In an effort to stimulate the revitalization of abandoned, vacant or underutilized commercial shopping centers, bowling alleys and health club properties, the Brookhaven Town Board recently voted to adopt a new zoning classification, known as the Commercial Redevelopment District (“CRD”).  In the past year, there were a number of retail and commercial recreational businesses in the Town that were so severely impacted by the effects of the COVID-19 pandemic that they closed permanently.  Even prior to the pandemic, many brick and mortar retail stores have gone out of business because they were unable to compete with the growth of online shopping and e-commerce platforms.  The result is that there are many large vacant buildings and tenant spaces scattered throughout the Town.

The CRD regulations recognize that the more rigid conventional zoning regulations that currently exist do not allow owners of vacant and underutilized commercial real estate to repurpose and redevelop their properties in a way that is both economically beneficial and socially desirable.  The new regulations, therefore, are designed to create planning and zoning flexibility that will allow for developments that are more creative and imaginative in their land use and design, and evoke a unique sense of place.  Properties that are redeveloped under the new CRD regulations must be civic-oriented, pedestrian-friendly, economically vibrant and environmentally sustainable.

The CRD is not a fixed zoning district that applies to a particular geographic area of the Town.  Instead, it is a “floating zone” that can be applied to properties located anywhere in the Town, provided that they are eligible for inclusion in the CRD.  Eligible properties are those that are over five acres in size, and either currently improved with an abandoned, vacant, or underutilized commercial shopping center, bowling alley and health club or previously improved with buildings used for these purposes that have been demolished and removed.

The land uses permitted in the CRD are extremely broad.  The zone permits all uses otherwise allowable in the Town’s zoning ordinance, except for uses that are exclusively permitted in the Town’s J5, L1, L2, K, MHC and PC districts and restaurants with drive-through facilities.  It also permits a combination of land uses, known as mixed-use developments, which are in high-demand on Long Island as young professionals and families seek more affordable housing options in more urban settings that offer proximity to dining, shopping, work, public transportation and other features that improve the quality of their lifestyles.

The CRD includes relaxed dimensional requirements that provide developers with a larger building envelope within which to construct new buildings.  New developments are required to be set back 25 feet from adjacent residential uses, but can be constructed to the property line when adjacent to non-residential development.  The maximum permitted height in the CRD is 50 feet.  To encourage a mix of commercial uses, the regulations prohibit single-tenant commercial buildings that are 40,000 square feet or greater in size.  There are also a number of design regulations incorporated into the new zoning law to ensure that the developments are pedestrian-oriented and bicycle-friendly, and provide civic spaces and recreational areas for residents, employees and visitors to gather for social activities, recreation and visual enjoyment.

Residential developments in the CRD are permitted a maximum base density of 10 units per acre, but density increases may be granted up to 27 units per acre if the site or the proposed development meets certain criteria.  For instance, the regulations allow the base density to be increased by an additional 7 units if the site is located within 2,000 feet of an active Long Island Railroad station and by an additional 4 units if the site can utilize an existing public or private sewage treatment plant.  Other density increases are authorized for sites that have been specifically targeted for redevelopment in an adopted community-based hamlet plan or other planning document, include buildings that will be constructed with superior materials or incorporate green energy technologies, or if 20% of the total housing units will be designed and constructed for persons with special needs.  A minimum of 10% of all residential units shall be maintained as affordable and/or workforce housing units, in accordance with Town Code Chapter 85, Article XIII.

Since there is an expectation that developers who obtain a change of zone to CRD will follow through with their redevelopment plans, the new regulations provide for a forfeiture of residential and nonresidential density if the developer does not advance its project in a timely manner.  For instance, a developer shall forfeit one residential unit or 500 square feet of non-residential development per acre if it fails to make the change of zone effective within one year of the date of the change of zone grant, obtain site plan approval from the Planning Board within two years of the effective date of the change of zone or obtain a building permit and commence substantial construction within three years of the effective date of the change of zone.  A similar forfeiture shall result for every additional six months beyond the specified time periods.  Upon request of the developer, the Town Board may grant a six-month extension of the time periods, which will avoid the law’s automatic forfeiture provisions.

The new CRD regulations received wide-spread support from both building industry professionals and civic leaders.  At the December 3, 2020 public hearing, Mitch Pally, the Chief Executive Officer of the Long Island Builders Institute, expressed his organization’s strong support for the new regulations, which he characterized as “groundbreaking on Long Island” and “tremendously beneficial to the building community of Long Island.”  Jennifer Dzvonar, the president of the Port Jefferson Station/Terryville Chamber of Commerce, advised the Town Board that the chamber was “100% in support of this proposed code” because it “will encourage commercial property owners to update and revitalize their establishments” and create downtown-type areas that will entice additional local businesses.

Owners of vacant or underutilized commercial properties in the Town of Brookhaven that are eligible for inclusion into the CRD should give serious consideration to utilizing this progressive approach to redevelopment which can be a win-win for both developers and the communities in which these properties are located.

In Matter of Bernstein v Putnam Val. Zoning Bd. of Appeals, property owners sought to construct a hot tub on their residential property, located in a protected area known as a wetland buffer.  The Wetlands Inspector for the Town of Putnam Valley (the “Town”) granted the owners a permit waiver, and shortly thereafter, the Town’s Zoning Board of Appeals (the “ZBA”) granted their application for area variances, allowing them to begin construction of the hot tub.  However, prior to construction, neighboring property owners (“Petitioners”) commenced an Article 78 proceeding challenging the determinations of the Town’s Wetlands Inspector and ZBA.

The proceeding was promptly transferred to the Appellate Division, Second Department “pursuant to CPLR 7804(g), on the ground that the petition raised a substantial evidence issue.”  The Second Department held that the lower court’s decision to transfer the matter was erroneous for procedural reasons, but nonetheless chose to decide the case on the merits in the interest of judicial economy.

As the basis for their challenge, Petitioners alleged that the permit waiver violated certain provisions of the Town code governing “freshwater wetlands, watercourses, and waterbodies.”  However, in issuing the waiver, the Wetlands Inspector considered various factors such as drainage issues and the impacts the proposed hot tub would have on the surrounding area.  In light of such considerations, the waiver was subject to certain conditions, including, inter alia, that the hot tub would not discharge into the surrounding wetlands or wetland buffer area.  With such conditions in place, the Wetlands Inspector ultimately determined that any such negative impacts were insignificant.

In an Article 78 proceeding, the Court’s review is limited to whether the underlying administrative determination was “illegal, arbitrary and capricious, or an abuse of discretion.”  In deciding the property owners’ application for area variances, the ZBA engaged in a balancing test pursuant to Town Law § 267-B(3), weighing the proposal’s benefits to the applicants against its detriments on the surrounding community.  Specifically, the ZBA considered “whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created.”

Ultimately, the Second Department ruled in favor of the Town and property owners, holding that the Wetlands Inspector properly granted the permit waiver, and the ZBA appropriately considered the property owners’ area variance application by engaging in the necessary balancing test and considering the required factors.

Takeaway:  This case serves as a good reminder of a reviewing court’s limited authority in hearing Article 78 appeals.  Because local zoning boards are afforded broad discretion in rendering determinations on applications before them, a subsequent Article 78 proceeding is not intended to substitute a judge’s opinion for that of the board.  Rather, the court is simply tasked with ensuring that the board engaged in the appropriate legal process in rendering a rationally based determination.  That is precisely what the Court concluded here.

With all the recent snow Long Island has seen, and with more in the forecast, snow plows, sanders, and other emergency response vehicles have been a common sight. The time is right, therefore, for a quick word on the heightened burden plaintiffs face when suing a local government for auto accidents involving one of these vehicles while engaged in emergency operations.

In general, motorists on a public road are held to an ordinary standard of care when driving their vehicles and are obligated to observe the rules of the road. When an accident occurs, an ordinary negligence standard is applied, which asks whether the “accident occur[ed] because [the defendant] failed to see that which through the proper use of his or her senses he or she should have seen” (Katanov v Cty. of Nassau, 91 AD3d 723, 725 [2d Dept 2012]). However, where the defendant is the operator of a government emergency response vehicle in the course of responding to an emergency, the standard has the potential to shift significantly in the government’s favor. The Second Department’s recent decision in Kaffash v Village of Great Neck Estates, ____ AD3d ____, (2d Dept Docket No 2019-11574, Jan 13, 2021) provides a concise explanation of this doctrine, which is based in Section 1103 of the NYS Vehicle & Traffic Law (VTL).

One winter evening, an employee of the Village of Great Neck Estates was out driving a Village-owned snow plow following a recent snowstorm. While operating the plow in reverse, the rear bumper of the vehicle came into contact with the plaintiff who was walking in the middle of the street. The plaintiff sued the employee and the Village for personal injuries.

Before trial, the Village made a motion seeking summary judgment in its favor on the issue of liability. The lower court denied the motion, resulting in appeal to the Appellate Division, Second Department. The Appellate Court reversed, and granted the defendants’ motion. The Court wrote:

A snowplow operator ‘actually engaged in work on a highway’ is exempt from the rules of the road and may be held liable only for damages caused by an act done in ‘reckless disregard for the safety of others’” (Ventura v County of Nassau, 175 AD3d 620, 621, quoting Vehicle and Traffic Law § 1103[b]; see Joya v Baratta, 164 AD3d 772, 772-773; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705, 706). Reckless disregard requires more than a momentary lapse in judgment (see Saarinen v Kerr, 84 NY2d 494, 502; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706). “This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” (Joya v Baratta, 164 AD3d at 773 [internal quotation marks omitted]; see Bliss v State of New York, 95 NY2d 911, 913; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706).

Here, the defendants established their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and Oviedo-Mejia. Oviedo-Mejia testified that he was traveling in reverse at a speed of five to seven miles per hour with the lights and beeping alert of the snowplow vehicle activated. Oviedo-Mejia testified that he kept looking in the mirrors as the snowplow vehicle was moving in reverse, but he did not see the plaintiff prior to the alleged impact. Under the circumstances, the defendants demonstrated, prima facie, that Oviedo-Mejia did not act with reckless disregard for the safety of others (see Harris v Hanssen, 161 AD3d 1531, 1533; Roberts v Anderson, 133 AD3d 1384, 1385; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 707).

Ordinarily, driving a vehicle in reverse of a public road might have been sufficient to establish liability for negligence. However, the fact that the Village employee was engaged in storm response at the time the accident occurred meant that the lower standard of care applied to his activities. Accordingly, on the facts before it, the Court could not say the employee was “reckless” in his conduct. Therefore, the Court was compelled to rule in the defendants’ favor.

In contrast, the court in Piro v Village of Lake George, 299 AD2d 689 (3d Dept 2002), declined to apply the lower standard of care pursuant to VTL § 1103 to an accident involving a village official operating a village-owned snow plow. In that case, the defendant was the village’s Acting Superintendent of Highways. After completing snow-removal work in the village, the Superintendent drove the plow outside the village to his private residence where he plowed his driveway and street. As he then backed the plow into his driveway, the vehicle collided with the plaintiff’s, injuring him. On appeal, the Third Department affirmed the lower court’s finding that the ordinary negligence standard applied to the Superintendent at the time of the accident. The court opined that in plowing his own driveway and a street outside the village, over which the village had no jurisdiction, the Superintendent’s status was “no different from any private snow removal contractor plowing a client’s driveway” (299 AD2d at 690).

As the Practice Commentaries to VTL § 1103 explain “[the statute] evinces the intent of the Legislature to create a broad exemption from the rules of the road for vehicles engaged in construction, maintenance, or repair of highways. Rather than the ordinary negligence standard, drivers engaged in such activities are held to a lesser standard of care: “reckless disregard for the safety of others.” There are two initial questions, therefore. Was the driver engaged in a covered activity and, second, was that activity taking place on a highway? If so, the lesser standard applies” (Cunningham, Practice Commentary, McKinney’s Cons Laws of NY, 2018 Electronic Update, Vehicle and Traffic Law § 1103).

A copy of the Second Department’s Decision & Order can be found here: Kaffash Decision.

Last May, in Commissioner of the State of New York Department of Transportation, et al. v Polite, Index No. 610010/2019, the Suffolk County Supreme Court denied the State’s application for a preliminary injunction to enjoin the completion, maintenance and operation of two sixty-foot tall electronic billboard-monuments (“Project”) on opposite sides of State Route 27 a.k.a. Sunrise Highway. The Project is owned by the Shinnecock Indian Nation (“Nation”). The first billboard-monument situated on the southern side of Route 27 was completed and has been operational, but construction to complete the second billboard-monument situated on the northern side of Route 27  began just the other week.

The State reportedly served a stop work order for the latest construction,  claiming the construction lacks permits, and threatened to issue daily fines of $1,000 for violations of the order. The Nation reportedly issued its own work permit for the construction. Additionally, sign placement along highways that does not comply with federal regulations may jeopardize federal funding to the State for roadways.

There is a dispute about whether the Project is located within the Nation or on its land, or whether the Project is located within the State’s right-of-way along Route 27. This matter presents an interesting issue of the competing Federal, State and Nation jurisdictions.

As the winter wanes and the warmer weather welcomes visitors to the East End, these issues will likely heat-up.

The Hedges Inn (Hedges Inn) is a pre-existing, nonconforming, historic inn with 14 rooms and a restaurant at 74 James Lane in the Village of East Hampton (Village) in the R160 Residence District. In February 2018, Hedges Inn submitted permit applications to the Village for four weddings to be held outdoors in tents at the property between March and September. The Village denied the applications stating, “the proposed events violate the Zoning Code in that outdoor dining is not a permitted use of the premises in your zoning district and under your Certificate of Occupancy.” The Village also denied the Hedges tent permits for the events. In March of 2018, the Village of East Hampton considered the enactment of Village Code §139-15(D) prohibiting a special event from being held “in whole or in part outdoors or in a tent on property containing a legally pre-existing nonconforming business use in a residential district.” The local law was adopted by the Village Board of Trustees and became effective October 1, 2018, effectively prohibiting outdoor special events from occurring at the Hedges Inn.

In response, Hedges brought a hybrid article 78 proceeding and action for declaratory relief entitled The Hedges Inn, LLC v. Village of East Hampton Zoning Board of Appeals et al., Index No. 201-2019 dated January 6, 2021, seeking to overturn the Village’s actions. Hedges Inn claimed that holding outdoor special events, including weddings, bar and bat mitzvahs, graduation and anniversary parties had always been a customary accessory use of the inn property, stating that from 2001-2017, “Hedges Inn submitted no fewer than 14 applications for, and subsequently obtained, permits from the Village for outdoor tented events at the property.” Hedges further claimed that the local law amendment impermissibly targeted the inn as a pre-existing, nonconforming, business use alleging that the Village enacted what is effectively a zoning amendment (outside of the zoning code and without following zoning code amendment procedure) exceeding the powers delegated to it under New York State law. Moreover, Hedges argued that the enactment of Village Code §139-15(D) violated New York State Village Law §7-702 which requires that “all zoning regulations be uniform for each class or kind of buildings within a district.”

First, the Court determined the Article 78 Proceeding was moot emphasizing that the proposed special events had passed, and that the Village had allowed the events to take place on adjacent residential properties owned by the principals of Hedges Inn. The Court also found that the matter did not fall within any exception to the doctrine of mootness that would allow the Court to adjudicate the Article 78 challenge. Finally the Court noted there was no evidentiary basis in the record to determine whether holding special events outdoors or in tents was a customary accessory use of the property.

Finding  that Hedges had standing to bring the action, the Court then found that Village Code section 139-15 (D) was, in fact, a zoning amendment since it related directly to the physical use of land and the potential impact of such use on neighboring properties, citing (see Louhal Props.v Strada, 191 Misc 2d 746, 743 NYS2d 810 [2002), affd 307 AD2d 1029, 763 NYS2d 773 [2003]). Upon finding that the enactment of the special events code was a zoning amendment, the Court declared the code amendment invalid as a matter of law stating:

[T]he court finds, as a matter of law, that section 139-15 (D) is invalid because it was enacted in violation of Village Law § 7-702, which authorizes the adoption of zoning regulations and the division of a village into districts but provides that “such regulations shall be uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts.”

In matters of zoning, a uniformity requirement such as the one set forth in Village Law § 7-702 (and in Town Law § 262 and General City Law § 20 [24]) “is intended to assure property holders that all owners in the same district will be treated alike and that there will be no improper discrimination(Matter of Augenblick v Town of Cortlandt, 104 AD2d 806, 814, 480 NYS2d 232, 239 [1984] [Lazer, J.P., dissenting], rev’d. on dissenting mem 66 NY2d 775, 497 NYS2d 363 [1985]). “In other words, although zoning regulations obviously may vary from district to district, regulations must apply uniformly throughout any particular district” (Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Village Law § 7-702). “Where specialized circumstances exist for certain property within a district the uniformity rule may be bent,” but “[a]n ordinance will be held to uniformity if the record does not disclose any reasonable basis for different treatment among similar parcels within a district” (Matter of Augenblick v Town of Cortlandt, supra at 814, 480 NYS2d at 239). Although the failure to observe a uniformity requirement will result in invalidation of a zoning provision , it is not a bar to fashioning appropriate zoning regulations to satisfy a community’s needs; it generally does not interfere with the ability of a board of trustees to impose conditions on the rezoning of a parcel of property if such conditions are related to and incidental to the use of the property and intended to minimize any adverse impact on the surrounding area, and is not a bar to authorization of a use upon issuance of a special permit (Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Village Law § 7-702) (emphasis added).

In applying the uniformity requirement to the local law enacting Village Code §139-15(D), the Court found that the Village failed to articulate a rational basis in the record to support treating the Hedges property differently than other non-residential property. The Village argued that the business use was a pre-existing, nonconforming use in a residentially zoned district but the Court found such argument unpersuasive stating,

“[a]s to their argument that a legally nonconforming use in a residential district is subject to disparate treatment because it is nonconforming, the record reveals no circumstances particular to the property itself that might justify such treatment. “What is required for differential treatment is that the land be uniquely situated” (Matter of Augenblick v Town of Cortlandt, supra at 815, 480 NYS2d at 239). Nor does their argument seem to take into account that pre-existing nonconforming uses are, in fact, approved uses whose legal protections extend to their customary accessory uses (see Incorporated Village of Old Westbury v. Alljay Farms, 64 NY2d 798, 486 NYS2d 916 [1985)).”

Finally, the Court found that the Village’s procedural enactment Village Code §139-15(D) had failed to follow Municipal Home Rule Law §22(1) to specifically supersede Village Law section 7-702. The Court granted Hedges Inn summary judgment declaring that Village Code §139-15(D) was invalid and unenforceable.


With prospects of featuring its history and architecture on screen, the Village of Amityville (“Amityville“) has been considering adopting a local law to regulate filming and photography for movies, television and commercials. The purpose of the proposed law is to minimize the adverse impact of these activities for village businesses and residents, while simultaneously creating a framework for allowing them in such a way to showcase Amityville, and encourage concomitant benefits.

At its meeting on December 14, 2020, the Amityville Board of Trustees unanimously voted to call for a public hearing on January 11, 2021, to consider a local law to add Chapter 80 “Filming and Photography” to the Village Code (“Filming Law“). The proposed Filming Law prohibits persons from filming or using photography for the production of movies, television shows or commercials on any public property within Amityville without a permit (“Filming Permit“) from the Board of Trustees. It also prohibits persons from allowing others to so film and photograph.

The Board of Trustees has the authority to set forth the terms and conditions of any Filming Permit to protect the health, safety and welfare of Amityville residents. The terms and conditions must include:

  • A term;
  • Hours of operation;
  • Required insurance and indemnification provisions;
  • Fee amount;
  • Reimbursement of actual police and public works service costs incurred for the permitted activities;
  • Deposit or letter of credit for reimbursement and potential damages;
  • Parking restrictions for cast, crew and equipment;
  • Written notice of scheduled activities be sent to all residents within 300 feet of the filming site at least 72 hours before commencement of activities; and
  • If the activities will use firearms, explosives devices or other inherently dangerous activities, then written notice thereof be sent to Amityville police and the fire department at least 72 hours before commencement of activities.

The Filming Permit fee shall be fixed from time to time by resolution of the Board of Trustees. The Mayor may suspend a Filming Permit for violations of any of its terms and conditions, pending cure, and the Board of Trustees may revoke a Filming Permit for failure to cure.

Although the Amityville Horror was filmed in New Jersey, Long Island’s historic village is preparing to be a worthwhile venue for future filming and production.

This blog post provides an update to a post that was published on November 30, 2020, regarding a dispute over the Town of Oyster Bay’s recently adopted rules governing conduct at public meetings.  The new procedures, which created rules of decorum and prohibited inappropriate and disruptive behavior during public meetings, were challenged by Kevin McKenna, a town resident and self-described “citizen advocate” in an action brought in Federal court.

The dispute now appears to be resolved. On December 21, 2020, U.S. District Court Judge Gary Brown dismissed the case after he was informed by lawyers for Mr. McKenna and the Town that the parties had reached a settlement in principle, and that the Town Board would consider a draft of amended rules at a Town Board meeting to be held in January.

Earlier this week, at the Town Board’s January 12, 2021, meeting, the Board voted to amend its public meeting rules.  The amended rules remove the language prohibiting speakers from making political statements or using language deemed offensive, insolent or slanderous.  The new language states that speakers and members of the public “shall not disrupt, delay, or otherwise impeded the orderly conduct of the proceedings by defaming, intimidating, making personal insults, making threats of violence or threats against public order and security.”  Signs and banners may be displayed at public meetings, provided they do not contain obscene language, obstruct the view of other attendees or otherwise interfere with the meeting.

In recognition of the doubt expressed by Nassau County District Attorney Madeline Singas that violations of the Town’s vague and subjective rules of decorum would lead to prosecution for disorderly conduct under Penal Code, Section 240.20, the amended rules remove all references to disorderly conduct prosecutions.  Instead, if an individual violates the Town’s rules of decorum, the presiding officer will issue a verbal warning to that person.  If the violations continue, all comment or debate shall end and the individual will be asked to leave the meeting room, and if they refuse, will be directed to leave the room.  If the individual still refuses to leave, the presiding officer may seek the assistance of law enforcement to remove the disruptive individual.

A recent Newsday article reports that the settlement also requires the Town to make a $15,000 payment to Mr. McKenna to cover his legal fees.

In a recent decision, Matter of Labate v DeChance, the Second Department held that a landowner could continue to use his property to store construction equipment, despite a zoning ordinance prohibiting that type of use.

By way of background, the petitioner (“Petitioner”) owns property located in Rocky Point, within the Township of Brookhaven (the “Town”), Suffolk County, New York (the “Property”).  Prior to Petitioner’s ownership of the Property, it was “used to provide water to a private water company” and “to store construction equipment, such as trucks, trench diggers, backhoes, and cars, since 1947.”  However, this use was subsequently prohibited by the Town’s zoning code.

Petitioner, who operates a construction company, purchased the Property in 2001, and continued to use it for the storage of construction equipment.  Petitioner maintained that the Property has continuously been used to store construction equipment, except for a three-month period just prior to Petitioner’s ownership.

In 2012, Petitioner applied to the Town for a certificate of existing use that would allow him to continue using his Property to store construction equipment as a prior nonconforming use.  At the Town’s Zoning Board of Appeals (the “ZBA”) hearing on the application, both Petitioner and the wife of the former Property owner testified in its support.  In addition to that testimony, an 87-year-old woman familiar with the Property submitted an affidavit stating that the Property had been used for the “outdoor storage of trucks and miscellaneous equipment and materials continuously since 1947.”  As evidence in opposition to the application, the ZBA accepted and considered aerial photographs of the Property from 1962, 1984, and 2001.  Those photographs showed no construction equipment on the Property.  Ultimately, the ZBA denied the application, finding that Petitioner failed to meet his burden of demonstrating continuous use of the Property as a site for construction equipment storage.

Upon Article 78 review, the lower court here upheld the denial, holding that there was a rational basis to support the ZBA’s determination.

The Second Department reversed.  The general rule pertaining to nonconforming uses provides that such uses are “‘constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of [a subsequently enacted] ordinance’ (Matter of Cinelli Family Ltd. Partnership v Scheyer, 50 AD3d 1136, 1137 [internal quotation marks omitted]).”  Zoning board determinations will generally be upheld if they are rationally based and supported by substantial evidence.  Here, the Town code provision concerning the discontinuance of nonconforming uses provides that “[t]he substantial discontinuance of any nonconforming use for a period of one year or more terminates such nonconforming use of a structure or premises” (Brookhaven Town Code § 85-883 [A] [6]).

Based on the evidence in the record, the Second Department held that the ZBA’s determination denying Petitioner’s application lacked a rational basis.  When considering the testimony and affidavit presented at the hearing, the Court found that Petitioner had met his burden of establishing continuous use of the Property for construction equipment storage since 1947, other than the three-month period during which the Property was transferred between owners.  The evidence submitted in opposition to the application failed to rebut this evidence.  Although the photographs, taken in 1962, 1984, and 2001, showed no construction equipment on the Property, that alone was insufficient “to demonstrate a one-year cessation in storage activity on the [P]roperty.”  Accordingly, the ZBA should have granted Petitioner’s requested certificate of existing use.

Takeaway: Although a local zoning board is afforded broad discretion in deciding land use applications, there must always be substantial evidence to support its determinations.  A determination lacking a rational basis will likely be reversed by a reviewing court.

When commencing an action or proceeding challenging a land use approval, it is critical that the plaintiff/petitioner identify all parties having an interest in both the approval itself and the real property to which it pertains, and to consider which of those parties should be named. As in other areas of litigation, the potential penalty for failure to name a necessary and indispensable party is dismissal of the action without reaching the merits. This concept is hardly new; however, it continues to arise in land use litigation throughout the State, often with harsh results for unwary litigants. The Second Department’s very recent decision in Mensch v Planning Board of the Village of Warwick, ____ AD3d ____, Docket No. 2018-12524 (Dec. 16, 2020), provides yet another example of why it is so important for a challenger to seek out and name the correct parties to their suit before their opportunity to do so expires.

In Mensch, the petitioners/plaintiffs (Petitioners) sought to overturn their local planning board’s decision granting site plan approval for a neighboring property in the Village. However, the Petitioners initially failed to name the owners of the subject property in the proceeding, and only named them in an amended pleading after the 30-day statute of limitations had expired. The Supreme Court, Orange County dismissed the proceeding for failure to join necessary and indispensable parties before the statute of limitations expired (see Decision & Order at p. 1). The Appellate Division affirmed.

In an effort to rescue their proceeding from dismissal, the Petitioners argued that they should be permitted to add the property owners as respondents–notwithstanding the expiration of the statute of limitations–pursuant to the “relation-back doctrine.” The doctrine “allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are ‘united in interest’” (id. at p. 3 [citation omitted]). The Appellate Division rejected Petitioners’ argument for two reasons: First, the Petitioners failed to demonstrate that the property developer (applicant) and the property owners were “united in interest”, as required under the second prong of the doctrine; and second, the Petitioners failed to demonstrate a mistake as to the identity of the property owners at the time of their initial pleading (id. at p. 4). Thus, the Court affirmed dismissal of the action (id.).

The Court’s finding in Mensch that the respondent-developer and property owners were not “united in interest” is particularly notable because it joins similar land use decisions in which the Second Department has declined to apply the relation-back doctrine where the developer/applicant and property owners are not the same parties (see e.g. Ferruggia v Zoning Bd. of Appeals of the Town of Warwick, 5 AD3d 682, 682-83 [2d Dept 2004] [cited in the Court’s Decision & Order]; Germain v Town of Chester Planning Bd., 178 AD3d 926, 927 [2d Dept 2019]). This pattern of decisions reinforces the point that, in the vast majority of cases, property owners are necessary and indispensable parties to legal challenges of land use decisions benefitting their properties, and accordingly, they must be named (see e.g. Feder v Town of Islip Zoning Bd. of Appeals, 114 AD3d 782, 784 [2d Dept 2014] [holding that a landowner is a necessary and indispensable party to a proceeding challenging a zoning board’s granting of variances]; Caltagirone v Zoning Bd. of Appeals, 49 AD3d 729, 729 [2d Dept 2008] [same]; Cybul v Vill. of Scarsdale, 17 AD3d 462, 463, [2d Dept 2005] [failure to name landowner in Article 78 challenging Planning Board decision was fatal]).

A copy of the Court’s Decision & Order can be accessed through the following link: Mtr of Mensch.

In D.P.R Scrap Metal. Inc., v Zoning Board of Appeals of the Town of North Hempstead, __AD3d__, [2d Dept 2020], the Appellate Division affirmed the grant of the Article 78 Petition of D.P.R. Scrap Metal Inc. (DPR) annulling the Zoning Board Appeals (ZBA) determination as arbitrary and capricious and not supported by evidence.

In this case, DPR operated its metal recycling business at 125 Harper Street, Westbury, New York in a largely industrial area of North Hempstead, since 2011.  In June 2016, the Town filed an eight count criminal information against DPR alleging 125 zoning violations. As a result, DPR filed for various permits that were denied by the Town Building Department.  In December 2016, DPR appealed to the ZBA for, among other things, a variance from the requirement of Town Code § 70-187(k), which prohibits storage or baling of scrap paper, iron, bottles, rags, or junk outside the confines of an enclosed building.  At its March 8, 2017 public hearing, the only people to appear were DPR and the Deputy Commissioner of the Town’s Building Department, who opposed the appeal.  Also, an unsigned letter was read into the record, where the author complained about DPR’s using the property to dismantle cars.

In August 2017, the ZBA issued a decision granting a majority of the variances requested but denied that portion of the application dealing with outdoor storage, effectively denying DPR’s ability to operate at the site.  The ZBA opined in its decision, that DPR could build a 40-foot high enclosed structure that would allow DPR to continue to operate in compliance with the Town Code.  One of arguments made on the record by DPR was that the nature of recycling metal is such that it could not be done even in a 40-foot high building.  DPR commenced this proceeding to annul the ZBA’s determination on the grounds that it was arbitrary and capricious.  By judgment entered July 5, 2018, the Supreme Court granted the petition, annulled the determination, and directed the Board to issue the variance.  See, In the Matter of the Application of D.P.R Scrap Metal Inc et al , v. Zoning Board of Appeals of the Town of North Hempstead, Index No. 3461/2017 Dated July 3, 2018.

The Supreme Court found that, other than being able to see piles of scrap metal above the 10-foot high fence line, none of the ZBA’s multiple findings and references to noise, dust and vibrations issues discussed in the decision were supported by any evidence, or even by inference, on the record.  As a result, the Supreme Court held that such conclusory findings of fact are insufficient to support determination by the ZBA, which is required to clearly set forth “how” and “in what manner” the granting of a variance would be improper.  The ZBA appealed.

In affirming the Supreme Court, the Second Department stated:

“[h]ere, we agree with the Supreme Court’s finding that the Board’s determination to deny the variance was arbitrary and capricious and not supported by evidence. The Board’s determination was based on anonymous and unsubstantiated complaints regarding DPR’s metal recycling business, and no evidence was presented at the hearing to demonstrate that granting the variance would lead to an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise be detrimental to the health, safety, and welfare of the neighborhood or community.”

The Second Department held that conclusory findings of fact are insufficient to support a determination and that courts may set aside a zoning board decision only where the record reveals that the board acted illegally or arbitrary, or abused its discretion, or that is merely succumbed to generalized community pressure.  Moreover, Second Department concluded that the ZBA’s determination was based on anonymous and unsubstantiated complaints regarding DPR’s metal recycling business, and no evidence was presented at the hearing to demonstrate that granting the variance would lead to an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise be detrimental to the health, safety, and welfare of the neighborhood or community.  The Court directed the ZBA to issue the requested variance.

This recent decision reminds both practitioners and municipal boards of the importance to build a record and to substantiate a decision on that record.