Development

AppDiv, Fourth Dept.

(memorandum opinion)

In a combined article 78 proceeding and declaratory judgment action, landowner appealed from Supreme Court's dismissal of landowner's claim that the town and town boards had acted in bad faith in intentionally delaying action on landowner's application for a special use permit. The Appellate Division reversed and reinstated landowner's claim, holding that the “special facts exception” may be applied to an application for a special use permit.

On Sept. 1, 2010, landowner applied for a special use permit to operate a sand and gravel mine. On June 8, 2011, the town enacted a moratorium on mining operations. After landowner sought judicial intervention, the town planning board conducted a public hearing, but took no action before the town board, on April 26, 2012, enacted a new zoning law prohibiting mining in the area. Then on June 19, 2013, the planning board returned the application to landowner on the ground that mining was not a permitted use. Landowner then brought this proceeding contending that the special permit application should be reviewed under the old zoning ordinance because the town had intentionally delayed action in order to enact the new ordinance. Supreme Court dismissed the proceeding.

In reversing, the Appellate Division started with the general rule that a case must be decided upon the law as it exists at the time of decision. The court then noted that the special facts exception authorizes courts to apply the law in effect at the time of landowner's application when the landowner establishes that it had a right to the underlying use at the time of application. Further, proper action on landowner's application would have given landowner time to acquire a vested right, and municipal officials engaged in extensive delays indicative of bad faith. The court then held that the special facts exception may be applied to an application for a special use permit. As a result, Supreme Court should not have dismissed because landowner stated a cause of action for applying the special facts exception.

COMMENT

Although courts and boards ordinarily determine zoning applications under the law in effect at the time of decision, when the landowner establishes entitlement as a matter of right to the underlying land use application, and improper behavior by government officials prevented approval of the application, the special facts exception provides that the application will be governed by the zoning law in effect at the time the application was initially made. Thus, in Pokoik v Silsdorf, 40 NY2d 769, the Court of Appeals held that landowner was entitled to a building permit under a superseded ordinance when the village had amended the ordinance to limit the size of one-family houses after improperly refusing to act on landowner's application. In applying the special facts exception, the court held that applicant had “demonstrated that he was entitled to the permit as a matter of right by full compliance with the requirements at the time of the application.”

Although Pokoik involved a building permit, the Second Department and the Court of Appeals indicated that the special facts doctrine might also be applicable in special permit cases. In Matter of Gardiner v Lo Grande (83 AD2d 614 [2d Dept 1981], aff'd for the reasons stated below, 60 NY2d 673 [1983]), the landowner sought a special use permit to establish a game room inside a mall. Id. at 614. The court held that the landowner “had complied with the terms of the ordinance in effect at the time that he applied for a special permit and the town board should have granted it” and remitted the case for a hearing concerning whether the town board acted improperly in passing the amendment to the ordinance, thereby warranting the application of special facts exception. Id. at 615. Subsequently, in Huntington Ready-Mix Concrete, Inc. v Southampton, 112 AD2d 161, the Second Department applied the doctrine and held that landowner was entitled to have a permit to excavate sand and gravel determined under an old ordinance when landowner established that it had complied with all required standards by the town ordinance, and where landowner was “denied [the] right to issuance of the permit solely by the arbitrary action of the Town Council”]).

While Gardiner and Huntington Ready-Mix appear to establish that the special facts exception applies to a special permit application when the local board had no discretion to deny the permit, the Third and Fourth Departments have both held that the special facts exception does not apply when the board did have discretion to deny the permit. In Preble Aggregate, Inc. v Town of Preble, 263 AD2d 849, the Third Department, in declining to apply the exception, stressed the discretion retained by the municipality in evaluating and granting special use applications. The court held that because the landowner was not entitled to a special use permit as a matter of right, the special facts exception was inapplicable. Id. at 850-851. Thus, the town was entitled to application of a subsequently enacted prohibition on mining in the district, even though the landowner had obtained a judgment invalidating the prior ordinance, which permitted mining upon issuance of a special use permit. Similarly, in Morgan v. Town of W. Bloomfield, 295 AD2d 902, the Fourth Department held the special facts exception inapplicable to a landowner who sought to have its special permit application determined under an ordinance no longer in effect. Citing Preble, the court emphasized that a special permit is not a matter of right, and that landowner, was not entitled to a declaratory judgment that its application to establish a manufactured home park should be governed by the old ordinance.

In Matter of Elam Sand itself, the Fourth Department appears to have reinstated landowner's complaint because it was not clear whether a board would have acted arbitrarily and capriciously be denying the special permit application. That is, in the absence of an administrative record, it was unclear whether the case was governed by the principles of Gardner or those of Preble and Morgan.

'

Community Assn Action to Enjoin Construction

Brooklyn Heights Assoc., Inc. v. Brooklyn Bridge Park Corp.

NYLJ 8/4/16, p. 21, col. 1

Supreme Ct., Kings Cty.

(Knipel, J.)

In an action by a community association and others to enjoin construction of the uppermost portion of a building, building owner and the city moved to dismiss on res judicata and timeliness grounds. Supreme Court granted the motion to dismiss.

The community association contended that the construction did not comply with the Brooklyn Heights Scenic View District regulations. They supported their contention with an affidavit from a licensed surveyor who concluded that the penthouse wall intruded on the scenic view plane for a total area of 371.4 square feet.

In dismissing the action, the court noted that it represented a third attempt to halt construction of the building. The court noted that in the earlier litigation, plaintiffs had conceded that there was no violation of the scenic view plane, requiring dismissal of the current action on res judicata grounds. The court then noted that this action was not brought until 10 months after the Department of Buildings had determined that the revised plans complied with the Scenic View regulations, and had posted that finding on its website. The court emphasized that the time limit for bringing an article 78 challenge to a government determination is four months, and the time for administratively contesting a zoning approval is 45 days. As a result, the claim was time barred.

'

ZBA Engaged in Required Balancing Test

Matter of Wambold v. Village of Southampton Zoning Board of Appeals

NYLJ 6/10/16, p. 33, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding to annul the grant of an area variance, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the zoning board of appeals (ZBA) engaged in the required balancing test.

In 2012, landowners applied to the ZBA for an area variance permitting them to demolish an existing cottage and replace it with a larger cottage in a different location. When the ZBA granted the variance, the owner of adjacent property, who had opposed the application before the ZBA, brought this article 78 proceeding. When Supreme Court denied the petition, neighbor appealed.

In affirming, the Appellate Division first rejected the neighbor's contention that the application should have been treated as a use variance rather than an area variance. Then, in reviewing the ZBA's determination, the court concluded that even though the variance landowner had sought was substantial, the variance would have a beneficial impact on the environment by eliminating wetlands set-back nonconformities and by removing the existing septic system, which is located within the wetlands regulated area. The court concluded that the ZBA had considered the relevant statutory factors in granting the variance, and held that the ZBA's determination had a rational basis.

'

Article 78 Proceeding Challenges ZBA

Roda v. Zoning Board of Appeals

NYLJ 8/4/16, p. 21, col. 1

Supreme Ct., Essex Cty.

(Muller, J.)

In landowner's article 78 proceeding challenging a determination by the zoning board of appeals (ZBA), the ZBA sought dismissal of the petition as moot. Supreme Court dismissed, holding that amendment of the local land use code mooted the petition.

Landowner had sought a building permit for a residence and an accessory building. The building inspector denied the permits under the prior code, which permitted construction of a building on any lot of record on the date of enactment of the regulations, even if the lot does not meet minimum lot area and lot width requirements. Landowner sought review in the ZBA, contending that the building inspector should have referred the matter to the joint review board of the village and town, which had deemed the lot a “lot of record” in a September, 2010 resolution. The ZBA contended that it lacked authority to compel the building inspector to submit the application to the joint review board. Landowner challenged that determination. Supreme Court concluded that the ZBA was correct on that point, but indicated in a preliminary decision that remittal to the ZBA might be appropriate for a determination of landowner's claim that her lot was a lot of record. Before oral argument on that issue, the town amended its land use code to include more restrictive language with respect to the right of owners to build on nonconforming lots.

In light of the amended provision, Supreme Court concluded that landowner's petition was moot, citing the general rule that a land use application is governed by the law in effect at the time a decision on appeal is rendered, even if the law was amended after the application was made. The court rejected landowner's contention that the “special facts” exception applied, noting that there was no evidence that the town or village deliberately delayed landowner's application to permit amendment of the land use code, and no evidence that the amendment was the product of malice, oppression, manipulation, or corruption.