Development

In affirming, the Appellate Division first concluded that principles of res judicata and collateral estoppel apply to administrative determinations like those of zoning boards, and then concluded that landowner's revisions to building plans did not change the parking considerations that resulted in denial of the initial application. The court then held that Supreme Court had properly denied landowner's motion to disqualify the zoning board counsel, emphasizing the landowner had not established that testimony of any members of the firm would be necessary to establish landowner's case.

Planning Board Had Rational Basis to Require Church to Record an Easement

Matter of Rock of Salvation Church v. Village of Sleepy Hollow Planning Board NYLJ 11/30/18, p. 30, col. 3 AppDiv, Second Dept. (memorandum opinion)

In a church's article 78 proceeding challenging conditions on the planning board's approval of a site plan, the church appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that requiring the church to record an easement in favor of a neighboring parcel had a rational basis.

The church applied for site plan approval for an off-street parking lot to be located on the church parcel (131 Cortlandt Street) and the parcel adjacent to the church (135 Cortlandt Street). Fifteen years earlier, when the adjacent parcel was held in common ownership with 139 Cortlandt Street, the common owner submitted a site plan for 139 that was approved on condition that the owner record a parking and drainage easement on 135 for the benefit of 139. The common owner signed the declaration of easement, but it was never filed with Westchester County, although the common owner allegedly filed it with the village. Thirteen years later, the common owner sold 135 Cortlandt Street to the church, and the church filed its own site plan application for a parking lot on 135. The planning board approved the site plan on condition that the church record an access and drainage easement on lot 135 for the benefit of lot 139, “consistent with historical uses and practices.” The church brought an article 78 proceeding challenging the conditions, and Supreme Court denied the petition.

In affirming, the Appellate Division emphasized the planning board's authority to set appropriate conditions on site plan approval and noted that judicial review of its decisions is limited to determining whether the board's action was illegal, arbitrary, or an abuse of discretion. In this case, the court concluded that the conditions imposed by the board were rational.

Special Permit Denial Overturned

Matter of Quickchek v. Town of Islip NYLJ 11/30/18, p. 27, col. 5 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the town board's findings were not supported by substantial evidence.

Landowner's two-acre parcel houses a used car dealership, and auto repair shop, and an area for storage of cars and boats. Service stations are a permitted use with a special permit. When, in 2013, landowner applied to the town planning board and the town board for special permits to operate a convenience market, a service station, and a minor restaurant, the planning board granted special permits for the convenience market and restaurant, but the town board denied the application for the gasoline station, citing an increased volume of traffic. Landowner then brought this article 78 proceeding challenging the determination. Supreme Court granted the petition, and the town appealed.

In affirming, the Appellate Division noted that the burden on an applicant for a special permit is lighter than the burden on an applicant for a variance because a specially permitted use is a use which the zoning ordinance permits under stated circumstances. In this case, the court concluded that the town board's findings of increased traffic were not supported by substantial evidence. Although the board had evidence that traffic would be increased by three percent over the status quo, there was no evidence that the service station would generate more traffic than other unconditionally permitted uses. As a result, the court remitted to the town board for issuance of the requested special permit.

Restrictive Zoning Ordinance Sustained Against Multiple Challenges

Greenport Group, LLC v. Town Board of the Town of Southold NYLJ 12/7/18, p. 22, col. 6 AppDiv, Second Dept. (memorandum opinion)

In landowner's action for a judgment declaring zoning invalid, the parties cross-appealed from Supreme Court's grant of summary judgment to the town on landowner's vested rights and takings claims, and denial of summary judgment on landowner's claims that the zoning was arbitrary and capricious and inconsistent with a comprehensive plan. The Appellate Division reversed the denial of the town's summary judgment motion and declared the zoning ordinance valid in its entirety.

Landowner acquired the subject 31-acre parcel in 1999, at a time when the parcel was vacant except for four two-unit buildings located on one of the 31 acres. The four buildings were part of a propose 140-unit senior citizen project that had been approved in 1986. At the time of landowner's acquisition, the minimum lot size on the parcel was 10,000 square feet. In 2000, the Town Board enacted a local law increasing the minimum lot size to 80,000 square feet. Landowner and landowner's predecessor brought this action seeking a judgment invalidating the local law on a number of grounds: the rezoning constituted reverse spot zoning, constituted a regulatory taking, violated landowner's vested rights, was inconsistent with a comprehensive plan, and was arbitrary and capricious. Supreme Court dismissed the predecessor's claims for lack of standing and granted the town's summary judgment motion with respect to the vested rights, regulatory taking, and comprehensive plan claims. The court, however, denied the town's motion with respect to the other claims.

In holding that the town was entitled to summary judgment declaring the ordinance valid, the court started by agreeing that landowner's predecessor lacked standing because she had transferred title to the property before the town enacted the challenged ordinance. The court then explained that Supreme Court had properly dismissed the vested rights claim because landowner had not demonstrated any construction of expenditures so substantial as to render improvements valueless. Turning to the takings claim, the court observed that diminution of value alone does not constitute a taking, and emphasized that the ordinance still permitted residential construction on the premises. Then, in rejecting the contention that the ordinance was arbitrary and not consistent with a comprehensive plan, the court noted that before rezoning the property, the town's planning consultant had performed a study of land including the subject property and identified preservation of rural character as an objective for that area. Finally, because the zoning was consistent with a comprehensive plan, the zoning did not constitute reverse spot zoning.