In City of New York v Ball, 2024 NY Slip Op 24179 [Sup Ct, Albany County 2024], the Albany County Supreme Court upheld a determination of the Commissioner (“Commissioner”) of the Department of Agriculture and Markets (“Department”) that concluded the City of New York’s (“City”) local law banning food establishments from selling or serving foie gras and other force-fed products (“Foie Gras Ban”) unreasonably restricted and regulated farming operations in “upstate” New York.

This case concerned preemption and a conflict between State and local policies. The Court addressed the Commissioner’s/Department’s State agency power to effectively overrule local elected officials and the will of their electorate. At issue was whether an indirect, extraterritorial restriction or regulation falls within the purview of the farming protection framework, given that City’s Foie Gras Ban affected farming operations situated in Sullivan County – approximately 70 miles north.Continue Reading Foie Gras Faux Pas: City Runs A-fowl of State Farming Protections

OVERVIEW

The Shawangunk Ridge is a cluster of bedrock in upstate New York popular for its scenery and outdoor recreation. The Town of Gardiner’s (“Gardiner”) Shawangunk Ridge Protection District (“SRPD”) protects the scenic and ecological values of the Shawangunk Ridge and requires, among other things, a special use permit for development.

A property owner sought to subdivide and develop property situated within the SRPD; to wit: subdivide a 108-acre lot into two lots, maintain an existing dwelling on one lot, and construct a new dwelling on the second lot. The developer sought and obtained a special use permit and subdivision approval from the Gardiner Planning Board (“Planning Board”). Before the approval, the Planning Board issued a negative declaration pursuant to the N.Y. State Environmental Quality Review Act (“SEQRA”). Notably, the owner himself, a trained biologist and forestry professional, performed his own conservation analysis with respect to the Planning Board’s SEQRA review.

The Friends of the Shawangunks, an environmental conservation organization (“Friends”), commenced an Article 78 proceeding challenging the special use permit, subdivision approval, and negative declaration. The Supreme Court, Ulster County, dismissed the proceeding on the grounds that Friends lacked standing, and Friends appealed. On appeal, the Third Department reversed, held Friends had standing, and addressed the merits.Continue Reading Friend of the Shawangunks v. Town of Gardiner Planning Board: Litigation Concerning a Popular Outdoor Recreation Area Prompts the Third Department to Address Organizational Standing, Special Permit Criteria, and Whether Expert “Bias” is a Consideration Under SEQRA

Typically, zoning variances “run with the land”, and absent a specific time limitation, they continue until properly revoked. See, St. Onge v. Donovan, 71 NY2d 507, [1988]. As a result, variances cannot be made to apply only to the current owner. But under the Fair Housing Act (FHA), reasonable accommodations can be made that are essentially personal variances

Continue Reading Zoning – Reasonable Accommodations Under the Fair Housing Act

In Matter of Marcus v. Planning Board of the Village of Wesley Hills, et al., the respondent, Rockland Tree Expert, Inc., d/b/a Ira Wickes, Arborist (“Wickes”), sought a special use permit and site plan approval to conduct arborist and landscaping services and to operate a nursery on its property located within the Village of Wesley Hills (the “Village”), in
Continue Reading Second Department Annuls Local Planning Board’s Grant of Special Use Permit and Site Plan Approval

In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016, Petitioner submitted an application to
Continue Reading Reversal of Zoning Board’s Denial of Variance Application Upheld on Appeal

In Matter of Sid Jacobson Jewish Community Ctr., Inc. v. Zoning Bd. of Appeals of the Inc. Vil. of Brookville, the Second Department reviewed a local zoning board’s denial of an applicant’s request to expand and improve the facilities on its property.  The applicant/petitioner, Sid Jacobson Jewish Community Center, Inc. (“Petitioner”), is a “nonprofit nonsectarian Jewish organization” that uses
Continue Reading Second Department Affirms Denial of Religious Organization’s Application for Conditional Use Permit

Last year, the New York County Supreme Court heard an Article 78 challenge by Preserve Our Brooklyn Neighborhoods (“POBN”), a civic organization dedicated to maintaining the unique character and historical significance of the Fort Greene area of Brooklyn, New York.  This lawsuit, which I discussed in a previous post, turned on whether a resolution passed by the New
Continue Reading First Department Affirms Dismissal of Constitutional Challenge to Zoning Resolution

View of Hudson River from Upper Nyack, New YorkPetitioner, Claude Simon (“Petitioner”), owns approximately 2.25 acres of property in the Village of Upper Nyack (the “Village”), which he sought to subdivide into two separate lots.  The first lot would contain the existing dwelling and other existing improvements.  The vacant second lot would be improved with a single-family dwelling.  However, the Village advised Petitioner that he would need to
Continue Reading Second Department Affirms Article 78 Reversal of Village Zoning Board Determination

In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.

Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”).  For several
Continue Reading Landowner’s Intent to Mine Property Sufficient to Establish Nonconforming Use

In Matter of Pittsford Canalside Props., LLC v Village of Pittsford Zoning Bd. of Appeals, et al., the Fourth Department held that settlement correspondence between a development firm, Pittsford Canalside Properties, LLC (“PCP” or “Petitioner”), and the Village of Pittsford Architectural Preservation and Review Board (the “ARB”), was not an enforceable settlement agreement.

PCP owned property located within the
Continue Reading Letters Exchanged Between Developer and Architectural Review Board Insufficient to Constitute Enforceable Settlement Agreement