Cases Published November 8, 2019
Fourth Department Affirms Order to Continue City’s Special Proceeding for Abatement of Gutter Violation
City of Rochester v. Turner
Petitioner-respondent, City of Rochester, commenced a special proceeding in City Court seeking abatement of certain property code violations, chiefly with respect to gutters, and an order compelling respondents-appellants, Thomas Turner and Kingsley Stanard, to allow an interior inspection of the property.
The Monroe County Court held that because the issue regarding the alleged gutter violation had already been submitted to City Court to decide, City Court could not discontinue the action under CPLR § 3217(b) without respondents’ consent. County Court further rejected respondents’ contention that the petition should be dismissed and reversed the City Court’s order of discontinuance, remitting the matter to City Court to determine whether petitioner would proceed with its petition for abatement of the gutter violation. Respondents appealed to the Fourth Department arguing that the County Court erred in failing to dismiss the petition in its entirety.
The Fourth Department unanimously affirmed the County Court’s order. First, the Court held that the City Court had proper jurisdiction over petitioner’s special proceeding. The Court clarified that the County Court did not find that the City Court lacked jurisdiction, as respondents argued.
Second, the Court rejected respondents’ argument that the order appealed from violated their due process rights by allowing petitioner to seek relief with respect to a violation that was not pleaded in its petition. The Court noted that the petition alleged 10 outstanding code violations, both interior and exterior, some going as far back as to 2004, and included a copy of an Amended Notice and Order citing a violation for missing or defective gutters.
The Court also rejected respondents’ argument that the petition must be dismissed because petitioner failed to conclusively establish the alleged violation. The Court reasoned that the City Court had not yet decided the issue of the alleged violation, and thus even if the petitioner failed to establish the violation through admissible evidence, the appropriate remedy would be trial under CPLR § 410, not dismissal.
Lastly, the Court held that because the record on appeal did not reflect that the alleged gutter violation had been finally determined in any of the City Court’s prior orders, it rejected respondents’ contention that the alleged violation no longer exists or that the city has received all relief sought in its petition. This contention would rely on material outside the record on appeal and as such the Court dismissed that argument.
Fourth Department Upholds City Boards’ Variance Request for Construction requiring Demolition of Structures in Historic Neighborhood
Davis v. Zoning Board of Appeals of City of Buffalo
The Fourth Department unanimously affirmed the appealed from judgment by Justice Walker, Supreme Court Erie County, denying and dismissing the amended petition.
Affinity Elmwood Gateway Properties, LLC (Affinity) wished to construct a mixed-use, four-story building in the City of Buffalo. This would require the demolition of 14 existing structures within a district listed on the National Register of Historic Places. The Zoning Board Appeals of City of Buffalo (ZBA) granted 8 variances for the project and Planning Board of City of Buffalo (Planning Board) was the city’s lead agency for review under the State Environmental Quality Review Act (SEQRA). The Planning Board granted site plan and subdivision approval. Petitioners, Susan Davis and Sandra Girage, brought a CPLR Article 78 proceeding to annul the ZBA and Planning Board’s determinations.
First, the Court held that the ZBA’s notices of public hearings adequately and fairly apprised the public of the variances sought by Affinity by conveying the dates and times of hearings, that the hearings were for variance applications, that the hearings were regarding a mixed-use building at the subject address, and other critical information. The ZBA also provided an adequate opportunity for members of the public to express their opinions at hearings and accepted additional written comments. The Court held the ZBA allowed the public an opportunity to be heard.
The Court cited the rule of law that zoning boards enjoy broad discretion to decide whether to grant or deny variance applications. The Court found the ZBA’s decision to grant the variance had a rational basis, was supported by substantial evidence, was not illegal, arbitrary, or an abuse of discretion, and was made after considering appropriate factors and weighing the benefit to the applicant against the detriment to the community. Therefore, the ZBA complied with the law in granting the variance.
Finally, the Court rejected petitioners’ argument that the Planning Board did not comply with SEQRA by failing to take a hard look at the historical area or providing a reasoned elaboration for its determination. The Court applied the rule of law that judicial review of an agency determination under SEQRA is limited to whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination. The Court found that the record on appeal proves the Planning Board met those requirements by way of its open communications and documented deliberations on historic resources and environmental impact. Planning Board’s lengthy and detailed review was thus upheld as it was not arbitrary, capricious, or unsupported by substantial evidence.
Fourth Department Grants Summary Judgment to Town on Issues of Substantive Due Process and Taking without Just Compensation regarding Landfill Variance
Jones v. Town of Carroll
This case presents two appeals of orders by the Supreme Court, Chautauqua County. Plaintiff Sealand Waste LLC and defendants, Town of Carroll and Town Board of Town of Carroll (collectively “Town”), each appeal the denial of their respective motions for summary judgment.
In 1984, plaintiff Carol Jones and her husband, the since-deceased Donald Jones, purchased 50 acres in an agricultural/residential zoning district in the Town. In 1989, the Town granted decedent’s application for a variance to use the entire parcel as a construction and demolition landfill. Decedent obtained the appropriate permits from the State. In 2005, the Town enacted a law which eliminated landfills as a permitted use in such an agricultural/residential zoning district. Plaintiffs commenced a CPLR Article 78 special proceeding challenging the 2005 law. Meanwhile, the Town passed another law in 2007 to make the operation of solid waste management facilities in the town a class A misdemeanor with an exception for facilities already in operation with a proper permit from the State. Plaintiffs then commenced another Article 78 proceeding challenging the 2007 law. The 2007 law is relevant for this appeal.
The order appealed from denied Sealand’s motion for summary judgment seeking a declaration that Local Law No. 1 of 2007 is illegal and null and void, and also denied in part and granted in part the Town’s cross-motion for summary judgment dismissing Sealand’s complaint.
The Fourth Department unanimously modified the order on appeal, granting parts of the Town’s cross-motion to dismiss the first and second causes of action in Sealand’s complaint, and denying part of the Town’s cross-motion to dismiss Sealand’s claim of ethical violations by the Town. The latter claim was accordingly reinstated.
The Court disagreed with the Town’s argument that judicial estoppel precludes plaintiffs from contending that the remaining causes of action are still pending. Judicial estoppel provides that “where a party assumes a position in a legal proceeding and succeeds in maintaining that position, that party may not subsequently assume a contrary position because [the party’s] interests have changed.” Because the plaintiffs did not succeed in maintaining its position the relevant causes of action had been already determined, the Court found that that element of judicial estoppel was not met.
The Court agreed with the Town’s argument that the Supreme Court erred in denying the part of the Town’s motion for summary judgment to dismiss Sealand’s cause of action alleging a substantive due process violation. The Court applied the rule of law that to establish a substantive due process violation in the land use context, a party must establish both deprivation of a vested property interest and that the challenged governmental action was wholly without legal justification. The Court of Appeals had previously determined that the Jones plaintiffs had a vested property interest in their 50-acre landfill, but plaintiff Sealand had no such interest. Sealand was only a potential buyer of the subject parcel and only had an agreement with Jones to access the parcel to test its suitability for expansion of the landfill. Sealand’s interest was categorized as a mere ‘expectancy interest’ in the land.
Likewise, the Court agreed with the Town that the lower court erred in denying the part of the Town’s motion for summary judgment to dismiss Sealand’s cause of action alleging a taking of property without just compensation. Notably, the Court held that a property interest must exist before it can be taken. A simple expectancy interest cannot give rise to a takings clause violation.
Lastly, the Court agreed with Sealand’s argument that the lower court erred in granting part of defendants’ motion for summary judgment to dismiss Sealand’s claim that the 2007 law is arbitrary and capricious due to alleged ethical violations by members of the Town Board during the law’s enactment.
Prepared by Daniel J. Cercone