The Ludovico Sculpture Trail (Trail) is located near the Women’s Rights National Historic Park in Seneca Falls, NY.  Its website can be found at  The Trail recently became a centerpiece of a land use dispute with the Town of Seneca Falls (Town).

In Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, the Fourth Department annulled a decision of the Town to acquire an easement along the Trail to install a new sewer line because the Town failed to comply with the Eminent Domain Procedure Law (EDPL).  The Town, as lead agency, adopted a negative declaration under the State Environmental Quality Review Act (SEQRA) that, in the Court’s view, failed to take the required “hard look” at the proposed sewer project’s impact on wildlife.  The Court also found that that the Town failed to provide a reasoned elaboration of the basis for its determination that the proposed sewer line project would not have a significant impact on wildlife or surface water.

Prior to issuing its SEQRA determination, the Town was advised by the New York State Department of Environmental Conservation (NYSDEC) that there may be certain endangered, threatened or rare animal and plant species located at the proposed easement site. These included the northern long-eared bat, the Imperial moth, and the northern bog violet.  The NYSDEC  also advised the Town that the Trail may be the location of an inland salt marsh.  The NYSDEC recommended the Town conduct a literature survey to determine if the project site contains habitats that are favorable to these species, and if so, undertake a field study to determine if the species are present at the project site.  If they are present, the NYSDEC instructed the Town that it must consider modifications to the project to minimize impacts on these species.

The Town never conducted the survey. Rather, the Town apparently just assumed the species were present, noted them on the SEQRA environmental assessment form (EAF), and further noted there would be no direct taking of these species or of the Indiana bat, because all of the tree clearing activities would be conducted in the winter months when bats are hibernating in caves. As to the Imperial moth, northern bog violet, or other species that might be located in the salt marsh, the EAF merely listed them and summarily concluded they would suffer no significant impact.  This was not the “hard look” required by SEQRA according to the Court.

The Court also found that the NYSDEC’s recommendation to avoid impacts on surface water was given short shrift by the Town.  In the EAF, the Town noted it planned to reroute the sewer line “to the extent practicable” or use horizontally directional drilling to avoid impacts.  This conflicted with another part of the EAF, where the Town indicated it was going to use horizontally directional drilling “when possible.”   According to the Court, this meant that the Town anticipated that re-routing the sewer line would be impracticable and/or the specialized drilling would be impossible at some point during the project, but failed to address how it planned to avoid adverse impacts if these contingencies arose at the same or different times. As a result, the Court found the Town’s reasonable elaboration to be lacking.

The Court then ruled that the negative declaration was arbitrary and capricious and annulled the Town’s determination to acquire an easement in the Trail.

In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.

Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website:

A recent decision from the Appellate Division, Third Department, concerned an unsuccessful challenge to a subdivision approval for five separate community solar projects.   First – a little background information. According to the New York State Energy Research and Development Authority  (NYSERDA) a community solar project, sometimes referred to as a solar garden or shared renewable energy plant, is “an array of solar panels installed in a sunny, offsite location. Anyone in the area can access the clean energy produced by these solar panels and get credits toward their electricity bills.”  NYSERDA reports that the benefits of joining a community solar project include (1) being able to “go solar’ without having to install solar panels on your property, (2) saving money on electric bills, and (3) supporting clean, locally generated power.

The case, Matter of Perkins v Town of Dryden Planning Board, involved the Town of Dryden (Town),  SUN8 PDC LLC and Distributed Sun LLC (collectively SUN8) the owner and operator of the community solar projects, Scott Pinney, the owner of farmland that SUN8 leased for the community solar projects, and Willow Glen Cemetery Association and Sarah Osmeloski, (collectively Petitioners) two neighbors that own land adjacent to the farmland. SUN8 sought to construct five separate community solar projects on the farmland and to subdivide the land into five separate lots, with each project being on a separate lot.

The Town Board granted SUN8 a special use permit and site plan approval and the Planning Board approved the preliminary subdivision plat. Petitioners brought two separate proceedings, seeking to enjoin the issuance of building permits and challenging the Planning Board’s preliminary subdivision plat.  Both of these actions were dismissed in December 2014.

In February 2018, the Planning Board approved two resolutions, one that permitted a common driveway for access to all five lots from Route 13 and the other approved the final subdivision.  Petitioners commenced this action in March 2018, seeking to annul these two resolutions.  Petitioners claimed that the Planning Board lacked jurisdiction under section 602 of the Town’s Zoning Code because it exceeded the four flag lot limitation for common driveways found in that code provision.  Petitioners also claimed that both resolutions were ultra vires and void under Town Law 280-a.

Petitioners then ran into some technical and ultimately fatal issues.  Initially, and erroneously, the notice of petition (but not the petition itself) described the two resolutions being challenged as having been issued by the Town Board, instead of the Planning Board. The trial court permitted Petitioners to amend the notice of petition to correct this. Next, the director of the Planning Department submitted an affidavit indicating that only three of the lots were flag lots, not all five. Petitioners then moved to delete their claims about the number of flag lots served by the common driveway and to add claims that frontage and access requirements were violated by the subdivision. Although the trial court found that respondents were not prejudiced by the proposed amendments, the court denied the request on the grounds the proposed claims lacked merit and dismissed the petition.

The appellate court affirmed.  The Court discussed the rules regarding amendment of pleadings, noting that leave to amend should be freely given unless “the proposed amendment is palpably insufficient or patently devoid of merit.” It then turned to Petitioners’ argument that the trial court committed reversible error when it ruled that Town Law 280-a was not applicable.  The appellate court reviewed Town Law 280-a and determined that it applied to permits for the erection of buildings. Since that section of law did not define “buildings” the Court looked to how the Town’s Zoning Code defined “building.”  That local Zoning Code defined “building” as any structure “where space, greater than 150 square feet in area, is covered or enclosed.” The Court then looked at the definition of “structure” under the local Zoning Code, which was defined  as ‘[a]nything constructed or erected on the ground or with a fixed location on the ground or attached to something having a fixed location on the ground and includes. . . solar panels.”  Thus, while solar panels may qualify as a structure under the Town’s Zoning Code, they did not meet the definition of “building” under that local code as they are not “covered or enclosed.”  Since the solar panels were not “buildings”  the Court determined that Town Law 280-a did not apply to this matter, making the proposed amended claim devoid of any merit. The end result – the appellate court affirmed the dismissal of the proceeding.




By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The parcels are 12,495 sf and 54,042 sf respectively, located in the CR-200 zoning district, are nonconforming as to size and the applicant proposed to merge the parcels to allow for the construction of a single family residence. Both vacant parcels have access to Old Sag Harbor Road over a 50 foot wide easement granted to the property in 1949. However, the easement did not provide the requisite “road frontage” under the Code to build the residence. The application was opposed by the neighboring property owners to the north of the parcels who alleged that the properties (i) had merged and were not single and separate, (ii) even as merged were still not entitled to relief under Town Code §330-115D; and (iii) the application did not pass the variance standards for granting relief. The Zoning Board of Appeals granted the variance request finding that:

“the benefit to the applicant outweighs any perceived detriment to the neighborhood or the community. The detriment to the neighborhood, as articulated by Ms. Nowak and Mr. Lombardo, is in the construction of a dwelling on the premises since it will obstruct their views of the vacant, wooded, premises. However, applicant is not before this Board for relief for a building envelope for the dwelling. Rather, applicant requires relief as the premises does not have any road frontage, and there was evidence presented that in fact, there are several properties in the neighborhood that have received relief from this Board for reduced road frontage, and a review of the tax map confirms several flag lots in the neighborhood. As such, it is likely that the granting of relief will have no discernible impact on the neighborhood. Likewise, this Board notes that it was presented to this Board that the two lots will merge, resulting in a larger (though still nonconforming) lot in this CR-200 zoning district—one that is larger in size than that of Ms. Nowak’s. Therefore, Board finds that there is no detriment to the community here in granting 0 feet road frontage to the premises and that there is a great benefit to the applicant since securing the variance is necessary in order to build on the premises.”

The neighboring property owners brought an Article 78 Proceeding challenging the Zoning Board of Appeals approval entitled, Nowak v. Town of Southampton Zoning Board of Appeals et al., Supreme Court Suffolk County, Index No. 376/2016. By decision dated November 2, 2016, the Honorable Joseph C. Pastoressa, J.S.C. denied the petition and dismissed the proceeding. Petitioner’s primary argument was that respondents were not entitled to a variance because the two lots had merged for zoning purposes and were not entitled to be treated as nonconforming lots under the Code. Specifically, Town Code §330-115D provides that a “nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot…” Regardless, the Court found Petitioner’s argument unpersuasive stating, “even if the two lots did merge, the Town Code provides that, if a nonconforming lot “shall thereafter be held in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two parcels shall remain nonconforming in the same respect..” Thus, the Court determined that the two parcels, as merged comprised of 66,537 sf, well below the required 200,000 sf in the CR200 zoning district, were still nonconforming and entitled to relief under Town Code §330-115.

Petitioners appealed the determination to the Appellate Division, Second Department in Matter of Ann L. Nowak v. Town of Southampton et al., decided July 31, 2019. The Appellate Division affirmed the Supreme Court’s determination and found that the ZBA’s determination to grant the area variance allowing zero feet of road frontage for the subject properties had a rational basis.

The Long Island Central Pine Barrens Protection Act (“Act”), enacted in 1993, created the Central Pine Barrens  Joint Planning & Policy Commission (“Commission”) which implements the Comprehensive Land Use Plan (“Plan”).  Pursuant to the Act, a five-member Credit Clearinghouse Board (“Clearinghouse”) oversees a transfer of development rights program designed to maintain value in lands by providing for use and allocation of pine barrens credits (“PBC”).

A PBC represents the development potential that can be transferred from a privately-owned parcel of property within the core preservation area of the Central Pine Barrens (“Core”), or other sensitive area identified in the Plan, to a parcel in designated areas outside the Core. Landowners agreeing to receive such transfers may be eligible for additional density or increased sanity flow.

The Clearinghouse issues Letters of Interpretation (“LOI”) based on an application for PBCs.  The LOI determines the number of PBCs a parcel of land generates based on yield formulas and existing uses on a site.  After the LOI is issued, a landowner may request a PBC Certificate which is a transferable document for sale or use to increase density or sanitary flow.  After filing  a conservation easement in favor of the Commission, which sterilizes the property from future development, a PBC Certificate is issued to the landowner.  The PBC Certificate allocates the number of PBCs (development rights) severed from the parcel and can be sold on the open market in the range of $75,000.00 to $100,000.00 per credit.

Recently, the methodology of how PBC allocations were arrived at was the subject of an Article 78 litigation.  In Equine Facilities LLC, v Central Pine Barrens Joint Planning & Policy Commission et al., a horse farm that had received several LOIs in the past challenged the density methodology of the Clearinghouse and the Commission.  In 1997, the prior owner of the 34-acre horse farm located in the Core area of the Town of Brookhaven zoned A Residence with a Horse Farm Residence overlay sought and received a LOI allocating 4.48 PBCs.  The number of PBCs was determined by utilizing a yield factor of 0.16 PBCs per acre with one PBC eliminate because of an existing residence on site.  The Horse Farm Residence zoning district provides 10 acre per residence, while the A Residence only required a minimum lot size of 30,000 square feet.  The Clearinghouse’s LOI determination was not appealed to the Commission.  A new owner purchased the subject property in 2004.

In 2012, the Plan was amended and reduced the yield factor to 0.10 PBC per acre for nonresidential properties.  In 2012, the horse farm applied for a LOI, which because of the lower yield factor and other property improvements, resulted in a negative PBC allocation that the Clearinghouse assigned a value of zero.  This determination was also not appealed to the Commission.

In 2016, the horse farm owner applied for yet another LOI.  The Clearinghouse again considered the PBC yield to be zero, however, the Petitioner argued it was entitled to 49.68 PBC because the parcel could be developed with multiple single family homes.  The Clearinghouse disagreed, based on the theory that lot yield was based on permitted lot size (10-acres) not permitted uses (single-family residences).  The Petitioner appealed to the Commission arguing that the horse farm was entitled to 49.68 PBCs if the property was divided into multiple single family lots or alternatively, 41.1 PBCs based on a yield factor of 1.2 PBC per acre based on the underlying zoning of A Residence District.  The Commission reined in the Petitioner and granted the horse farm 4.48 PBCs, because that had been previously allocated in 1997 and reliance upon such a prior determination was considered an important factor.

Although the Supreme Court found the Clearinghouse determination of zero PBC’s to be technically accurate, it considered the Commissions allowance of 4.48 PBC’s to be rationally based and dismissed the Article 78.   Thus, unless found to be arbitrary and capricious, LOI determinations by the Commission will withstand legal challenges, and it this particular case, it might be best not to look the proverbial gift horse in the mouth.

The backyard chicken movement that has been rapidly gaining momentum across the United States has firmly taken hold on Long Island.  The desire for homeowners to raise chickens takes various forms and can be rewarding on many levels.  For those who desire a diet of food that is GMO-free or are disturbed by media reports of inhumane conditions at commercial chicken farms, raising chickens provides a way to control what’s in their food and how the animals are being cared for.  Some families raise chickens in their backyard for the same reason that they plant a garden – it teaches kids about nature, sustainable food production and healthy eating.  Those who raise chickens are also rewarded daily with fresh eggs.  Other benefits from raising chickens include insect control and manure that can be easily composted down into a great natural fertilizer for gardens, flowers and lawns.

When much of Long Island was being transformed from rural farmland to suburban residential subdivisions, local governments began to regulate land use through zoning.  In response to concerns that raising farm animals on relatively small residential lots would create objectionable noise and odors for neighboring homeowners, many communities adopted laws to prohibit or strictly regulate the raising of farm animals, including chickens.

For instance, in the Village of Floral Park, the keeping of chickens, ducks and other poultry is forbidden on all properties within the Village.  In the Town of Hempstead, residents may not raise chickens and other fowl, unless they first obtain a special exception from the Board of Appeals.  The Town of Oyster Bay has a similar regulation that requires a special use permit from the Board of Appeals.  Oyster Bay, however, also requires that any structure used to house fowl be set back at least 50 feet from all property lines.  Unfortunately, the process to obtain a special exception or special use permit is expensive and time-consuming, which effectively prohibits most town residents from raising their own chickens.

However, in response to the growing backyard chicken craze, several municipalities on Long Island have adopted new laws designed to make it easier for homeowners to raise chickens.  These new laws recognize the benefits from raising chickens, but impose restrictions that are designed to avoid nuisance conditions, such as foul odors, flies, vermin and excessive noise.

In 2010, the Town of Islip amended its laws pertaining to the keeping of poultry to allow chickens to be kept only in rear yards and maintained within an accessory structure, yard or enclosure at all times, with a limitation of 15 birds for each 500 square feet of enclosure area.  All structures in which poultry are kept must also be set back at least ten feet from all side and rear property lines.  All chicken feed and manure must be stored in metal containers with metal covers, or in a rodent-proof container. Islip does not expressly prohibit roosters, but it does not allow chickens to make noises that can be heard on neighboring properties between 11:00 p.m. and 7:00 a.m.

More recently, in 2018, the Town of Huntington adopted new legislation regulating the keeping of chickens and ducks by homeowners within the Town.  The current Huntington regulations allow residents to keep up to eight chickens or ducks on any premises, provided that they are kept in pens, coops or houses that provide at least two square feet per bird and are located in the rear yard and set back at least 25 feet from side and rear property lines.  The structures and areas where birds are kept cannot be visible from surrounding residences and streets and must be cleaned once each day and maintained in a sanitary condition.  Roosters are prohibited, and all eggs produced must be for personal consumption and may not be offered for sale.

In the latest effort to ease local zoning restrictions on raising chickens, a group of chicken lovers has recently mobilized and is now asking the Town of Babylon to change its law that prohibits the keeping of chickens and other poultry, except on large properties.  The Babylon Town Code currently permits homeowners to keep up to 30 fowl, provided that the birds are kept at least 100 feet away from a neighboring house.  However, for many residents of the town who live on small- and medium-sized lots, this setback requirement is impossible to comply with.  Armed with a petition with more than 1,000 signatures, several residents have asked the Babylon Town Board to consider adopting an amendment allowing chickens in smaller yards.  The Town Board recently directed the Town Attorney to draft such an amendment and is expected to consider it at an upcoming public hearing.

While the backyard chicken movement continues to grow, those who wish to raise chickens are urged to first check with their municipality to determine if local zoning regulations allow them to do so.  Where the raising of chickens is permitted, it is important for homeowners to also make themselves aware of any restrictions, such limitations on the number of birds and where they can be kept on the property, to ensure compliance with the applicable requirements.  Where such activities are not permitted, violators may face significant monetary fines and may also be directed to remove their chickens.

Historic Brownstone Houses in Residential Neighborhood of Fort Greene in Brooklyn

A recent Supreme Court decision, In the Matter of Preserve Our Brooklyn Neighborhoods v. City of New York, demonstrates the difficulty a litigant faces when challenging a zoning determination on constitutional grounds.  The petitioners are “an incorporated association of community members” from the Fort Greene area of Brooklyn (the “Petitioners”), who oppose proposed development in their community in the interest of preserving its historical character.  The respondents are the City of New York (the “City”) and the developers for the proposed project.

In June of 2018, the City Council passed a resolution which changed the zoning regulations in the Fort Greene community, as well as an area adjacent to it known as the Special Downtown Brooklyn District (the “SDBD”).  The SDBD “was established in 2001 ‘to provide a transition between the ever expanding downtown commercial core of Brooklyn and the low rise community of Fort Greene.'”  Fearing that development in Fort Greene and its surrounding areas would jeopardize the historical significance and character of the community, the Petitioners brought an action under Article 78 of the New York Civil Practice Law and Rules (“CPLR”) challenging the resolution.

The Petitioners asserted that the City Council’s decision to pass the resolution was “arbitrary, capricious and violative of law, constituting unlawful spot zoning,” and that the resolution violated both State and City environmental laws.  Unfortunately for the Petitioners, their CPLR Article 78 challenge was time-barred by the four-month statute of limitations applicable to such actions.  However, as the Court noted, the Petitioners’ action was more than just a typical challenge to an administrative determination.  Here, because the resolution’s constitutionality was at issue, the four-month limitations period could not serve as a bar to the action in its entirety.  As such, the Court considered the Petitioners’ contention that the resolution was unconstitutional spot zoning.

Before addressing the merits of the Petitioners’ claim, the Court noted the standard applicable to constitutional challenges to zoning.  Because “[z]oning is a legislative act, . . . it is presumptively constitutional (Asian Americans for Equality v. Koch, 72 NY2d 121 [1988]).”  Accordingly, a party challenging a zoning regulation on constitutional grounds must establish “unconstitutionality beyond a reasonable doubt,” and “[a] zoning resolution will be upheld if ‘there is a reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end’ (id at 132 quoting McMinn v. Town of Oyster Bay, 66 NY2d 544 [1985] [internal quotations omitted]).”  This is an extremely high standard to meet.

The Petitioners’ constitutional claim rests on the argument that the resolution constitutes “spot zoning,” which the Court of Appeals has defined as “‘the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners’ (Rodgers v. Tarrytown, 302 N.Y. 115, 123, 96 N.E.2d 731, 734 [1951]).”

The Court here found it undeniable that the development plans in the resolution were “well-considered” and “calculated to serve the general welfare of the community,” and the Petitioners failed to demonstrate otherwise.  Although the Petitioners raised their personal concerns regarding the historical character of the Fort Greene area, they failed to establish a legally significant argument as to why the resolution was unconstitutional.  The Court swiftly rejected Petitioners’ claim that the resolution was unconstitutional spot zoning simply by virtue of the fact it would provide a financial benefit to the developers of the proposed project.  The Court said that such financial gain “is the very nature of capitalism,” and that fact alone does not constitute spot zoning.  As the Court stated, the Petitioners’ “mere dissatisfaction” with the resolution and the proposed development is not sufficient grounds to strike down a zoning law as unconstitutional.  The Petitioners failed to show that the resolution was unconstitutional beyond a reasonable doubt, and therefore, their challenge was rejected and their petition denied.[1]

When considering a zoning challenge on constitutional grounds, it is important to be cognizant of the high bar a litigant must satisfy, and understand that without sufficient evidence demonstrating unconstitutionality, such a challenge is unlikely to succeed.

[1] The Petitioners appealed the Supreme Court’s decision to the Appellate Division, First Department on July 2, 2019, and that appeal is currently pending.

A recent decision from the Supreme Court of Warren County, John Carr v. Village of Lake George Village Board, demonstrates how a simple omission on a site plan approval application can upend an approved project, even though the municipality wants the project and enacted a local law to smooth the pathway for its approval.

James Quirk (Quirk) owns property in the Village of Lake George (Village). In February 2018, Quirk applied to the Village Zoning Board of Appeals (ZBA) for variances to construct a 12,000 square foot boat storage facility. Quirk also owns an adjacent parcel, on which there is a laundromat and for which he previously received approval from the ZBA for outdoor boat storage. Petitioner John Carr (Petitioner) owns two parcels that are adjacent to the parcel where Quirk wants to construct the boat storage facility.

Quirk requests an area variance from the rear set-back requirement for the 12,000 square foot facility and variances from the Village’s mandatory Architectural Standards and Guidelines (Architectural Guidelines) regarding roof pitch and building materials. The ZBA granted these variances in April 2018.

Petitioner then sued to annul the ZBA determination, which proceeding was resolved by Stipulation and Order dated June 18, 2018, whereby the ZBA determination was without prejudice to the filing of future applications for the variances.

On July 16, 2018, the Village Board adopted Local Law No. 8 of 2018, which permits waiver of the mandatory Architectural Guidelines by the Village Planning Board (Planning Board) during Site Plan Review, provided it is proven there will be no adverse impact on the ‘architectural character’ of the neighborhood. Local Law No. 8 provides that the criteria for assessing a waiver are the same as those used for area variance reviews.

In August 2018, Quirk again applied to the ZBA for the 9-foot area variance from the rear set back requirement of 15 feet. He also applied to the Planning Board for site plan approval for the boat storage facility, including a request under Local Law No. 8 for waivers from the Architectural Guidelines relating to (1) a 14-foot ceiling height restriction so that he can build a one-story 40-foot tall building, (2) a requirement that metal siding cannot be used on any portion of a building so that he can use metal siding for the entire building, (3) a requirement for a gabled roof so that he can construct a flat-roof structure, and (4) an 18-inch width eave requirement so that he can have eaves that are 7.25 inches wide.

The ZBA granted the rear set-back area variance at its meeting on September 5, 2018 , but at its meeting on November 7, 2018 , the ZBA announced that its September 5th determination was a nullity because it did not have the Warren County Planning Board’s report as required by § 220-82 of the Village Code at the time it approved the variance. That report was issued before the November 7th meeting and it indicates the application would have no county-wide impact. As a result, at the November 7th meeting, the ZBA issued a new decision granting the rear set-back area variance.

At its meeting on January 16, 2019 , the Planning Board granted the requested waivers under Local Law No. 8 and approved the site plan.

The Lawsuits

Petitioner brought two separate lawsuits. The first proceeding was commenced on October 2, 2018, and seeks to annul, vacate and set aside Local Law No. 8, enjoin the Planning Board from granting any waivers pursuant to Local Law No. 8 and set aside the area variance issued by the ZBA. The second proceeding was commenced on February 15, 2019, and seeks to annul, vacate and set aside the waivers and the site plan approval issued by the Planning Board. Both matters are handled together in one decision, order and judgment issued May 29, 2019, and entered June 28, 2019.

The First Proceeding

As to the first proceeding, the trial court began by noting in its opinion that:

  • Village Law § 7-712-b(3)(a) gives the ZBA the power to grant area variances
  • Village Law § 7-712-b(3)(b) sets out the specific factors the ZBA can consider in making variance determinations
  • Village Law § 7-712-b(3)(c) specifies that the ZBA shall grant the minimum variance it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and health, safety and welfare of the community.

The trial court then cited to Matter of Cohen v Board of Appeals of the Vil. Of Saddle Rock, 100 NY2d 395, 401-402 [2003], which determined that Village Law § 7-712-b preempts municipalities from enacting area variances criteria different that those contained in the Village Law. Turning to the Village’s Architectural Guidelines, contained in § 220-42 of the Village Code, the trial court noted they set forth dimensional and physical requirements related to building orientation, setbacks, and relationship to street level, building proportion and size, building materials and colors, and roof design. Relying on Matter of Lockport Smart Growth, Inc. v Town of Lockport, 63 AD3d 1549 [4th Dept 2009], lv denied 14 NY3d 704 [2010], which discussed the relationship between Town Law provisions that are similar to Village Law §§ 7-725-a(3) and (5), the trial court found Local Law No. 8 to be permissible under Village Law § 7-725-a(5).

The trial court then reviewed the challenge to the enactment of Local Law No. 8. It rejected Petitioner’s claim that the enactment violates SEQRA, finding that the Village Board properly classified the enactment as an unlisted action and completed a short form environmental assessment form (EAF) that properly determined that Local Law No. 8 will not result in any significant adverse environmental impacts.

The trial court also rejected Petitioner’s claim about the ZBA failing to comply with SEQRA when it approved the area variance. The trial court noted that the application for an individual set back variance was properly classified as a Type II action, and thus, did not require any further SEQRA review.

The trial court then rejected Petitioner’s claims that the ZBA did not apply the statutory criteria applicable to area variances. These five criteria, found in Village Law § 7-712-b(3)(b), include

  • 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 area variance;
  • Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
  • Whether the requested area variance is substantial;
  • Whether the proposed variance will have an adverse effect of impact on the physical or environmental conditions in the neighborhood or district; and
  • Whether the alleged difficulty was self-created.

The trial court noted that the ZBA addressed four of the five criteria in its written decision and discussed the fifth criteria at its November 2018 hearing. Petitioner appeared at both the September and November 2018 hearings and presented documentary evidence and arguments that he claimed showed that the proposed boat storage facility was a substantial project. The trial court rejected Petitioner’s claims, noting that the ZBA appropriately considered the required criteria and that its decision was neither arbitrary, irrational or an abuse of discretion.

The trial court also ruled that Petitioner had standing because his properties are affected by Local Law No. 8 and rejected Respondents’ lack of ripeness argument, noting that the adoption of Local Law No. 8 is a definitive position which inflicted an actual, concrete injury to Petitioner and other similarly situated landowners in the Village. And, no further administrative action is available to address the claimed harm. The trial court also rejected Petitioner’s claim that the variance must be annulled because of Quirk’s failure to pay the application fee, noting that the Village Zoning Code does not even suggest that as a basis to deny an application.

The Second Proceeding

As to its ruling on the second proceeding, the trial court rejected Petitioner’s claim that the enactment of Local Law No. 8 violates Village Law §7-712-b, citing to its analysis in the first proceeding. As to the claim that the Planning Board failed to comply with SEQRA in granting the waivers, the trial court rejected Petitioner’s assertion that a separate SEQRA review is needed for each of the individual waivers sought, noting that would be unnecessarily burdensome and the waiver requests are arguably Type II actions that do not require SEQRA review.

The trial court then evaluated Petitioner’s claim that the Planning Board improperly segmented its SEQRA review. The trial court found that the Planning Board declared the site plan approval application as an unlisted action, completed a full EAF, and issued a negative declaration for the full project, including in its review both the boat storage facility lot and the outdoor boat storage lot. However, crucial to the court’s analysis is the fact that the site plan application for the storage facility did not include any information about the plans for the laundromat lot. That omitted information caused the trial court to remand the matter to the Planning Board for further SEQRA review of the whole project.

As to the remaining causes of action, the trial court rejected Petitioner’s claims that the waivers violated Local Law No. 8 or that the proposed project does not meet the site plan review criteria found in the Village Zoning Ordinance, noting it is not the role of the court to second-guess a reasoned administrative agency’s determination that is otherwise supported in the record. As to the last cause of action, that the square footage of the proposed facility violates the square footage limitation of an accessory structure, the trial court rejected this as well, noting that the Planning Board made no such determination, and Petitioner did not request any determination by the ZBA or Planning Board about this supposed zoning violation. Thus, the court noted this issue is not properly before it.

The Bottom Line

Unfortunately for Quirk, while he prevailed on every claim asserted by Petitioner against the ZBA, and on every claim except one asserted against the Planning Board, the one claim that slipped him up was something in his control – the contents of his site plan application. As a result, he is now facing a remand of his application and will need to go through the process yet again.


While the Town of Halfmoon (“Town”) in Saratoga County, New York,  may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute an accessory use or a separate commercial business. The Appellate Division, Third Department, heard appeals from both an order and a judgment of the Supreme Court, Saratoga County, which denied a preliminary injunction and dismissed a petition to annul the site plan amendment and special use permit for the brewpub.

The Golf Course, Plans for the Brewpub and the Opposition

The Fairways of Halfmoon, LLC (“Fairways”) operates a golf course with a clubhouse, pro shop, restaurant, bar and banquet house on property zoned within the Town’s Agriculture-Residence zoning district (“ARD”). In 1999, Fairways obtained site plan approval and a special use permit for the improvements on the property. Eighteen years later, in 2017, Fairways sought a site plan amendment and special use permit to, among other things, build an addition to the existing bar and restaurant to brew beer for patrons’ purchase and consumption. Two neighbors opposed the application and argued the brewpub was not a permitted use in the ARD and would negatively affect the character of the neighborhood.

The Town’s engineer characterized the brewpub as a Type II Action under the State Environmental Quality Review Act (“SEQRA”), for which no environmental review is required. The Town Planning Board (“Planning Board“) used the same characterization throughout the application review process. However, in its May 2017 resolution amending the site plan (with conditions) and granting the permit, the Planning Board inexplicably denoted the brewpub as an Unlisted Action (which requires environmental review under SEQRA) and issued a negative declaration (finding no significant environmental impact). The neighbors argued that these inconsistent project classifications and analyses, among other things, constitute noncompliance with SEQRA, and therefore the approvals must be annulled.

One of the neighbors submitted an interpretation request to the Town’s Director of Code Enforcement (“Director”) asking whether a brewpub could be built within the ARD and in conformance with the Town Code. The Director issued a responsive letter concluding the Town Code did not speak to where a building could be constructed. In addition, the Director issued a second letter advising that the Town’s Code Enforcement Office does not address zoning issues and that such questions must be directed to the Planning Board. The neighbor appealed the Director’s determinations to the Town Zoning Board of Appeals (“ZBA”), which upheld them in a September 2017 decision.

The Challenges, the Case and the Resolution

The neighbors commenced two Article 78 proceedings; the first challenged the Planning Board’s decision to amend the site plan and issue the special permit and alleged SEQRA violations, and the second challenged the ZBA’s decision to uphold the Director’s determinations. These two cases were consolidated. In addition, the neighbors sought a preliminary injunction barring construction of the brewpub during the pendency of litigation.

The Supreme Court issued an order (“Order“) denying the preliminary injunction. Fairways proceeded with construction of the brewpub throughout the litigation and, during appeal, would argue the challenges should be dismissed on the grounds of mootness and laches because the brewpub was substantially complete. Ultimately, the Supreme Court issued a final judgment (“Judgment“) dismissing the consolidated proceedings. The neighbors appealed from both the Order and the Judgment.

The Appellate Division dismissed the appeal from the Order denying the preliminary injunction because no appeal lies as-of-right from a non-final order in an Article 78 proceeding. The appeals court noted that the neighbors could have raised the denial of injunctive relief on their appeal from the Judgment, but they failed to brief those issues on appeal from the Judgment, so these issues were abandoned.

Substantial Completion Does Not Necessarily Moot a Claim; No Laches

Regarding the appeal from the Judgment, Fairways argued they had substantially completed the brewpub, and so the appeal was moot. The Appellate Division rejected Fairways’s mootness argument because: (i) substantial completion does not necessarily render an appeal moot; (ii) the brewpub addition could be razed or the brewing operations enjoined within it; (iii) the neighbors promptly challenged the approvals and moved for preliminary injunctive relief; and (iv) the Supreme Court made clear that injunctive relief remained a possibility and Fairways should be incentivized to limit construction activity in the meantime. Accordingly, Fairways was on notice that its construction of the brewpub was at its own risk and the appeal was not moot. The Appellate Division also denied Fairways’s claim of laches, finding that there was no prejudicial neglect in the neighbors promptly asserting their claims.

Turning to the merits, the Appellate Division addressed: (i) the Planning Board’s SEQRA review; (ii) the Planning Board’s approval of the brewpub; and (iii) the ZBA’s decision to uphold the Director’s determinations.

SEQRA Sufficed by Substance over Form

With respect to SEQRA, the Planning Board proffered clerical error as their excuse for the inconsistent SEQRA nomenclature and process – having characterized the brewpub project as a Type II Action throughout review, yet resolving to classify the brewpub as an Unlisted Action and issuing a negative declaration. The appeals court held that, even if there was no clerical error, the Planning Board’s review sufficed SEQRA for purposes of reviewing an Unlisted Action. The short form environmental assessment form gave no reason for concern. The Town’s engineer opined that no further environmental review was necessary. And, the Planning Board solicited input from the community, public safety officials and interested agencies.

The review process established the brewpub project was limited in scope and confined to already disturbed areas around the clubhouse. Furthermore, the conditions imposed upon the amended site plan addressed the few potential environmental impacts, i.e. parking, ingress/egress and disposal of brew byproducts. The Appellate Division concluded:

“[A]lthough it might have been better for the Planning Board to set forth a more reasoned elaboration for the basis of its determinations, this particular record is adequate for us to exercise our supervisory review to determine that the Planning Board strictly complied with SEQRA procedures applicable to unlisted actions, and the negative declaration it made is supported by a rational basis in the record.”

Limited Brewing is Attendant to the Operations of the Golf Course

Next, the Appellate Division addressed whether the Planning Board’s approvals were arbitrary and capricious. The ARD permits “private or public recreation or playground areas, golf clubs, country clubs or other open recreation uses” as special uses, but does not permit “commercial facilities or amusement parks.” Fairways held a special permit for a restaurant, bar and banquet house attendant to its golf club since the 1990s, and sought to add the brewpub as an extension of the bar and restaurant (with additional space for it). Fairways represented its brewer’s license limited retail beer sales to customers on-site and would not exceed 400 kegs per year. The appeals court concluded:

“Inasmuch as the clubhouse bar selling alcohol to customers is a permissible special use [in the ARD] as an attendant use to a golf club, the Planning Board had no obligation to, sua sponte, refer the matter to the ZBA for a superfluous interpretation as to whether an affiliated brewpub making similar sales of its own beer at the same site under the same liquor license was a prohibited commercial facility.”

The Planning Board reviewed the requisite factors set forth in the Town Code and allowed the brewpub – with conditions intended to minimize its negative impacts on neighbors and to ensure its functionality as a permitted amenity to the golf club, rather than a stand-alone business. This determination is rational.

Vague Inquiries to Code Enforcement and the ZBA Do No Warrant Judicial Review

Lastly, the Appellate Division considered the challenge to the ZBA’s decision to uphold the Director’s determinations, which the Supreme Court declined to rule on. The Appellate Division found that the challenged decision arose from a vague question posed by the neighbor to the Director, i.e. as to whether a generic brewpub could ever be built within the ARD in accordance with the zoning ordinance. It also noted that the ZBA agreed with the Director’s determinations. Because the ZBA’s decision had no connection to either the Planning Board’s approvals for the brewpub or the issuance of the building permit for the same, addressing this claim would have no immediate and practical consequence for the parties and would effectively be an advisory opinion. Therefore, the Supreme Court properly declined to consider it.

The Hank Hudson Brewing Co., founded by two high school teachers, opened at the golf course in the fall of 2018. Cheers.

A recent ruling by the Appellate Division, Second Department, Matter of Coney Island Boardwalk Community Gardens v City of New York, concerned the fate of a parcel of land located at the Coney Island boardwalk. That parcel was owned by the City of New York and had been used for several years as a community garden. When the City decided it wanted the site to be redeveloped as an amphitheater, the community gardeners objected. They claimed the site had been impliedly dedicated to parkland by the community garden use and could not be alienated to use as an amphitheater without the express consent of the state legislature. The Court disagreed, allowing the City to redevelop the site without the added burden of obtaining legislative approval.

The Public Trust Doctrine

As explained in a prior posting by Anthony Guardino, when a municipality owns land for public use as a park, the municipality holds that land “in trust for that purpose” and cannot convey that land without the approval of the state legislature. This is true regardless of whether the land is officially or impliedly dedicated as a park. While it is not difficult to establish that the public trust doctrine applies in the case of an officially dedicated park, it is not so easy when no such official dedication exists. That was the problem faced by the community gardeners, a problem they were unable to overcome.

The Boardwalk Decision

The parcel at the center of this dispute was allowed to be used as a community garden through a series of license agreements between 1997 and 2004, as part of the City’s “GreenThumb program.” As is typical of license agreements, these agreements “were terminable at will at the City’s sole discretion.” The first termination occurred in 1999, when the City was going to develop the parcel into a parking lot for the Brooklyn Cyclones baseball stadium. A separate prior action resulted in the City being temporarily restrained from interfering with all of the GreenThumb gardens, resulting in the City executing new licenses in 2000 and 2003 for the garden. That action was settled, and the settlement agreement expressly noted that this particular parcel was not designated parkland. In August 2004, the City terminated the license, and the community garden was relocated to a different parcel in accordance with the terms of the settlement agreement.

The lot was not converted to a parking lot for the stadium. Rather, the City engaged in developing a series of strategic plans over the next decade to revitalize the Coney Island Boardwalk. While the City pondered the fate of the area, community members revived the garden on the parcel without the consent of the City.

In 2013, the City finally decided to adopt a plan for an amphitheater for the parcel and other nearby parcels. The unlicensed garden was destroyed during the development of the lots.

The community gardeners brought a hybrid proceeding, seeking to invalidate the parcel’s conversion to an amphitheater. They also sought a declaratory judgment to have the parcel declared parkland and the City’ actions as violating the public trust doctrine.

Unfortunately for the community gardeners, the appellate court, (as well as the trial court), sided with the City. The appellate court discussed the requirements to establish an implied dedication to parkland. Parties seeking to challenge the alienation of land they claim is subject to implied dedication to parkland must show (1) a clear and unmistakable intent to use the land for public use, and (2) the public acceptance of that land for a public use. The appellate court further noted that although this is often a question of fact that must be decided by looking at the owner’s acts and declarations about the parcel, if those acts are equivocal or plainly do not show the “intention to permanently abandon the property to the use of the public,” an implied dedication will not be established.

Applying those principles to the facts, the appellate court found the City had not unequivocally intended to dedicate the parcel as parkland. On the contrary, the evidence showed the City allowed the community garden to exist only on a temporary basis and intended to develop the parcel for other uses. The fact that the City’s Department of Parks and Recreation exercised management over the lot, which was found to be temporary and provisional, did not raise a triable issue.