CASE UPDATE REPORT
Fall 2007
Elizabeth Cassidy and Christine Kowalski
The Land Use Law Center is pleased to present this edition of the Case Update Newsletter. We
hope to continue the Land Use Law Center’s traditional and unique focus on land use issues that
are important to the New York practitioner and local official. The newsletter will summarize
relevant State and Federal judicial decisions, and provide links to these decisions if possible.
Although these summaries have been carefully researched and written by law students these
summaries are not offered as definitive work on the cases. Please consult the full case and/or an
experienced land use attorney.
UNITED STATES COURT OF APPEALS, SECOND CIRCUIT
Westchester Day School v. Village of Mamaroneck, 2007 U.S. App. LEXIS 24267 (2007)
ZONING BOARD’S DENIAL OF RELIGIOUS SCHOOL’S SPECIAL USE PERMIT APPLICATION
VIOLATED RLUIPA. RLUIPA DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE
FIRST AMENDMENT. Westchester Day School (WDS) is a private Jewish school. WDS and
other private schools are permitted to operate in “R-20” districts if the Zoning Board grants them
a special use permit (the permit lasts for three years and the WDS was last granted a permit in
2000). In October 2001, WDS submitted an application to the zoning board for modification of
its permit to allow for expansion of the school. Initially the zoning board issued a negative
declaration under State Environmental Quality Review Act (SEQRA) which would allow the
project to proceed. After a portion of the community strongly objected to the expansion, the
zoning board rescinded the negative declaration under SEQRA. WDS filed suit claiming that the
zoning board’s decision violated the Religious Land Use and Institutionalized Persons Act
(RLUIPA). Court granted partial summary judgment and reversed the zoning board’s rescission.
The zoning board held additional hearings and later denied WDS’s application. WDS amended
complaint alleging that denial of application violated RLUIPA. The United States District Court
for the Southern District of New York held that the zoning board violated RLUIPA by denying a
special permit to the Westchester Day School and the Second Circuit affirmed, holding that the
expansion of WDS involved religious exercise and triggered RLUIPA, and that RLUIPA does
not violate the Establishment Clause of the First Amendment. (“RLUIPA cannot be said to
advance religion simply by requiring that states not discriminate against or among religious
institutions.”)
UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK
Goldstein v. Pataki, 488 F. Supp. 2d 254 (E.D.N.Y. 2007)
A CHALLENGE TO CONDEMNATIONS RELATED TO THE ATLANTIC YARDS PROJECT IN
BROOKLYN BECAME RIPE FOR ADJUDICATION WHEN THE FINAL DETERMINATION AND
FINDINGS OF PUBLIC USE WERE MADE IN ACCORDANCE WITH EMINENT DOMAIN PROCEDURES
LAW (EDPL) BECAUSE AT THAT POINT THERE WERE NO FURTHER LEGAL OR ADMINISTRATIVE
IMPEDIMENTS TO THE CONDEMNATIONS.
THE COURT, HOWEVER, ABSTAINED FROM
EXERCISING ITS JURISDICTION IN THIS CASE BECAUSE THERE ARE STATE PROCEEDINGS AND
EMINENT DOMAIN IS LARGELY A STATE CONCERN. This suit challenged the public purpose of
condemnation for a 22-acre mixed use redevelopment project in Brooklyn known as Atlantic
Yards. The plaintiffs are property owners whose land lies within the footprint of the
redevelopment project and asserted the condemnations violate the Fifth Amendment Takings
Clause because they do not serve a public purpose. Petitioners also initiated a contemporaneous
state law proceeding.
After a detailed discussion of New York Eminent Domain Procedure Law, the Court focused on
two concerns. First, was the plaintiffs’ claim ripe for adjudication? Second, should the Court
abstain from exercising its federal jurisdiction because of the potential for interfering with state
proceedings?
Ripeness:
The issue here is when a public use claim relating to a planned condemnation is ripe for
adjudication. Note that at the time of this proceeding, the developer had yet to institute vesting
proceedings in order to gain title to the condemned land. In its analysis, the Court noted that the
case law on this legal question is conflicting at best and tends to be very fact specific. The Court
ultimately found the plaintiffs’ injuries sufficiently concrete to be considered ripe for judicial
review. The Court wrote, “plaintiffs’ claims accrued when the ESDC issued its final
Determination and Findings of public use, benefit or purpose pursuant to EDPL § 204(B)(1).
Although the Determination and Findings effects no immediate change in plaintiffs’ ability to
use their properties, defendants do not point to any further legal or administrative impediments to
the condemnations at issue in this case.”
Abstention:
The Court determined that abstention was proper under the doctrine established in Burford v. Sun
Oil Co., 319 U.S. 315 (1943). Under Burford, a federal court will abstain, if after “careful
consideration of the federal interests in retaining jurisdiction over the dispute [the court]
ultimately represents a determination that the State’s interests are paramount and that [the]
dispute would best be adjudicated in a state forum.” The Second Circuit has outlined a number of
factors to consider in applying Burford. Those factors include: (1) the degree of specificity of
the state regulatory scheme; (2) the necessity of discretionary interpretation of state statutes; and
(3) whether the subject matter of the litigation is traditionally one of state concern. See Planned
Parenthood of Dutchess-Ulster, Inc. v. Steinhaus, 60 F.3d 122, 127 (2d Cir. 1995). The Court
found that first and third factors apply to the facts of this case. New York’s Eminent Domain
Procedure Law has a highly specific and comprehensive mechanism for challenging
condemnation. Additionally, eminent domain has traditionally a matter of state concern. Under
this analysis, the Eastern District abstained from exercising its jurisdiction.
THE COURT OF APPEALS OF NEW YORK
In the Matter of Palm Management Corporation v. Andrew Goldstein
8 N.Y.3d 337; 865 N.E.2d 840; 833 N.Y.S.2d 423 (2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_02589.htm
WHEN
AN ADMINISTRATIVE OFFICIAL ISSUES A NEW CERTIFICATE OF OCCUPANCY WHICH IS
SUBSTANTIALLY THE SAME AS AN EARLIER CERTIFICATE OF OCCUPANCY RELATING TO THE
SAME PROPERTY, THE PERIOD FOR APPEAL DESCRIBED IN VILLAGE LAW § 7-712-A(5)(B) IS NOT
AVAILABLE. Plaintiff owns an inn in the Village of East Hampton as a legal non conforming use
in a residential area. The inn also has an awning extending over the patio and a barn used as a
staff dormitory, which were authorized by the Village when it issued certificates of occupancy in
1989 and 1993. When the inn received a new certificate of occupancy which was substantially
the same as the previous certificates when it refinanced in 2003, neighbors of the inn appealed to
ZBA within the period for appeal established by Village Law § 7-712-a (5)(b). The neighbors
alleged that the barn and awning were unlawful uses that did not pre-exist residential zoning and
had been abandoned for more than one year after the zoning was enacted. The ZBA annulled the
portions of the certificate of occupancy relating to the awning and staff dormitory. Plaintiff
brought Article 78 proceeding to annul the ZBA’s determination. The Court of Appeals annulled
the ZBA’s determination and held that when an administrative official issues a new certificate of
occupancy which is substantially the same as an earlier certificate of occupancy relating to the
same property, it does not trigger the period for appeal in Village Law § 7-712-a (5)(b).
N.Y. SUPREME COURT, APPELLATE DIVISION
SECOND DEPARTMENT
Matter of 49 WB, LLC v. Village of Haverstraw, 839 N.Y.S.2d 127 (N.Y.A.D. 2 Dept., 2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_05506.htm
FULFILLMENT OF A DEVELOPER’S CONTRACTUAL OBLIGATION IS NOT A SUFFICIENT PUBLIC
USE, BENEFIT, OR PURPOSE TO JUSTIFY THE EXERCISE OF EMINENT DOMAIN. 49 WB, LLC
purchased the Graziosi Building in the Village of Haverstraw. Shortly after 49 WB purchased
the property, the Village announced its proposed acquisition of the property through eminent
domain. There were two competing proposals for the development of the building: WB
proposed 6-8 units of affordable rental apartments for municipal employees and volunteers, and
the Housing Opportunity for Growth, Advancement and Revitalization, Inc. (HOGAR) proposed
the construction of 16 affordable ownership condominium units. The issue with HOGAR’s
proposal, however, was that the units constructed by HOGAR would allegedly be credited
toward the contractual affordable housing obligation that a local development company was
required to fulfill as part of its waterfront redevelopment. The Appellate Division, Second
Department, held that fulfilling a developer’s contractual obligation to build affordable housing
did not amount to a public purpose and therefore did not justify exercise of eminent domain.
In the Matter of Russia House at Kings Point v. Zoning Board of Appeals of Kings Point,
835 N.Y.S.2d 767 (N.Y.A.D. 2 Dept., 2007), 40 A.D.3d 767
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04129.htm
ZBA
DETERMINATION OVERTURNED BECAUSE IT FAILED TO ADEQUATELY CONSIDER
WHETHER THE REQUESTED AREA VARIANCES WOULD HAVE AN ADVERSE IMPACT ON THE
NEIGHBORHOOD AND THE CHARACTER OF THE COMMUNITY. The Zoning Board of Appeals
(ZBA) denied an applicant’s request for certain area variances. The Court held that the ZBA
failed to properly engage in a balancing test as required by Village Law §7-712-b (3). The court
reinforced the decision of the New York Court of Appeals in Cohen v. Board of Appeals of the
Village of Saddle Rock, 100 N.Y.2d 395 (2003), which held that the legislature intended to
preempt enactment of conflicting local laws when it enacted § 7-712-b.
In the Matter of Village of Chestnut Ridge v. Town of Ramapo, 841 N.Y.S.2d 321
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06434.htm
NEIGHBORING VILLAGES HAVE STANDING TO SUE A TOWN UNDER CERTAIN CIRCUMSTANCES.
Town of Ramapo wanted to amend its zoning to permit adult student housing. Pursuant to State
Environmental Quality Review Act (SEQRA), Town Board, classified the proposed law as Type
I action and ultimately issued a negative declaration despite negative comments from Rockland
County Planning Department. Town Board then adopted the law permitting adult student living
facilities. Four nearby villages brought an Article 78 proceeding to challenge local law enacted
by the Town of Ramapo, but Town of Ramapo claimed that the villages did not have standing.
The Appellate Division held that: (1) Town Law that insulated zoning changes from legal
challenges by neighboring villages did not limit the capacity to sue that the villages enjoyed by
reason of Village Law that authorized municipalities to sue and be sued and (2) bar to judicial
review of zoning changes by adjoining villages established by Town Law did not apply to
challenges to change zoning regulations under New York State Environmental Quality Review
Act (SEQRA). However, the Appellate Division did hold that the villages did not have standing
to assert claims that the law constituted impermissible spot zoning, did not follow procedural
process, was not rationally related to health, safety, and welfare of community; or to raise claims
alleging discrimination in violation of equal protection of due process.
Matter of Marie A. Corliss v. Zoning Board of Town of Eastchester, 2007 NY Slip Op 04118
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04118.htm
THE PLANNING BOARD
AND NOT THE ZONING BOARD OF
APPROVE OR DENY A DE MINIMIS LOT LINE ADJUSTMENT.
APPEALS HAS THE AUTHORITY TO
Property owners own two adjacent
lots, one of which is improved and one of which is unimproved. The unimproved lot was five
square feet less than the required 6000 square feet for a buildable lot. Petitioners applied for a de
minimis lot line adjustment or, in the alternative, an area variance in order to create a buildable
lot. The Planning Board referred the matter to the Zoning Board of Appeals (ZBA) because it
found that the petitioner’s lot did not meet the “effective square” zoning requirement1 and thus
needed an area variance. The ZBA subsequently denied the petitioner’s application.
In this Article 78 proceeding, the Supreme Court annulled the ZBA’s determination and
remanded to the ZBA, because the “effective square” requirement only applies to subdivision
applications, not de minimis lot line changes. As such, the Petitioners did not need an area
variance. On appeal, the Second Department affirmed the Supreme Court’s finding. The Court
did, however, modify the Supreme Court’s order, remanding the case to the Planning Board
rather than the ZBA because the ZBA does not have the authority to grant or deny de minimis lot
line changes. Rather the Planning Board must make that determination.
In Matter of Laurel Realty, LLC v. Kent, 40 A.D.3d 857 (2d Dept. 2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_04293.htm
A SHORT TERM MORATORIUM ON SUBDIVISION IS VALID AND MAY BE APPLIED TO SUBDIVISION
APPLICANTS WHO HAVE ALREADY SUBMITTED THEIR APPLICATION TO THE PLANNING BOARD.
The Petitioner submitted a subdivision application to the Town of Kent Planning Board to
subdivide 137 acres. The Planning Board refused to hear the application because it had the
mistaken belief that the land had been previously subdivided illegally. After an Article 78
proceeding, the Supreme Court, Putnam County ordered the Planning Board, “to hear
petitioner’s subdivision application…. according to the rules of the respondent Board….” Id. at
859 (emphasis added).
The Planning Board heard the application at several meetings in 2004 and 2005. In 2005, the
Town Board of Kent enacted an eight-month moratorium on Planning Board review of
subdivision applications. As a result of this moratorium, the Planning Board halted its review of
the Petitioner’s application. The Petitioner then commenced a second Article 78 proceeding
seeking both a declaratory judgment that the moratorium was invalid as applied to the petitioner
and a mandamus compelling the Planning Board to complete its review of the Petitioner’s
application.
The Supreme Court directed the Planning Board to hear the petitioner’s subdivision application
because the moratorium was invalid as applied to the petitioner’s application because the
Under Eastchester’s Zoning Ordinance, each lot had to be capable of containing a square wholly within its
boundaries, the dimensions of which shall correspond to the dimensions listed in the Schedule of Residential District
Regulations for the district, and some portion of the effective square shall touch the minimum required front yard set
back line.
1
Planning Board was ordered to hear the application in the first Article 78 proceeding. On Appeal,
the Second Department reversed, finding “[t]he moratorium, which was extended twice for short
periods of time, is a valid stopgap or interim measure, reasonably designed to temporarily halt
development while the Town considered updates to its Zoning Ordinances.” (40 A.D.3d 857,
860). The Second Department further found that the moratorium was properly applied to the
petitioner’s application because the court order from the original Article 78 stated that the
Planning Board would hear the application subject to the Planning Board’s rules, which includes
the properly enacted moratorium.
Serdarevic v. Town of Goshen, 39 A.D.3 552 (2d. Dept. 2007)
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_02945.htm
WHEN MAKING A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY
REVIEW ACT (SEQRA), AN AGENCY MUST MAKE TAKE A HARD LOOK AT AREAS OF
ENVIRONMENTAL CONCERN AND MAKE A “REASONED ELABORATION FOR THE BASIS OF ITS
DECISION.”
Petitioners challenged the Town of Goshen’s negative declaration of a
condemnation of land to be used for a drainage project. When a municipality makes a
declaration that a proposed action will not negatively affect the environment under SEQRA, it
must identify areas of environmental concern, take a “hard look” at those areas and make a
“reasoned elaboration of the basis for its determination.” In this case, petitioners submitted
evidence from their engineer that the drainage project would result in increased erosion and
sedimentation. Additional evidence indicated that the proposed product would harm the nearby
trees’ root systems. Despite this evidence, the Town’s negative declaration was made without
any data, scientific authority or any explanatory information. The Second Department found that
Goshen violated SEQRA in its determination and annulled the Town Board’s decision. Because
Goshen improperly issued a negative declaration, the Second Department remitted the matter to
the Town Board for the preparation and circulation of a Draft Environmental Impact Statement
(DEIS).
SUPREME COURT OF NEW YORK
ERIE COUNTY
Western New York District, Inc. of the Wesleyan Church and the Vine Wesleyan Church v.
Village of Lancaster, 2007 Slip Op 27354; 2007 N.Y. Misc. Lexis 6126
http://www.nycourts.gov/reporter/3dseries/2007/2007_27354.htm
OF A CHURCH’S SPECIAL USE PERMIT APPLICATION WAS UPHELD BY THE SUPREME
COURT BECAUSE IT WITHSTOOD RATIONAL BASIS REVIEW. THE COURT SAID THERE IS NO
CONCLUSIVE PRESUMPTION THAT ANY RELIGIOUS USE AUTOMATICALLY OUTWEIGHS ITS ILL
EFFECTS. THE VILLAGE BOARD WAS ENTITLED TO CONSIDER THE OVERALL IMPACT ON THE
COMMUNITY IN MAKING ITS DETERMINATION. Church entered into a contract to purchase
DENIAL
property in the Village Industrial Park, subject to the issuance of a special use permit allowing
use of the property as a church. Village Board denied Church’s special use permit application.
Church challenged Village Board’s denial of the special use permit. The Supreme Court held that
there is no conclusive presumption that any religious use automatically outweighs its ill effects
and that the board was entitled to consider the overall impact on the community in making its
determination. After reviewing the board’s decision under a rational basis standard, the Supreme
Court held that the Board properly denied Church’s request after it found that it was in the overall public interest to deny the request based on the interests of (1) creating an industrial park to
advance economic development; (2) use of public investment and development of the industrial
park for industrial uses, including economic development through job creation, property taxes,
and related economic activities; and (3) use of the industrial park consistent with a
comprehensive plan.