Development

Approval of NYU Expansion Plan Is Not Impermissible Alienation of Parkland

Matter of Glick v. Harvey

NYLJ 10/16/14, p. 24, col. 1

AppDiv, First Dept.

(memorandum decision)

In an article 78 proceeding brought by neighborhood groups challenging New York City's approval of an NYU expansion plan, all parties appealed from a Supreme Court order halting the plan as an improper alienation of parkland, but upholding the city's compliance with the state environmental quality review act (SEQRA) and the city's land use review process (ULURP). The Appellate Division modified to uphold the approval, concluding that the disputed land did not qualify as parkland.

The city approved an NYU expansion plan that would enable NYU to use several slivers of city owned land as staging areas during NYU's proposed construction of new buildings. The slivers are mapped streets that have not been used as streets but that have, instead, been maintained as parks for decades. The city parks department has managed some of the parkland. In this article 78 proceeding, the neighbors argued that the city had improperly alienated parkland without approval from the state legislature. The group also argued that the city had failed to comply with SEQRA by failing to consider the alternative of locating the project in a different neighborhood, and failed to comply with ULURP by not restarting the process to review modifications to the NYU plan that would have reduced its scale. Supreme Court granted the petition, concluding that use of the slivers would constitute improper alienation of parkland, but finding no SEQRA violation. NYU and the city appealed.

In modifying, the Appellate Division upheld Supreme Court's conclusion that the city had not violated ULURP or SEQRA, but overturned its decision on improper alienation. The court concluded that the neighborhood group had not met its burden of establishing that the city had, by its actions, dedicated the slivers of land as parkland. The court noted that some of the land had been used as a pedestrian thoroughfare, so that the land was not used exclusively for park purposes. Moreover, the court concluded that management of the land by the Department of Parks was only temporary and provisional. Finally, the court noted that the city had, in the past, refused several requests to have the strips demapped as streets.

COMMENT

In the absence of formal dedication, courts are most likely to find an implied dedication as parkland where a municipality announces its intention to purchase the disputed land for park purposes, mapped the lands as parkland, or permitted long-term use for park purposes. For instance, in Riverview Partners, LP v. City of Peekskill, 273 A.D.2d 455, the court granted the City's motion for summary judgment, declaring that the disputed land was a park based on evidence that the land was purchased for park purposes and named as a park on various city maps. The city had initially authorized a developer to use the land to provide access to a proposed development, but then changed its position and sought to justify its refusal to extend the special permit it had granted to the developer by arguing that the disputed land was parkland that the city could not alienate without legislative approval. In finding implied dedication, the court focused on evidence demonstrating that the subject property was purchased in 1929 for park purposes, was named “Fort Hill Park” on various city maps, and had been used as a park since its purchase. Similarly, in Village of Croton-On-Hudson v. Westchester Cnty., 38 A.D.2d 979, the court granted the village a preliminary injunction against the county's proposed use of disputed land as a solid waste disposal site, emphasizing long continued use of the land for park purposes.

In contrast, where the disputed land was not acquired for park purposes, where it has never been mapped as a park, and where public access is limited, courts are unlikely to find implied dedication. In Powell v. City of New York, 85 A.D.3d 429, the court affirmed a grant of summary judgment to the municipality, upholding the city's right to build a waste transfer station on city land that was operated by a non-city entity and on which public access was restricted 70% of the time to those who paid substantial membership fees. The court emphasized that the disputed parcels, known as Asphalt Green and Bobby Wagner walk, had never been mapped as a park, and rejected claims advanced by a state assemblyman that the parcels should be treated as parkland, finding no unequivocal intent to dedicate the land as parkland.

Parking Variance

Matter of Colin Realty Co. v. Town of North Hempstead

NYLJ 10/17/14, p. 22, col. 3

Court of Appeals

(Opinion by Read, J.)

In neighbor's article 78 proceeding challenging grant of a parking variance by the zoning board of appeals (ZBA), neighbor appealed from the Appellate Division's affirmance of Supreme Court's denial of the petition and dismissal of the proceeding. The Court of Appeals affirmed, holding that parking variances are to be evaluated under the legal framework applicable to area variances, not use variances.

Landowner sought to open a 45-seat restaurant in a vacant building that had previously been used as a gift shop. The building has no off-street parking, while the Town Code requires one parking space for every four restaurant patrons, plus additional spaces for employees and take-out services. The building is located in a district where a restaurant is a permitted use, subject to issuance of a conditional use permit. When landowner applied for the conditional use permit and variances from the parking requirement, the ZBA granted both, concluding that the benefit to the community from issuing the variances outweighed the detriment to the community. The board relied on a report demonstrating that there was ample parking in the neighborhood. The owner of a neighboring retail building then brought this article 78 proceeding, challenging the grant of the variance and arguing that the restaurant needed a use variance rather than an area variance. Supreme Court denied the petition and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.

In affirming, the Court of Appeals sought to eliminate any confusion caused by its opinion in Matter of Off Shore Restaurant Corp. v. Linden , 30 N.Y.2d 160, which had indicated that whether a landowner needs a use variance or an area variance to obtain relief from parking requirements might vary from case to case. The court concluded that parking variances should always be evaluated within the framework for area variances, and relied on the statutory definitions of use and area variances ' definitions enacted after the court's opinion in Off Shore . As a result, the court held that Off Shore should no longer be followed. Because the ZBA properly considered the applicant in accordance with standards applicable to area variances, the courts below had properly denied the petition.

COMMENT

In 1972, the Court of Appeals in Off Shore Rest. Corp. v. Linden, 30 NY2d 160, indicated, in what appears to be dictum , that a variance from parking restrictions should be classified as either a use variance or an area variance depending on the reasons for the parking requirement. Offshore's approach deviated from that in Overhill Bldg. Co. v. Delany, 28 NY2d 449, decided a year earlier, which had noted that parking variances should be treated as to area variances. In both cases, the Court of Appeals reinstated variance denials by local boards. In both cases, the court emphasized that the applicant had failed to show it would suffer hardship from application of the local ordinance, a showing the court seemed to believe would be necessary to obtain either a use variance or an area variance. As long the court would required a finding of hardship before landowner was entitled to either variance, the label the court attached to the variance would not affect the ultimate result in the case.

After Off Shore, courts treated variances from parking restriction as area variances when the land use was permitted as of right, but as use variances when the underlying land use required the applicant to obtain a special exception or a use variance. In Merrick Gables Ass'n v. Fields, 143 AD2d 117, the court affirmed the dismissal of a neighbor's proceeding to review of the grant of an area variance for off-site parking for a renovation of a pre-existing non-conforming theater into stores and offices, both of which were permitted uses in the district. In concluding that the applicant needed only an area variance, the court emphasized that the only variance the applicant needed was from parking requirements enacted after construction of the theater. By contrast, in Nassau Children's House, Inc. v Bd. of Zoning Appeals of Inc. Vil. of Mineola, 77 AD2d 898, the court reversed the trial court's judgment annulling the board's denial of a special exception application and area variance for a R-2 school dormitory. The court held that the landowner needed a use variance from the parking requirements because the ordinance's special exception provisions permitting the dormitory application required off-street parking. Absence of parking would make the dormitory a non-compliant use, and the applicant would therefore need a use variance from the parking requirements.

Violation of Open Meetings Law

Matter of Edwards v. Incorporated Village of Hempstead

NYLJ 11/7/14, p. 24, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging the village's approval of a master development agreement, neighbor appealed from Supreme Court's order denying its motion for an injunction preventing the village from selling property to developer, and dismissing the proceeding. The Appellate Division affirmed, concluding that any violations of the Open Meetings Law did not require invalidation of the village's decision.

In 2012, the village and the village's community development agency approved, after a public hearing, a master development agreement providing for the sale of village property to developer. Neighbor then brought this article 78 proceeding, alleging violations of the Open Meetings Law (Public Officers Law section 100 et seq). Supreme Court denied neighbor's request for injunctive relief, and dismissed the proceeding.

In affirming, the Appellate Division acknowledged that there had been violations of the Open Meetings Law, particularly relating to notice of the public hearing, but held that Supreme Court had providently exercised its discretion in declining to invalidate the determination. The Appellate Division emphasized that neighbor had failed to demonstrate good cause for invalidating the determination.

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Approval of NYU Expansion Plan Is Not Impermissible Alienation of Parkland

Matter of Glick v. Harvey

NYLJ 10/16/14, p. 24, col. 1

AppDiv, First Dept.

(memorandum decision)

In an article 78 proceeding brought by neighborhood groups challenging New York City's approval of an NYU expansion plan, all parties appealed from a Supreme Court order halting the plan as an improper alienation of parkland, but upholding the city's compliance with the state environmental quality review act (SEQRA) and the city's land use review process (ULURP). The Appellate Division modified to uphold the approval, concluding that the disputed land did not qualify as parkland.

The city approved an NYU expansion plan that would enable NYU to use several slivers of city owned land as staging areas during NYU's proposed construction of new buildings. The slivers are mapped streets that have not been used as streets but that have, instead, been maintained as parks for decades. The city parks department has managed some of the parkland. In this article 78 proceeding, the neighbors argued that the city had improperly alienated parkland without approval from the state legislature. The group also argued that the city had failed to comply with SEQRA by failing to consider the alternative of locating the project in a different neighborhood, and failed to comply with ULURP by not restarting the process to review modifications to the NYU plan that would have reduced its scale. Supreme Court granted the petition, concluding that use of the slivers would constitute improper alienation of parkland, but finding no SEQRA violation. NYU and the city appealed.

In modifying, the Appellate Division upheld Supreme Court's conclusion that the city had not violated ULURP or SEQRA, but overturned its decision on improper alienation. The court concluded that the neighborhood group had not met its burden of establishing that the city had, by its actions, dedicated the slivers of land as parkland. The court noted that some of the land had been used as a pedestrian thoroughfare, so that the land was not used exclusively for park purposes. Moreover, the court concluded that management of the land by the Department of Parks was only temporary and provisional. Finally, the court noted that the city had, in the past, refused several requests to have the strips demapped as streets.

COMMENT

In the absence of formal dedication, courts are most likely to find an implied dedication as parkland where a municipality announces its intention to purchase the disputed land for park purposes, mapped the lands as parkland, or permitted long-term use for park purposes. For instance, in Riverview Partners, LP v. City of Peekskill, 273 A.D.2d 455, the court granted the City's motion for summary judgment, declaring that the disputed land was a park based on evidence that the land was purchased for park purposes and named as a park on various city maps. The city had initially authorized a developer to use the land to provide access to a proposed development, but then changed its position and sought to justify its refusal to extend the special permit it had granted to the developer by arguing that the disputed land was parkland that the city could not alienate without legislative approval. In finding implied dedication, the court focused on evidence demonstrating that the subject property was purchased in 1929 for park purposes, was named “Fort Hill Park” on various city maps, and had been used as a park since its purchase. Similarly, in Village of Croton-On-Hudson v. Westchester Cnty., 38 A.D.2d 979, the court granted the village a preliminary injunction against the county's proposed use of disputed land as a solid waste disposal site, emphasizing long continued use of the land for park purposes.

In contrast, where the disputed land was not acquired for park purposes, where it has never been mapped as a park, and where public access is limited, courts are unlikely to find implied dedication. In Powell v. City of New York, 85 A.D.3d 429, the court affirmed a grant of summary judgment to the municipality, upholding the city's right to build a waste transfer station on city land that was operated by a non-city entity and on which public access was restricted 70% of the time to those who paid substantial membership fees. The court emphasized that the disputed parcels, known as Asphalt Green and Bobby Wagner walk, had never been mapped as a park, and rejected claims advanced by a state assemblyman that the parcels should be treated as parkland, finding no unequivocal intent to dedicate the land as parkland.

Parking Variance

Matter of Colin Realty Co. v. Town of North Hempstead

NYLJ 10/17/14, p. 22, col. 3

Court of Appeals

(Opinion by Read, J.)

In neighbor's article 78 proceeding challenging grant of a parking variance by the zoning board of appeals (ZBA), neighbor appealed from the Appellate Division's affirmance of Supreme Court's denial of the petition and dismissal of the proceeding. The Court of Appeals affirmed, holding that parking variances are to be evaluated under the legal framework applicable to area variances, not use variances.

Landowner sought to open a 45-seat restaurant in a vacant building that had previously been used as a gift shop. The building has no off-street parking, while the Town Code requires one parking space for every four restaurant patrons, plus additional spaces for employees and take-out services. The building is located in a district where a restaurant is a permitted use, subject to issuance of a conditional use permit. When landowner applied for the conditional use permit and variances from the parking requirement, the ZBA granted both, concluding that the benefit to the community from issuing the variances outweighed the detriment to the community. The board relied on a report demonstrating that there was ample parking in the neighborhood. The owner of a neighboring retail building then brought this article 78 proceeding, challenging the grant of the variance and arguing that the restaurant needed a use variance rather than an area variance. Supreme Court denied the petition and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.

In affirming, the Court of Appeals sought to eliminate any confusion caused by its opinion in Matter of Off Shore Restaurant Corp. v. Linden , 30 N.Y.2d 160, which had indicated that whether a landowner needs a use variance or an area variance to obtain relief from parking requirements might vary from case to case. The court concluded that parking variances should always be evaluated within the framework for area variances, and relied on the statutory definitions of use and area variances ' definitions enacted after the court's opinion in Off Shore . As a result, the court held that Off Shore should no longer be followed. Because the ZBA properly considered the applicant in accordance with standards applicable to area variances, the courts below had properly denied the petition.

COMMENT

In 1972, the Court of Appeals in Off Shore Rest. Corp. v. Linden, 30 NY2d 160, indicated, in what appears to be dictum , that a variance from parking restrictions should be classified as either a use variance or an area variance depending on the reasons for the parking requirement. Offshore's approach deviated from that in Overhill Bldg. Co. v. Delany, 28 NY2d 449, decided a year earlier, which had noted that parking variances should be treated as to area variances. In both cases, the Court of Appeals reinstated variance denials by local boards. In both cases, the court emphasized that the applicant had failed to show it would suffer hardship from application of the local ordinance, a showing the court seemed to believe would be necessary to obtain either a use variance or an area variance. As long the court would required a finding of hardship before landowner was entitled to either variance, the label the court attached to the variance would not affect the ultimate result in the case.

After Off Shore, courts treated variances from parking restriction as area variances when the land use was permitted as of right, but as use variances when the underlying land use required the applicant to obtain a special exception or a use variance. In Merrick Gables Ass'n v. Fields, 143 AD2d 117, the court affirmed the dismissal of a neighbor's proceeding to review of the grant of an area variance for off-site parking for a renovation of a pre-existing non-conforming theater into stores and offices, both of which were permitted uses in the district. In concluding that the applicant needed only an area variance, the court emphasized that the only variance the applicant needed was from parking requirements enacted after construction of the theater. By contrast, in Nassau Children's House, Inc. v Bd. of Zoning Appeals of Inc. Vil. of Mineola, 77 AD2d 898, the court reversed the trial court's judgment annulling the board's denial of a special exception application and area variance for a R-2 school dormitory. The court held that the landowner needed a use variance from the parking requirements because the ordinance's special exception provisions permitting the dormitory application required off-street parking. Absence of parking would make the dormitory a non-compliant use, and the applicant would therefore need a use variance from the parking requirements.

Violation of Open Meetings Law

Matter of Edwards v. Incorporated Village of Hempstead

NYLJ 11/7/14, p. 24, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging the village's approval of a master development agreement, neighbor appealed from Supreme Court's order denying its motion for an injunction preventing the village from selling property to developer, and dismissing the proceeding. The Appellate Division affirmed, concluding that any violations of the Open Meetings Law did not require invalidation of the village's decision.

In 2012, the village and the village's community development agency approved, after a public hearing, a master development agreement providing for the sale of village property to developer. Neighbor then brought this article 78 proceeding, alleging violations of the Open Meetings Law (Public Officers Law section 100 et seq). Supreme Court denied neighbor's request for injunctive relief, and dismissed the proceeding.

In affirming, the Appellate Division acknowledged that there had been violations of the Open Meetings Law, particularly relating to notice of the public hearing, but held that Supreme Court had providently exercised its discretion in declining to invalidate the determination. The Appellate Division emphasized that neighbor had failed to demonstrate good cause for invalidating the determination.

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