Real Estate & Property Law

Notation On Subdivision Map Inadequate To Preclude Development of Lots

Posted on March 14, 2011
The Appellate Division concluded that a notation on a subdivision map "not approved for building lots" was inadequate to place a purchaser on notice that there was an intention to maintain the two lots in question as undeveloped space. In Matter of Fuentes v...

Challenge To Planning Board Rendered Academic When No Injunction Is Sought To Preserve Status Quo

Posted on March 12, 2011
The Appellate Division held this week that by failing to obtain a preliminary injunction the challenge to a preliminary subdivision approval was ultimately rendered academic. In Matter of Sherman v.Planning Board of Village of Scarsdale, the Court found that while the challenge to a preliminary subdivision was pending the property owner obtained final approval and proceeded with substantial work...

Planning Board Must Make Individualized Analysis Before Imposing Recreation Fee

Posted on February 27, 2011
The Appellate Division held that a planning erred in imposing a recreation fee without first doing an analysis of the recreation needs created by approving a site plan. In Matter of Dobbs Ferry Development Associates v. Bd. of Trustees of the Village of Dobbs Ferry, the court found that in granting site plan approval for development of a single family home on a vacant lot, the planning board failed to undertake "individualized consideration" by making findings as to the recreational needs created by development of the lot...

Court Upholds Planning Board On Location Of Property Access

Posted on February 19, 2011
The Appellate Division upheld a local planning board on a challenge to the location of access for a retirement community. In Matter of Fairway Manor, Inc. v. Bertinelli, an adjacent retirement community challenged the site plan approval based upon the proximity of the new access for the proposed development to the access for petitioner's property...

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Local Law Adopted in Violation of SEQRA

Posted on December 15, 2010
The Appellate Division found that a local law amending certain land use regulations was void as it was adopted without taking the required ?hard Look? under the State environmental Quality Review Act SEQRA. In Matter of Prand Corp v. Town Board of the Town of East Hampton, the court found that, in this case, the issuance of a negative declaration after review of only a short form EAF did not constitute a ?hard look? and affirmed the lower court?s voiding of the local law for failure to comply with SEQRA...

Court of Appeals Finds Release of Names Exempt From FOIL

Posted on November 29, 2010
The Court of Appeals reversed the Appellate Division and denied access, under the Freedom of Information Law (FOIL), to the names of teachers working at a charter school. In Matter of New York State United Teachers v. Brighter Choice Charter School, the Court of Appeals, after noting that charter schools are subject to FOIL, concluded that the release of the names of teachers would be an unwarranted invasion of privacy...

Zoning Board Properly Applied Balancing Test In Denying Area Variance

Posted on November 28, 2010
The Appellate Division found that a request for an area variance to park in the front yard of the petitioner's property would produce an undesirable change in the neighborhood and therefore the zoning board properly denied the requested variance. In Matter of Russo v...

Challenge Brought In 2009 To Claimed Improper Use Of Parkland Which Started In 1946 Is Not Time Barred

Posted on November 21, 2010
Citing the public trust doctrine, the Appellate Division sustained the issuance of a preliminary injunction against the non-park use of alleged parkland, despite the fact that the use of the property for non-park purposes dates to 1946. In

Eighty Year Old Attempted Subdivision Did Not Create Second Lot

Posted on November 06, 2010
The determination by the local building inspector that a 1928 "subdivision" did not create two lots was upheld by the Appellate Division. In Steven Silverberg

Property Owner Found To Be Within Zone Of Interest For Standing To Challenge Development

Posted on October 12, 2010
An appellate court reversed a lower court decision dismissing, for lack of standing, a challenge brought by a nearby property owner to a development over 1,000 feet from his property. In Matter of Ontario Heights Homeowners Association v. Town of Oswego Planning Board, the Appellate Division Fourth Department held that the property owner was within the "zone of interest" under the Environmental Conservation Law and therefore had standing to raise a challenge to a proposed development on environmental grounds...

Court Holds Documents Exchanged Between Federal and State Agencies May Be Exempt From FOIL, But Settlement Documents Exchanged WIth Corporation Are Not

Posted on September 19, 2010
A court held that documents exchanged between the EPA and the New York DEC may be exempt from disclosure under the Freedom of Information Law (FOIL) as inter-agency communications, but additional documents exchanged as part of the settlement negotiations with General Electric are subject to disclosure...

Court Rules on Use of Municipal Funds and Labor for Religious Display

Posted on September 12, 2010
The Appellate Division concluded that the context in which a menorah was displayed was not an unconstitutional endorsement of religion but that the nightly lighting of the menorah by municipal employees, even if the cost is reimbursed, violates the Establishment Clause of the First Amendment to the U...

N.Y. DEC Issues Updated SEQRA Handbook

Posted on August 25, 2010
The New York Department of Environmental Conservation (DEC) has issued a new SEQRA Handbook. The Handbook was first issued in 1982 and then updated in 1992. The SEQRA regulations were revised in 1996, but no update of the Handbook followed. Now it has finally been updated...

Court Finds Westchester Town Violated RLUIPA and Overturns SEQRA Findings

Posted on August 16, 2010
In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed ?contrived? reasons...

Court Upholds SEQRA Determination and Subdivision for 850,000 Square Foot Shopping Center

Posted on August 11, 2010
The Appellate Division upheld two lower court decisions which dismissed challenges to the SEQRA findings, site plan and subdivision approval for a shopping center in the Town of Newburgh. In Matter of Save Open Space v. Planning Bd. Of the Town of Newburgh the court noted judicial review is limited to finding whether an action is arbitrary, an error of law or was taken in violation of lawful procedure...

New York Legislature Amends Opening Meetings Law Requirements

Posted on August 05, 2010
The New York Legislature has adopted several amendments to portions of New York?s Open Meetings Law (sections 103 and 107 of the Public Officers Law) in order to provide for more transparency in the conduct of governmental activities, as set forth in three recently adopted chapters...

N.Y. Court of Appeals Reverses Appellate Division and Says Columbia University Condemnation May Proceed

Posted on June 24, 2010
In a rebuke to the Appellate Division First Department, the New York Court of Appeals today held that the condemnation of land on the upper west side of Manhattan to benefit Columbia University may go forward. In Matter of Kaur v New York State Urban Dev...

Another Vested Rights Decision From The N.Y. Court of Appeals

Posted on June 17, 2010
The Court of Appeals ruled today that owners of a landfill had a vested right to use all 50 acres of their property as a landfill, even though they had only used 3 acres before more restrictive zoning was implemented. In Matter of Jones v Town of Carroll the court found that landfill operations were similar to mining operations and therefore the Court's recent holding in Glacial Aggregates LLC v...

Condemnation Award Will Not Be Disturbed On Appeal If Based On Evidence

Posted on June 06, 2010
An appellate court upheld an award for condemnation of land underwater as well as denial of consequential damages for a partial taking, in a case where part of a residential subdivision was taken for parkland. In Matter of Board of Commr. of Great Neck Park Dist...

District Court Ruled that Airmont Political Sign Law Violates Free Speech

Posted on May 27, 2010
The District Court ruled in Withers v. The Village of Airmont that the Village of Airmont sign ordinance violated a political candidate?s First Amendment right to free speech. There, plaintiff was a candidate running for office of the 12th Legislative District of the County of Rockland in the 2007 election and in connection with his campaign, he posted hundreds of signs...

Circuit Court Finds Boulder County Violated RLUIPA

Posted on May 23, 2010
Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church's proposed expansion...

N.Y. Court of Appeals Rules in Favor Of Cayuga Indian Nation On Failure To Collect Cigarette Sales Taxes

Posted on May 21, 2010
In an action brought to prevent prosecution of members of an Indian nation for failure to collect cigarette sales taxes on sale to non-members of the nation, the Court of Appeals issued judgment in favor of the plaintiffs. In Cayuga Indian Nation v. Cayuga County Sheriff, the court noted that Federal law precludes collection of cigarette sales taxes on sales by Indians to members of their own tribe on reservation lands...

Court Upholds Denial Of Area Variance Based Upon Balancing Test

Posted on May 17, 2010
The appellate division found that a zoning board properly denied an area variance after engaging in the required balancing test. In Matter of Monroe Beach Inc. v. Zoning Board of Appeals of City of Long Beach the court determined that the zoning board had made findings that: "the requested variances were substantial, would result in a detriment to nearby properties, and would have an adverse effect on the physical and environmental conditions in the surrounding neighborhood were supported by hearing testimony and documentary evidence ...

Court Finds that 82 Year Old Filed Map Does Not Vest Rights to Subdivision

Posted on May 05, 2010
An attempt to circumvent planning board approval of a subdivision using a subdivision map filed in the county clerk?s office 1928 was rejected by the Appellate Division. In Matter of Atlantic Development LLC v. Town/Village of Harrison the court found that a 1923 provision of the local town code, still in effect in 1928, required town board approval for any subdivision and therefore the 1928 map, which had not received such approval, did not create a valid subdivision...

Failure to Meet A Zoning Code's Special Permit Conditions Is Grounds For Denial

Posted on April 17, 2010
An appellate court reiterated the requirement that every precondition to granting a special permit must be met before a zoning board is required to grant such a permit. In Navaretta v Town of Oyster Bay, the Appellate Division Second Department upheld the denial of a special permit by an attorney seeking to operate an office from a residence...

Court Upholds ZBA Decision Including Land Under Water in Lot Area

Posted on April 10, 2010
The Appellate Division upheld as rational a decision by a zoning board which included land under water in calculating lot area and floor area ratio (FAR). In Matter of Henderson v. Zoning Board of Appeals the court concluded that: "the ZBA's determination that both the proposed construction and the subject property complied with both the square footage and the gross floor area ratio requirements of the zoning code that were applicable at the time that the building permit application was submitted, was not illegal, not arbitrary and capricious, and not an abuse of discretion...

Minimal Change In Structure With Approved Area Variance Does Not Justify Denial Of Amended Variances

Posted on April 01, 2010
The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied...

Village May Not Use Broad Reading Of Restrictive Covenant To Prevent Use

Posted on March 29, 2010
An appellate court upheld a decision finding that a proposed in-ground swimming pool does not violate a restrictive covenant. In Kemp v. Village of Scarsdale the Appellate Division held "the plaintiff established her prima facie entitlement to judgment as a matter of law, as the plain language of the restrictive covenant at issue did not reveal an intent to preclude her proposed use of the property...

Variance For One Nonconfirming Use Does Not Require Grant Of A Variance For Another Nonconfirming Use

Posted on March 27, 2010
A court denied a use variance to conduct a motorcycle sales operation at a location which previously obtained a use variance to operate an antique furniture store. In Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead, the Appellate Division affirmed the denial of a use variance, finding that the property owner had a self created hardship due to the fact that he purchased the property for a commercial use when he knew it was zoned for residential use...

Court Review of Administrative Penalty Is Limited

Posted on March 18, 2010
The First Department upheld a $250,000 penalty imposed by the DEC. In Matter of Longwood Assoc., LLC v New York State Dept. of Envtl. Conservation, the court held that the penalty imposed for placing an unregistered 2000 gallon petroleum bulk storage tank in violation of the Environmental Conservation Law and Navigation Law was a penalty that did "not shock the conscience...

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