The orientation of a tennis court in a north/south direction is a benefit to competitive players interested in fair tennis play. Even the Appellate Division, Second Department, agrees.

To avoid the impact of sun glare, a Town of Southampton property owner sought several variances to construct a tennis court in a north/south direction. One of the variances requested a 17-foot setback from the street where 90 feet is required.  (Southampton Town Code, Section 330-11.)   This variance would allow the tennis court to be situated in a north/south direction and thus avoid the impact of sun glare that would occur if situated in an east/west direction.

StockSnap_8ODE0WIMD9A neighboring property owner, located across the street, appeared at the public hearing and opposed the requested variances.  In reaching its 2014 determination to grant the variance application, the Southampton Board of Zoning Appeals found that the proposed tennis court was located 158 feet away from the opposing neighbor’s house and therefore would not create a detriment to the property owner or the surrounding neighborhood.

The Board also relied upon no less than eight (8) mitigating factors, including:

  • Proposed landscape screening;
  • Sinking the court into the ground by four feet, thereby mitigating potential noise impacts;
  • The alternative of constructing a 9,000 square foot house was far more impactful;
  • The goal of distancing the court from the immediately contiguous neighbors was more important than any perceived impact to the opposing neighbor located across the street.

Unhappy with the Zoning Board’s determination, the opposing neighbor commenced an Article 78 proceeding in addition to seeking a TRO and preliminary injunctive relief.  After considering the arguments, by Decision and Order dated May 19, 2014, the trial court (J. Garguilo) upheld the Zoning Board’s decision, while at the same time vacating the TRO and denying petitioner’s request for preliminary injunctive relief.   Petitioner’s attempt to appeal the denial of injunctive relief was dismissed by the Appellate Division as the Second Department held that “appeal from the intermediate order in this proceeding must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment dated November 10, 2014.”  Id.

By further decision of even date, the Appellate Division upheld the Zoning Board determination, finding not only  “there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community . . . [but also] the Zoning Board rationally concluded that the benefit sought by [the applicant}, namely, to maximize its use of the proposed tennis court, could not be achieved by the alternative site proposed by the petitioner.”  Id.

The Appellate Division made the above determinations despite the fact that it found that the variances requested by the property owner were substantial in nature and that the difficulty was self-created. This decision is important to those seeking to uphold a favorable variance grant in the wake of neighboring opposition because this decision demonstrates that focusing on the absence of, or minimal, undesirable change in a neighborhood and detriment to the health, safety, and welfare of a community can trump substantial variance requests, including those that are self-created in nature.

Monopole-TowerB1On December 21, 2016, the Appellate Division, Second Department, rendered yet another decision whereby an appeal was dismissed “as academic” on the grounds that during the pendency of the appeal, the land use development project that was the subject of the lawsuit/appeal was completed.

In Bruenn v. Town Board of the Town of Kent, 2014-07666 (2d Dept., December 21, 2016), petitioners/appellants Bruenn commenced a hybrid proceeding pursuant to CPLR Article 78 seeking a declaration that two (2) 2013 resolutions adopted by the Kent Town Board authorizing construction and operation of a 150-foot monopole wireless communications tower were null and void.    The trial court dismissed the hybrid proceeding holding that the resolutions were not null and void.  Bruenn appealed.

During the pendency of the appeal, construction of the monopole was completed by defendant, Homeland Towers, LLC (“Homeland”).  As a result thereof, in or around September 2015, Homeland made a motion to dismiss the appeal on the grounds that Bruenn’s claims were rendered moot by construction and completion of the monopole.   Although the Appellate Division initially held the motion in abeyance and referred it to the three panel of justices charged with determining the underlying appeal, the panel ultimately determined that a decision on the merits of Bruenn’s claims was academic, as Bruenn failed to seek preliminary injunctive relief, and as a result, Homeland’s motion to dismiss the appeal on mootness grounds was granted.

This decision reminds practitioners of the important role that preliminary injunctions play in land use development disputes.  Failure to seek injunctive relief at the outset will, in most cases, preclude review of the merits of the appeal.   In Bruenn, the Court stated that Bruenn’s explanation that monetary constraints precluded Bruenn from moving for injunctive relief was unavailing.  It is well established law that failure to seek an injunction stopping a project at its earliest stages will result in a mootness defense so long as the continued construction is not performed in bad faith or without authority.  Id.   Moreover, it was established that the work performed by Homeland could not readily be undone without substantial hardship.  Since construction of the monopole was an isolated event, not subject to “recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise,” the Appellate Division granted Homeland’s motion to dismiss and as a result, rendered any determination on the merits “academic.”  Id.

10187-5810-100208151901-6962-displayOn July 21, 2016, the Appellate Division, Third Department, upheld a decision of the trial court in  Lavender II v. Board of Zoning Appeals of the Town of Bolton, 141 A.D. 3d 970 (3d Dept., 2016) (Krogmann, J. ,Warren County) holding that a Castle located in a residential zone along panoramic Lake George, could not be used for commercial purposes such as weddings, large parties, and other social receptions.  Id.

In early 2010, petitioner, John A. Lavender, II, began advertising Highlands Castle on the internet describing the property as “a perfect setting for a special gathering with family and friends . . . or any other meaningful experience you can envision.” Id.  The Castle is located in a residential zone. 

In 2012, the local Zoning Administrator determined that the rental activities did not violate the Town Code.  An appeal was taken by the neighbors, which resulted in a determination by the Zoning Board of Appeals of the Town of Bolton, finding that “the activities conducted at Highlands Castle are commercial in nature and are not customarily associated with the use of a single-family dwelling. ”  Id.

Petitioner filed an Article 78 proceeding.  In 2013, the trial court affirmed the Zoning Board’s decision concluding that the activities conducted at Highlands Castle violated the single-family dwellings and associated permitted uses as defined by  Bolton Town Code Section 200.8.  Despite the trial court decision, petitioner continued to use Highlands Castle for weddings, events, and even an American Bar Association event.  A restraining order was issued in 2013, and a final decision dismissing petitioner’s claims was rendered by the trial court in 2015.

Petitioner filed an appeal.  In upholding the trial court decision, the Third Department stated that there “is no dispute that the physical structure situated on petitioner’s property falls squarely within the definition of a single family dwelling.”  The Court further stated that the relevant inquiry “distils to whether petitioner’s use of the property as a venue for weddings, receptions, and other events constitutes an “accessory use” within the meaning of the Town Code.”  Id.

The Court noted that petitioner’s contention that “Highlands Castle is held out merely for residential use” is entirely belied by the record.   Highlands Castle was offered for rent, with an emphasis on weddings, large parties, and other receptions.  Petitioner marketed the property on the internet and even offered a comprehensive package, including photographers, food, and vendors to meet every need.

Of critical importance to the Court was the fact that not only was Highlands Castle never rented out for even one single family use, but also, there was no evidence offered to support a finding that use of Highlands Castle for commercial purposes fits within the definition of permitted accessory uses as set forth in Bolton Town Code Section 200.8.  In light of the record and the lack of evidence proffered by petitioner, the Third Department stated that the decision by the Zoning Board of Appeals of the Town of Bolton was neither irrational nor unreasonable.

Of interesting note:  the Highlands Castle website continues to offer the property for weddings, parties, and receptions to be held at Highlands Castle, the Castle Cottage, and the Royal Bedroom.  Same can also be found on Airbnb- refer to our earlier post by Anthony S. Guardino discussing Airbnb land use pitfalls.

 

 

In prior posts, we discussed sand mining in Southampton, Pine Barrens Credits and the State Environmental Quality Review Act (“SEQRA”). A recent case out of Suffolk County touches on all three areas, so we decided to write a blog post on it.

pbmap_article_slideshow_03The case, Matter of the Application of the Long Island Pine Barrens Society, et al. v. The Central Pine Barrens Joint Planning & Policy Commission and Westhampton Property Associates, Inc., 2014 NY Slip Opinion 30560(U)(Supreme Court, Suffolk County, February 27, 2014), affirmed, 138 AD3d 996 (2d Dept. 2016), involved the granting of an “extraordinary hardship” exemption by the Pine Barrens Commission to Westhampton Property Associates, (“WPA”). WPA wanted to expand its 111-acre sand mine partially located in the Core Preservation Area (68.07 acres) and partially located in the Compatible Growth Area (46.93 acres). The sand mine had been operating prior to 1981, and mining activities occurred at parts of the site since 1957.

The sand mine held permits from the New York State Department of Environmental Conservation (NYSDEC), which limited the depth of the mine to 45 feet above sea level. The mine was approaching this limit and wanted to be able to dig down to 26 feet above sea level. The proposed depth would be about six feet above the groundwater table. This change in depth is considered an expansion of the pre-existing mining use and is therefore considered new development under the Pine Barrens Comprehensive Land Use Plan. Therefore, in addition to obtaining a permit modification from the NYSDEC, WPA was required to obtain approval from the Pine Barrens Commission because it was partially located in the Core Preservation Area. In order to obtain this approval, WPA needed to demonstrate that it was entitled to an “extraordinary hardship” exemption under the Long Island Maritime Reserve Act of 1993 (the “Pine Barrens Act”), codified at Environmental Conservation Law (“ECL”) 57-0101 et seq.

Establishing An Extraordinary Hardship Exemption

ECL 57-0121(10) sets forth the criteria that an applicant must show to establish an “extraordinary hardship” exemption. The applicant must demonstrate that “the particular physical surroundings, shape or topographical conditions of the specific property involved would result in an extraordinary hardship, as distinguished from a mere inconvenience…” This requires providing evidence “that the subject property does not have any beneficial use if used for its present use…and that this inability to have a beneficial use results from unique circumstances peculiar to the subject property which: (i) Do not apply to or affect other property in the immediate vicinity; (ii) Relate to or arise out of the characteristics of the subject property rather than the personal situation of the applicant; or (iii) Are not the result of any action or inaction by the applicant or the owner or his or her predecessors in title including any transfer of contiguous lands which were in common ownership on or after June 1, 1993.”

The Pine Barrens Commission’s Review Of WPA’s Application For An Exemption

WPA submitted its application to extend the depth of its mining operations to the Pine Barrens Commission in November 2011. It also provided for a conservation easement that would preserve the property as open space after the mine was ultimately closed and restoration activities were completed. The Pine Barrens Commission first requested lead agency status to conduct the SEQRA review, which would be coordinated with the NYSDEC and other interested municipal agencies. The Commission also prepared a draft report in January 2012, in which it analyzed all potential environmental impacts and applied the “extraordinary hardship” criteria to the application. This was followed by a series of three public hearings. After considering all of the documentary evidence and the testimony at the hearings, the Pine Barrens Commission issued a negative declaration in October 2012, and adopted a resolution granting WPA the “extraordinary hardship” exemption.

The Pine Barrens Society Challenges The Exemption

The Pine Barrens Society commenced an Article 78 proceeding to challenge the decision of the Pine Barrens Commission. The trial court rejected the Society’s arguments and dismissed the petition. The Court first looked at whether the Pine Barrens Society, its Executive Director and two members of its Board of Directors had standing to bring the proceeding. The trial court found that none of the individual petitioners had standing because none of them alleged they lived in close proximity to the project and their claims of injury were general in nature. One individual claimed to be a teacher who used the Pine Barrens to help educate and was also an avid hiker. The Executive Director claimed he visited the Pine Barrens often and used them to teach and motivate the public about drinking water protection. The trial court then determined that since none of the members of the Pine Barrens Society had standing, the organization lacked standing. Although the finding of lack of standing was itself grounds for dismissal, the trial court went on to determine the case on the merits. It found that the Pine Barrens Commission gave the application the “hard look” required by SEQRA and that its determination was not arbitrary and capricious.

The Pine Barrens Society appealed the decision to the Appellate Division. The appellate court disagreed with the trial court and found that the Pine Barrens Society and its Executive Director had standing. The appellate court noted the Executive Director used and enjoyed the Pine Barrens to a greater degree than most members of the public and the threatened injury of development in the Core Preservation Area was in the zone of interest covered by the Pine Barrens Act. The appellate court also found that the Pine Barrens Society had standing since a member had standing and  the interests it raised in the action were germane to its purposes. The ruling finding standing, however, was a pyrrhic victory as the appellate court agreed with the trial court on the merits.

 The appellate court found that the Pine Barrens Commission’s decision to grant the “extraordinary hardship” exemption was not arbitrary, capricious or an abuse of discretion. The appellate court found that the decision was consistent with the purpose of the Pine Barrens Act, that it would not result in substantial impairment of resources in the Core Preservation Area, and the circumstances were peculiar to the site and was not self-created or due to action or inaction of the property owner. 

 

In a decision that underscores the importance of presenting accurate and truthful information when making a land use application, the Appellate Division in Matter of Green 2009, Inc. v. Weiss, Index No. 2012-06784 (February 13, 2014), recently affirmed the Town of Hempstead Board of Appeals (“BOA”) decision to reopen a prior decision which granted a special exception for a caberet use and then deny the application.

The case arose when the owner of Billy Dean’s Showtime Cafe in Bellmore, which bills itself as “Long Island’s Number 1 Strip Club,” applied to the BOA for a special exception to operate a caberet on Sunrise Highway in Wantagh.  When the original application was presented to the BOA in 2010, the applicant represented that the premises would operate as a restaurant and caberet, featuring live music, dancing and other “Las Vegas Style” entertainment.  He assured the Board that there would not be “topless,” “bottomless” or other “adult entertainment.”  Based on this representation, the BOA approved the application.

However, subsequent to the approval, the BOA voted to reopen the decision when it learned that the caberet use would not be open to the general public and would also exclude minors, which caused the operation to fall within the defined parameters of an “Adult Entertainment Caberet,” rather than a caberet use.  Following a new public hearing, the BOA unanimously voted to deny the application based, in part, upon a conclusion that it had misapprehended the actual nature and scope of the applicant’s proposed use, and that this misapprehension arose from what appears to be have been an intentional and studied intent by the applicant to be less than complete and candid in its description of its planned use and the nature of the so-called “Las Vegas Style” entertainment to be offered.

The applicant commenced an Article 78 proceeding arguing, among other things, that the BOA had no right to rehear the matter because it had accrued renovation and other related costs in reliance upon the Board’s initial approval.  The Supreme Court concluded that the BOA’s decision was not an abuse of discretion, irrational or based on generalized community objections and dismissed the petition.

On appeal, the applicant argued that the BOA improvidently exercised its discretion when it reopened and reheard the application after it had originally granted it.  Specifically, the applicant claimed that the rehearing was improper because he had relied to his detriment on the previously granted special exception, having expended funds renovating and altering the premises for the proposed caberet use.  Town Law § 267-a(12) permits a zoning board to rehear its determination, “provided the board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.”  In affirming the lower court’s decision and upholding the BOA’s determination, the appellate court did not find the qualifying “reliance” language of Town Law § 267-a(12) to be applicable in this case.  Instead, it agreed with the BOA’s finding that the applicant did not rely upon the prior decision in good faith because he intentionally misled the Board concerning the use of the premises at the initial hearing.  The court concluded that the BOA’s findings pertaining to the applicant’s lack of candor and good faith were credibility determinations, and issues of credibility were within the sole province of the BOA to resolve.

This decision, together with the same court’s decision in Matter of Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 2009 N.Y. Slip Op. 06837 (2d Dep’t Sept. 29, 2009), make clear that applicants who intentionally mislead local zoning boards do so at great risk not only to their integrity, but to their zoning applications as well.