On October 17, 2018, the Supreme Court, Appellate Division, Second Department (“Second Department”) issued two (2) companion decisions arising out of three different attempts by Petitioners, Kleinknechts (“Petitioners”)  to construct a dock at their waterfront property.  Each of the attempts resulted in a Supreme Court litigation.  As we blog about these cases today, no dock has been constructed despite a directive in 2013 that a permit be issued upon submission of the proper application!

In the first matter, the Second Department upheld a decision of the Village of Lloyd Harbor’s Zoning Board of Appeals (“ZBA”) denying certain variances requested by Petitioners to construct a dock along their waterfront property finding that the ZBA properly applied the five-factor test set forth in Village Law 7-712-b(3).  Further,  Petitioners’ expert testified that he had prepared an alternative completely code compliant plan.  Since a code compliant dock plan provided a reasonable alternative for Petitioners to explore, the Second Department upheld the trial court’s dismissal of the underlying Article 78 proceeding stating that the “need” for the variances was self-created.  In light of the ZBA’s proper application of Village Law, the ZBA’s denial was not arbitrary or capricious.  See, Kleinknecht v. Brogan, 2018 WL 5020285 (Oct. 17, 2018)

In the second matter, and following denial of the above-mentioned variance application, the Appellate Division vacated a 2013 directive to the Building Inspector requiring the Building Inspector to issue a building permit to Petitioners for the alternative code compliant dock permit application.  The Second Department stated “[m]andamus . . . is an extraordinary remedy that, by definition, is available only in limited circumstances.”  “A party seeking mandamus must show a ‘clear legal right’ to [the] relief [requested]'”  Here, no clear legal right existed.  See, Kleinknecht v. Siino, 2018 WL 5020282 (2018).

Prior to 2013, Petitioners’ property was subject to an open space easement precluding construction of a dock at the property.  Petitioners commenced an action seeking to have the open space easement extinguished.  The trial court issued a judgment holding that the open space easement was no longer necessary and directed that the Building Inspector issue a building permit to Petitioners upon submission of the “required” application.  The Village did not appeal the judgment.

As such, upon submission of a code compliant building permit application (as noted above an application for variances was denied and upheld), Petitioners sought an approved building permit.  Although the Second Department held that the Building Inspector had no basis to deny issuing the permit based on the existence of the open space easement, the Second Department did vacate the 2013 trial court directive to issue a permit upon submission of the “required” application stating that the Village Code requires every Village building permit application be referred to the “Site and Building Permit Review Board” (“Review Board”).  Finding that the trial court’s directive to the Building Inspector bypassed a necessary referral step to the Review Board, the Second Department ordered the Building Inspector to refer Petitioners’ application to the Review Board.   The Second Department did not then direct the Building Inspector to issue a building permit to Petitioners if the Review Board approves that application..

Instead, the Second Department decision states “[t]he Building Inspector may issue a building permit only upon approval by the” Review Board.  As a litigation and land use attorney,  it has become painfully apparent that courts do not always weigh the import of the language used when crafting relief for the parties.   Maybe it is of little consequence that the Second Department said that the Building Inspector “may” approve the building permit if approved by the Review Board.  However, it would  provide the Petitioners, and their attorney(s), greater comfort and certainty if the chosen words were “must” approve the building permit, instead of “may” approve the building permit.

 

Given the complex zoning regulations that govern development of vacant land, in recent years, it has become uniquely challenging to develop smaller tracts of vacant land that do not conform to the current zoning code.  Further, the doctrines of merger and single and separate add to the complications.  Unless a buyer is absolutely certain that the land for purchase is single and separate from an adjoining parcel and has not merged by common ownership with an adjoining parcel, the results can be less than desirable.

In a recent case, Harn Food LLC v DeChance, the Second Department upheld the Town of Brookhaven’s Board of Zoning Appeals (“BZA”) decision denying a request to construct two houses on what was contended to be two single and separate vacant undersized parcels joined only at the rear property line and each fronting on it’s own adjacent parallel road.  Lots configured in this manner are also referred to as through lots.

In upholding the BZA’s decision, the Court rejected petitioner’s argument that the two tax lots were single and separate because they shared only a rear lot line thereby allowing one house to be constructed on each lot.  Instead, the Court adopted the BZA’s position that since 1948, the two lots were held in common ownership.  The significance of holding or purchasing adjoining vacant lots in common ownership cannot be minimized.  Under most zoning codes and as interpreted by many courts, holding vacant lots, that are undersized or non-conforming to the minimum zoning requirements, creates a merger of the parcels and defeats any argument that the lots were held in single and separate status.

In this case, even though the two tax lots at issue were not side by side lots, but instead, they were back to back lots, the Court determined that the common ownership since 1948 rendered the lots merged.  Additionally, in weighing the five-factor test set forth in Town Law 267-b(3)(b), the Court relied on a prior denial in 2007 by the BZA of an identical application in the immediate area, together with evidence at the hearing that the proposal set forth did “not conform to the surrounding development pattern, in that only 5 lots (12%) of the 42 improved lots in the area conform to the lot area requested in the application, and only 7 lots (17%) conform to the lot frontage.”

The Court further noted that the buyer was charged with knowledge of the zoning code when the property was purchased.  Given that the vacant land is still suitable to construct one dwelling, the Court determined that a feasible alternative existed and that the petitioner was not so aggrieved.

This case is just one more reminder that land use attorneys and real estate attorneys must work together to insure that properties are purchased in uncommon ownership unless otherwise discussed and affirmatively agreed to be held in common ownership.  Further, vacant land should never be purchased absent a single and separate search with confirmation from the relevant municipality that the vacant land in question meets the test for single and separate and that no merger with adjoining parcel ever occurred.

 

 

 

 

 

 

 

 

On June 28, 2017, the Appellate Division, Second Department, held that a tenant has standing to challenge the definition of “Family” as set forth in the Freeport Village Code.

In Tomasulo v. Village of Freeport, ___A.D.3d___, the Village commenced a criminal proceeding against non-party property owner, William Goodhue, Jr. (owner), alleging that the tenancy between Tomasulo (tenant) and the owner violated sections 171-1 and 210-3 of the Freeport Village Code. The tenant had resided in a single family home with the owner of the home and two other non-related persons. This arrangement violated the definition of “Family” in the Village Code. As a result of the criminal proceeding, the owner commenced an eviction proceeding against Tomasulo.

In response to the eviction proceeding, Tomasulo commenced an Article 78 proceeding against the Village challenging the constitutionality of the definition of “Family” contained in Village Code sections 171-1 and 210-3.  The trial court converted the Article 78 proceeding to a complaint and granted the Village’s motion for summary judgment holding that Tomasulo lacked standing to seek a declaration as to the “constitutionality of the disputed portions of the Village Code” because Tomasulo had “not been injured or threatened with injury as a result of those provisions . . . and [Tomasulo] failed to adequately allege the existence of a justiciable controversy.”

In reversing the trial court, the Second Department stated that Tomasulo “demonstrated a ‘threatened injury to [his] protected right’ to his tenancy in the owner’s house . . . such that he has adequately shown ‘an interest sufficient to constitute standing to maintain the action.'”

Finding that Tomasulo’s pending eviction proceeding demonstrated a “present, rather than hypothetical, contingent or remote, prejudice to [him] . . . [the Court declared that the] Village did not establish, prima facie, its entitlement to judgment as a matter of law.”

 

mosqueOn December 31, 2016, U.S. District Judge Michael Shipp of the District of New Jersey authored a 57-page opinion granting partial summary judgment to plaintiffs, The Islamic Society of Basking Ridge (“Islamic Society”) holding that defendants, the Township of Bernards (“Bernards”), violated Islamic Society’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).  The Bernards Planning Board denied Islamic Society’s site plan application seeking to construct a mosque in a residential zone on the basis that (1) a mosque is not considered a church under Bernards’ zoning code and (2)  Bernards’ parking ordinance was not adhered to.

FACTS

In November 2011, Islamic Society purchased property in a residential section of Bernards with the intention of constructing a 4,252 square foot mosque on the property.  The site plan called for 50 parking spaces based on estimated occupancy of 150 people.  The parking spaces provided were in compliance with Bernards’ parking ordinance applicable to churches at a ratio of 3:1 .

Over the course of three and a half years, Islamic Society’s site plan application underwent 39 meetings and was subjected to intense neighborhood opposition and scrutiny.    According to the decision, competing expert testimony was provided by parking experts and asserted that although Bernards does not, and has never, relied on the Institute of Transportation Engineers (“ITE”)  Parking Generation data,  Bernards required Islamic Society to apply the ITE data applicable to mosques, which estimated required parking spaces between 36 and 110.  Bernards compromised at 107 parking spaces, when in fact, only 50 were required under Bernards accepted church parking ratio of 3:1.

The rationale for the increased parking requirement rested on Bernards’ determination that a mosque is not a church, despite the fact that Bernards’ zoning code does not state that a mosque is not considered a church.  Bernards did not stop there.  Bernards went on to say that only Christian places of worship are considered  churches, and as a result thereof, not only was the 3:1 parking ratio not applicable to Islamic Society’s site plan application, but also, Bernards maintained discretion in reviewing Islamic Society’s application and essentially had unfettered discretion in determining parking requirements.

At the conclusion of all hearings and testimony, Bernards’ planning board denied the site plan application.  Islamic Society commenced an action in federal court alleging violations under RLUIPA.

DECISION

In granting partial summary judgment, the Court rejected Bernards’ position that mosques are not considered churches.   In fact, the Court specifically stated that a mosque or any place of religious worship, whether a church or not, is protected under RLUIPA.  Bernards’ unsupported determination that mosques are not considered churches violated Islamic Society’s rights under the Nondiscrimination Provision of RLUIPA.

Additionally, with respect to the increased parking, and Bernards’ position that it maintained unfettered discretion to determine parking requirements, the Court relied upon its determination that a mosque is entitled to the same protections as a church;  as such, the Bernard parking ordinance ratio of 3:1 should have been applied equally to Islamic Society as it had historically been applied to Christian and Baptist churches and synagogues that were previously approved in Bernards.  Further, the Christian, Baptist and Jewish places of worship were typically granted in less than six months, and in most instances, with less then four public hearings.

CONCLUSION

The decision in this 57-page case cannot be justly analyzed in a short blog post.  Given the state of our country at this time, when it comes to freedom of religion and the consequences that we suffer as a result of our differing beliefs, it would be a worthwhile allocation of any land use attorney’s time to read this decision.  If nothing else, it reminds us all that one of the basic tenets of our American freedoms is the freedom to be different and be accepted.