1/5/09, p. 18, col. 1

AppDiv, Second Dept.

(Lifson, J.)

In a landowner's action for a judgment declaring a town's enactment ultra vires, the town appealed from a Supreme Court order granting landowner's summary judgment motion. The Appellate Division affirmed, holding that the town lacked power to enact an article requiring a specific number of units on a parcel and mandating construction of a recreational facility to be owned by a homeowners' association.

The subject 17-acre parcel, zoned for residential purposes, was owned by the United States and used as an army reserve facility. In 1996, the federal government closed the facility and sought to sell the property. In accordance with a federal statute, the town was afforded the first opportunity to acquire and redevelop the property. The town then formed a local redevelopment agency, which developed a plan for the property which included 34 single-family homes, 40 senior citizen dwellings, and a recreational facility. Ultimately, the town decided not to purchase the parcel, and the federal government sold the property, after soliciting bids, to a private developer, plaintiff in this action. The notice of availability made reference to the town's redevelopment plan, but the exchange agreement with the developer did not.

Meanwhile, the town amended its zoning ordinance to create the “North Bellmore Planned Residence District,” which limited use of the property to 34 single-family homes, 40 senior citizen semi-attached dwellings, and a community recreational facility with specified amenities. The amended ordinance also required that the recreational facility be transferred to a homeowners' association. Plaintiff developer then brought this action challenging the amendment as ultra vires, and Supreme Court granted summary judgment to the developer.

In affirming, the Appellate Division emphasized that nothing in the Town Law empowers a town to specify the exact number and type of dwelling allowed in a zoning district. In addition, the court held that nothing in the applicable enabling statute authorizes a town to require construction of a recreational facility with specified amenities. Finally, the court emphasized that a zoning ordinance may not requires a specific ownership structure for land within a municipality. As a result, the court held that the amendment was ultra vires.

No Standing to Challenge Variance

Matter of Shelter Island Assn v. Zoning Board of Appeals

NYLJ 1/2/09, p. 37, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging grant of an accessory apartment variance, petitioner neighbors and neighborhood association appealed from the Supreme Court's denial of the petition and dismissal of the proceeding for lack of standing, and from the Supreme Court's denial of a motion for leave to amend to add other petitioners who might have standing. The Appellate Division affirmed, holding that neither the original nor the additional petitioners had standing to challenge the variance.

When neighbors and a neighborhood association brought this action challenging the variance, the ZBA moved to dismiss for lack of standing. When the Supreme Court concluded that none of the individual petitioners, and none of the members of the neighborhood association, would suffer harm different from the public at large, the petitioners sought leave to amend to add other petitioners, including one who lived within 250 feet of the subject premises. The Supreme Court denied leave to amend, and dismissed the petition. The petitioners appealed.

In affirming, the Appellate Division acknowledged that adding additional petitioners would not have caused surprise or prejudice to the ZBA, and that the motion was not barred by the statute of limitations. But the court held that the Supreme Court's denial of the motion was nevertheless correct, because even the new petitioners did not have standing. Although one of those petitioners lived in close proximity to the subject premises, the court held that none of the allegations about increased traffic and harm to the water table were sufficient to establish harm that is different from that suffered by the public at large. As a result, none of the petitioners had standing to challenge grant of the variance.

Summary Judgment Granted In SLAPP Suit

311 West Broadway LLC v. Jacob Cram Cooperative, Inc.

NYLJ 1/9/09, p. 26, col. 3

Supreme Ct., N.Y. Cty

(Cahn, J.)

In an action by a developer against a neighboring co-op for breach of contract, the co-op sought summary judgment. The court granted the co-op's motion, holding that the developer's action was a SLAPP suit (Strategic Lawsuit Against Public Participation).

The developer planned to build a condominium on a parking lot adjacent to the 110-year-old co-op building, which contains artists' lofts. The proposed condominium building did not conform to the city's zoning ordinance, and as a result, the developer was required to obtain a number of permits from the city. During the permit process, the co-op expressed concern that construction of a proposed underground parking garage would affect the structural integrity of its building. After consultation with their respective engineers, the co-op and the developer executed an agreement that required the developer to use specified foundation piles, to maintain a ten-foot berm of undisturbed soil adjacent to the co-op building, and to monitor vibrations and other impact of its work. Paragraph 5 of the agreement provided acceptable tolerances for vertical movement and vibration, and paragraph 6 provided that “[i]n the event of exceedance, as set forth in paragraph 5,” the parties' engineers would meet as soon as possible to agree upon a course of action, and if they could not agree, they would refer the matter to a third engineer. The co-op contended that the agreement was a condition for the city's approval of developer's permit.

The co-op contended that in January 2007, the developer violated the agreement by excavating in the berm and by installing piles different from those mandated by the agreement. The co-op wrote to the developer seeking remedial action, and indicating that if the developer did not remedy the problem, the co-op would seek rescission of the city's approval. When the developer did not respond, the co-op reported a shifting of its building to the Department of Buildings (DOB), which resulted in a stop work order by the DOB. On March 30, 2007, the DOB vacated its order after the developer submitted certain documents. On the same day, developer brought this action, seeking $10 million in damages, contending that the co-op breached the agreement by reporting the problem to the DOB rather than permitting the parties' respective engineers, in accordance with paragraph 6 of the agreement, to resolve the problems. The co-op board sought summary judgment, contending that paragraph 6's provisions applied only to tolerances for vertical movement and vibration, not to other breaches of the agreement.

In awarding summary judgment to the co-op, the court relied on section 76-a of the Civil Rights Law and CPLR 3212(h). The court held that the developer's action was one involving public participation and petition, and then held that developer had failed to establish that the action had “a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” In particular, the court held that the complaint included only conclusory allegations about how the co-op breached the agreement, which were insufficient to meet the standards of the statutes designed to deter SLAPP suits.

COMMENT

When an applicant for a land use or other permit brings an action “materially related” to a defendant's efforts to comment, report on, challenge, or oppose the permit, section 76-a of the Civil Rights Law (the SLAPP statute) deems the action to be an “action involving public petition and participation.” Once the action qualifies as a SLAPP action, the statute provides that the applicant may not prevail unless the applicant demonstrates, by clear and convincing evidence, that any statement made by the defendant “was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.” Moreover, CPLR 3212(h) then provides that in a SLAPP action, a defendant's motion for summary judgment should be granted unless plaintiff establishes, by clear and convincing evidence, that the action “has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”

CPLR 3212(h)'s standard would require dismissal of actions that would probably survive CPLR 3212(b)'s ordinary standard, which provides that a summary judgment motion should be denied “if any party shall show facts sufficient to require a trial of any issue of fact.” Consider, for instance, T.S. Haulers Inc. v. Kaplan, 295 AD2d 595, in which a permit applicant brought a defamation action against an environmental group and employees of the group who opposed the permit. The complaint alleged that defendant made statements with reckless disregard for their truth, an issue that would ordinarily raise a question of fact and preclude summary judgment under CPLR 3212(b). The court nevertheless awarded summary judgment to defendant pursuant to CPLR 3212(h), in part because plaintiff had not come forward with clear and convincing evidence that the statements were made with reckless disregard for their truth. In the absence of such evidence, there would be no substantial basis in fact and law for plaintiff's action.

Town's Rezoning Ultra Vires

BLF Associates LLC v. Town of Hempstead

NYLJ 1/5/09, p. 18, col. 1

AppDiv, Second Dept.

(Lifson, J.)

In a landowner's action for a judgment declaring a town's enactment ultra vires, the town appealed from a Supreme Court order granting landowner's summary judgment motion. The Appellate Division affirmed, holding that the town lacked power to enact an article requiring a specific number of units on a parcel and mandating construction of a recreational facility to be owned by a homeowners' association.

The subject 17-acre parcel, zoned for residential purposes, was owned by the United States and used as an army reserve facility. In 1996, the federal government closed the facility and sought to sell the property. In accordance with a federal statute, the town was afforded the first opportunity to acquire and redevelop the property. The town then formed a local redevelopment agency, which developed a plan for the property which included 34 single-family homes, 40 senior citizen dwellings, and a recreational facility. Ultimately, the town decided not to purchase the parcel, and the federal government sold the property, after soliciting bids, to a private developer, plaintiff in this action. The notice of availability made reference to the town's redevelopment plan, but the exchange agreement with the developer did not.

Meanwhile, the town amended its zoning ordinance to create the “North Bellmore Planned Residence District,” which limited use of the property to 34 single-family homes, 40 senior citizen semi-attached dwellings, and a community recreational facility with specified amenities. The amended ordinance also required that the recreational facility be transferred to a homeowners' association. Plaintiff developer then brought this action challenging the amendment as ultra vires, and Supreme Court granted summary judgment to the developer.

In affirming, the Appellate Division emphasized that nothing in the Town Law empowers a town to specify the exact number and type of dwelling allowed in a zoning district. In addition, the court held that nothing in the applicable enabling statute authorizes a town to require construction of a recreational facility with specified amenities. Finally, the court emphasized that a zoning ordinance may not requires a specific ownership structure for land within a municipality. As a result, the court held that the amendment was ultra vires.