CASE UPDATE REPORT
Fall 2007
Elizabeth Cassidy and Christine Kowalski
The Land Use Law Center is pleased to present this edition of the Case Update Newsletter. We hope to continue the Land Use Law Center’s traditional and unique focus on land use issues that are important to the New York practitioner and local official. The newsletter will summarize relevant State and Federal judicial decisions, and provide links to these decisions if possible. Although these summaries have been carefully researched and written by law students these summaries are not offered as definitive work on the cases. Please consult the full case and/or an experienced land use attorney.
United States Court of Appeals, Second Circuit
Westchester Day School v. Village of Mamaroneck, 2007 U.S. App. LEXIS 24267 (2007)
Zoning Board’s denial of religious school’s special use permit application violated RLUIPA. RLUIPA does not violate the Establishment Clause of the First Amendment. Westchester Day School (WDS) is a private Jewish school. WDS and other private schools are permitted to operate in “R-20” districts if the Zoning Board grants them a special use permit (the permit lasts for three years and the WDS was last granted a permit in 2000). In October 2001, WDS submitted an application to the zoning board for modification of its permit to allow for expansion of the school. Initially the zoning board issued a negative declaration under State Environmental Quality Review Act (SEQRA) which would allow the project to proceed. After a portion of the community strongly objected to the expansion, the zoning board rescinded the negative declaration under SEQRA. WDS filed suit claiming that the zoning board’s decision violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). Court granted partial summary judgment and reversed the zoning board’s rescission. The zoning board held additional hearings and later denied WDS’s application. WDS amended complaint alleging that denial of application violated RLUIPA. The United States District Court for the Southern District of New York held that the zoning board violated RLUIPA by denying a special permit to the Westchester Day School and the Second Circuit affirmed, holding that the expansion of WDS involved religious exercise and triggered RLUIPA, and that RLUIPA does not violate the Establishment Clause of the First Amendment. (“RLUIPA cannot be said to advance religion simply by requiring that states not discriminate against or among religious institutions.”)
United States District Court, Eastern District of New York
Goldstein v. Pataki, 488 F. Supp. 2d 254 (E.D.N.Y. 2007)
A challenge to condemnations related to the Atlantic Yards Project in Brooklyn became ripe for adjudication when the final Determination and Findings of public use were made in accordance with Eminent Domain Procedures Law (EDPL) because at that point there were no further legal or administrative impediments to the condemnations. The Court, however, abstained from exercising its jurisdiction in this case because there are state proceedings and eminent domain is largely a state concern. This suit challenged the public purpose of condemnation for a 22-acre mixed use redevelopment project in Brooklyn known as Atlantic Yards. The plaintiffs are property owners whose land lies within the footprint of the redevelopment project and asserted the condemnations violate the Fifth Amendment Takings Clause because they do not serve a public purpose. Petitioners also initiated a contemporaneous state law proceeding.
After a detailed discussion of New York Eminent Domain Procedure Law, the Court focused on two concerns. First, was the plaintiffs’ claim ripe for adjudication? Second, should the Court abstain from exercising its federal jurisdiction because of the potential for interfering with state proceedings?
Ripeness:
The issue here is when a public use claim relating to a planned condemnation is ripe for adjudication. Note that at the time of this proceeding, the developer had yet to institute vesting proceedings in order to gain title to the condemned land. In its analysis, the Court noted that the case law on this legal question is conflicting at best and tends to be very fact specific. The Court ultimately found the plaintiffs’ injuries sufficiently concrete to be considered ripe for judicial review. The Court wrote, “plaintiffs’ claims accrued when the ESDC issued its final Determination and Findings of public use, benefit or purpose pursuant to EDPL § 204(B)(1). Although the Determination and Findings effects no immediate change in plaintiffs’ ability to use their properties, defendants do not point to any further legal or administrative impediments to the condemnations at issue in this case.”
Abstention:
The Court determined that abstention was proper under the doctrine established in Burford v. Sun Oil Co., 319 U.S. 315 (1943). Under Burford, a federal court will abstain, if after “careful consideration of the federal interests in retaining jurisdiction over the dispute [the court] ultimately represents a determination that the State’s interests are paramount and that [the] dispute would best be adjudicated in a state forum.” The Second Circuit has outlined a number of factors to consider in applying Burford. Those factors include: (1) the degree of specificity of the state regulatory scheme; (2) the necessity of discretionary interpretation of state statutes; and (3) whether the subject matter of the litigation is traditionally one of state concern. See Planned Parenthood of Dutchess-Ulster, Inc. v. Steinhaus, 60 F.3d 122, 127 (2d Cir. 1995). The Court found that first and third factors apply to the facts of this case. New York’s Eminent Domain Procedure Law has a highly specific and comprehensive mechanism for challenging condemnation. Additionally, eminent domain has traditionally a matter of state concern. Under this analysis, the Eastern District abstained from exercising its jurisdiction.
The Court of Appeals of New York
In the Matter of Palm Management Corporation v. Andrew Goldstein
8 N.Y.3d 337; 865 N.E.2d 840; 833 N.Y.S.2d 423 (2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_02589.htm
When an administrative official issues a new certificate of occupancy which is substantially the same as an earlier certificate of occupancy relating to the same property, the period for appeal described in Village Law § 7-712-a(5)(b) is not available. Plaintiff owns an inn in the Village of East Hampton as a legal non conforming use in a residential area. The inn also has an awning extending over the patio and a barn used as a staff dormitory, which were authorized by the Village when it issued certificates of occupancy in 1989 and 1993. When the inn received a new certificate of occupancy which was substantially the same as the previous certificates when it refinanced in 2003, neighbors of the inn appealed to ZBA within the period for appeal established by Village Law § 7-712-a (5)(b). The neighbors alleged that the barn and awning were unlawful uses that did not pre-exist residential zoning and had been abandoned for more than one year after the zoning was enacted. The ZBA annulled the portions of the certificate of occupancy relating to the awning and staff dormitory. Plaintiff brought Article 78 proceeding to annul the ZBA’s determination. The Court of Appeals annulled the ZBA’s determination and held that when an administrative official issues a new certificate of occupancy which is substantially the same as an earlier certificate of occupancy relating to the same property, it does not trigger the period for appeal in Village Law § 7-712-a (5)(b).
N.Y. Supreme Court, Appellate Division
Second Department
Matter of 49 WB, LLC v. Village of Haverstraw, 839 N.Y.S.2d 127 (N.Y.A.D. 2 Dept., 2007) http://www.courts.state.ny.us/reporter/3dseries/2007/2007_05506.htm
Fulfillment of a developer’s contractual obligation is not a sufficient public use, benefit, or purpose to justify the exercise of eminent domain. 49 WB, LLC purchased the Graziosi Building in the Village of Haverstraw. Shortly after 49 WB purchased the property, the Village announced its proposed acquisition of the property through eminent domain. There were two competing proposals for the development of the building: WB proposed 6-8 units of affordable rental apartments for municipal employees and volunteers, and the Housing Opportunity for Growth, Advancement and Revitalization, Inc. (HOGAR) proposed the construction of 16 affordable ownership condominium units. The issue with HOGAR’s proposal, however, was that the units constructed by HOGAR would allegedly be credited toward the contractual affordable housing obligation that a local development company was required to fulfill as part of its waterfront redevelopment. The Appellate Division, Second Department, held that fulfilling a developer’s contractual obligation to build affordable housing did not amount to a public purpose and therefore did not justify exercise of eminent domain.
In the Matter of Russia House at Kings Point v. Zoning Board of Appeals of Kings Point,
835 N.Y.S.2d 767 (N.Y.A.D. 2 Dept., 2007), 40 A.D.3d 767
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04129.htm
ZBA determination overturned because it failed to adequately consider whether the requested area variances would have an adverse impact on the neighborhood and the character of the community. The Zoning Board of Appeals (ZBA) denied an applicant’s request for certain area variances. The Court held that the ZBA failed to properly engage in a balancing test as required by Village Law §7-712-b (3). The court reinforced the decision of the New York Court of Appeals in Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003), which held that the legislature intended to preempt enactment of conflicting local laws when it enacted § 7-712-b.
In the Matter of Village of Chestnut Ridge v. Town of Ramapo, 841 N.Y.S.2d 321
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06434.htm
Neighboring villages have standing to sue a town under certain circumstances. Town of Ramapo wanted to amend its zoning to permit adult student housing. Pursuant to State Environmental Quality Review Act (SEQRA), Town Board, classified the proposed law as Type I action and ultimately issued a negative declaration despite negative comments from Rockland County Planning Department. Town Board then adopted the law permitting adult student living facilities. Four nearby villages brought an Article 78 proceeding to challenge local law enacted by the Town of Ramapo, but Town of Ramapo claimed that the villages did not have standing. The Appellate Division held that: (1) Town Law that insulated zoning changes from legal challenges by neighboring villages did not limit the capacity to sue that the villages enjoyed by reason of Village Law that authorized municipalities to sue and be sued and (2) bar to judicial review of zoning changes by adjoining villages established by Town Law did not apply to challenges to change zoning regulations under New York State Environmental Quality Review Act (SEQRA). However, the Appellate Division did hold that the villages did not have standing to assert claims that the law constituted impermissible spot zoning, did not follow procedural process, was not rationally related to health, safety, and welfare of community; or to raise claims alleging discrimination in violation of equal protection of due process.
Matter of Marie A. Corliss v. Zoning Board of Town of Eastchester, 2007 NY Slip Op 04118
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04118.htm
The Planning Board and not the Zoning Board of Appeals has the authority to approve or deny a de minimis lot line adjustment. Property owners own two adjacent lots, one of which is improved and one of which is unimproved. The unimproved lot was five square feet less than the required 6000 square feet for a buildable lot. Petitioners applied for a de minimis lot line adjustment or, in the alternative, an area variance in order to create a buildable lot. The Planning Board referred the matter to the Zoning Board of Appeals (ZBA) because it found that the petitioner’s lot did not meet the “effective square” zoning requirement[1] and thus needed an area variance. The ZBA subsequently denied the petitioner’s application.
In this Article 78 proceeding, the Supreme Court annulled the ZBA’s determination and remanded to the ZBA, because the “effective square” requirement only applies to subdivision applications, not de minimis lot line changes. As such, the Petitioners did not need an area variance. On appeal, the Second Department affirmed the Supreme Court’s finding. The Court did, however, modify the Supreme Court’s order, remanding the case to the Planning Board rather than the ZBA because the ZBA does not have the authority to grant or deny de minimis lot line changes. Rather the Planning Board must make that determination.
In Matter of Laurel Realty, LLC v. Kent, 40 A.D.3d 857 (2d Dept. 2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04293.htm
A short term moratorium on subdivision is valid and may be applied to subdivision applicants who have already submitted their application to the Planning Board. The Petitioner submitted a subdivision application to the Town of Kent Planning Board to subdivide 137 acres. The Planning Board refused to hear the application because it had the mistaken belief that the land had been previously subdivided illegally. After an Article 78 proceeding, the Supreme Court, Putnam County ordered the Planning Board, “to hear petitioner’s subdivision application…. according to the rules of the respondent Board….” Id. at 859 (emphasis added).
The Planning Board heard the application at several meetings in 2004 and 2005. In 2005, the Town Board of Kent enacted an eight-month moratorium on Planning Board review of subdivision applications. As a result of this moratorium, the Planning Board halted its review of the Petitioner’s application. The Petitioner then commenced a second Article 78 proceeding seeking both a declaratory judgment that the moratorium was invalid as applied to the petitioner and a mandamus compelling the Planning Board to complete its review of the Petitioner’s application.
The Supreme Court directed the Planning Board to hear the petitioner’s subdivision application because the moratorium was invalid as applied to the petitioner’s application because the Planning Board was ordered to hear the application in the first Article 78 proceeding. On Appeal, the Second Department reversed, finding “[t]he moratorium, which was extended twice for short periods of time, is a valid stopgap or interim measure, reasonably designed to temporarily halt development while the Town considered updates to its Zoning Ordinances.” (40 A.D.3d 857, 860). The Second Department further found that the moratorium was properly applied to the petitioner’s application because the court order from the original Article 78 stated that the Planning Board would hear the application subject to the Planning Board’s rules, which includes the properly enacted moratorium.