Development

Denial of Special Use Permit

Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola

NYLJ 5/1/15, p. 29, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit, landowner appealed from Supreme Court's denial of their petition. The Appellate Division reversed and remitted for a grant of the petition subject to reasonable conditions, concluding that the special permit denial was arbitrary.

Landowner sought a special use permit to build a convenience store. Landowner retained experts who testified before the village board of trustees that the convenience store would not exacerbate traffic problems or decrease property values in the area. Nevertheless, the board of trustees denied the permit, based on the belief of board members and neighbors that the store's clientele would be unsavory and that the store would increase traffic congestion. The board was unwilling to grant the special permit on condition that landowner agree to restrict the size of delivery trucks and the timing of deliveries, contending that the landowner would fail to comply with the conditions. Landowner brought this article 78 proceeding, but Supreme Court denied the petition and dismissed the proceeding.

In reversing, the Appellate Division emphasized that neither the board nor the neighbors had produced any empirical data to rebut landowner's expert testimony that the proposed store would have no impact on traffic congestion in the area. The court also held that the board was not entitled to discount the landowner's expressed willingness to abide by restrictions on the size of delivery trucks and timing of deliveries. As a result, the court held that the board's determination was arbitrary, and the court remitted to the board for approval, subject to the imposition of reasonable conditions.

COMMENT

If community objection is the only basis to support the board's denial of a special permit application, courts overturn the denial. In Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, the Court of Appeals held that the Town Board was not entitled to deny a renewal permit to landowner, who had operated an asphalt recycling plant under a special use permit. Upon seeking renewal, landowner introduced evidence from experts in various related industries and proof from the Environmental Protection Agency that the plan complied with all governmental regulations. The board based its denial solely on opposition by neighbors. While acknowledging that a zoning board might not always have to support a special permit denial with scientific or expert testimony, the court held that a board may not base its decision solely on generalized community objections.

On the other hand, a board may deny a special permit application when the application fails to meet a specific condition set forth in zoning ordinance. Matter of Nevaretta, 72 A.D.3d 823 (App. Div. 2010). In Nevaretta, the court upheld the board's denial of landowners' application for a special permit to operate a home business in a residential neighborhood. The record showed the applicant failed to comply with several specific conditions in the ordinance. In particular, the application exceeded the maximum square footage and failed to provide sufficient off-street parking. This was a sufficient basis to support the board's denial of the special use permit. Id. at 825.

A board may also deny a special-use permit based on expert or scientific evidence demonstrating that more general ordinance conditions have not been met and that the proposed use will have an adverse affect on the community. For example, in White Castle Systems Inc., 93 A.D.3d 731, the court upheld denial of a special use permit to operate a drive-through window in a proposed a 24-hour restaurant when the record before the board included testimony by experts in traffic and real estate that the proposed drive-through would prevent the orderly and reasonable use of adjacent properties and would adversely affect the town. Id. The same evidence supported the board's denial of a special use permit for parking in front-yard setbacks. By contrast, the court annulled the board's denial of a permit to operate a refuse enclose on the property because no evidence in the record supported that denial.

A board may also rely on reports from its own consultants, and on snippets from the applicant's expert reports, to establish that the application does not meet general conditions imposed by the zoning ordinance. For instance, in Market Square Properties, Ltd., v. Town of Guilderland Zoning Board of Appeals, the court upheld a board's determination that a shopping center would be hazardous to safety of bused and pedestrian school children based on reports of the town's planning board and planning consultant, and based on data in the applicant's own expert report projecting future traffic that would exceed acceptable limits if changes were not made.

When landowner violates the terms of an existing special use permit, a board is entitled to refuse to renew the permit even in the absence of scientific evidence or expert testimony. In Metro Enviro Transfer LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236, the Court of Appeals upheld a permit denial for operation of a solid waste transfer facility based on evidence of willful permit violations, with potential to endanger health or the environment, during the three-year period of the initial permit. Id. at 236.

Spot Zoning

Matter of Residents for Reasonable Development v. City of New York

NYLJ 6/1/15, p. 18, col. 2

AppDiv, First Dept.

(memorandum opinion)

In a community group's article 78 proceeding challenging New York City's approval of a development project for expansion of Memorial Hospital and the City University, neighborhood group appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, concluding that the city's environmental review was adequate and that the zoning map and text amendments did not constitute impermissible spot zoning.

The proposed project, to be built on East 74th Street in Manhattan, required zoning text and map amendments, as well as a special permit. The request for proposals for the project, and the contract for development, included both this project and a garage to be located 50 blocks away. The final environmental impact statement for the project (FEIS) did not discuss the garage. Moreover, the FEIS did not consider residential development of the site, the alternative preferred by the community group. The group brought this proceeding, challenging the determination for inadequate review under SEQRA, as well as challenging the determination as spot zoning.

In affirming Supreme Court's denial of the petition, the Appellate Division concluded that the garage was a project separate and apart from the 74th street development, and that the FEIS did not have to discuss the garage. The court also concluded that the FEIS did not have to include every potential alternative use of the site, and emphasized that residential use was inconsistent with the objectives of the project sponsor. The court concluded that the city had taken a “hard look” at environmental impact, and provided a “reasoned elaboration” of its conclusions. The court then rejected the spot zoning challenge because of evidence in the record that the zoning change was part of a comprehensive plan to serve the community. Finally, the court sustained the terms by which the project sponsor obtained additional FAR for the project by making a payment to the Department of Parks for improvements on neighboring parkland. The court held that because the payment was not made to the city's general account, the arrangement did not constitute an illegal quid pro quo .

Landmark Designation

Stahl York Avenue Co., LLC v. City of New York

NYLJ 6/1/15, p. 17, col. 3

U.S. Dist Ct., SDNY

(Ramos, J.)

In an action by landowner against New York City and its Landmarks Preservation Commission (LPC) for an alleged violation of landowner's substantive due process rights, the city and the LPC moved for summary judgment. The court granted the motion, holding that landowner did not have a protectable property interest.

Landowner owns the First Avenue Estate (FAE), a group of 15 buildings occupying the city block bounded by York and First Avenues and East 64th and 65th Streets in Manhattan. In 1990, the LPC voted to landmark the entire FAE, based largely on the historic significance of 13 of the 15 buildings, which were designed in 1906 by James Ware, a renowned architect, as “light court” tenements, designed to provide maximum light to residents, a departure from then-prevailing practices. The now-defunct Board of Estimate, which then reviewed LPC determinations, upheld the classification of the 13 Ware-designed buildings, but not the other two. Later, in 2004, landowner sought to develop the two remaining buildings with a condominium tower. To accomplish this end, landowner had to empty the buildings of rent-regulated tenants, and had to transfer development rights from the 13 landmarked buildings to the proposed development site. Before landowner could move the plan forward, the LPC designated the two buildings as landmarks, and the City Council approved the LPC's decision.

Landowner's article 78 proceeding challenging the designation was unsuccessful, and landowner then made a hardship allocation to the LPC. Landowner contended that the parcel was not capable of realizing a reasonable return, and presented expert testimony to support that position. Nevertheless, the LPC did its own analysis with assumptions the LPC concluded were more reasonable, and concluded that landowner would be able to obtain a reasonable return while maintaining the landmarked buildings. As a result, the LPC denied the hardship application. Landowner then brought an article 78 proceeding in state court, and simultaneously brought the instant action in federal court seeking to set aside the landmark designation and the denial of its hardship application as a violation of its due process rights. The City and the LPC moved for the federal court to abstain because of the pendency of the state action, and also moved for summary judgment.

The court first declined to abstain, noting the strong preference for exercise of federal jurisdiction. But the court then dismissed on the merits, emphasizing that the landowner had established no property interest as a predicate for its claim that it had been denied property without due process of law. The court noted that in the Second Circuit, to establish a federally protected property interest in a permit, a claimant must establish that there was no uncertainty with regard to the claimant's entitlement, and “the issuing authority had no discretion to withhold it in his particular case.” The court concluded that the LPC had considerable discretion to question the assumptions made by an individual applicant, and also noted that, by statute, the LPC is constituted to include a number of experts in the field whose judgments are entitled to deference from the courts. As a result of the discretion conferred on the LPC, landowner could not assert a federally protected property interest.

'

Denial of Special Use Permit

Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola

NYLJ 5/1/15, p. 29, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit, landowner appealed from Supreme Court's denial of their petition. The Appellate Division reversed and remitted for a grant of the petition subject to reasonable conditions, concluding that the special permit denial was arbitrary.

Landowner sought a special use permit to build a convenience store. Landowner retained experts who testified before the village board of trustees that the convenience store would not exacerbate traffic problems or decrease property values in the area. Nevertheless, the board of trustees denied the permit, based on the belief of board members and neighbors that the store's clientele would be unsavory and that the store would increase traffic congestion. The board was unwilling to grant the special permit on condition that landowner agree to restrict the size of delivery trucks and the timing of deliveries, contending that the landowner would fail to comply with the conditions. Landowner brought this article 78 proceeding, but Supreme Court denied the petition and dismissed the proceeding.

In reversing, the Appellate Division emphasized that neither the board nor the neighbors had produced any empirical data to rebut landowner's expert testimony that the proposed store would have no impact on traffic congestion in the area. The court also held that the board was not entitled to discount the landowner's expressed willingness to abide by restrictions on the size of delivery trucks and timing of deliveries. As a result, the court held that the board's determination was arbitrary, and the court remitted to the board for approval, subject to the imposition of reasonable conditions.

COMMENT

If community objection is the only basis to support the board's denial of a special permit application, courts overturn the denial. In Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, the Court of Appeals held that the Town Board was not entitled to deny a renewal permit to landowner, who had operated an asphalt recycling plant under a special use permit. Upon seeking renewal, landowner introduced evidence from experts in various related industries and proof from the Environmental Protection Agency that the plan complied with all governmental regulations. The board based its denial solely on opposition by neighbors. While acknowledging that a zoning board might not always have to support a special permit denial with scientific or expert testimony, the court held that a board may not base its decision solely on generalized community objections.

On the other hand, a board may deny a special permit application when the application fails to meet a specific condition set forth in zoning ordinance. Matter of Nevaretta, 72 A.D.3d 823 (App. Div. 2010). In Nevaretta, the court upheld the board's denial of landowners' application for a special permit to operate a home business in a residential neighborhood. The record showed the applicant failed to comply with several specific conditions in the ordinance. In particular, the application exceeded the maximum square footage and failed to provide sufficient off-street parking. This was a sufficient basis to support the board's denial of the special use permit. Id. at 825.

A board may also deny a special-use permit based on expert or scientific evidence demonstrating that more general ordinance conditions have not been met and that the proposed use will have an adverse affect on the community. For example, in White Castle Systems Inc., 93 A.D.3d 731, the court upheld denial of a special use permit to operate a drive-through window in a proposed a 24-hour restaurant when the record before the board included testimony by experts in traffic and real estate that the proposed drive-through would prevent the orderly and reasonable use of adjacent properties and would adversely affect the town. Id. The same evidence supported the board's denial of a special use permit for parking in front-yard setbacks. By contrast, the court annulled the board's denial of a permit to operate a refuse enclose on the property because no evidence in the record supported that denial.

A board may also rely on reports from its own consultants, and on snippets from the applicant's expert reports, to establish that the application does not meet general conditions imposed by the zoning ordinance. For instance, in Market Square Properties, Ltd., v. Town of Guilderland Zoning Board of Appeals, the court upheld a board's determination that a shopping center would be hazardous to safety of bused and pedestrian school children based on reports of the town's planning board and planning consultant, and based on data in the applicant's own expert report projecting future traffic that would exceed acceptable limits if changes were not made.

When landowner violates the terms of an existing special use permit, a board is entitled to refuse to renew the permit even in the absence of scientific evidence or expert testimony. In Metro Enviro Transfer LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236, the Court of Appeals upheld a permit denial for operation of a solid waste transfer facility based on evidence of willful permit violations, with potential to endanger health or the environment, during the three-year period of the initial permit. Id. at 236.

Spot Zoning

Matter of Residents for Reasonable Development v. City of New York

NYLJ 6/1/15, p. 18, col. 2

AppDiv, First Dept.

(memorandum opinion)

In a community group's article 78 proceeding challenging New York City's approval of a development project for expansion of Memorial Hospital and the City University, neighborhood group appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, concluding that the city's environmental review was adequate and that the zoning map and text amendments did not constitute impermissible spot zoning.

The proposed project, to be built on East 74th Street in Manhattan, required zoning text and map amendments, as well as a special permit. The request for proposals for the project, and the contract for development, included both this project and a garage to be located 50 blocks away. The final environmental impact statement for the project (FEIS) did not discuss the garage. Moreover, the FEIS did not consider residential development of the site, the alternative preferred by the community group. The group brought this proceeding, challenging the determination for inadequate review under SEQRA, as well as challenging the determination as spot zoning.

In affirming Supreme Court's denial of the petition, the Appellate Division concluded that the garage was a project separate and apart from the 74th street development, and that the FEIS did not have to discuss the garage. The court also concluded that the FEIS did not have to include every potential alternative use of the site, and emphasized that residential use was inconsistent with the objectives of the project sponsor. The court concluded that the city had taken a “hard look” at environmental impact, and provided a “reasoned elaboration” of its conclusions. The court then rejected the spot zoning challenge because of evidence in the record that the zoning change was part of a comprehensive plan to serve the community. Finally, the court sustained the terms by which the project sponsor obtained additional FAR for the project by making a payment to the Department of Parks for improvements on neighboring parkland. The court held that because the payment was not made to the city's general account, the arrangement did not constitute an illegal quid pro quo .

Landmark Designation

Stahl York Avenue Co., LLC v. City of New York

NYLJ 6/1/15, p. 17, col. 3

U.S. Dist Ct., SDNY

(Ramos, J.)

In an action by landowner against New York City and its Landmarks Preservation Commission (LPC) for an alleged violation of landowner's substantive due process rights, the city and the LPC moved for summary judgment. The court granted the motion, holding that landowner did not have a protectable property interest.

Landowner owns the First Avenue Estate (FAE), a group of 15 buildings occupying the city block bounded by York and First Avenues and East 64th and 65th Streets in Manhattan. In 1990, the LPC voted to landmark the entire FAE, based largely on the historic significance of 13 of the 15 buildings, which were designed in 1906 by James Ware, a renowned architect, as “light court” tenements, designed to provide maximum light to residents, a departure from then-prevailing practices. The now-defunct Board of Estimate, which then reviewed LPC determinations, upheld the classification of the 13 Ware-designed buildings, but not the other two. Later, in 2004, landowner sought to develop the two remaining buildings with a condominium tower. To accomplish this end, landowner had to empty the buildings of rent-regulated tenants, and had to transfer development rights from the 13 landmarked buildings to the proposed development site. Before landowner could move the plan forward, the LPC designated the two buildings as landmarks, and the City Council approved the LPC's decision.

Landowner's article 78 proceeding challenging the designation was unsuccessful, and landowner then made a hardship allocation to the LPC. Landowner contended that the parcel was not capable of realizing a reasonable return, and presented expert testimony to support that position. Nevertheless, the LPC did its own analysis with assumptions the LPC concluded were more reasonable, and concluded that landowner would be able to obtain a reasonable return while maintaining the landmarked buildings. As a result, the LPC denied the hardship application. Landowner then brought an article 78 proceeding in state court, and simultaneously brought the instant action in federal court seeking to set aside the landmark designation and the denial of its hardship application as a violation of its due process rights. The City and the LPC moved for the federal court to abstain because of the pendency of the state action, and also moved for summary judgment.

The court first declined to abstain, noting the strong preference for exercise of federal jurisdiction. But the court then dismissed on the merits, emphasizing that the landowner had established no property interest as a predicate for its claim that it had been denied property without due process of law. The court noted that in the Second Circuit, to establish a federally protected property interest in a permit, a claimant must establish that there was no uncertainty with regard to the claimant's entitlement, and “the issuing authority had no discretion to withhold it in his particular case.” The court concluded that the LPC had considerable discretion to question the assumptions made by an individual applicant, and also noted that, by statute, the LPC is constituted to include a number of experts in the field whose judgments are entitled to deference from the courts. As a result of the discretion conferred on the LPC, landowner could not assert a federally protected property interest.

'