Land Use and Zoning

Matter of L&M Graziose, LLP v. City of Glen Cove Zoning Board of Appeals

Court: Appellate Division, Second Department
Citation: 2015 NY Slip Op 02971(2nd Dept., 2015)

Overview: In a recent zoning case, the Appellate Division, Second Department, confirmed the need to require a reviewing board for a variance to examine each and every factor of the relevant laws. Failure to do so will result in nullifying any determination.

Facts: Petitioner, L&M Graziose, LLP, filed for a petition for an area variance from the City of Glen Cove Zoning Board of Appeals (hereinafter "ZBA"). Following a public hearing, the ZBA denied the requested variance, claiming the variances sought were too substantial.

The Petitioner challenged the ZBA's findings by filing an Article 78 proceeding in Nassau County Supreme Court. The Supreme Court granted the petition, annulled the ZBA's determination and sent the matter back to the ZBA for the issuance of the requested variances. The City of Glen Cove appealed.

Holding: The Appellate Division, Second Department affirmed the judgment of the Supreme Court. The Appellate Division restated the standard of review when analyzing ZBA determinations. The standard of review is whether the "board acted illegally, arbitrarily or abused its discretion, or that it merely succumbed to generalized community pressure."

In determining whether to grant an area variance, a zoning board must consider the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community in so granting the variance. Zoning boards are also required to consider (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created, by granting the variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and, (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the variance.

Although the ZBA found that the requested variances were substantial, there was no evidence to show that the granting of the variances would have an undesirable effect on the character of the neighborhood, and/or adversely impact physical and environmental conditions or the community. Accordingly, the decision of the ZBA was arbitrary, capricious and irrational, and the matter was remitted back to the ZBA to issue the requested variances.

Editor's Note:It is imperative that a zoning board of appeals articulate each and every prong of the law in its findings of fact in order to have a decision upheld. Failure to do so renders the decision subject to strict judicial scrutiny.

Precis: Joel Grossbarth


Matter of Robert E. Havell Revocable Trust v. Zoning Board of Appeals of Village of Monroe

Court: Appellate Division, Second Department
Citation: ___ AD3d ___, 2015 Slip Op. 03369 (2nd Dept., 2015)

Overview: A recent appeal from a zoning board's denial focused on the scope of appellate review and the factors a zoning board of appeals must rely upon when reviewing an appeal.

Facts: The Petitioner, Robert E. Havell Revocable Trust, contracted to sell a parcel of land in the Village of Monroe to a buyer that intended to use the parcel for tire sales and an automotive repair shop. Under the Village Zoning Code, retail sales and repair service are permitted uses which require no approvals. However, tire sales and service are identified as uses that are conditional uses. The Village's Building Inspector informed the applicant that its use was a conditional use for the zoning district, as defined in the Village's Zoning Code, and a special permit and site plan review were required from the Planning Board.

The applicant disagreed and requested an interpretation from the Zoning Board of Appeals as to whether the intended use was a conditional use or a permitted use under the Village's Zoning Code. The Village Zoning Board of Appeals ("ZBA") determined the proposed use of the property as a retail tire shop was a conditional use and upheld the determination of the Building Inspector. The Petitioner commenced a proceeding under Article 78 to review the ZBA's determination.

The Supreme Court, Orange County granted the petition, concluding that it was obligated to grant it since the Village failed to submit a certified copy of the transcript of the record of the proceedings with its answer, as required by CPLR 7804(e). The Village appealed.

Holding: The Appellate Division, Second Department reversed the judgment of the Supreme Court. The Appellate Division found the Supreme Court committed error when it sua sponte disregarded the full administrative record submitted by the ZBA, although it was uncertified. In the interests of judicial economy, the Second Department addressed the merits the appeal.

In reviewing a determination of a zoning board, judicial review is limited to ascertaining whether the board action was illegal, arbitrary or capricious, or an abuse of discretion. Since zoning restrictions are a derogation of common-law property rights, they should be strictly construed and any ambiguities are to be resolved in favor of the property owner. However, under the Village of Monroe Zoning Code, "tire sales and service" are among the uses that are conditional, requiring the Planning Board review and approval.

Editor's Note: When a property has two or more approved uses, a municipality will virtually always choose the more restrictive use and hold an applicant to the more stringent zoning requirement. However, this is not absolute. If a property has an overwhelming permitted use, a municipality may not unreasonably apply its local zoning codes.

Precis: Joel Grossbarth


Matter of Avella v. City of New York

Court: Appellate Division, First Department
Citation: ___ AD3d ___, 2015 Slip Op. 05790 (1st Dept., 2015)

Overview: A recent appeal from a determination regarding the future use of land surrounding the old Shea Stadium in Queens, New York. The litigants included New York State Senator Tony Avella as a Petitioner and brought many "high profile" claims into Court.

Facts: In 1961, legislation related to a stadium that was anticipated to be constructed in Flushing Meadow Park in Queens ("the Park") was enacted. It was entitled "Renting of stadium in Flushing Meadow Park; exemption from down-payment requirements," and codified in Administrative Code of the City of New York § 18-118. The stadium that the legislation anticipated being constructed by the City in the Park was indeed built, and opened as Shea Stadium, the home of the New York Mets. In 2006, the owners of the Mets and the City agreed that the stadium would be demolished and replaced with a new stadium immediately to the east. That stadium, Citi Field, opened in 2009. The area where Shea Stadium once stood, and where Citi Field now stands, is bordered on its west by Willets Point. Willets Point is a 61-acre area that has long been considered by the City to be blighted. Willets Point has no sewers, sidewalks or streetlights, is replete with potholed and rutted streets, and is prone to flooding. In 2008, the New York City Economic Development Corporation (EDC) embarked on its most recent attempt to develop Willets Point. It developed a plan that envisioned a mixed-use community including thousands of residential dwellings, 1.7 million square feet of retail space, 500,000 square feet of office space, 400,000 square feet of convention center space, 700 hotel rooms, 150,000 square feet of community facility space, a school, thousands of parking spaces, and at least eight acres of publicly-accessible open space. In addition, the plan contemplated raising the level of Willets Point to address recurrent flooding conditions, rededicating environmental conditions caused by decades of contamination and adding new streets along with sanitary and storm-water improvements. In connection with the plan, in November 2008, the City Council approved a number of zoning and mapping actions pursuant to the City's Uniform Land Use Review Procedure (ULURP), which established a "Special Willets Point District."

Petitioners, including a State Senator, not-for-profit organizations, taxpayers, businesses, users of the Park, and other affected persons, brought this proceeding to enjoin the development of Willets West. In addition to injunctive relief, Petitioners sought declarations that the City Council's approval of resolutions to facilitate construction of Willets West was arbitrary and capricious, that construction of the proposed shopping mall on unzoned property would violate Section 11-13 of the New York City Zoning Resolution, and that the failure to apply for zoning changes or submit a new lease for Willets West through ULURP (New York City Charter § 197-c and § 197-d) was improper. As their central claim, Petitioners sought a declaration that the parking lot on which Willets West would be built, which is the site that previously housed Shea Stadium, remains subject to the public trust doctrine, because it remains mapped parkland. They contend that Administrative Code § 18-118 does not provide authorization for the project, as the legislation "was only for the stadium itself and ancillary public purposes for the benefit of the people of the City, not for a gigantic commercial development profiting private real estate developers and retailers."

Respondents sought dismissal of the petition, arguing that the City's leasing of the parking area in Willets West, that is designated parkland, does not violate the public trust doctrine. They interpret Administrative Code § 18-118 as authorization by the State to alienate the area where Citi Field now stands for any listed public purposes, including those to be promoted by the development of Willets West, such as amusement, entertainment and the improvement of trade and commerce. Respondents further argued that since the parkland where Willets West is being developed remains under the control of the Commission of Parks and Recreation, there is no need for a zoning amendment designating a zoning district pursuant to Zoning Resolution § 11-13. They assert that since the lease for the mall is expressly authorized by statute, the statute overrides any other local law and the project thus does not require approval through the ULURP process. Finally, respondents argued that the challenged determinations approving the zoning actions were not arbitrary or capricious.

The Supreme Court dismissed the proceedings' finding rather than authorizing use of the property for a stadium alone. The legislature took into consideration alternate uses of the property and permitted approval of leases for other uses to benefit the public. The Supreme Court further found that the legislative history of the 1961 statute establishes that "although the State legislature's initial intent for the parkland was Shea Stadium, other uses were acceptable" for public purposes for the benefit of the people of the City, including "improvement of trade or commerce." Petitioners appealed.

Holding: The Appellate Division, First Department reversed the judgment of the Supreme Court. The Appellate Division found an interpretation of the Administrative Code of the City of New York § 18-118, was not limited solely to the use of a stadium. The Court applied the plain meaning of the Code and the context which was used, required a more liberal reading than applied by the Supreme Court. The Appellate Division found that the construction of Willets West on City parkland without the authorization from the State legislature, violated the public trust doctrine.

Editor's Note: It is highly likely that we have not heard the end of this litigation. An appeal to the Court of Appeals is likely and perhaps lobbying with the State legislature will force action on Willets West.

Submitted by: Phil Sanchez, Esq

Precis: Joel Grossbarth


Marvin M. Brandt Revocable Trust, et al. V. United States of America

Court: United States Supreme Court
Citation: ___US___, 134 S. Ct. 1257 (2014).

Overview: This case presents the question of what happens to a railroad's right-of-way granted under a particular statute – the General Railroad Right-of-Way Act of 1875 (hereinafter "the Act") – when the railroad abandons it. Does it go to the government or to the private party who acquired the land underlying the right-of-way?

Facts: Melvin M. Brandt began working at a sawmill in Fox Park, Wyoming, in 1939. He later purchased the sawmill and, in 1946, moved his family to Fox Park. Melvin's son Marvin started working at the sawmill in 1958 and came to own and operate it in 1976, until it closed 15 years later.

In 1976, the United States patented an 83-acre parcel of land in Fox Park, surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu Brandt. (A land patent is an official document reflecting a grant by a sovereign that is made public, or "patent.") The patent conveyed to the Brandt's fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereto belonging, unto said claimants, their successors and assigns, forever." However, the patent did include limited exceptions and reservations. For example, the patent "excepts and reserves to the United States from the land granted a right-of-way thereon for ditches or canals constructed by the authority of the United States"; "reserves to the United States... a right-of-way for the existing Platte Access Road No. 512"; and "reserves to the United States ... a right-of-way for the existing Dry Park Road No. 517." But if those roads cease to be used by the United States or its assigns for a period of five years, the patent provides that "the easement traversed thereby shall terminate." The patent concludes by stating that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie Hahn's Peak & Pacific Railway Company, its successors or assigns." The patent did not specify what would occur if the railroad abandoned this right-of-way.

The right-of-way referred to in the patent was obtained by the Laramie Hahn's Peak and Pacific Railroad in 1908. The right-of-way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. Nearly a half-mile stretch of the right-of-way crosses Brandt's land in Fox Park, covering ten acres of that parcel. In 1911, the LHP & P completed construction of its railway over the right-of-way, from Laramie to Coalmont, Colorado. But the railroad ultimately fell short of that goal. Rather than shipping coal and other valuable ores as originally hoped, the LHP & P was used primarily to transport timber and cattle. Largely because of high operating costs during Wyoming winters, the LHP & P never quite achieved financial stability. It changed hands numerous times from 1914 until 1935, when it was acquired by the Union Pacific Railroad at the urging of the Interstate Commerce Commission.

In 1987, the Union Pacific sold the rail line, including the right-of-way, to the Wyoming and Colorado Railroad, which planned to use it as a tourist attraction. That did not prove profitable either, and in 1996, the Wyoming and Colorado notified the Surface Transportation Board of its intent to abandon the right-of-way. The railroad tore up the tracks and ties and, after receiving Board approval, completed abandonment in 2004. In 2006, the United States initiated this action seeking a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right-of-way. In addition to the railroad, the Government named as defendants the owners of 31 parcels of land crossed by the abandoned right-of-way.

The Government settled with, or obtained a default judgment against all but one of those landowners – Marvin Brandt. He contested the Government's claim and filed a counterclaim on behalf of a family trust that now owns the Fox Park parcel, and himself as trustee. Brandt asserted that the stretch of the right-of-way crossing his family's land was a mere easement that was extinguished upon abandonment by the railroad, so that under common law property rules, he enjoyed full title to the land without the burden of the easement. The Government countered that it had all along retained a reversionary interest in the railroad right-of-way – that is, a future estate that would be restored to the United States if the railroad abandoned or forfeited its interest.

The District Court granted summary judgment to the Government and quieted title in the United States to the right-of-way over Brandt's land. The Court of Appeals affirmed. The Court of Appeals acknowledged division among lower courts regarding the nature of the Government's interest (if any) in abandoned 1875 Act rights-of- way. But it concluded, based on Circuit precedent, that the United States had retained an "implied reversionary interest" in the right-of-way, which then vested in the United States when the right-of-way was relinquished.

Holding: The United States Supreme Court reversed. The Court held that more than 70 years ago, the Government argued before the Supreme Court in Great Northern Railway Co. v. United States, 315 U.S. 262 (1942), that a right-of-way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now, the Government argues that such a right-of-way is tantamount to a limited fee with an implied reversionary interest. A majority of the Supreme Court declined to endorse such a stark change in position, especially given "the special need for certainty and predictability where land titles are concerned."

Editor's Note: Justice Sotomayor issued a harsh dissent, which has spurred much debate on this topic. An excellent law review article entitled "When the Common Law Runs Into the Constitution: The Train Wreck Avoided in Marvin M. Brandt Revocable Trust v. United States," Brian T. Hodges, 39 Vermont Law Review, 672, should be reviewed.

Submitted by: Phil Sanchez, Esq

Precis: Joel Grossbarth


Harmit Realties, LLC v. 835 Avenue of the Americas, LP, et al.

Court: New York County Supreme Court
Citation: 44 Misc. 3d 1226(A), ___ MYS2d ___ (NT Co. Sup. Ct., 2015)

Facts: This action was brought by Harmit Realties LLC (“Harmit”) against 835 Avenue of the Americas, L.P., Carlisle 839 LLC, 835 6th Ave Master LP, 835 6th Ave Parking L.P., EQR-Beatrice A, LLC, Beatrice B, LLC, Beatrice C, LLC, Beatrice D, LLC, Beatrice E, LLC, Beatrice F, LLC, Beatrice G, LLC, Beatrice H, LLC, and Beatrice I, LLC (collectively, the defendants). Harmit and Defendants own adjacent properties on West 30th Street and Sixth Avenue in Manhattan, New York. Harmit owns 114-120 West 30th Street, New York, NY (Owner Parcel) and Defendants own 835-861 Avenue of Americas, New York, New York (Developer Parcel).

In seeking to build a mixed-use hotel and residential building, the Defendants purchased from Harmit certain air rights (Excess Development Rights) for $9 million. The transaction was finalized on June 4, 2007 and made pursuant to a purchase and sale agreement and a zoning lot development agreement. Defendants, as part of the transaction, submitted to the New York City Department of Buildings a survey of the amount of square footage that was transferred from the Owner Parcel to the Developer Parcel. In 2012, Harmit learned that the survey allegedly incorrectly stated the amount of square footage transferred by Harmit under the agreement because the survey failed to include the existence of a mezzanine level on the Owner Parcel. Harmit accused the Defendants of wrongfully transferring to themselves development rights, resulting in Defendants overbuilding their building and encroaching on Harmit's development rights.

The agreements provided that the Defendants were only purchasing Excess Development Rights and excluded Harmit's improvements on the Owner Parcel, which allegedly included the mezzanine level and all other parts of the Owner Building. However, in none of the agreements did these sophisticated parties specifically state how much square footage or any measurement of what was purchased. The parties also did not include any language in the contract regarding the mezzanine level.

Harmit sought, among other things: (1) a declaration that it did not in fact transfer Utilized Development Rights in excess of the amount of square footage permissible under the agreements between the parties; (2) claim of breach of contract arising out of Defendants' violation of the agreements; (3) specific performance of Defendants' contractual obligation to purchase and develop only Harmit's Excess Development Rights and to submit any and all applications to the relevant government agencies to correct their wrongful conduct; (4) claim of trespass for Defendants' current and continuing encroachment and improper entry onto the Owner Building; (5) a permanent injunction requiring that Defendants cure the overbuilt Developer Building; and, (6) breach of the implied covenant of good faith and fair dealing for depriving Harmit of the benefit of the agreements. Defendants moved to dismiss Harmit’s claims as time-barred and beyond the statute of limitations.

Holding: The allegations are that the Defendants misappropriated and used Harmit's air rights in connection with the Owner Parcel. It was undisputed between the parties that air rights fall within the definition of real property. Air rights have been recognized as an inherent attribute of ownership of land. Harmit contends that under New York law there exists no cause of action for the conversion of real property.

The Court agreed with Harmit since "an action sounding in conversion does not lie where the property involved is real property.” The Court found the claims were timely because the three-year statute of limitations is inapplicable since the claims do not sound in conversion. However, the Court found that Harmit failed to raise triable issues of fact in connection with its remaining claims. The Court examined the pleadings and found them to be completely devoid of facts necessary to prove each cause of action. Furthermore, the Court refused to consider parol evidence since it found the language of the respective contracts to be straightforward and without the need for extrinsic evidence.

Editor's Note: Justice Sotomayor issued a harsh dissent, which has spurred much debate on this topic. An excellent law review article entitled "When the Common Law Runs Into the Constitution: The Train Wreck Avoided in Marvin M. Brandt Revocable Trust v. United States," Brian T. Hodges, 39 Vermont Law Review, 672, should be reviewed.

Prevailing Attorney: Jed I. Bergman, Esq.

Precis: Joel Grossbarth


Matter of Witkowich v. Zoning Board of Appeals of Town of Yorktown

Court: New York State Supreme Court, Appellate Division, Second Department
Citation: ____ AD3d ___, 2015 Slip Op. 08184 (2nd Dept., 2015)

Overview: This case presented the first occasion for an appellate court to address whether the newly-enacted three-year moratorium on tax certiorari proceedings under RPTL 727(1) is unconstitutional when applied to a successor property owner.

Facts: In 2012, Andrew Sobo was issued a building permit to construct an attached addition to his residence in Yorktown, consisting of a den and a large garage. Sobo’s neighbor Nicholas Witkowich (Plaintiff) commenced an administrative proceeding before the Zoning Board of Appeals of the Town of Yorktown challenging the issuance of the permit. Plaintiff contended that the proposed structure was not an addition as defined by the Yorktown Zoning Code, but was an impermissible large accessory structure. After a hearing, the ZBA issued a determination that the building permit had been properly issued based upon its interpretation of the zoning ordinance. Plaintiff commenced an Article 78 proceeding to challenge the ZBA’s determination. The Supreme Court granted the Petition and annulled the ZBA determination. Sobo appealed.

Holding:The Appellate Division reversed the ruling of the Supreme Court and reinstated the ZBA’s findings, In a proceeding pursuant to Article 78 to review a determination of a zoning board of appeals, a ZBA’s determinations of its ordinances are entitled to great deference and will not be overturned unless unreasonable or irrational. A zoning code must be construed according to the words used in their ordinary meaning. Judicial review is generally limited to determining whether the action taken by the zoning board of appeals was illegal, arbitrary and capricious, or an abuse of discretion.

In reviewing the definition of an accessory structure under the Town of Yorktown ordinance, the Appellate Division found the accessory structure may be either detached or attached to the main building by a breezeway or connecting corridor. The ZBA’s interpretation of the ordinance was neither unreasonable or irrational. The ZBA determined the proposed structure consisted of an attached den and garage area, was an addition to the main building, and not an “accessory” building within the meaning of the ordinance. The ZBA properly considered evidence that the proposed den was to be used as a conventional living space and not a connecting breezeway or corridor. Since the terms breezeway and connecting corridor were not defined in the zoning code, the ZBA’s use of Dictionary of Architecture and Construction and the Merriam-Webster Dictionary to define those terms was proper.

Editor's Note: This was the second appeal regarding the proposed addition by Mr. Sobo. These two neighbors clearly have other issues.

Prevailing Attorneys: David O. Wright, Esq., Peekskill, NY

Precis: Joel Grossbarth


Mohawk Valley Water Authority v. State of New York

Court: Supreme Court, Appellate Division, Fourth Department
Citation: 78 AD3d 1513, 910 NYS2d 780 (4th Dept., 2010)

Facts: Plaintiff, a public corporation, diverts water from West Canada Creek at Hinckley Reservoir to provide drinking water to the City of Utica and several other municipalities in the Mohawk Valley region. In 2002, Plaintiff applied to the New York State Department of Environmental Conservation for a water supply permit authorizing Plaintiff to expand its service to four additional municipalities. That application was opposed by defendants Erie Boulevard Hydropower, L.P. (hereinafter referred to as “Erie”), the owner of two hydroelectric plants on West Canada Creek downstream from Hinckley Reservoir, and New York State Canal Corporation (“Canal Corporation”). Plaintiff thereafter commenced this action seeking a declaration that it had an absolute and unconditional right to use up to 75c.f.s. [cubic feet per second] of water from the West Canada Creek at Hinckley Reservoir and that, to the extent that its right to draw up to 75 cubic feet per second of water from West Canada Creek is deemed to be encumbered or restricted by an agreement between its predecessor and defendant State of New York (“State”) executed in 1917, the flow compensation and reservoir requirements of that agreement may not be enforced against it. In addition, Plaintiff sought a declaration against Erie that Erie is barred by release from asserting damages or seeking compensation for Plaintiff's diversion of water from West Canada Creek at Hinckley Reservoir. Erie moved for summary judgment dismissing all of Plaintiff’s claims. The Court granted Plaintiff’s Motion and Erie appealed.

Holding:The Appellate Division affirmed most of the ruling but reversed a portion of Supreme Court’s decision. The Court held that Plaintiff established that Erie has no rights against it with regard to the flow of West Canada Creek at Hinckley Reservoir, and Erie failed to raise a triable issue of fact with respect thereto. Although the property owned by Erie along West Canada Creek may properly be classified as riparian land, the riparian right can be severed from the riparian land by grant, condemnation, relinquishment or prescription. The State appropriated the waters of the West Canada Creek flowing at Hinckley and, by virtue of its 1921 agreement with the State, Erie's predecessor released its claims against the State with respect to the flow of West Canada Creek at Hinckley Reservoir. Pursuant to a 1958 Agreement, Erie's predecessor also released Plaintiff's predecessors from their prior obligation to provide flow compensation. Contrary to Erie’s contentions, the 1958 Agreement expressly preserved Plaintiff's right to divert water at Hinckley Reservoir. The right to divert and use the water is a claim to an estate or interest in real property, and the 1958 Agreement provides that Erie's predecessor shall not modify, rescind, cancel or annul such interest.

The court also ruled that Erie has no right, as a third-party beneficiary, to enforce the reservoir or compensating flow requirements of the 1917 Agreement. That agreement expressly negated enforcement by third parties and, in any event, Erie was no more than an incidental beneficiary of that agreement.

The Appellate Division did find that the Supreme Court erred in granting those parts of Plaintiff's cross motion seeking summary judgment dismissing the first counterclaim of the State and the Canal Corporation, alleging that Plaintiff breached the 1917 Agreement, and seeking partial summary judgment on the 4th and 11th causes of action, alleging that the State defendants are barred by the equitable doctrines of estoppel, waiver "and/or" laches from enforcing the flow compensation and reservoir provisions of the 1917 Agreement, to the extent that Plaintiff is entitled to a declaration that it has the right to divert at the Hinckley Reservoir water flow at a rate not to exceed 35 [c.f.s.].

Prevailing Attorneys: Douglas J. Nash, Esq.

Precis: Joel Grossbarth


Matter of Watkins v. Town of North East Zoning Board of Appeals

Court: New York State Supreme Court, Appellate Division, Second Department
Citation: ___AD3d___, 2015 NY Slip Op. 00987 (2nd Dept., 2016)

Facts: Petitioner submitted an application to the Town of North East Zoning Board of Appeals seeking an interpretation as to whether, under the Town’s Code, an "educational center" is permitted to include housing and dining facilities.

The Town Board of Appeals rendered a decision stating that under the plain language of the statute, an educational center was permitted to include housing and dining facilities.

The petitioner submitted an Article 78 proceeding to the Dutchess County Supreme Court arguing the Zoning Board’s determination was arbitrary, capricious and should be nullified. The Supreme Court dismissed the petition and upheld the Town Zoning Board of Appeal’s interpretation. Petitioner appealed.

Holding:The Appellate Division affirmed the ruling of the Surrogate’s Court.

Generally, a zoning board's interpretation of its zoning ordinance is entitled to great deference and will not be overturned by the courts unless unreasonable or irrational. "Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used."

Here, pursuant to the plain meaning of the language of Sections 98-5 and 98-33 of the Zoning Law of the Town of North East, it is permissible for an "educational center" to include housing and dining facilities. Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

Prevailing Attorneys: George A. Rodenhauser, Esq.

Precis: Joel Grossbarth


Erie Boulevard Hydropower, L.P. v. State of New York

Court: Supreme Court, Appellate Division, Third Department
Citation: 113 AD3d 827, 978 NYS2d 436 (3rd Dept., 2014)

Facts: In 1921, Defendant State of New York entered into a settlement agreement with Claimant's predecessor in interest to resolve an eminent domain dispute over a tract of land that encompasses what is now the Hinckley Reservoir in Oneida County. Claimant is a power company that owns two hydroelectric generation facilities downstream from the reservoir. In the agreement, Defendants agreed to pay Claimant's predecessor $100,000 and to release water over the dam from Hinckley Reservoir at rates based on an operating diagram created in 1920, so that the predecessor could harvest the hydroelectric power downstream. In the autumn of 2007, water levels in the reservoir dropped as the result of the particularly dry season. Due to public concerns about the drinking water supply, Defendants released less water downstream than was provided for in the operating diagram. As a result, Claimant allegedly had to reduce its operations and suffered injuries, leading it to commence this breach of contract action. Claimant moved for partial summary judgment on the issue of liability. Defendants cross-moved for summary judgment, dismissing the claim. The Court of Claims granted Defendants' cross motion and denied Claimant's motion. Claimant appeals.

Holding:The Appellate Division reversed the Court of Claims’ ruling.

The Court of Claims erred in granting Defendant’s cross motion for summary judgment dismissing the claim. The settlement agreement is a contract that, if unambiguous, "must be enforced according to the plain meaning of its terms." Whether a contract is ambiguous is a question of law for the court to determine. The settlement agreement provides: "The intent and purpose of the agreement being so to operate the Hinckley State Reservoir that, after serving the canal uses and purposes of the State, it may so far as practicable, be fully used for the storage of water and the regulations of the flow of West Canada Creek below the same for the benefit of the power property and riparian lands of Claimant on West Canada Creek below the Hinckley State Reservoir. Provided, however, that during periods of extradordinary sic drought, flood or emergency caused by the temporary failure of other sources of water supply for the canal use, ... the Superintendent of Public Works or other officer ..., without the payment of any damages to Claimant, ... may temporarily vary or entirely suspend the operation of the said dam and reservoir as described and laid down in the operating diagram aforesaid during the periods of such extraordinary or unusual drought, flood or emergency caused by the temporary failure of other sources of [water] supply for the canal use..." In determining whether Defendants breached the agreement, the Appellate Division focused on two phrases.

The key phrase at issue here addresses the parties' intent that Defendants operate the reservoir such that, "after serving the canal uses and purposes, of the State," the reservoir may be fully used to store water and regulate its flow for the benefit of Claimant's power facility and riparian rights. Defendants contended that they may operate the reservoir for any State purpose — including protection of a local supply of drinking water — in the first instance. On the other hand, Claimant contended that Defendants may only consider the State's canal uses and canal purposes before fully using the reservoir for Claimant's needs, after which Defendants may consider other uses or purposes. Defendants' interpretation would be accurate if the comma was placed after the word "uses" rather than after "purposes." As written, "canal" modifies the entire phrase "uses and purposes," and the phrase "canal uses and purposes" is modified by the ensuing phrase "of the State".

Pursuant to the agreement, Defendants could only avoid liability if they deviated from the operating diagram's release rates for a State canal use or purpose. Because Defendants altered the release rate for the purpose of preserving safe drinking water during a drought — a legitimate public and State purpose, and not for a canal-related purpose, Defendants are liable for breaching the contract.

Prevailing Attorneys:Patterson, Belknap, Webb & Tyler,

Precis: Joel Grossbarth


East End Resources, LLC v. Town of Southold Planning Board, et al.

Court: New York State Supreme Court, Appellate Division, Third Department
Citation: ___ AD3d ___ , 2016 Slip Op. 00476 (2nd Dept., 2016).

Facts: In 2002, the Plaintiff/Petitioner East End Resources, LLC (hereinafter “East End”), entered into a contract of sale to purchase approximately 6.75 acres of real property (hereinafter “the parcel”) located in the Hamlet of Southold. Shortly after the contract of sale was executed, the Town of Southold Town Board enacted a moratorium precluding all residential site plan approvals. After the moratorium expired, East End submitted a site plan application to the Town of Southold Planning Board seeking approval for the construction of a 24-unit senior housing development on the parcel, which is in the Hamlet's business zoning district. Subsequently, on October 21, 2008, East End submitted an amended site plan application.

East End commenced this hybrid action and proceeding, alleging that the Planning Board, Town Board, Town of Southhold Planning Department, and Town of Southhold Town Clerk deliberately and systematically delayed review of its site plan application. In the third cause of action, East End sought relief pursuant to CPLR article 78 in the nature of a mandamus to compel the Planning Board to conduct a public hearing on its application pursuant to Town Law § 274-a(8). In the fifth through eighth causes of action, East End sought to recover damages for the violation of its due process and equal protection rights under both the United States and the New York State Constitutions. The Town moved for summary judgment dismissing the third and the fifth through eighth causes of action, and the Supreme Court denied the motion.

Holding:The Appellate Term affirmed in part and modified the Supreme Court’s ruling.

The Appellate Court held that Supreme Court properly denied that branch of the Town’s motion which was for summary judgment dismissing the fifth through eighth causes of action, made on the grounds that those causes of action were not ripe for judicial review. To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second, to assess the hardship to the parties if judicial relief is denied. "The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."

In the area of land use, a final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations. The finality rule, however, is not "mechanically applied." In this regard, "a property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied." Additionally, an exception to the finality requirement exists where the municipal entity uses repetitive and unfair procedures in order to avoid a final decision.

Here, the appellants demonstrated their prima facie entitlement to judgment as a matter of law, dismissing the fifth through eighth causes of action on the grounds that they were not ripe for judicial review by demonstrating that the Planning Board had not made a final decision on East End's application. In opposition, East End raised a triable issue of fact as to whether the appellants would continue to use repetitive and unfair procedures so as to avoid making a final decision on the application. Since this was the only ground the appellants raised for dismissing the sixth cause of action, which alleged a violation of East End's right to equal protection under the United States Constitution, the Supreme Court properly denied that branch of their motion which was for summary judgment dismissing the sixth cause of action.

The Supreme Court, however, should have granted that branch of the appellants' motion which was for summary judgment dismissing the fifth and seventh causes of action for another reason. In those causes of action, East End alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications, East End did not have a cognizable property interest in the approval of a particular site plan application. Consequently, the appellants established their prima facie entitlement to judgment as a matter of law, dismissing the fifth and seventh causes of action on the grounds that East End did not have a cognizable property interest in the approval of the application. In opposition, East End failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing the eighth cause of action, which alleged a violation of East End's right to equal protection under the New York State Constitution. The appellants demonstrated that East End failed to serve a timely notice of claim upon them, which is a condition precedent to the assertion of this claim. In opposition, East End failed to raise a triable issue of fact. Its contention that the verified complaint/petition was the functional equivalent of a notice of claim was without merit.

Prevailing Attorneys:Smith, Finkelstein, Lundberg Isler & Yakaboski, LLP

Precis: Joel Grossbarth


Argyle Farm and Properties, LLC v. Watershed Agricultural Council of the New York Watersheds,Inc.

Court: New York State Supreme Court, Appellate Division, Third Department
Citation: ___ AD3d ___ , 2016Slip Op. 00599 (3rd Dept., 2016)..

Facts: In 2002, Plaintiff purchased a 475-acre farm in the Town of Andes, Delaware County at auction for $860,000. The property lies within the Pepacton Basin of the New York City watershed and is subject to the Surface Water Treatment Rule. Although the cited rule requires Defendant City of New York to maintain adequate control over land use activities occurring within its watershed, the City is precluded (except in certain limited circumstances) from regulating the day-to-day activities of upstate farmers operating within the various watershed districts. To strike an appropriate balance between these interests and to ensure a quality water supply, the City, consistent with the provisions of the 1997 New York City Watershed Memorandum of Agreement, enters into voluntary agreements with upstate farmers known as Whole Farm Plans (hereinafter “WFPs”). WFPs, in turn, require that farms implement best management practices in order to avoid pollution of the watershed. In addition to developing WFPs, Defendant also administers a conservation easement program that permits it to purchase development rights to agricultural land based upon the fair market value. The conservation easement allows the individual farms to continue operating while granting the Easement Committee control over further residential or commercial development of the relevant properties. A conservation easement is only available if the land in question is covered by a WFP.

In December 2006, Plaintiff and Defendant entered into a contract of sale for a conservation easement covering Plaintiff's property. Plaintiff was to be paid $1,600 per acre, resulting in a purchase price in excess of $750,000. Thereafter, in January 2007, Defendant advised Plaintiff that a WFP for the property would need to be in place prior to closing. Because Plaintiff was, at the time, leasing a small portion of the property to a neighboring farmer for haying operations, Defendant offered to extend the neighbor's WFP to Plaintiff's property. Although Plaintiff declined to do so, it appears that the neighbor's WFP was incorporated by reference into the deed conveying the conservation easement when the closing occurred in January 2008.

Prior to closing, Plaintiff was in the process of converting an existing barn on the property into a residence, which, in turn, required the installation of a septic system. A dispute thereafter arose between Plaintiff, Defendant and Defendant New York City Department of Environmental Conservation as to whether, in accordance with the provisions of the conservation easement between Plaintiff and Defendant, the septic system could be installed outside of the property's acceptable development areas (hereinafter referred to as “ADAs”). Despite ongoing negotiations and disagreements on this point, the requested permit was issued in January 2011, and Plaintiff thereafter installed the septic system outside of the property's identified ADAs.

In November 2013, Defendant issued program guidelines for the locating of septic systems and generally concluded that such systems must be located within a property's ADAs. A septic system could be installed outside of a property's ADAs, but only with Defendant's prior written approval. Recognizing what Defendant acknowledged was an inconsistency between the guidelines and certain of the conservation easements previously conveyed — including Plaintiff's easement — the guidelines provide for the amendment of a property's ADAs with the cost and expense thereof to be borne by Defendant. According to Defendant, Plaintiff was offered, but did not avail itself of this option. Instead, Plaintiff commenced this action in December 2013, seeking, among other things, rescission of the easement, a declaration of its rights thereunder and compensatory damages for breach of contract. Defendant moved to dismiss the complaint, arguing that Plaintiff lacked standing, that Plaintiff's claims were time-barred and that Plaintiff's claims should be dismissed for failure to join a necessary party, i.e., the Attorney General. Supreme Court granted Defendants' respective motions and dismissed the complaint, prompting this appeal.

Holding:The Appellate Division affirmed the ruling.

Pursuant to Environmental Conservation Law, Section 49-0307, "Conservation easements are of a character wholly distinct from the easements traditionally recognized at common law and are excepted from many of the defenses that would defeat a common-law easement." Pursuant to ECL 49-0307 (1), “[a] conservation easement held by a not-for-profit conservation organization may only be modified or extinguished" (1) pursuant to the terms of the instrument creating the easement, (2) in a proceeding pursuant to Real Property Actions and Proceedings Law §1951, or (3) by eminent domain.

There is no question that Defendant is a not-for-profit conservation organization and, further, that the action before the Court was not in the nature of either an RPAPL 1951 proceeding or an eminent domain proceeding. Hence, the subject easement could not be modified or terminated except under the terms set forth therein. The easement provided that it may be amended or modified upon the written consent of Plaintiff and Defendant, but a material amendment thereof required the additional consent of the Attorney General. Termination of the easement itself was permitted in only two instances: (1) in the context of a condemnation proceeding upon notice to Plaintiff, Defendant, the Attorney General and the City or, alternatively, (2) upon the joint request of such parties.

Here, Plaintiff's first five causes of action sought rescission of the easement upon basic contract principles, i.e., mutual mistake, intentional misrepresentation, negligent misrepresentation and frustration of contract. None of these grounds are set forth in either ECL 49-0307 or the easement itself and, as the statutes and legislative history make clear, defenses that exist at common law have no application in the context of a conservation.

Prevailing Attorneys:Robert H. Feller, Esq.

Precis: Joel Grossbarth


Matter of North 7-8 Investors, LLC v. Newgarden

Court: New York State Supreme Court, Kings County
Citation: 43 Misc. 3d 623, ___ NYS2d ____ (Sup. Ct., Kings Co., 2014).

Facts:Petitioner, North 7-8 Investors, LLC, is the owner of the property located on Block 2322, Lots 10, 11, 28, and 30, in the Northside neighborhood of Williamsburg, Brooklyn. Respondent Mark A. Newgarden resides at and is the owner of 18 Havemeyer Street, Brooklyn, New York (Block 2322, Lot 18), which abuts part of Petitioner's property. Specifically, the rear wall of Respondent's one-story garage which is on his west property line abuts approximately 25 feet of Petitioner's east property line. Petitioner's property is an irregularly shaped parcel that runs the full width of Block 2322 from North 7th to North 8th Street and is approximately 180,000 square feet.

According to the testimony of Tomer Yogev, Petitioner's project manager, the Petitioner is currently developing two seven-story buildings on the property that will contain 159 residential units.

Originally, Petitioner sought a license to gain access to Respondent's property to shore Respondent's garage, and to place a protective covering on a deck built on top of Respondent's garage roof in order to protect the roof deck during construction of the buildings. Petitioner also sought a license for a temporary scaffold that would project into Respondent's air space in order to allow workers to complete and waterproof the facade of one of the new buildings.

Petitioner sought access to shore the rear wall of Respondent's garage because the New York City Department of Buildings (DOB) had made that a condition of lifting a partial stop work order it had issued, prohibiting work on the area adjacent to Respondent's rear garage wall. This partial stop work order prevented Petitioner from demolishing a portion of the wall on its property that was within a few inches of Respondent's rear wall. Petitioner also sought to install a covering on the top of Respondent's roof deck, as required by DOB, to protect it from objects that might fall from Petitioner's property during the course of construction.

Respondent and Petitioner engaged in lengthy negotiations over a license agreement to allow Petitioner access to Respondent's property. In fact, the negotiations were begun by Petitioner's predecessor in interest. Respondent's architect raised several objections to the manner in which the shoring work was to be done, to the manner in which the roof deck was to be protected and to the lack of completeness or specificity in the plans presented by Petitioner.

Additionally, respondent sought reimbursement for his architectural and legal fees incurred in reviewing Petitioner's proposals. The parties were unable to come to an agreement and Petitioner commenced this proceeding. Respondent cross-moved to dismiss the proceeding and for sanctions pursuant to Rule 130 (Rules of Chief Admin of Cts [22 NYCRR] §130-1.1), arguing that he has not denied access but is simply insisting on reasonable protections and conditions for such access. Respondent also argues that access is not needed because Petitioner could construct its building by setting the building back from the shared property line.

In response to the objections raised by Respondent's architect, Petitioner modified its plans to reduce the need for access to Respondent's property. The revised plans call for no shoring of Respondent's rear garage wall and for taking down the adjacent wall on Petitioner's property with hand tools. Petitioner also revised its plans so as to no longer require underpinning of Respondent's building.

Holding:The Supreme Court analyzed the relevant sections of the law. Section 881 of the Real Property Actions and Proceedings Law provides that:

"When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry."

The construction of a new building is an improvement of real property within the meaning of Section 881. While Respondent has shown that access to the extent originally sought by Petitioner was not necessary in order to construct its new building, Petitioner will still require access to Respondent's property to finish that portion of the exterior east wall of the building which abuts the rear wall of Respondent's garage. Access is deemed necessary even where the access is necessary because a building is constructed to the lot line of a property.

While the petition failed to set forth the dates for which access is sought as required by the language of RPAPL 881, Petitioner has stated that it seeks access for approximately one year. There is little purpose in dismissing the petition on this ground and requiring Petitioner to bring a new petition when the court can simply set the duration of the license in its order.

Section 881 provides that a license shall be granted "upon such terms as justice requires." Such terms as justice requires extends to the nature and extent of access that is necessary, the duration such access may be necessary, as well as what protections may be necessary to safeguard the adjoining owner's property.

The statute and case law provide that Petitioner is strictly liable for any damage it may cause to Respondent's property.

The Court granted the petition and ruled that Petitioner is awarded a license to enter on Respondent's property together with attorneys’ fees.

Prevailing Attorneys:Russell M. Wolfson, Esq.

Precis: Joel Grossbarth


Grace Pangbourne et al. v. Stephen Thomsen