Real Estate & Property Law

New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge

Posted on October 27, 2009
The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource...

Failure to Exhaust Adminstrative Remedies Bars Claim for Certificate of Occupancy

Posted on October 11, 2009
In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies...

Deceitful Conduct May be a Basis for Denial of an Area Variance

Posted on October 05, 2009
The Appellate Division held that under certain circumstances a zoning board may consider deceitful conduct by an applicant in reaching a determination to deny an area variance. In Matter of Caspian Realty, Inc. v Zoning Board of Appeals of the Town of Greenburgh, the court reiterated that a zoning board of appeals may only apply the five criteria set forth in Town Law section 267-b (3) for granting or denying an area variance but ?an applicant's deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law § 267-b(3)...

Court Allows Some Causes of Action Under 42 USC 1983 to Stand Against the Village of Suffern

Posted on October 04, 2009
The Appellate Division Second Department decided a complex appeal involving cross motions on whether a property owner had sufficiently stated causes of action sounding in violations of constitutional rights under 42 USC 1983 and related causes of action resulting from the denial of a certificate of use...

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Property Owner Entitled to Repairs When Pre-Acquisition Emergency Access Is Granted During EDPL Process

Posted on August 13, 2009
An appellate court has ruled that EDPL section 402 [B] [6], which authorizes a court to permit pre-condemnation access to property, also authorizes a court to require a condemnor to correct an unsafe or dangerous condition it has created. In Matter of Village of Saranac Lake, the Appellate Division upheld the right of the court to order the Village to correct a dangerous condition created during pre-acquisition access that was granted to perform emergency repairs to a sewer line, but remitted the matter to the lower court for further factual findings on the need for such repairs...

Town May Prohibit Use of Land Solely for Access to Abutting Parcel

Posted on June 27, 2009
The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use...

Rochester Curfew Law Unconstitutional

Posted on June 10, 2009
The New York Court of Appeals declared a law adopted by the City of Rochester fixing a curfew on minors unconstitutional. In Jiovon Anonymous v. City of Rochester the Court held "we conclude that the crime statistics produced by defendants do not support the objectives of Rochester's nocturnal curfew...

Courts Continue to Defer to Zoning Boards

Posted on May 18, 2009
In another in a long line of cases, last week the Appellate Division again deferred to the decision of a zoning board which had denied an area variance. In DiPaolo v Zoning Board of Appeals of the Town//Village of Harrison, the court found the zoning board had engaged in the required balancing test and therefore had acted appropriately in denying a request for a rear yard setback variance...

Appellate Court Discounts Procedural Missteps by Planning Board in Granting Site Plan Approval

Posted on May 11, 2009
In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval...

Denial of A Permit Cannot Be Based Upon Community Pressure Rather Than Expert Opinion

Posted on May 07, 2009
A court reversed the denial of a wetlands permit based upon the conclusion that the Town Board ?succumbed to community pressure.? In Matter of Moy v. Board of Trustees of Town of Southhold, the Appellate Division, Second Department, found the Town Board relied upon various reports and recommendations which were by parties either unqualified to render such reports or who failed to address the criteria required by the Town?s code in determining whether to grant a permit...

Acquiescence to Nonconforming Use Does not Render It Legal

Posted on May 04, 2009
The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a ?hospice? for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v...

Town May Purchase Property for Town Hall Which Exceeds Present Needs

Posted on May 01, 2009
In Matter of Potter v. Town Board of Aurora, the Appellate Division Fourth Department upheld a resolution by the Town Board, after completing a SEQRA negative declaration, to purchase and renovate a building for a new town hall. The court found that the claim that the town violated State Constitution Article VII section 2, because it was entering into indebtedness for purposes which did not carry out town purposes, due to the fact that building is larger than what is currently required for town purposes, was without merit...

Vacancy Rate Is An Appropriate Criteria In Determining To Issue A Use Variance

Posted on April 29, 2009
In Matter of O?Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses...

No Vested Rights In Nonconforming Sand and Gravel Mine

Posted on April 27, 2009
In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v...

The Lead Agency Has Discretion to Require A Supplemental Environmental Impact Statement

Posted on April 25, 2009
In Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay the Second Department upheld the denial of a special permit. This case has a seven year litigation history with multiple decisions by the Supreme Court and Appellate Division addressing the SEQRA review for a proposed 860,000 square foot mall and an alternate proposal for a 750,000 square foot mall...

Road Improvement Serving Primarily Commercial Vehicles Does not Defeat Eminent Domain

Posted on April 13, 2009
The Appellate Division held that taking of private property by eminent domain fulfilled a public purpose even though the taking primarily benefited commercial traffic. In the Matter of 225 Front Street, Ltd. v. City of Binghamton the court noted the limited scope of judicial review of a proceeding under the EDPL which "must focus on "whether the proceeding was in conformity with constitutional requirements, whether the proposed acquisition is within the statutory jurisdiction or authority of the condemnor, whether the condemnor's determination and findings were made in accordance with the procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed [public] use, benefit or purpose will be served by the proposed acquisition...

Sale of Municipal Property with a Purchase Money Mortgage is Not an Illegal Gift or Loan

Posted on March 31, 2009
The New York Court of Appeals held today that a municipality may sell municipal real property and take back a purchase money mortgage without violating the State Constitutional prohibition against municipalities making a gift or loan. In Matter of 10 E...

Authority of Municipalities to Disclose Verizon?s Quarterly Franchise Reports to Cablevision Pursuant to FOIL

Posted on March 30, 2009
The Appellate Division, Second Department decided two cases last week, Matter of Verizon New York, Inc. v. Devita and Matter of Verizon New York, Inc. v. Mills on the issue of whether quarterly franchise reports submitted to municipalities by Verizon are exempt from disclosure under the Freedom of Information Law (FOIL)...

City's Extension of Credit to Purchase Ferry Service Was Not Illegal

Posted on March 24, 2009
The Appellate Division Fourth Department dismissed a challenge to the City of Rochester using its credit to purchase a ferry service. In Matter of Summers v. City of Rochester, the court dismissed the claim on the grounds of laches but then went on to analyze the City's actions under the N...

Court Upholds Finding That Wind Powered Generators are a Utility

Posted on March 23, 2009
In the emerging area of wind power the Appellate Division upheld the decision of a local zoning board that wind powered generators are a utility. In Matter of Wind Power Ethics Group v. Zoning Board of Appeals of the Town of Cape Vincent, the Court found that the interpretation that wind powered generators fit the definition of utility in the local zoning ordinance was a "rational construction...

Court Voids Denial of Permit Renewal For Failure to Adhere to Administrative Precedent

Posted on March 22, 2009
A determination of the New York City Board of Standards and Appeals (BSA) to deny a permit renewal was reversed by the Appellate Division as arbitrary, capricious and without a rational basis. In Matter of Menachem Realty Inc. v Srinivasan the court found the denial of a permit renewal to complete construction, after a site had been rezoned, was inconsistent with prior determinations of the BSA...

Court Upholds Denial of Area Variance Due to Self Created Hardship

Posted on March 19, 2009
In a somewhat unusual decision the Appellate Division, in Matter of Tsunis v. Zoning Board of Appeals of Incorporated Village of Poquott upheld the denial of an area variance citing the zoning board's finding of self-created hardship. While self created hardship is one of the statutory criteria a zoning board must use in weighing whether to grant an area variance, Village Law also provides at section 7-712-b (3)(b)(5) that in considering self created hardship such "consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance...

Oral Agreement With Mayor Is Not Binding On Village

Posted on March 17, 2009
In an action to collect additional benefits based upon an oral agreement with the former Mayor of the Village of Malverne the Appellate Division reversed a jury finding that a contract existed. In Garrigan v. Incorporated Village of Malverne the court held : "such contract was insufficient to support the plaintiff's claims since, absent a resolution from the Village Board reducing the oral contract to writing, the Village cannot be bound...

New York Court Upholds SEQRA Findings Related to Climate Change

Posted on March 02, 2009

Property Owners Within the Modified Zoning District Have Standing to Challenge Amendment

Posted on March 02, 2009

Zoning Board Determination of Preexisiting Nonconfroming Use Upheld

Posted on February 28, 2009

Atlantic Yards Condemnation Litigation Continues

Posted on February 27, 2009

Challenge to a Local Law Requiring Discontinuance of a Nonconforming Use

Posted on February 07, 2009
In denying summary judgment to a property owner who challenged the amortization period during which a non-conforming use must be discontinued under a local law, the court held the property owner failed to demonstrate the law is invalid on its face. In the Matter of Suffolk Asphalt Supply, Inc...

Appellate Court Summarizes Rules for Area Variances

Posted on January 26, 2009
The appellate division issued a decision last week which provides a concise summary of the various issues confronted by a zoning board of appeals in deciding area variances. In Matter of Millennium Custom Homes v. Young, the court upheld the zoning board of appeals noting that the decision was rational and supported by evidence in the record...

Zoning Board?s Quasi-Judicial Administrative Decision is Subject to Res Judicata Dismissal

Posted on January 05, 2009
The appellate division dismissed a challenge to the continuation of a condition to a variance on the grounds that the challenge is barred by the doctrine of res judicata. In Matter of Calapai v. Zoning Board of Appeals of the Village of Babylon, the court held that a variance conditioned upon the removal of the building modifications in the event of a change of circumstances was a condition which could have been challenged when the variance was granted in 2000...

Town Zoning Ordinance Voided

Posted on December 29, 2008
A town zoning ordinance, which established the specific number of residences and the form of ownership of the residences, as well as the size and ownership of recreational facilities for a specific property, was voided by the appellate division in Matter of BLF Associates LLC v Town of Hempstead...

Court Reiterates Authority of Zoning Board to Interpret Local Zoning Code

Posted on December 08, 2008
A local zoning board?s interpretation of the application of a zoning ordinance provision to a particular property shall be upheld unless that interpretation is ?unreasonable or irrational.? In Kennedy v. Zoning Board of Appeals of the Village of Patchogue, the appellate division reiterated this rule while upholding the zoning board?s application of a specific provision of the zoning code to the property in question...

SEQRA Does Not Preclude a Revote on a Findings Statement

Posted on November 30, 2008
When a findings statement fails to pass, SEQRA does not preclude a reconsideration of the exact same findings statement at a later date. In the Matter of East End Property Company #1 LLC v. Town Board of the Town of Brookhaven, the Appellate Division found that there was nothing in the SEQRA regulations which precluded such reconsideration...

Planning Board May Require Recreation Fee at Time of Final Subdivision Approval

Posted on September 12, 2008
A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval...

Legislature Modifies the Rules Governing Adverse Possession

Posted on September 08, 2008
In July, 2008 the rules governing Adverse Possession in New York were modified by Chapter 269 of the Laws of 2008. As a result of a number of judicial decisions over the last several years which added further confusion to an already complex legal concept, the Legislature obviously felt it was time to try to add some clarity to this evolving area of the law...

New York Legislature Clarifies Availability of Electronic Media Through FOIL

Posted on August 06, 2008
The Legislature has clarified a long contentious issue over the availability of electronic media under the New York Freedom of Information Law (FOIL). In Chapter 223 of the 2008 legislative session, which became law on July 7, 2008, the Legislature expanded FOIL to include electronic data that must be complied by government agencies...

Court Holds Communications from Consultant Not Exempt from FOIL

Posted on July 28, 2008
In a detailed analysis of New York?s Freedom of Information Law (FOIL) the Appellate Division First Department held that certain communications from a consultant hired by the Empire State Development Corporation (ESDC) were not exempt from release under FOIL as intra-agency communications...

Zoning Variance May Not Be Limited To The Term of Ownership of the Applicant

Posted on June 22, 2008
In upholding the decision of a zoning board denying an area variance, the Appellate Division in Fowlkes v Board of Zoning Appeals of the Town of North Hempstead noted that the variance could not have been limited in time to the term of ownership of the present applicant...

A Complete Record is the Key in Zoning Board Applications

Posted on June 15, 2008
This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage...

Allowing Hot Mix Asphalt Plant as Special Use is Not Spot Zoning

Posted on June 07, 2008
A zoning amendment which permitted hot mix asphalt facilities as a special use in all industrial districts in the Town of Babylon was held not to be spot zoning by the Appellate Division this week. In the case, Matter of Little Joseph Realty, Inc. v Town Board of the Town of Babylon, the court found the amendment was not enacted to benefit a single owner for a specific purpose only...

Belated March Madness-SEQRA and Zoning Cases from March, 2008

Posted on May 13, 2008
Due to a busy litigation schedule, we fell short in reporting a number of SEQRA and zoning cases that came down during March of 2008. So we thought we would provide a brief summary of some of the cases decided by New York appellate courts during March of 2008, in case you missed them also...

Municipal Home Rule Permits Creation of Position of Police Commissioner

Posted on May 12, 2008
The Appellate Division Second Department held in the case Overton v. Town of Southampton that a town board is authorized to create the position of police commissioner as chief administrative officer of the police department by local law. The court determined that the local law creating the position of police commissioner was not barred by the Civil Service Law provision requiring that a town maintain the position of chief of police...

When Is a Water District Not a Municipality?

Posted on May 11, 2008
The Court of Appeals held, for purposes of allocating costs of New York?s ?one-call? system for locating underground pipes, cables wires etc. before excavating, a water district created by Town Law is not a municipality. In Jericho Water District v. One Call Users Council, Inc...

A SEQRA Review Is Not Required To Deny An Application

Posted on April 19, 2008
Occasionally, early in the process of reviewing an application, everyone on the municipal board knows that an application is not likely to be granted. Then the question occurs, do we have to require that the applicant go through a full environmental review under SEQRA before we turn down the application? This is a practical question as an environmental review can be time consuming and incredibly expensive for an applicant...

Article by Silverberg Featured in New York Real Estate Law Reporter

Posted on March 08, 2008
An article entitled " 'Atlantic Yards' Condemnation Upheld," written by Steven Silverberg, founding partner of Silverberg Zalantis LLP, is featured in the March, 2008 ALM Law Journal Newsletter, New York Real Estate Law Reporter. The article discusses the recent decision by the Second Circuit Court of Appeals to dismiss the challenge by several property owners to the condemnation of their properties in order to construct a huge private development in downtown Brooklyn, New York...

Conditions on Zoning Variance Must Be Reasonable

Posted on February 26, 2008
The Appellate Division, Second Department rejected as unreasonable a condition on an area variance that a parking lot be chained at night to prevent overnight parking. In Matter of Voetsch v. Craven the petitioner sought area variances for a parking lot adjacent to a professional office...

Courts Must Apply a Zoning Law as Amended Following Submission of an Application

Posted on February 24, 2008
In upholding the rejection of a draft environmental impact statement submitted pursuant to SEQRA, the appellate division reiterated the long standing rule that when a zoning law is amended, after submission of an application and before a decision, the courts must apply the new law and there is no vested right in development under the old law...

Court Rules Municipal Annexation Requires Special Election

Posted on February 17, 2008
The New York Court of Appeals ruled this week, in a case involving a contested annexation of land by one municipality from another that an informal petition by the residents of the area to be annexed was inadequate. In Matter of the City of Utica v. Town of Frankfort the Court found that the practice of the appellate divisions of waiving special elections in certain instances violated the clear mandate of Article IX § 1 (d) of the New York State Constitution which provides that annexation may not take place "until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum...

Second Circuit Affirms Dismissal of Challenge to ?Atlantic Yards? Condemnation

Posted on February 02, 2008
The Second Circuit Court of Appeals upheld dismissal of the challenge to condemnation of private property for the Atlantic Yards Project in Brooklyn stating in the case Goldstein v. Pataki, decided on February 1, 2008: ??eminent domain has its costs, it has its benefits, and in all but the most extreme cases, Supreme Court precedent requires us to leave questions of how to balance the two to the elected representatives of government, notwithstanding the hardships felt by those whose property is slated for condemnation...

Westchester Creates New Municipal Planning Tool

Posted on January 18, 2008
The Westchester County Planning Department has posted a new Web Page which it hopes will be a planning tool for local communities and assist in regional planning. The site states: "[w]hether you are a planner or a concerned resident, you will find tools on these web pages that assist in understanding your community, defining its character and envisioning the future...

Village Settles RLUIPA Case With Westchester Day School

Posted on January 15, 2008
After a five year struggle in the Courts, the Village of Mamaroneck settled the RLUIPA claim of the Westchester Day School by agreeing to pay 4.75 million dollars in three installments. After the Village lost in the Second Circuit Court of Appeals this law firm was brought in to handle the case and evaluate the claim by the Day School for an estimated 22 million dollars in damages, including over three million dollars in attorneys fees...

Civil Rights Action Barred When Article 78 Proceeding Provides Adequate Remedy

Posted on January 08, 2008
An action under 42 USC §1983 may not be maintained when the plaintiff had other meaningful remedies. The Appellate Division, Third Department affirmed the lower court?s granting of summary judgment to the defendants in Hughes Village Restaurant, Inc...

Agency Has the Burden of Proving Exemption for FOIL Request

Posted on January 07, 2008
The New York Court of Appeals held that the Freedom of Information Law carries the presumption of access to records. In reversing the holding of the Appellate Division and remitting the matter for a factual determination, the Court held in Matter of Data Tree, LLC v...

Denial of Area Variance Due to Community Pressure Reversed

Posted on January 06, 2008
Finding that a zoning board had ?improperly succumbed to community pressure,? the Appellate Division, Second Department affirmed the lower court?s reversal of the denial of an area variance. In the case of Schumacher v. Town of East Hampton Zoning Board of Appeals, the Court noted the limited nature of judicial review of zoning board decisions but found that the zoning board?s actions were arbitrary...

Steven Silverberg Interviewed Concerning RLUIPA

Posted on December 17, 2007
Our partner, Steven Silverberg was quoted extensively today in a Westchester Business Journal Article concerning the Religious Land Use and Institutionalized Persons Act (RLUIPA) which can be read at http://www.westchestercountybusiness.com/archive/121707/1217070004...

Site Plan Application Annulled Due to Prejudging By Planning Board Members

Posted on November 21, 2007
The Appellate Division Fourth Department reversed the granting of a site plan approval where it found that three planning board members had ?impermissibly prejudged? an application. In Schweichler v. Village of Caledonia the court dismissed claims of improper spot zoning and violations of SEQRA but remitted the site plan application for further review by the planning board stating ?the appearance of bias and actual bias in this case require annulment of the Planning Board?s site plan approval...

City Attorney May Extend Time to Act Under Variance Without Zoning Board Action

Posted on November 19, 2007
The New York Court of Appeals held today in Haberman v. Zoning Board of Appeals of the City of Long Beach that the attorney representing the zoning board may extend the time to commence construction under the terms of a variance without action by the zoning board...

Open Space Restriction on Subdivision Plat Binds Future Property Owners

Posted on November 15, 2007
In a case of first impression, the New York Court of Appeals ruled today that an open space restriction which appears solely on a subdivision map but is not otherwise recorded in land records is binding upon subsequent purchasers of the property. In O?Mara v...

Second Circuit Rules RLUIPA Applies to Westchester Day School

Posted on October 17, 2007
In a significant decision regarding the application and interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Second Circuit Court of Appeals today affirmed the Southern District (Connor, J.) in finding that the Zoning Board of Appeals of the Village of Mamaroneck violated RLUIPA by denying a special permit to the Westchester Day School (see our March 6, 2006 Blog on the earlier decision)...

Resolution Approving Consideration of Cluster Development Is Not Subject to Challenge

Posted on October 13, 2007
The appellate division dismissed a challenge to a town board resolution authorizing consideration of a cluster development in the case of Maor v. Town of Ramapo Planning Board, finding it was not a ?final determination? subject to review. Toll Brothers had applied to the planning board for a subdivision and submitted a conventional subdivision plat of 51 lots...

Local Law Annulled Due to Improper Segmentation of SEQRA Review

Posted on August 26, 2007
The failure to analyze the environmental impacts of a sewerage diversion plan formed the basis for the Appellate Division Second Department voiding a zoning amendment in Matter of ACI Shore Rd., LLC v. Incorporated Village of Great Neck. The Village of Great Neck had proposed a zoning amendment to implement a residential Waterfront Development District in an area which had previously been an industrial zone...

Appellate Court Holds Adjoining Municipalities May Sue Under SEQRA To Protect Community Character

Posted on August 19, 2007
In a comprehensive review of the capacity and standing of one municipality to sue another over local zoning, the Appellate Division, Second Department, in Matter of Village of Chestnut Ridge v. Town of Ramapo, held that villages have the capacity to sue a town over a local law enacting a zoning amendment...

Thirty Year Old Site Plan Approval Does Not Create Vested Rights

Posted on July 28, 2007
The Appellate Division found that a site plan approval obtained in the early 1970?s did not create a vested right in the zoning that was subsequently amended, even though 204 of the 330 approved units were constructed and funds were expended on infrastructure that would have served the second phase of development...

Appellate Court Rules Use of Eminent Domain Improper

Posted on June 23, 2007
In what the Appellate Division, Second Department called a case of first impression, the court has ruled an attempt by the Village of Haverstraw to acquire a property by condemnation for affordable housing violated the Eminent Domain Procedure Law. In the case 49 WB, LLC v...

Second Circuit Rejects Section 1983 Property Rights Claim

Posted on April 16, 2007
The Second Circuit Court of Appeals overturned a decision by the district court that found a property owner was not bound by a restriction contained in an old subdivision and that the Town had violated the property owners? rights by refusing to issue a certificate of occupancy for a house on the property (O?Mara v Town of Wappinger)...