Development

Neighbors named both the town and the owner of three of the parcels as defendants; they did not name the other owners. The named owner and the town moved to dismiss for failure to join necessary parties. Supreme Court did not dismiss, but determined that the other owners were necessary parties, and ordered neighbors to serve those parties. On May 11, 2015, neighbors filed an amended petition/complaint adding the other landowners. The town and the newly added owners then moved to dismiss on the ground that the petition/complaint was time-barred with respect to those owners. Supreme Court dismissed the amended petition/complaint as time-barred, and neighbors appealed.

In reversing, the Appellate Division held that even if the zoning amendment affected privately owned parcels, the owners of those parties were not necessary parties in a proceeding challenging the amendment. The court suggested that the owners might be necessary parties if they had obtained actual approvals pursuant to the zoning ordinance, but in this case, the owners had obtained no approvals and were not, therefore, necessary. As a result, the petition was not time-barred.

COMMENT

A neighbor who challenges a zoning amendment need not name all affected property owners as parties to the article 78 proceeding. For instance, in Nappi v. LaGuardia, 295 N.Y. 652, the Court of Appeals entertained a challenge by a neighbor to an amendment of New York City's zoning ordinance that expanded the permitted uses in residential zones. In addition to the municipal defendants, the challenger named a particular user who would benefit from the ordinance as a party defendant, but did not name all owners of land in residential districts. Similarly, in Matter of Eadie v. Town Board, 7 N.Y. 3d 306, the court entertained a challenge by neighbors to a rezoning of a large parcel of land to permit retail development, although the neighbors named only a single property owner benefited by the zoning amendment.

A property owner will only be a necessary party when a successful challenge to a zoning ordinance would adversely affect the property owner's prior approval received pursuant to the challenged ordinance. In Llana v. Town of Pittstown, 234 A.D.2d 881 the court held that property owners who were granted subdivision approvals under local law were necessary parties to a petitioner's challenge to that Law. Because invalidating the law would have prohibited any land clearing, vegetation removal and digging on the land, it would have negatively affected the subdivision approval the property owners had previously received. In holding that the property owners were necessary parties, the court noted that their interests as private citizens who were granted a subdivision would not be adequately protected by the municipal entity. (See also Basha Kill Area Ass'n. v. Town Bd. of Town of Mamakating, 302 A.D.2d 662, where the court held that when a zoning law was challenged, landowners who were “granted approval or variances thereunder” the challenged ordinance were necessary parties as they would be adversely affected and have an interest in this proceeding).

When the challenge is to an administrative approval, the applicant for that challenged administrative approval is a necessary party. For example, in Manupella v. Troy City Zoning Bd. of Appeals, 272 A.D.2d 761 the court affirmed dismissal of a challenge to a zoning variance because challengers had not named the applicant as a party to the challenge. Neighboring residents and business owners challenged grant of an area variance in connection with a project to convert a burned-out property into a residence for homeless adults, but the court concluded that the applicant was a necessary party because if the variance were, the applicant would be prevented from using the premises as planned and likely would have to relocate its proposed facility.

Zoning Provisions Did Not Deprive Landowner of Vested Right Kellner v. Town of Wappinger NYLJ 12/9/16, p. 25, col. 6 AppDiv, Second Dept. (memorandum opinion)

In landowner's action for a declaration that Town Law section 280-a and a comparable provision in the Town Code do not apply to his property, landowner appealed from Supreme Court's grant of the town's summary judgment motion. The Appellate Division affirmed, holding that the statute applied, did not deprive landowner of a vested right, and did not constitute a taking of his property.

Landowner owns a parcel of land at the end of a private road. The road traverses a bridge. Landowner lived in a single-family house on the parcel until 2004, when the house was completely destroyed by fire. In 2013, landowner applied for a building permit to construct a new house on the parcel, but the town denied the permit because there was no legal access to the property as required by Town Law section 280-a and the town code. The town concluded that the private road and the bridge were in such disrepair that they had become impassable. Landowner then brought this action seeking a judgment that his proposed construction was not subject to section 280-a or to the town code provision. In the alternative, landowner sought damages for a regulatory taking. Supreme Court denied landowner's summary judgment motion and granted the town's summary judgment motion. Landowner appealed.

In affirming, the Appellate Division concluded that the statute was unambiguous, and that application of the statute did not produce an absurd result. The court noted that the statute itself took effect in 1938, and that as a result, landowner failed to show how he had acquired a vested right to construct a new house in 2013. The court also concluded that application of the statute did not work a regulatory taking.

Refusal to Permit Septic System Does Not Constitute A Taking Monroe Equities, LLC v. State of New York NYLJ 12/9/16, p. 27, col. 4 AppDiv, Second Dept. (memorandum opinion)

In an action against the state for damages arising out of an alleged regulatory taking, landowner appealed from the Court of Claims' grant of summary judgment to the state. The Appellate Division affirmed, holding that the landowner had never acquired a right to place a septic system on the land.

Landowner acquired a 16.81-acre parcel of land in a zoning district that permits single-family homes on three-acre lots. Landowner applied to subdivide the parcel and develop it with three homes. Landowner proposed installing a septic system for each of the three homes. The town planning board denied the subdivision application because landowner's parcel is located in the Lake Mombasha watershed, and state department of health regulations prohibit a subsurface septic system within 300 feet of the lake. Landowner then brought this claim to recover $1 million in damages for an alleged per-se taking under Lucas v. South Carolina Coastal Council, 505 U.S.303. The Court of Claims awarded summary judgment to the state, and landowner appealed.

In affirming, the Appellate Division first concluded that landowner had failed to establish that the watershed regulations had eliminated all value of landowner's parcel. The court then held that in any event, because the watershed regulations had been in effect for 85 years before landowner acquired his parcel, the right to install a septic system was not within the bundle of rights landowner acquired. As a result, landowner was not entitled to damages for a taking.

Site Plan Conditions Invalid When Based Only on Community Opposition Matter of Ramapo Pinnacle Properties, LLC v. Village of Airmont Planning Board NYLJ 12/9/16, p. 31, col. 1 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding challenging conditions imposed by the village planning board, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the conditions imposed had no basis in the record and were based largely on community opposition.

Landowner owns a medical office building and sought site plan approval to add more parking, improve drainage, and add another means of ingress and egress. The planning board issued a negative declaration under SEQRA, finding that no additional traffic will be generated as a result of the proposed action. Indeed, the board found that the proposed new curb cut might reduce traffic volume at an intersection. At a subsequent hearing on the site plan application, community members, including the mayor and two village trustees, opposed the new curb cut citing traffic and safety concerns. Landowner agreed to ameliorate those concerns by making the proposed curb cut one-way only, but the planning board initially denied the application for site plan approval, and then reconsidered and granted the approval without the proposed new curb cut. Landowner then brought this article 78 proceeding.

In reversing Supreme Court's denial of the petition, the Appellate Division concluded that the record lacked sufficient evidence to support the planning board's decision. The court noted that the only evidence in the record with respect to traffic was conclusory opposition by neighbors, evidence which was not supported by the village's experts, and which was contradicted by the negative declaration the board had previously issued. As a result, the court held that the board's determination was based only on generalized community opposition, and should have been annulled.