Development

U.S. Dist. Ct, EDNY

(Spatt, J.)

In landowner's action against the town and various town officials for conspiracy and violation of constitutional rights, the town attorney moved for summary judgment dismissing the complaint against her. The court granted the motion, holding that the town attorney had established that she was not personally involved in the alleged conspiracy.

Landowner purchased the subject parcel in January 2004, when it was zoned to permit industrial and agricultural use. However, a recently amended comprehensive plan had recommended rezoning the parcel to prohibit agricultural use. Although rezoning of the parcel did not become effective until Oct. 12, 2004, the town issued a Stop Work Order (SWO) on Oct. 4, ordering landowner to stop clearing land without a permit. The town attorney signed the initial stop work order, although the town's building inspector signed two subsequent SWOs. After a state court dismissed an action by the town seeking to enjoin landowner from further clearing, filling, or agricultural practices, landowner brought this action, alleging conspiracy to prevent landowner from using the property, and violation of landowner's due process and equal protection rights. The town attorney moved for summary judgment dismissing the complaint against her.

In granting the town attorney's motion, the court rejected landowner's argument that the town attorney was liable because she issued the stop work order without authorization. The court acknowledged that the town attorney was not a code enforcement official, and therefore not authorized to issue the order in her own right, but it held that the attorney had signed the SWO on behalf of the building administrator, who was a code enforcement official, and therefore authorized to sign the SWO. The court concluded that the town attorney had satisfactorily indicated on the SWO that she was acting on behalf of the building administrator as his agent. As a result, her involvement was purely ministerial, and the court dismissed the claims against her.

Neighbors Have Standing to Challenge Amendment

Matter of Shapiro v. Town of Ramapo

NYLJ 8/24/12, p. 26, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding to review an amendment to the town's zoning map, neighbors appealed from Supreme Court's dismissal of the proceeding. The Appellate Division modified to reinstate the petition, holding that neighbors had standing without proving actual injury or special damages.

In 2001, the town sold land to a private developer. Seven years later, the developer applied for an amendment to the town's comprehensive plan and a zoning amendment to permit construction of multifamily residential units. In January 2010, the town enacted a local law to permit multifamily units. Five months later, neighbors brought this proceeding, first challenging the town's 2001 sale of the land on the ground that the land had been designated for park purposes, and also challenging the town's alleged failure to comply with SEQRA in enacting the amendments. Supreme Court dismissed the challenge to the sale on statute of limitations grounds, and dismissed the remaining claims for lack of standing. Neighbors appealed.

In modifying, the Appellate Division first agreed that the challenge to the sale was time-barred. But the court noted that neighbors lived across the street from the rezoned area, and held that their proximity gave them standing to challenge the SEQRA determination without proving special damages or actual injury. The court also held that Supreme Court had improperly dismissed neighbors' claims on the merits before service of the town's answer. Accordingly, the court remanded to the town for a determination on the merits of neighbors' SEQRA claims.

Special Facts Exception

Matter of C/O Hamptons, LLLC v. Rickenbach

NYLJ 8/31/12, p. 23, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In a hybrid article 78 proceeding/mandamus proceeding, the Village of East Hampton appealed from Supreme Court's order compelling the zoning board of appeals to consider and grant a special permit application. The Appellate Division affirmed, holding that the special facts exception required application of the zoning ordinance in force at the time the landowner initially applied for the special permit.

Until 2009, the village zoning code permitted outdoor dining as an accessory use in a commercial establishment located in a residential district, provided the landowner met the code's special permit requirements. After landowner applied for a special permit to allow outdoor dining at its restaurant, the village board enacted a local law prohibiting outdoor dining as an accessory use in commercial establishments located in residential districts. At that point, the zoning board of appeals (ZBA) declined to consider landowner's special permit application, and landowner brought this hybrid proceeding. Supreme Court ordered the ZBA to consider and grant the special permit application. The village appealed.

In affirming, the Appellate Division started by articulating the general rule that a court should apply the zoning provisions in effect at the time the court renders its decision, but then invoked the special facts exception to that general rule, concluding that the village had acted in bad faith in delaying application on the special permit application and in enacting the local law specifically to defeat landowner's entitlement to the special use permit. The court also rejected the village's argument that the special facts exception was inapplicable because the landowner was not entitled to the special use permit as a matter of right. The court distinguished special use permits from variances, indicating that the zoning board of appeals would have been obligated to grant a special use permit if landowner had met all of the standards imposed by the ordinance. As a result, the zoning board of appeals was required to consider and grant the special permit application.

ZBA May Not Depart from Its Own Prior Precedent Without Adequate Reasons

Matter of C/O Hamptons, LLC v. Zoning Board of Appeals

NYLJ 8/31/12, p. 23, col. 2

AppDiv, Second Dept.

(memorandum opinion )

After Supreme Court's order requiring the zoning board of appeals (ZBA) to grant landowner's special permit application, the ZBA approved that application, subject to conditions more onerous than those imposed on a similarly situated inn in the same zoning district. Landowner brought an article 78 proceeding challenging the conditions, and Supreme Court granted the permit, annulling the conditions and issuing a preliminary injunction against enforcing the conditions. On the village's appeal, the Appellate Division modified, holding that the preliminary injunction was academic in light of the determination annulling the conditions.

Although Supreme Court had ordered the ZBA to grant landowner a special permit on conditions consistent with those imposed on a neighboring inn, the ZBA granted the permit, but on more onerous conditions. Landowner then brought this article 78 proceeding. From Supreme Court's grant of the petition, the village appealed.

In upholding that Supreme Court had properly annulled the conditions, the Appellate Division noted that when an administrative agency departs from its own prior precedent, it must provide reasons for reaching a different result on essentially the same facts. Here, the ZBA had failed to set forth a factual basis sufficient to justify imposing conditions on this applicant that were not also imposed on another inn in the same district. As a result, the conditions were invalid. Because the conditions were invalid, the request for a preliminary injunction was academic.

Town Attorney Not Liable For Role in Alleged Conspiracy

Riverhead Park Corp. v. Cardinale

NYLJ 8/17/12, p. 21, col. 5

U.S. Dist. Ct, EDNY

(Spatt, J.)

In landowner's action against the town and various town officials for conspiracy and violation of constitutional rights, the town attorney moved for summary judgment dismissing the complaint against her. The court granted the motion, holding that the town attorney had established that she was not personally involved in the alleged conspiracy.

Landowner purchased the subject parcel in January 2004, when it was zoned to permit industrial and agricultural use. However, a recently amended comprehensive plan had recommended rezoning the parcel to prohibit agricultural use. Although rezoning of the parcel did not become effective until Oct. 12, 2004, the town issued a Stop Work Order (SWO) on Oct. 4, ordering landowner to stop clearing land without a permit. The town attorney signed the initial stop work order, although the town's building inspector signed two subsequent SWOs. After a state court dismissed an action by the town seeking to enjoin landowner from further clearing, filling, or agricultural practices, landowner brought this action, alleging conspiracy to prevent landowner from using the property, and violation of landowner's due process and equal protection rights. The town attorney moved for summary judgment dismissing the complaint against her.

In granting the town attorney's motion, the court rejected landowner's argument that the town attorney was liable because she issued the stop work order without authorization. The court acknowledged that the town attorney was not a code enforcement official, and therefore not authorized to issue the order in her own right, but it held that the attorney had signed the SWO on behalf of the building administrator, who was a code enforcement official, and therefore authorized to sign the SWO. The court concluded that the town attorney had satisfactorily indicated on the SWO that she was acting on behalf of the building administrator as his agent. As a result, her involvement was purely ministerial, and the court dismissed the claims against her.

Neighbors Have Standing to Challenge Amendment

Matter of Shapiro v. Town of Ramapo

NYLJ 8/24/12, p. 26, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding to review an amendment to the town's zoning map, neighbors appealed from Supreme Court's dismissal of the proceeding. The Appellate Division modified to reinstate the petition, holding that neighbors had standing without proving actual injury or special damages.

In 2001, the town sold land to a private developer. Seven years later, the developer applied for an amendment to the town's comprehensive plan and a zoning amendment to permit construction of multifamily residential units. In January 2010, the town enacted a local law to permit multifamily units. Five months later, neighbors brought this proceeding, first challenging the town's 2001 sale of the land on the ground that the land had been designated for park purposes, and also challenging the town's alleged failure to comply with SEQRA in enacting the amendments. Supreme Court dismissed the challenge to the sale on statute of limitations grounds, and dismissed the remaining claims for lack of standing. Neighbors appealed.

In modifying, the Appellate Division first agreed that the challenge to the sale was time-barred. But the court noted that neighbors lived across the street from the rezoned area, and held that their proximity gave them standing to challenge the SEQRA determination without proving special damages or actual injury. The court also held that Supreme Court had improperly dismissed neighbors' claims on the merits before service of the town's answer. Accordingly, the court remanded to the town for a determination on the merits of neighbors' SEQRA claims.

Special Facts Exception

Matter of C/O Hamptons, LLLC v. Rickenbach

NYLJ 8/31/12, p. 23, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In a hybrid article 78 proceeding/mandamus proceeding, the Village of East Hampton appealed from Supreme Court's order compelling the zoning board of appeals to consider and grant a special permit application. The Appellate Division affirmed, holding that the special facts exception required application of the zoning ordinance in force at the time the landowner initially applied for the special permit.

Until 2009, the village zoning code permitted outdoor dining as an accessory use in a commercial establishment located in a residential district, provided the landowner met the code's special permit requirements. After landowner applied for a special permit to allow outdoor dining at its restaurant, the village board enacted a local law prohibiting outdoor dining as an accessory use in commercial establishments located in residential districts. At that point, the zoning board of appeals (ZBA) declined to consider landowner's special permit application, and landowner brought this hybrid proceeding. Supreme Court ordered the ZBA to consider and grant the special permit application. The village appealed.

In affirming, the Appellate Division started by articulating the general rule that a court should apply the zoning provisions in effect at the time the court renders its decision, but then invoked the special facts exception to that general rule, concluding that the village had acted in bad faith in delaying application on the special permit application and in enacting the local law specifically to defeat landowner's entitlement to the special use permit. The court also rejected the village's argument that the special facts exception was inapplicable because the landowner was not entitled to the special use permit as a matter of right. The court distinguished special use permits from variances, indicating that the zoning board of appeals would have been obligated to grant a special use permit if landowner had met all of the standards imposed by the ordinance. As a result, the zoning board of appeals was required to consider and grant the special permit application.

ZBA May Not Depart from Its Own Prior Precedent Without Adequate Reasons

Matter of C/O Hamptons, LLC v. Zoning Board of Appeals

NYLJ 8/31/12, p. 23, col. 2

AppDiv, Second Dept.

(memorandum opinion )

After Supreme Court's order requiring the zoning board of appeals (ZBA) to grant landowner's special permit application, the ZBA approved that application, subject to conditions more onerous than those imposed on a similarly situated inn in the same zoning district. Landowner brought an article 78 proceeding challenging the conditions, and Supreme Court granted the permit, annulling the conditions and issuing a preliminary injunction against enforcing the conditions. On the village's appeal, the Appellate Division modified, holding that the preliminary injunction was academic in light of the determination annulling the conditions.

Although Supreme Court had ordered the ZBA to grant landowner a special permit on conditions consistent with those imposed on a neighboring inn, the ZBA granted the permit, but on more onerous conditions. Landowner then brought this article 78 proceeding. From Supreme Court's grant of the petition, the village appealed.

In upholding that Supreme Court had properly annulled the conditions, the Appellate Division noted that when an administrative agency departs from its own prior precedent, it must provide reasons for reaching a different result on essentially the same facts. Here, the ZBA had failed to set forth a factual basis sufficient to justify imposing conditions on this applicant that were not also imposed on another inn in the same district. As a result, the conditions were invalid. Because the conditions were invalid, the request for a preliminary injunction was academic.