Development

In affirming, the Appellate Division first agreed with Supreme Court that the petition was not academic. The court noted that the factors that led opponents to seek the SEIS were relevant to the original site plan as well as to the amended application. Because the request was not based solely on the amended plan, withdrawal of the amended plan did not make the request academic. On the merits, however, the court rejected opponents' contention that the board had failed to consider the project's effect on the northern long-eared bat, a species newly listed as threatened by the United States Fish and Wildlife Service. The court noted that mitigation measures had already been put in place to protect the Indiana bat, and the Fish and Wildlife Service had indicated that management measures for the two species were very similar. As a result, failure to require an SEIS on this ground was not arbitrary. Similarly, the board's determination not to address the project's effect on the bog turtle was supported by expert testimony that bog turtles were unlikely to inhabit the site.

Board of Fire Commissioners Lacks Standing to Challenge SEQRA Determination

Matter of Board of Fire Commissioners v. Town of Poughkeepsie Planning Board
NYLJ12/8/17, p. 25., col. 1.
AppDiv, Second Dept. (memorandum opinion)

In an article 78 proceeding brought by the Board of Fire Commissioners challenging the town planning board's negative declaration under SEQRA with respect to a development project, the fire commissioners appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, concluding that the fire commissioners lacked standing.

Developer proposed to build a multifamily residence in the town of Poughkeepsie, in the Fairview Fire District. To facilitate the project, developer sought to have the parcel placed in a zoning overlay district. As part of the process, the town planning board conducted SEQRA review and issued a negative declaration. The Town Board then granted the application to have the parcel placed in a zoning overlay district. The Board of Fire Commissioners then brought this article 78 proceeding challenging the negative declaration. Supreme Court denied the petition, concluding both that the fire commissioners lacked standing, and that the planning board had complied with SEQRA.

In affirming, the Appellate Division upheld Supreme Court's conclusion that the fire commissioners lacked standing. The court first held that the financial burden on the fire commissioners resulting from an increase in the number of residents did not confer standing because purely economic concerns are not sufficient to establish standing. The court then concluded that the increased traffic generated by the proposed development did not confer standing because the harm the commissioners alleged were not distinct from the harms the public at large would suffer from the new development.

Challenge to Pilot Agreement Reinstated

Matter of Board of Fire Commissioners v. Town of Poughkeepsie Planning Board
NYLJ12/8/17, p. 25., col. 2.
AppDiv, Second Dept. (memorandum opinion)

In a separate article 78 proceeding brought by the Board of Fire Commissioners challenging the planning board's grant of site plan approval for the development at issue in the preceding case, the fire commissioners appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division modified to reinstate the commissioners' challenge to the developer's payment in lieu of taxes (PILOT) agreement, and otherwise affirmed.

The commissioners challenged a number of aspects of the site plan approval, several of which raised the same issues as the case summarized above, but the commissioners also challenged the developer's PILOT agreement, citing a Town Code provision requiring PILOT agreements to cover the cost of fire and ambulance services. The Appellate Division held that the commissioners had standing to challenge the PILOT agreement because the commissioners would suffer injury distinct from the public on that issue. The Appellate Division remanded to Supreme Court for consideration of the PILOT challenge. With respect to the commissioners' other challenges, the court concluded that they were barred by res judicata since they had been resolved in the commissioners' earlier challenge to the SEQRA determination.

Statute of Limitations Bars Challenge to Excessive Height

Save the View Now v. Brooklyn Bridge Park Corp.
NYLJ 12/29/17, p. 30., col. 5.
AppDiv, Second Dept (memorandum opinion)

In community group's action for a judgment declaring that buildings were being constructed in excess of permitted height limitations, and for an injunction against continued construction in excess of those height limitations, the community group appealed from Supreme Court's dismissal of the complaint as untimely. The Appellate Division affirmed, holding that the action was barred by the four-month statute of limitations applicable to article 78 proceedings.

In 2005, the Brooklyn Bridge Park Development Corp., (BBPD) and the Empire State Development Corp. (ESDC) adopted a general project plan for Brooklyn Bridge Park which provided for development of land upland of Pier 1 with a hotel, restaurant, and residential units that would override existing zoning regulations. They conducted a SEQRA review, and the final environmental impact statement (FEIS) concluded that a project whose northern building was limited to 100 feet and whose southern building was limited to 55 feet would not significantly block existing views of the Brooklyn Bridge from the Brooklyn Promenade. The FEIS also provided that any parapet and mechanical equipment would be included in the proposed building envelope. BBPD and ESDC approved the plan and adopted a modified general project plan incorporating the limitations. I 2011, Brooklyn Bridge Park Corp. (BBP), an entity formed to supervise the project plan, released a request for proposals which, as amended, provided that the height limitations would be measured from the base plane and that rooftop mechanical equipment would be treated in a manner consistent with the New York City Zoning Resolution, which generally requires equipment to penetrate maximum height limitations. BBP then selected a developer who proposed a design which was subsequently amended to start from a higher base plane (as a result of Hurricane Sandy). This raised the height of the building by four feet, in addition to the added height of the mechanical equipment. BBP and ESDC approved the final plans in 2013, and the Department of Buildings issued building permits between December 2, 2013 and June 12, 2014. Construction began in July 2013. In September 2013, the project architect presented final plans to community groups. On September 10, 2014, the northern building reached its maximum height, and community groups began to object to the project. The community group brought this action on April 21, 2015, seeking declaratory and injunctive relief. Supreme Court denied a preliminary injunction and dismissed the action as untimely.

In affirming, the Appellate Division started by noting that the six year statute of limitations ordinarily applicable to declaratory judgment actions does not apply when the action involves claims that could have been made in another proceeding with a specific and shorter limitations period. The court concluded that the community group could have brought an article 78 proceeding to review BBP's and ESDC's approval of the final plans alleged to be in violation of the original height limitations. The court noted that even if the dates of relevant approvals were not in the record, approval of the plans was readily ascertainable by September 10, 2014, when the buildings themselves reached a height in excess of the initial limitations As a result, the action was untimely because seven months passed between that date and commencement of the action, while article 78 incorporates a four-month limitations period. The court also found no basis for estoppel against the government defendants because they never lulled the community into believing that they would take action with regard to the height limitation.

Billboard Regulation Upheld

Mogul Media Inc. v. City of New York
NYLJ 1/3/18, p. 21., col. 1.
U.S. Dist. Ct., SDNY (Engelmayer, J.)

In landowner's challenge to application of New York City's regulation of billboards, the city moved to dismiss. The court granted the motion, holding that Second Circuit precedent foreclosed landowner's first amendment claim, and that the court had no jurisdiction to entertain landowner's taking claim.

Landowner owns a parcel of land in the Special Willets Point District. Landowner contends that its parcel is too small to permit development, but is adequate to permit maintenance of a billboard. The city's regulations, however, generally prohibit off-site advertising signs within 200 feet of an arterial highway. Landowner contends that the city's exemption to permit off-site signs at Citi Field, located near landowner's parcel, undermines the traffic safety justification for the prohibition on off-site advertising signs, and also contends that the city's regulation constitutes a taking because landowner's parcel is not suitable for other development.

In dismissing landowner's First Amendment claim, the court concluded that landowner's claim was indistinguishable from the claim rejected by the Second Circuit in Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94. In that case, the court concluded that the city had not violated the First Amendment by failing to enforce prohibitions against billboards on city owned property, noting that a restriction on commercial billboards is not invalid simply because it fails to fully accomplish its articulated objectives. Here, the failure to prohibit billboards on Citi Field did not undermine the traffic safety justification of the billboard regulation. Turning to landowner's taking claim, the court held that it had no jurisdiction to entertain the claim because landowner had not obtained a final determination from the state, and had not sought compensation in state court.