Development

In affirming, the Appellate Division started by citing the town zoning law provision indicating that if a landowner discontinues a nonconforming use for a period of a year or more, the landowner may not thereafter resume the use. The court then turned to the ZBA's determination, which indicated that remediation of the filling station amounted to a continuation of the existing nonconforming use rather than discontinuance of the use. The court concluded that the ZBA's determination was rational, and was entitled to deference.

*****

Developer's Rico, Estoppel, and Equal Protection Claims Dismissed

NRP Holdings LLC v. City of Buffalo NYLJ 2/27/19, p. 21, col. 1 Second Circuit Court of Appeals (Opinion by Carney, J.)

In developer's action against the city, its mayor, and its urban renewal agency for violations of RICO and the constitution's equal protection clause, developer appealed from federal district court's grant of summary judgment to the municipal defendants. The Second Circuit affirmed, holding that legislative immunity barred the RICO claim, that the absence of comparators barred the “class of one” equal protection claim, and that the developer had not demonstrated the manifest injustice required to sustain an estoppel claim against the city government.

Developer made arrangements to build affordable housing in the City of Buffalo. The developer obtained a commitment letter from the city's urban renewal agency, and the agency adopted a resolution authorizing release of $1.6 million to support the project. The developer then secured $3 million in tax credits and low interest loans, submitted applications, conducted appraises, prepared architectural designs, and took other steps to implement the project. The project, however, required final approval by the city's common council, which required a proposal by the mayor to the council. The mayor never sent the proposal to the council which, by the mayor's admission, was highly unusual. Developer contends that the mayor's action was the direct result of the developer's failure to create a paid contractor role for a not-for-profit coalition led by one of the mayor's political allies. When the mayor pushed for creation of such a role, developer insisted on preparing a request for proposals (RFP) rather than selecting the mayor's preferred firm, and after receiving responses to the RFP, selected another firm. When the mayor and council failed to approve the project, developer brought this action. Federal District court granted defendants' summary judgment motion, and developer appealed.

In affirming, the Second Circuit first addressed developer's RICO claim, and concluded that the mayor's action was part of the city's legislative process and therefore covered by legislative immunity. The court then turned to the class of one equal protection claim and concluded that developer could point to no similarly-situated developer whose proposal was approved by the city. Finally, in turning to the estoppel claim, grounded in state law, the court indicated that only claims of manifest injustice would support a claim of estoppel against the government, and the court found no manifest injustice in this case.

*****

Denial of Area Variance Overturned

Matter of Mengiopolous v. Board of Zoning Appeals\ NYLJ 1/25/18 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding to annul denial of an area variance, the Board of Zoning Appeals (BZA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the board had not meaningfully considered the requisite statutory factors.

Landowner owns a house built before 1920, when the city enacted its zoning ordinance. Landowner's house, like most others in the neighborhood, sits on a lot that is now substandard. The house is in a neighborhood zoned for one and two-family homes, but landowner needed five area variances to convert her single-family house into a two-family house. The BZA denied her application, citing the substantiality of the proposed variances and the fact that the difficulty was self-created. Landowner brought an article 78 proceeding. Supreme Court granted the petition and the BZA appealed.

In affirming, the Appellate Division relied on the BZA's failure to cite particular evidence with respect to several of the statutory factors. The board did not indicate how the variance would have an undesirable effect on the neighborhood, how it would adversely impact physical or environmental conditions, or how it would be detrimental to the health, safety, or welfare of the neighborhood. As a result, the court agreed with Supreme Court that remand to the board was necessary.