Development

Supreme Ct., N.Y. Cty.

(Lobis, J.)

Landowner brought an article 78 proceeding challenging a determination by the Board of Standards and Appeals (BSA) that its advertising signs did not qualify as legal nonconforming uses. The court denied the petition and dismissed the proceeding, holding that the BSA had a reasonable basis for concluding that landowner had not produced sufficient evidence to establish continuous use of the signs since 1961.

Landowner owns a five-story apartment building in Astoria with four illuminated advertising signs, two on the north wall and two on the south wall. In 2009, landowner sought a determination that the signs be accepted as grandfathered as lawful non-conforming uses because they had been continuously used without a two-year interruption since the current zoning ordinance was enacted in 1961. The Department of Buildings (DOB) disapproved landowner's applications for the four signs, and the BSA, after public hearings, upheld that determination. At those hearings, landowner submitted affidavits and oral testimony by a number of individuals attesting that the signs had been in continuous use since the 1950s. Landowner also submitted a number of leases and assignments of leases for the signs, although landowner submitted no lease documents for the period from 1961-1971 or for a period in the 1980s. BSA, however, relied on DOB's Technical Policy and Procedure Notice (TPPN), which sets forth four types of evidence of continual nonconforming use. That notice treats records from a city agency as the best evidence of nonconforming use, followed by records, bills, or documentation from public agencies, then other documentation or use, followed by affidavits, the weakest evidence, acceptable only after a satisfactory explanation that the first three categories of evidence do not exist. In this case, landowner did not submit evidence in the first two categories, and its presentation of leases was incomplete because of the gaps during which landowner could produce no leases. On those facts, BSA concluded that the affidavit evidence was insufficient to establish a legal nonconforming use.

In upholding BSA's determination, the court emphasized that landowner bears the burden of proving that a use otherwise not permitted qualifies as a legal nonconforming use. Here, the court concluded that BSA acted rationally in relying on the TPPN, and in applying it. The court noted that BSA was entitled to make credibility findings, including a finding that landowner's witnesses were potentially biased, and that their affidavits lacked adequate specificity. The court also rejected landowner's argument that BSA was obligated to provide examples of the types of evidence it had accepted in other cases involving nonconforming use of signs.

COMMENT

When a landowner challenges a zoning board determination that the existing use is not a permitted nonconforming use, two questions arise: first, what legal standard does the local ordinance provide for permitting nonconforming uses to continue, and second, did the board correctly apply that standard to the facts of the case? In Toys R Us v. Silva, 89 N.Y.2d 411, the Court of Appeals established that because determining the applicable legal standard is a pure question of law, no deference is due to the board's determination on that issue, but deference is due to the board's application of that standard to the facts of the case. In Toys R Us, landowner brought a proceeding to annul the board's revocation of a building permit, contending that the board had incorrectly concluded that the nonconforming use as a warehouse had been abandoned. The Court of Appeals upheld the board's determination, concluding as a matter of law that the ordinance required only substantial, not complete, cessation of the nonconforming use, and then deferring to the board's determination that warehouse use had been substantially discontinued. The court emphasized that the board's finding on that issue had a rational basis and was supported by substantial evidence.

In Srinivasan, the court held that the board's determination to discount the affidavits presented to it was rational. However, in light of the deference principle it is likely that the same evidence, if credited by the board, would have been sufficient to uphold a contrary determination. For instance, in Eger v. Levine, 153 A.D.2d 998, the court held that unsworn letters submitted by neighbors were sufficient to establish that landowner's four-unit dwelling was a pre-existing non-conforming use in an R-3 zone. In Eger, landowner had sought both a use variance and a determination that the building was protected as a pre-existing non-conforming use. The zoning board of appeals denied the use variance for lack of hardship, but never addressed the non-conforming use contention. The Appellate Division affirmed Supreme Court's grant of landowner's article 78 petition, holding that unsworn letters by neighbors were sufficient to establish a pre-existing nonconforming use, at least in the absence of any contrary evidence.

Malpractice Claim Dismissed

G&M Realty, L.P. v. Masyr

NYLJ 7/2/12, p. 19, col. 6

AppDiv, First Dept.

(memorandum opinion)

In developer's legal malpractice action, defendant lawyers appealed from Supreme Court's denial of their motion to dismiss. The Appellate Division reversed, holding that developer had failed to show that any negligence proximately caused injury.

The lawyers represented the developer with respect to rezoning Long Island City property to increase the permissible FAR. Developer then obtained a special permit for commercial development on the property. When that permit expired, developer filed entirely different plans to permit residential development on the parcel. Developer contended that the lawyers failed to notify developer that the commercial development special permit would expire. In bringing this malpractice action, developer contended that the failure to notify caused significant losses. Supreme Court denied the lawyers' summary judgment motion.

In reversing, the Appellate Division relied on testimony by developer's principal that he would not have started commercial construction without having secured a 600,000 square-foot commercial tenant, and that never had a single entity committed to becoming a commercial tenant. In light of that testimony, the court concluded that the developer had not established that the lawyers' negligence proximately caused any losses. The court acknowledged that the developer also testified that he would have proceeded with the commercial project if he had known that the permit was of finite duration, but concluded that the conflicting testimony did not raise an issue of fact about whether the developer would have built if fully informed by the lawyers. The court also emphasized that the developer had not provided any substantiation for its claim of damages.

Nonconforming Use Claim

Application of Twenty-Seven Twenty-four Realty Corp. v. Srinivasan

NYLJ 6/7/12, p. 21, col. 1

Supreme Ct., N.Y. Cty.

(Lobis, J.)

Landowner brought an article 78 proceeding challenging a determination by the Board of Standards and Appeals (BSA) that its advertising signs did not qualify as legal nonconforming uses. The court denied the petition and dismissed the proceeding, holding that the BSA had a reasonable basis for concluding that landowner had not produced sufficient evidence to establish continuous use of the signs since 1961.

Landowner owns a five-story apartment building in Astoria with four illuminated advertising signs, two on the north wall and two on the south wall. In 2009, landowner sought a determination that the signs be accepted as grandfathered as lawful non-conforming uses because they had been continuously used without a two-year interruption since the current zoning ordinance was enacted in 1961. The Department of Buildings (DOB) disapproved landowner's applications for the four signs, and the BSA, after public hearings, upheld that determination. At those hearings, landowner submitted affidavits and oral testimony by a number of individuals attesting that the signs had been in continuous use since the 1950s. Landowner also submitted a number of leases and assignments of leases for the signs, although landowner submitted no lease documents for the period from 1961-1971 or for a period in the 1980s. BSA, however, relied on DOB's Technical Policy and Procedure Notice (TPPN), which sets forth four types of evidence of continual nonconforming use. That notice treats records from a city agency as the best evidence of nonconforming use, followed by records, bills, or documentation from public agencies, then other documentation or use, followed by affidavits, the weakest evidence, acceptable only after a satisfactory explanation that the first three categories of evidence do not exist. In this case, landowner did not submit evidence in the first two categories, and its presentation of leases was incomplete because of the gaps during which landowner could produce no leases. On those facts, BSA concluded that the affidavit evidence was insufficient to establish a legal nonconforming use.

In upholding BSA's determination, the court emphasized that landowner bears the burden of proving that a use otherwise not permitted qualifies as a legal nonconforming use. Here, the court concluded that BSA acted rationally in relying on the TPPN, and in applying it. The court noted that BSA was entitled to make credibility findings, including a finding that landowner's witnesses were potentially biased, and that their affidavits lacked adequate specificity. The court also rejected landowner's argument that BSA was obligated to provide examples of the types of evidence it had accepted in other cases involving nonconforming use of signs.

COMMENT

When a landowner challenges a zoning board determination that the existing use is not a permitted nonconforming use, two questions arise: first, what legal standard does the local ordinance provide for permitting nonconforming uses to continue, and second, did the board correctly apply that standard to the facts of the case? In Toys R Us v. Silva, 89 N.Y.2d 411, the Court of Appeals established that because determining the applicable legal standard is a pure question of law, no deference is due to the board's determination on that issue, but deference is due to the board's application of that standard to the facts of the case. In Toys R Us, landowner brought a proceeding to annul the board's revocation of a building permit, contending that the board had incorrectly concluded that the nonconforming use as a warehouse had been abandoned. The Court of Appeals upheld the board's determination, concluding as a matter of law that the ordinance required only substantial, not complete, cessation of the nonconforming use, and then deferring to the board's determination that warehouse use had been substantially discontinued. The court emphasized that the board's finding on that issue had a rational basis and was supported by substantial evidence.

In Srinivasan, the court held that the board's determination to discount the affidavits presented to it was rational. However, in light of the deference principle it is likely that the same evidence, if credited by the board, would have been sufficient to uphold a contrary determination. For instance, in Eger v. Levine, 153 A.D.2d 998, the court held that unsworn letters submitted by neighbors were sufficient to establish that landowner's four-unit dwelling was a pre-existing non-conforming use in an R-3 zone. In Eger, landowner had sought both a use variance and a determination that the building was protected as a pre-existing non-conforming use. The zoning board of appeals denied the use variance for lack of hardship, but never addressed the non-conforming use contention. The Appellate Division affirmed Supreme Court's grant of landowner's article 78 petition, holding that unsworn letters by neighbors were sufficient to establish a pre-existing nonconforming use, at least in the absence of any contrary evidence.

Malpractice Claim Dismissed

G&M Realty, L.P. v. Masyr

NYLJ 7/2/12, p. 19, col. 6

AppDiv, First Dept.

(memorandum opinion)

In developer's legal malpractice action, defendant lawyers appealed from Supreme Court's denial of their motion to dismiss. The Appellate Division reversed, holding that developer had failed to show that any negligence proximately caused injury.

The lawyers represented the developer with respect to rezoning Long Island City property to increase the permissible FAR. Developer then obtained a special permit for commercial development on the property. When that permit expired, developer filed entirely different plans to permit residential development on the parcel. Developer contended that the lawyers failed to notify developer that the commercial development special permit would expire. In bringing this malpractice action, developer contended that the failure to notify caused significant losses. Supreme Court denied the lawyers' summary judgment motion.

In reversing, the Appellate Division relied on testimony by developer's principal that he would not have started commercial construction without having secured a 600,000 square-foot commercial tenant, and that never had a single entity committed to becoming a commercial tenant. In light of that testimony, the court concluded that the developer had not established that the lawyers' negligence proximately caused any losses. The court acknowledged that the developer also testified that he would have proceeded with the commercial project if he had known that the permit was of finite duration, but concluded that the conflicting testimony did not raise an issue of fact about whether the developer would have built if fully informed by the lawyers. The court also emphasized that the developer had not provided any substantiation for its claim of damages.