Development

U.S.Dist. Ct., NDNY

(Sharpe, J.)

In landowner's action pursuant to 42 USC section 1983 alleging that the town violated its constitutional rights by rescinding a commercial zoning verification, the town sought summary judgment. The court granted the town's motion, holding that the taking claim was not ripe and that the due process claim failed for failure to show that landowner had a vested right.

Landowner, who contracts with the federal bureau of prisons to build residential reentry facilities, applied to the town building department for a commercial zoning verification (CZV) to build a correctional facility on a site it had acquired. The building department initially granted the CZV, but landowner later changed its plan so that it could modify the existing structure on the premises rather than building a new one. The modification would require only minor site plan review rather than more extensive review. The building department granted a new CZV, and landowner submitted a minor site plan application, but town officials delayed referring the application to the planning board. Landowner concluded that the town would not consider the application in a timely manner, and sent a letter to the town attorney advising that it was contemplating legal proceedings to challenge the delays. The head of the building department then rescinded the two CZVs, and landowner brought an article 78 proceeding to compel the town to rule on its minor site plan application. The state court dismissed the petition, holding that the building department had the authority to rescind the CZVs, and that landowner's failure to appeal the rescission to the zoning board of appeals (ZBA) precluded judicial review. Landowner then brought this action in federal court, asserting that the town had taken its property without just compensation, had deprived landowner of property without due process of law, and had violated landowner's first amendment rights.

In granting the town's summary judgment motion, the court first held that landowner's failure to seek compensation through the procedures provided by the state made landowner's federal takings claim unripe. The court then held that landowner could only proceed with a procedural due process claim if landowner had a property interest to begin with. The court indicated that as long as the town could have denied landowner's application on non-arbitrary grounds, landowner did not have a property right worthy of due process protection. Finally, the court dismissed landowner's first amendment claim, noting that landowner had not demonstrated how its rights were chilled.

COMMENT

The Second Circuit has held that when a landowner has a vested right in a permit under state law, the landowner has a property interest in the permit protected under the due process clause. In Cine Sk8, Inc. v. Town of Henrietta, 507 F.3d 778, the court held that landowner who had spent $2.3 million improving property in reliance on a special use permit had a property interest protected under the due process clause. When the landowners brought suit against the town after its special use permit to hold teen dances had been revoked, the Court held that under New York law a property right had vested when the landowner made substantial changes and incurred substantial costs in connection with the permit.

By contrast, even when a municipality has issued a permit to a landowner, the landowner does not have a federally protectable property interest in the permit if the landowner's rights have not vested under state law. Thus, in Petruso v Schlaefer, 312 Fed. Appx. 397, the Second Circuit dismissed the due process claim who had begun construction of an addition in reliance on a permit issued in violation of the local ordinance. The court cited state law allowing for the revocation of a building permit issued in error, even after construction has started.

If, however, a local official has no discretion to deny a permit under applicable state and local law, at least one court has held that a landowner has a protectable property interest in a building permit even if the landowner has not acquired a “vested right” under state law. In Hampton Bays Connections, Inc. v. Duffy, 127 F. Supp.2d 364, the Eastern District held that the landowner had a protectable property interest because the town code required the building inspector to grant the permit if landowner met specified requirements. Because the inspector lacked discretion to deny the permit, the court indicated that landowner had an inters protectable under the due process clause.

SEIS Needed When Remedial Measures Were Undetermined at Time EIS Was Prepared

Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority

NYLJ 10/24/12, p. 23, col. 3

Court of Appeals

(Opinion by Smith, J; concurring opinion by Read, J.)

In an article 78 proceeding challenging the New York City School Construction Authority's compliance with the state environmental quality review act (SEQRA), the authority appealed from the Appellate Division's affirmance of Supreme Court's grant of the petition. The Court of Appeals affirmed, holding that approval of the authority's site management plan by the state Department of Environmental Conservation (DEC) did not excuse the authority from its obligation to complete a supplemental environmental impact statement (SEIS) addressing its maintenance and monitoring plan for the site.

The authority sought to build a campus including four public schools on a site with significant contamination of soil and ground water. The authority successfully applied to participate in the state's Brownfield Cleanup program, which offers inducements for the cleanup of contaminated sites. In the course of its participation in that program, the authority prepared a remedial work action plan (RAWP) proposing to make use of a vapor barrier and a hydraulic barrier to guard against soil and groundwater contaminants. Although the Brownfield statute requires the RAWP to include a description of maintenance and monitoring requirements associated with these barriers, the authority thought it premature to include these provisions until after cleanup work had been done, when conditions could better be assessed. DEC approved the RAWP on condition that the authority develop a site management plan for operation and maintenance of the controls the authority would put in place.

The authority then began the SEQRA process for the project, and prepared an environmental impact statement (EIS) which, like the RAWP, did not include a site management plan for monitoring its controls. The authority, as lead agency, concluded that the impacts it identified could be mitigated by the controls it planned to implement. A community group then brought this article 78 proceeding challenging the authority's SEQRA compliance for failure to propose a long-term maintenance plan. Supreme Court granted the petition and ordered the authority to prepare an SEIS. After that decision, the authority prepared a site management plan which included measure that the community group concedes would have been adequate, but the authority did not incorporate that plan into an SEIS; instead, it contended that DEC's approval of the plan removed the need for any further SEQRA review. On the authority's motion to reargue, Supreme Court disagreed and adhered to its prior ruling. The Appellate Division affirmed, and the authority appealed.

In affirming, the Court of Appeals emphasized that submission of a management plan to DEC does not excuse an applicant from satisfying SEQRA obligations because SEQRA serves a purpose distinct from the purpose of the Brownfield program: to assure that environmental concerns and proposed mitigation measures are described in a publicly filed document as to which the public has a statutory right to comment. Justice Read concurred in result, emphasizing the uncertainty engendered by language in the applicable statutes and DEC regulations.

Due Process Claim Fails for Absence of Vested Rights

Firetree, Ltd. v. Town of Colonie

NYLJ 10/16/12, p. 21, col. 1

U.S.Dist. Ct., NDNY

(Sharpe, J.)

In landowner's action pursuant to 42 USC section 1983 alleging that the town violated its constitutional rights by rescinding a commercial zoning verification, the town sought summary judgment. The court granted the town's motion, holding that the taking claim was not ripe and that the due process claim failed for failure to show that landowner had a vested right.

Landowner, who contracts with the federal bureau of prisons to build residential reentry facilities, applied to the town building department for a commercial zoning verification (CZV) to build a correctional facility on a site it had acquired. The building department initially granted the CZV, but landowner later changed its plan so that it could modify the existing structure on the premises rather than building a new one. The modification would require only minor site plan review rather than more extensive review. The building department granted a new CZV, and landowner submitted a minor site plan application, but town officials delayed referring the application to the planning board. Landowner concluded that the town would not consider the application in a timely manner, and sent a letter to the town attorney advising that it was contemplating legal proceedings to challenge the delays. The head of the building department then rescinded the two CZVs, and landowner brought an article 78 proceeding to compel the town to rule on its minor site plan application. The state court dismissed the petition, holding that the building department had the authority to rescind the CZVs, and that landowner's failure to appeal the rescission to the zoning board of appeals (ZBA) precluded judicial review. Landowner then brought this action in federal court, asserting that the town had taken its property without just compensation, had deprived landowner of property without due process of law, and had violated landowner's first amendment rights.

In granting the town's summary judgment motion, the court first held that landowner's failure to seek compensation through the procedures provided by the state made landowner's federal takings claim unripe. The court then held that landowner could only proceed with a procedural due process claim if landowner had a property interest to begin with. The court indicated that as long as the town could have denied landowner's application on non-arbitrary grounds, landowner did not have a property right worthy of due process protection. Finally, the court dismissed landowner's first amendment claim, noting that landowner had not demonstrated how its rights were chilled.

COMMENT

The Second Circuit has held that when a landowner has a vested right in a permit under state law, the landowner has a property interest in the permit protected under the due process clause. In Cine Sk8, Inc. v. Town of Henrietta, 507 F.3d 778, the court held that landowner who had spent $2.3 million improving property in reliance on a special use permit had a property interest protected under the due process clause. When the landowners brought suit against the town after its special use permit to hold teen dances had been revoked, the Court held that under New York law a property right had vested when the landowner made substantial changes and incurred substantial costs in connection with the permit.

By contrast, even when a municipality has issued a permit to a landowner, the landowner does not have a federally protectable property interest in the permit if the landowner's rights have not vested under state law. Thus, in Petruso v Schlaefer, 312 Fed. Appx. 397, the Second Circuit dismissed the due process claim who had begun construction of an addition in reliance on a permit issued in violation of the local ordinance. The court cited state law allowing for the revocation of a building permit issued in error, even after construction has started.

If, however, a local official has no discretion to deny a permit under applicable state and local law, at least one court has held that a landowner has a protectable property interest in a building permit even if the landowner has not acquired a “vested right” under state law. In Hampton Bays Connections, Inc. v. Duffy, 127 F. Supp.2d 364, the Eastern District held that the landowner had a protectable property interest because the town code required the building inspector to grant the permit if landowner met specified requirements. Because the inspector lacked discretion to deny the permit, the court indicated that landowner had an inters protectable under the due process clause.

SEIS Needed When Remedial Measures Were Undetermined at Time EIS Was Prepared

Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority

NYLJ 10/24/12, p. 23, col. 3

Court of Appeals

(Opinion by Smith, J; concurring opinion by Read, J.)

In an article 78 proceeding challenging the New York City School Construction Authority's compliance with the state environmental quality review act (SEQRA), the authority appealed from the Appellate Division's affirmance of Supreme Court's grant of the petition. The Court of Appeals affirmed, holding that approval of the authority's site management plan by the state Department of Environmental Conservation (DEC) did not excuse the authority from its obligation to complete a supplemental environmental impact statement (SEIS) addressing its maintenance and monitoring plan for the site.

The authority sought to build a campus including four public schools on a site with significant contamination of soil and ground water. The authority successfully applied to participate in the state's Brownfield Cleanup program, which offers inducements for the cleanup of contaminated sites. In the course of its participation in that program, the authority prepared a remedial work action plan (RAWP) proposing to make use of a vapor barrier and a hydraulic barrier to guard against soil and groundwater contaminants. Although the Brownfield statute requires the RAWP to include a description of maintenance and monitoring requirements associated with these barriers, the authority thought it premature to include these provisions until after cleanup work had been done, when conditions could better be assessed. DEC approved the RAWP on condition that the authority develop a site management plan for operation and maintenance of the controls the authority would put in place.

The authority then began the SEQRA process for the project, and prepared an environmental impact statement (EIS) which, like the RAWP, did not include a site management plan for monitoring its controls. The authority, as lead agency, concluded that the impacts it identified could be mitigated by the controls it planned to implement. A community group then brought this article 78 proceeding challenging the authority's SEQRA compliance for failure to propose a long-term maintenance plan. Supreme Court granted the petition and ordered the authority to prepare an SEIS. After that decision, the authority prepared a site management plan which included measure that the community group concedes would have been adequate, but the authority did not incorporate that plan into an SEIS; instead, it contended that DEC's approval of the plan removed the need for any further SEQRA review. On the authority's motion to reargue, Supreme Court disagreed and adhered to its prior ruling. The Appellate Division affirmed, and the authority appealed.

In affirming, the Court of Appeals emphasized that submission of a management plan to DEC does not excuse an applicant from satisfying SEQRA obligations because SEQRA serves a purpose distinct from the purpose of the Brownfield program: to assure that environmental concerns and proposed mitigation measures are described in a publicly filed document as to which the public has a statutory right to comment. Justice Read concurred in result, emphasizing the uncertainty engendered by language in the applicable statutes and DEC regulations.