Development

'eClass of One'f Equal Protection Claim Dismissed

Androme Leather Corp. v. City of Gloversville

NYLJ 1/26/10, p. 31, col. 3

U.S. Dist. Ct, N.D.N.Y.

(Suddaby, J.)

The City of Gloversville sought summary judgment in an action brought by a landowner who contended that the city'fs denial of a variance constituted an equal protection violation. The court granted the city'fs motion, holding that there was no evidence to suggest that the city had intentionally treated landowner different from any other landowner.

Landowner has operated a leather processing business on its site since 1981, conducting all operations except for “beaming” ” removal of hair from animal hide. A competitor operates another leather processing facility within the city, and has conducted all operations, including beaming, since 1968. In 1988, the city amended its zoning ordinance to place both facilities in an M-1 district, which prohibited leather processing. Pre-existing, non-conforming leather processing uses were permitted to continue. In 2000, landowner sought a building permit to add a beaming process at its plant, and the building inspector denied that application, citing the zoning code. Landowner then sought a variance, which the zoning board of appeals denied. The state courts dismissed landowner'fs article 78 proceeding challenging the variance denial. Subsequently, competitor applied for a tax installment plan under Real Property Law section 1184, and the city approved the plan. Landowner then brought this “class of one” equal protection claim in federal court, contending that the city had impermissibly discriminated against it.

In awarding summary judgment to the city, the court first noted that landowner had not demonstrated a high degree of similarity between its situation and the competitor'fs situation. In particular, the court noted that the competitor'fs use had been grandfathered in, while landowner'fs was not, and landowner had established neither that the competitor'fs use had been discontinued, nor that the two enterprises were financially similar. The court then noted that there was no evidence that the city had intentionally treated the two enterprises differently, noting that the city had not investigated other tannery operations when it denied landowner'fs variance application, and noting also that competitor had never submitted a variance application. Finally, the court concluded that there was nothing arbitrary about the zoning ordinance or denial of the variance.

Area Variance Denial Upheld

Matter of Hurley v. Zoning Board of Appeals

NYLJ 2/2/10, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner'fs article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court'fs denial of the petition. The Appellate Division affirmed, holding that the ZBA'fs determination was not arbitrary or capricious.

Landowner applied for an area variance, which was denied by the zoning board of appeals. Rather than challenging the denial, landowner subsequently applied for a new area variance. The ZBA issued a negative declaration under SEQRA, but then denied the variance after considering the statutory factors enumerated in Village Law section 7-712-b[3][b]. When landowner brought this article 78 proceeding challenging the denial, the ZBA contended that res judicata or collateral estoppel barred the subsequent application, and also defended its determination on the merits. Supreme Court denied the petition, and landowner appealed.

In affirming, the Appellate Division first held that there was no merit to the ZBA'fs contention that res judicata doctrine barred consideration of the subsequent application. The court emphasized that the ZBA itself had determined, as supported by the record, that there were significant changes in the new application, barring application of res judicata doctrine. On the merits, however, the court held that the ZBA'fs decision properly weighed the statutory factors, and was rational. Although landowner had complained that the board had approved a similar application for a nearby property, the court concluded that approval of a similar application did not establish that the ZBA'fs determination on this application was arbitrary or capricious, because the ZBA had provided a rational explanation for reaching a different conclusion. Finally, the court rejected landowner'fs argument that the ZBA'fs issuance of a negative declaration under SEQRA made subsequent denial of the variance arbitrary. The court indicated that a ZBA is entitled to deny an area variance even in the absence of physical or environmental harm to the neighborhood.

SOB Provisions

VIP of Berlin, LLC v. Town of Berlin

NYLJ 1/28/10

U.S. Court of Appeals Second Circuit

(2-1 decision; majority opinion by Straub, C. J; dissenting opinion by Miner, C. J.)

In an action by a Connecticut landowner seeking an injunction against the town'fs enforcement of the code'fs sexually oriented business (SOB) provisions, the town appealed from the district court'fs grant of a preliminary injunction. In an opinion of relevance to New York landowners, the Second Circuit reversed, concluding that the district court had exceeded its discretion by concluding that the ordinance, as applied to this landowner, was unconstitutionally vague.

Landowner owns a 15,000 square-foot building zoned for retail use. The town'fs current ordinance requires an SOB license for operation of an “adult-oriented store,” and provides that an SOB license may not be issued for a parcel within 250 feet of residentially owned land. The ordinance defines “adult-oriented store” as an establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties or any combination thereof.” Landowner submitted an application for a zoning permit, representing that the store would have an inventory of 67,237 products, 8,242 of which could be classified as adult products such as DVDs for rent or sale, magazines, sex toys and “sex positive lubricants.” The town'fs chief zoning enforcement officer denied the application, concluding that the proposed use would require an SOB license, which landowner lacked. Landowner then brought this action in federal court, pursuant to 42 USC section 1983, contending that the ordinance was unconstitutional. Landowner argued that the provision that defines an adult oriented store as one that has “a substantial or significant portion of its stock in trade” in various adult uses. Landowner did not challenge the definition of adult uses. The district court granted landowner a preliminary injunction, concluding that landowner had demonstrated a likelihood of success on the merits of its vagueness claim. The town appealed.

In reversing, the Second Circuit majority started by noting that landowner had raised an “as applied” challenge to the ordinance. The court concluded that an ordinance could be unconstitutionally vague, as applied if: 1) it provided inadequate notice to the regulated party; or 2) it provided unclear enforcement standards. With respect to notice, the court rejected the argument that the ordinance did not provide landowner with notice that its proposed conduct would fall within the definition. The court emphasized that a landowner who proposes to sell 8,242 adult items should understand that a substantial or significant portion of its stock in trade falls within the definition. The court held that the ordinance need not provide a mathematically precise formula, and noted that in assessing substantiality, the town could reasonably focus on the absolute number of adult items rather than the percentage of total items that qualified as adult uses. Turning to the statute'fs enforcement standards, the majority concluded that the testimony of the zoning enforcement officer that she evaluated each application individually did not preclude a finding that the enforcement standards were sufficiently clear. Moreover, the majority emphasized that even if the ordinance does not provide sufficiently clear enforcement standards, the ordinance still survived the void-for-vagueness challenge because the conduct at issue fell within the core of the statute'fs prohibition.

Judge Miner, dissenting, focused on the ordinance'fs lack of guidance in interpreting the “substantial or significant” language. He concluded that the ordinance had been applied in an arbitrary way, and that a person of ordinary intelligence had no opportunity to know what is required.

'eClass of One'f Equal Protection Claim Dismissed

Androme Leather Corp. v. City of Gloversville

NYLJ 1/26/10, p. 31, col. 3

U.S. Dist. Ct, N.D.N.Y.

(Suddaby, J.)

The City of Gloversville sought summary judgment in an action brought by a landowner who contended that the city'fs denial of a variance constituted an equal protection violation. The court granted the city'fs motion, holding that there was no evidence to suggest that the city had intentionally treated landowner different from any other landowner.

Landowner has operated a leather processing business on its site since 1981, conducting all operations except for “beaming” ” removal of hair from animal hide. A competitor operates another leather processing facility within the city, and has conducted all operations, including beaming, since 1968. In 1988, the city amended its zoning ordinance to place both facilities in an M-1 district, which prohibited leather processing. Pre-existing, non-conforming leather processing uses were permitted to continue. In 2000, landowner sought a building permit to add a beaming process at its plant, and the building inspector denied that application, citing the zoning code. Landowner then sought a variance, which the zoning board of appeals denied. The state courts dismissed landowner'fs article 78 proceeding challenging the variance denial. Subsequently, competitor applied for a tax installment plan under Real Property Law section 1184, and the city approved the plan. Landowner then brought this “class of one” equal protection claim in federal court, contending that the city had impermissibly discriminated against it.

In awarding summary judgment to the city, the court first noted that landowner had not demonstrated a high degree of similarity between its situation and the competitor'fs situation. In particular, the court noted that the competitor'fs use had been grandfathered in, while landowner'fs was not, and landowner had established neither that the competitor'fs use had been discontinued, nor that the two enterprises were financially similar. The court then noted that there was no evidence that the city had intentionally treated the two enterprises differently, noting that the city had not investigated other tannery operations when it denied landowner'fs variance application, and noting also that competitor had never submitted a variance application. Finally, the court concluded that there was nothing arbitrary about the zoning ordinance or denial of the variance.

Area Variance Denial Upheld

Matter of Hurley v. Zoning Board of Appeals

NYLJ 2/2/10, p. 37, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner'fs article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court'fs denial of the petition. The Appellate Division affirmed, holding that the ZBA'fs determination was not arbitrary or capricious.

Landowner applied for an area variance, which was denied by the zoning board of appeals. Rather than challenging the denial, landowner subsequently applied for a new area variance. The ZBA issued a negative declaration under SEQRA, but then denied the variance after considering the statutory factors enumerated in Village Law section 7-712-b[3][b]. When landowner brought this article 78 proceeding challenging the denial, the ZBA contended that res judicata or collateral estoppel barred the subsequent application, and also defended its determination on the merits. Supreme Court denied the petition, and landowner appealed.

In affirming, the Appellate Division first held that there was no merit to the ZBA'fs contention that res judicata doctrine barred consideration of the subsequent application. The court emphasized that the ZBA itself had determined, as supported by the record, that there were significant changes in the new application, barring application of res judicata doctrine. On the merits, however, the court held that the ZBA'fs decision properly weighed the statutory factors, and was rational. Although landowner had complained that the board had approved a similar application for a nearby property, the court concluded that approval of a similar application did not establish that the ZBA'fs determination on this application was arbitrary or capricious, because the ZBA had provided a rational explanation for reaching a different conclusion. Finally, the court rejected landowner'fs argument that the ZBA'fs issuance of a negative declaration under SEQRA made subsequent denial of the variance arbitrary. The court indicated that a ZBA is entitled to deny an area variance even in the absence of physical or environmental harm to the neighborhood.

SOB Provisions

VIP of Berlin, LLC v. Town of Berlin

NYLJ 1/28/10

U.S. Court of Appeals Second Circuit

(2-1 decision; majority opinion by Straub, C. J; dissenting opinion by Miner, C. J.)

In an action by a Connecticut landowner seeking an injunction against the town'fs enforcement of the code'fs sexually oriented business (SOB) provisions, the town appealed from the district court'fs grant of a preliminary injunction. In an opinion of relevance to New York landowners, the Second Circuit reversed, concluding that the district court had exceeded its discretion by concluding that the ordinance, as applied to this landowner, was unconstitutionally vague.

Landowner owns a 15,000 square-foot building zoned for retail use. The town'fs current ordinance requires an SOB license for operation of an “adult-oriented store,” and provides that an SOB license may not be issued for a parcel within 250 feet of residentially owned land. The ordinance defines “adult-oriented store” as an establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties or any combination thereof.” Landowner submitted an application for a zoning permit, representing that the store would have an inventory of 67,237 products, 8,242 of which could be classified as adult products such as DVDs for rent or sale, magazines, sex toys and “sex positive lubricants.” The town'fs chief zoning enforcement officer denied the application, concluding that the proposed use would require an SOB license, which landowner lacked. Landowner then brought this action in federal court, pursuant to 42 USC section 1983, contending that the ordinance was unconstitutional. Landowner argued that the provision that defines an adult oriented store as one that has “a substantial or significant portion of its stock in trade” in various adult uses. Landowner did not challenge the definition of adult uses. The district court granted landowner a preliminary injunction, concluding that landowner had demonstrated a likelihood of success on the merits of its vagueness claim. The town appealed.

In reversing, the Second Circuit majority started by noting that landowner had raised an “as applied” challenge to the ordinance. The court concluded that an ordinance could be unconstitutionally vague, as applied if: 1) it provided inadequate notice to the regulated party; or 2) it provided unclear enforcement standards. With respect to notice, the court rejected the argument that the ordinance did not provide landowner with notice that its proposed conduct would fall within the definition. The court emphasized that a landowner who proposes to sell 8,242 adult items should understand that a substantial or significant portion of its stock in trade falls within the definition. The court held that the ordinance need not provide a mathematically precise formula, and noted that in assessing substantiality, the town could reasonably focus on the absolute number of adult items rather than the percentage of total items that qualified as adult uses. Turning to the statute'fs enforcement standards, the majority concluded that the testimony of the zoning enforcement officer that she evaluated each application individually did not preclude a finding that the enforcement standards were sufficiently clear. Moreover, the majority emphasized that even if the ordinance does not provide sufficiently clear enforcement standards, the ordinance still survived the void-for-vagueness challenge because the conduct at issue fell within the core of the statute'fs prohibition.

Judge Miner, dissenting, focused on the ordinance'fs lack of guidance in interpreting the “substantial or significant” language. He concluded that the ordinance had been applied in an arbitrary way, and that a person of ordinary intelligence had no opportunity to know what is required.