Development

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by residents and a neighboring village challenging the Village of Woodbury's adoption of a comprehensive plan and zoning amendments, the Village of Woodbury appealed from Supreme Court's determination annulling the resolutions adopting the plan and amendments. The Appellate Division modified, dismissing the SEQRA claims raised by the petitioners, but concluding that questions of fact remained about the exclusionary zoning claims raised in the petition.

The Village of Woodbury adopted a Comprehensive Plan and associated zoning amendments in 2011. Before adopting the plan, the village prepared an environmental impact statement (EIS), but the village did not prepare an environmental assessment form (EAF). Residents of Woodbury, together with the neighboring Village of Kiryas Joel, then brought this article 78 proceeding, challenging the plan: 1) for failure to comply with SEQRA; 2) for failure to comply with General Municipal Law section 239-m (which requires referral of amendments to a County Planning Board); and 3) as exclusionary zoning. Supreme Court annulled the plan for failure to comply with SEQRA and for failure to comply with section 239-m, and indicated that questions of fact precluded a grant of summary judgment to the Woodbury on the exclusionary zoning claim. The Village of Woodbury appealed.

In modifying, the Appellate Division first held that the SEQRA claim should have been dismissed. The court noted that 6 NYCRR 617.6(a)(4) permits waiver of the requirement to prepare an EAF if an EIS is prepared. Because the Village of Woodbury prepared an EIS in conjunction with adoption of the plan, there was no procedural defect under SEQRA. Moreover, because the Village Board of Trustees adequately examined a reasonable number of alternatives, satisfying the substantive SEQRA requirements. With respect to the 239-m claim, the court noted that nothing in the record contradicted the village planner's assertion that the plan was submitted to the County Planning Board. The court then turned to the exclusionary zoning claim, and agreed with Supreme Court that questions of fact remained about that claim.

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Village-Owned Land Became Public Street By Prescription

Matter of Soldatenko v. Village of Scarsdale Board of Zoning Appeals

NYLJ 4/21/16, p. 27, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In landowner's hybrid declaratory judgment action/article 78 proceeding, the village board of zoning appeals appealed from Supreme Court's declaration that a strip of village-owned land had become a public street by prescription. The Appellate Division affirmed, holding that public use of the strip for more than 10 years had transformed it into a public street.

Landowner owns a parcel of land that does not front on any mapped street. When landowner sought a variance to build a house on the parcel, the zoning board of appeals granted the variance, but conditioned the grant on landowner's acquisition of an easement over a parcel of land owned by the village itself. Landowner then brought this action to establish that he did not need an easement because a portion of the village's land had become a public street. Supreme Court agreed.

In affirming, the Appellate Division relied on Village Law section 6-626, which provides that all lands within a village that have been used by the public as a street for 10 years or more “shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” In this case, the strip of the village's lot adjacent to landowner's parcel looked like an extension of Farragut Road, a public street adjacent to the village's lot. Because the village had paved the strip, and the public had treated the strip as a part of Farragut Road, it had become a public street.

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Neighbor Lacked Standing to Challenge Site Plan Approval

Matter of CPD NY Energy Corp. v. Town of Poughkeepsie Planning Board

NYLJ 5/20/16, p. 32, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging the town's grant of site plan approval and a special use permit to landowner, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that neighbor had no standing to bring the proceeding.

Landowner proposed a redevelopment project that would remove existing hotel buildings and replace them with four new buildings, including a fast food restaurant, a fueling station, a retail building, and a hotel. Neighbor leases adjacent property, on which neighbor operates a gas station and convenience store. When the planning board granted conditional site plan approval and the zoning board of appeals granted a special use permit, neighbor brought this article 78 proceeding challenging both determinations. Neighbor claimed standing based on traffic impacts, community character impact, and issues relating to the alleged interconnection between the two properties. Supreme Court dismissed for lack of standing.

In affirming, the Appellate Division acknowledged that an allegation of close proximity gives rise to an inference of injury even if the proximate owner cannot prove actual injury. But the court observed that even an immediate neighbor must establish that the effect of the decision on him is different from the effect on the public at large, and that the effect is within the zone of interests the statute protects. In this case, the court held that neighbor had not established that the project would inflict any harm on the neighbor different from the harm the project would inflict on the community at large. The court noted that neighbor had not established any right of access to the interconnection between the subject property and the neighbor's own property, and had failed to allege any potential adverse impact if the interconnection were to be closed.

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