Development

In reversing Supreme Court's denial of the motion to dismiss neighbor's claims, the Appellate Division held that despite neighbor's proximity to the property, neighbor lacked standing to bring the claim. The court held that neighbor had not alleged any harm distinct from that suffered by the community at large.

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Neighbors Entitled to Remedy Against Landowner's SLAPP Suit

Reeve v. Andes NYLJ 4/2/20 Supreme Ct. Suffolk Cty (Ford, J.)

In landowner's action against neighbor for breach of fiduciary duty in opposing landowner's application to maintain and expand a non-conforming dock, neighbor moved to dismiss and sought summary judgment on its counterclaim for damages. The court granted neighbors' motion, holding that landowner's action constituted a SLAPP (strategic litigation against public participation) suit.

In 2006 and 2007, neighbor, a lawyer, prepared and filed deeds for transfers of landowner's property in order to make lot line modifications necessary to permit expansion and continuation of landowner's nonconforming dock/marina. Several years later, neighbor appeared at various public meetings to oppose landowner's application to legalize the nonconforming use. Landowner then brought this action against neighbor, contending that neighbor had breached his fiduciary duty as landowner's lawyer by opposing landowner's application. Neighbor moved to dismiss, and counterclaimed for attorney's fees and compensatory and punitive damages for landowner's litigation of as SLAPP suit.

In dismissing landowner's claim and awarding summary judgment to neighbor, the court rejected landowner's argument that this was not a SLAPP suit because landowner had no pending application at the time of bringing the suit. The court cited section 76-a(1)(b) of the Civil Rights Law, which defined a public applicant as a person "who has applied for or obtained a permit, zoning change … from any government body." Because landowner has not received a permit, landowner remains an applicant within the meaning of the anti-SLAPP statute. The court then concluded that neighbors' conduct fit within the "public petition and participation" definition of the statute. The court rejected landowner's argument that the action was focused on a breach of fiduciary duty rather than on an effort to restrain public participation, concluding that any breach of fiduciary duty action was barred by the three-year statute of limitations. The court then held that because landowner failed to establish that the action was commenced with substantive merit, neighbor was entitled to summary judgment on his counterclaim.

Comment

An action is not a strategic lawsuit against public participation (SLAPP) unless the party who brought the suit applied for or received a permit. In Hariri v. Amper, 51 A.D.3d 146 (2008), the First Department held a lobbyist who advocated for a zoning amendment was not a permit applicant within the meaning of the anti-SLAPP statute. When the lobbyist brought suit against an environmental group that opposed the amendment, the court affirmed dismissal of the environmental group's counterclaim for damages and attorney's fees under the statute, emphasizing that the lobbyist had neither advocating an agenda at a public meeting nor initiating litigation constituted a permit application within the meaning of the anti-SLAPP statute. Even if someone who holds a license brings an action against an opponent, the action is not a SLAPP suit if the suit is unrelated to procuring or retaining the license. In Gill Farms Inc. v. Darrow, 256 A.D.2d 995 (1998), the Third Department held a farmer's suit against neighbors who opposed a third party's application to use aerial pesticides was not a SLAPP suit, because the farmer's only license was for ground spraying pesticides — a license unrelated to the neighbor complaints. As a result, neighbors were not entitled to damages when arising out of the farmer's suit against the neighbors for allegedly falsifying complaints to governmental agencies in order to interrupt farming practices.

When an applicant or permittee brings an action against an opponent of the application or permit, the defendant in the action is entitled to attorney's fees and damages if the applicant cannot show a substantial basis for the suit. Thus, in Duane Reade Inc. v. Clark, 2 Misc.3d 1007(A) (2004), the court held opponents of Duane Reade's application to install a sign atop a store were entitled to attorney's fees and damages when Duane Reade brought an action against the opponents for defamation and tortious interference with business relations. The court emphasized that Duane Reade had failed to allege that the opposition had any impact on sales, thus undermining the basis for the suit.

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Area Variance Denial Overturned

Hudson Street, LLC v. City of Ithaca Board of Zoning Appeals 2020 WL 1886295 AppDiv, Third Dept. (Aarons, J.)

In landowner's article 78 proceeding to annul denial of an area variance, the board of zoning appeals appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the board had not demonstrated a rational basis for denial of the variance.

Landowner purchased a parcel that included a house with a pre-existing side yard deficiency. Landowner sought to subdivide the parcel into two, with the existing house on one lot and a new multi-family dwelling on the other lot. Landowner submitted an application for an area variance because of the pre-existing side yard nonconformity. The board denied the application, prompting an article 78 proceeding. Supreme Court granted the petition, finding no rational basis for the denial.

In affirming, the Appellate Division disagreed with Supreme Court's conclusion that, in evaluating the area variance, the board had to limit its evaluation of the area variance factors to the side yard deficiency itself. The court held that the board was entitled to consider landowner's proposed use of the property and purpose in seeking the area variance. But the court then noted that the proposed use as a multifamily dwelling was permitted by the zoning ordinance and that environmental review of the project had concluded that the project would have no significant impact on drainage, open space, or other significant resources. Community opposition to the project appeared to be the only factor leading to denial of the variance and that, the court held, was insufficient to justify denial.