Articles

NBI Part II - Judicial Review of Zoning Actions

A CPLR ARTICLE 78 PROCEEDINGS/DECLARATORY JUDGMENT ACTIONS AND OTHER ACTIONS

1. ARTICLE 78 PROCEEDINGS

The phrase “Article 78 proceeding” refers to proceedings commenced pursuant to Article 78 of the New York Civil Practice Law and Rules. With regard to judicial review of zoning matters, it is generally utilized to appeal the determination of a zoning board of appeals or a planning board. Specific legislative authority provides that any “aggrieved person” may apply to the supreme court pursuant to the provisions of Article 78 to review an action by a zoning board of appeals1 or a planning board2.

Article 78 proceedings may also be utilized to challenge a board of trustees’ adoption of a zoning amendment on the grounds that the board failed to comply with the requirements of SEQRA.3

2. DECLARATORY JUDGMENT ACTIONS.

An action for declaratory judgment is the typical manner by which an individual challenges what he or she believes to be an illegal rezoning.4 That illegality may be based upon any of the reasons set forth earlier [Part III of today’s program, subsection A(1)], such as, but not limited to, that it is in violation of the statutory requirements for adoption; it is ultra vires (it is not in keeping with the village’s comprehensive plan); it is in violation of state or federal laws; or that the field that it attempted to regulate has been pre-empted by the state or federal government.

Declaratory judgment actions are also appropriate when challenging what are referred to as “impact fees,” 5that is, fees imposed by a village or one of its boards as a condition of the relief requested. It has been held that such fees require statutory authority.6 To the extent that such fees are exacted for revenue purposes or to offset the cost of general governmental functions, they are invalid as unauthorized taxes.7 Moreover, even if such fees have been authorized, they must bear a reasonable relation to the services being provided to the one who is asked to pay them.8 A municipality may not charge "newcomers" an impact fee, such as to cover the expansion costs of an existing water facility, absent a demonstration that such a fee is necessitated by the particular project (as opposed to future growth and development in that municipality generally) or a demonstration that such newcomer would be primarily or proportionately benefited by the expansion.9

3. OTHER ACTIONS.

Other actions that may be considered to challenge a statute include that the statute is in violation of the property owner’s constitutional rights, because, among other things, it constitutes a taking of the owner’s property without fair and adequate compensation or that it is a denial of due process10 or freedom of religion.11 While those actions, to the extent that they are based upon federal claims, may be brought in the federal courts, the federal courts have made it clear that in assessing those federal claims in the context of land use regulations, they are always mindful of the general proscription that federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations.12 42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations. The denial of a permit, in and of itself--even an arbitrary denial redressable by an Article 78 or other state law proceeding--is not tantamount to a constitutional violation under § 1983; significantly more is required.13 Moreover, only the most egregious official conduct can be said to be arbitrary in the constitutional sense, since substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.14

B. PROCEDURAL REQUIREMENTS.

1. STATUTES OF LIMITATIONS.

As a caution, in a land use case, before you commence a court proceeding, you first may have to exhaust your administrative remedies by appealing to the board of appeals. An appeal from the determination of an administrative official, such as a building inspector, must be commenced by filing that application within 60 days of the order, requirement, decision, interpretation, or determination at issue.15

Article 78 proceedings challenging decisions of boards of appeals and planning boards must be brought within 30 days of the filing of the decision.16 Such 30-day period will also be commenced upon the filing of the minutes of the meeting, so long as those minutes meet the statutory criteria for minutes, i.e., showing the vote of each member.17 There is a distinction between the filing of the decision and the filing of the minutes and either of those two filings will commence the limited 30-day period.18

When challenging the issuance of a building permit19 or a legislative enactment alleging SEQRA violations, the proceeding must be commenced within four months of the date of the issuance or the enactment.20

Sometimes it is not always clear when the decision is “final.” Although Village Law §7-712-a(4) provides that, unless otherwise provided by local law, the concurring vote of a majority of the members of a board of appeals shall be necessary to reverse any order of an administrative official or to grant a variance, it does not state that such a majority is required to affirm such an order or to deny such an application. The New York Court of Appeals has held that when a quorum of a board is present and participates in a vote on an application, a vote of less than a majority of the entire board is deemed a denial.21 Thus a 2 to 1 vote, from a five-person board, was a denial of the application. Moreover, if there is what used to be considered a deadlock (for example, on a five member board, a 2-2 vote with one abstention), you now may have a denial, and your limited 30-day time to take an appeal may be starting as soon as the minutes of the decision are filed with the village clerk.

There are two, apparently inconsistent, but possibly distinguishable lines of cases out of the Second and Third Departments with regard to a board’s failure to comply with the required GML requirement to withhold final action until the matter has been referred to the local county planning commission. The Second Department has held that an Article 78 proceeding was not barred by the 30-day statute of limitations applicable to land use applications when the planning board had failed to refer the matter to the county planning commission because the action was ultra vires, and, therefore, null and void, and the statute of limitations never commenced.22 On the other hand, the Third Department, in dicta, stated that, notwithstanding the failure of a board of trustees to refer a zoning amendment to the county planning commission, the challenge was subject to a 6-year statute of limitation.23

Actions for monetary damages in land use cases (other pursuant to 42 USC § 1983) are actions in “tort” and require a notice of claim within 90 days after the claim arises, and must be brought within one year and 90 days after the claim arises.24

Actions pursuant to 42 USC § 1983 are subject to a three year statute of limitations.25

2. NECESSARY PARTIES

When a third party, such as a neighbor or civic association, challenges a determination of a board in an Article 78 proceeding, the applicant/property owner is a necessary party, and the failure of the petitioner to name the applicant as a respondent is grounds for dismissing the proceeding.26 Because of the short statute of limitations, that dismissal may terminate any chance of court review of the board’s decision.27

The courts have held that a planning commission, from whom a board is required to obtain recommendations before the board takes final action and whose determination is merely advisory, is not a proper party to an Article 78 proceeding.28

C STANDING ISSUES.

1. STANDING GENERALLY.

“Standing” means the legal ability to bring an action or a proceeding to challenge a municipality’s determination. A person only has standing when he establishes that the action he wants to challenge will in fact have a harmful effect upon him, which is different from that suffered by the public generally, and that the interest he seeks to assert is within the “zone of interest” intended to be protected by the statute.29 Accordingly, a property holder within or in nearby proximity to the premises that are the subject of a zoning determination is generally found to have standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity.30 Where, however, the property owner’s only substantiated objection is the threat of increased business competition -- an interest not within the "zone of interest" protected by the zoning laws -- even a close neighbor lacks standing to contest a zoning determination.31

With regard to civic associations, it has been held that an appropriate representative association should have standing to assert the rights of its members when its members may be affected by a zoning determination.32 In determining whether an association has such standing, the association must be an appropriate one to act as the representative of its members. Among the criteria to be considered in this respect are (1) the capacity of the organization to assume an adversary position, (2) the size and composition of the organization as reflecting a position fairly representative of the community or interests which it seeks to protect, (3) the adverse effect of the decision sought to be reviewed on the group represented by the organization is within the zone of interests sought to be protected, and (4) that full participating membership in the association is open to all residents and property owners in the relevant neighborhood.

2. STANDING FOR ENVIRONMENTAL REVIEW:33

In order to demonstrate standing for environmental review, a petitioner must show both "injury in fact," that is, that the petitioner would suffer direct harm - an injury that is in some way different in kind or degree from that of the public at large - and that the injury asserted falls within the “zone of interests” intended to be protected by the statute invoked. The existence of an injury in fact, a real interest in the matter being litigated, ensures that the petitioner has a valid interest in prosecuting the proceeding. The “zone of interests” test further limits the people who may challenge the environmental determination. Simply stated, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the “zone of interests,” or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted. The “zone of interests,” or concerns, of SEQRA encompasses the impact of agency action on the relationship between the citizens of the State and their environment. Only those who can demonstrate legally cognizable injury to that relationship can challenge administrative action under SEQRA. Parties whose property lies in close proximity to the subject property are the beneficiaries of a presumption that they are adversely affected by the alleged SEQRA violation and, accordingly, need not allege a specific harm.

For an association or an organization to establish standing, it must satisfy three requirements. It must show that (1) one or more of its members would have standing to sue; (2) the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests; and (3) neither the asserted claim nor the appropriate relief requires the participation of the individual members. In the case of associations or organizations dedicated to environmental preservation seeking to represent the interests of persons threatened with environmental harm, in-fact injury within the zone of interest of environmental statutes has been established by proof that the challenged agency action will directly harm association members in their use and enjoyment of the affected natural resources.

D RIPENESS/MOOTNESS

1. RIPENESS

The issue of ripeness usually comes up when a litigant seeks a judgment declaring either its rights or the interpretation of a particular statute or state of facts. As a general rule, courts should decline to provide what is considered “discretionary relief,” such as declaratory judgments to administrative determinations unless the matter arises in the context of a controversy “ripe” for judicial resolution.34

The “ripeness” doctrine and the related rule that there must be an actual controversy between genuine disputants with a stake in the outcome, serve to conserve the time and expense of the courts for problems that are real and present or at least imminent, so as not to squander the time and expense of the courts on abstract or hypothetical or remote problems. Consistent with that policy the courts have dismissed actions which would soon become moot or might be contingent upon events which may not come to pass. A two-part analysis has been utilized for determining whether a pre-enforcement challenge to an administrative regulation or statute is ripe for judicial review. First, the court must determine whether the issues presented are “appropriate” for judicial resolution, and second the court must assess the hardship to the parties if judicial relief is denied.

The "appropriateness" inquiry looks again to two issues: was the administrative action which is sought to be reviewed “final” and may the issues be determined as a "purely legal" question. The concept of “finality” requires an examination of the completeness of the administrative action and an evaluation of whether the "decision-maker” has arrived at a definitive position on the issue that inflicts the injury. Even if an administrative action is final, however, it will still be "inappropriate" for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues or consideration of extraneous problems or factors beyond the legal question presented.

The second part of the inquiry requires an evaluation of the hardship to the parties of withholding a court determination. The effect on the administrative agency and its program and the need for judicial economy should be taken into account as well as the degree of hardship to the challenging party. Essentially, this inquiry, from the standpoint of the challenging party, entails an examination of the certainty and effect of the harm claimed to be caused by the administrative action: whether it is sufficiently direct and immediate and whether the action's effects have been felt in a concrete way. If the anticipated harm is insignificant, remote, or contingent the controversy is not ripe.

Based upon the foregoing, it has been held that the issues cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. For example, a court has held that a plaintiff's claim that zoning laws had effected a taking of its property was not ripe because plaintiff had not sought variances which would have allowed it to develop the property; and a court has rejected as premature a plaintiff's claim that a Federal mining control statute was unconstitutional, because if the owners had sought administrative relief under available procedures, a mutually acceptable solution might well have been reached, thereby obviating any need to address the constitutional questions.

The ripeness requirement that a plaintiff must make use of available administrative means to forestall the alleged harm should not be confused with the requirement that administrative remedies must be exhausted before an action may be judicially reviewed. Ripeness pertains to the administrative action which produces the alleged harm to plaintiff; the focus of the inquiry is on the finality and effect of the challenged action and whether harm from it might be prevented or cured by administrative means available to the plaintiff. The focus of the "exhaustion" requirement, on the other hand, is not on the challenged action itself, but on whether administrative procedures are available to review that action and whether those procedures have been exhausted.

2. EXHAUSTION OF ADMINISTRATIVE REMEDIES

If someone wishes to bring an action or a proceeding in court to challenge an act of an administrative agency, it must first exhaust its available administrative remedies.

“This doctrine furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a coordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its ‘expertise and judgment’."35

Notwithstanding the general rule, there are many instances, when such “exhaustion’’ is not required, for example: when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power;36 when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury;37 when a property owner seeks to utilize its property in a manner absolutely prohibited by the zoning classification, and attacks the validity of the zoning ordinance itself as confiscatory;38 or when a property owner contends that the requirements of the Zoning Ordinance and the Building Code are arbitrary, unreasonable, and unconstitutional.39

As another aspect of the doctrine of exhaustion of administrative remedies, the courts generally refuse to review a determination on environmental or zoning matters based on evidence or arguments that were not presented during the proceedings before the lead agency.40

3. MOOTNESS

Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy. Where the change in circumstances involves a construction project, a court will look to see how far the work has progressed towards completion.41 In an Article 78 proceeding commenced to challenge the granting of variances to construct a single-family dwelling, in the absence of bad faith in completing the construction of the subject dwelling, the Appellate Division upheld the dismissal of the proceeding as academic.42 The courts have held that a race to completion should not by itself be determinative, other factors such as whether a challenger failed to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation; whether work was undertaken without authority or in bad faith; whether substantially completed work could be readily undone, without undue hardship;43 or whether novel issues or public interests, such as environmental concerns, warrant continuing review.44

Three related doctrines should also be noted.

(a) A claim asserted following unreasonable delay may be barred by the equitable doctrine of laches.45

(b) The doctrine of vested rights, partly grounded in equitable estoppel principles, may entitle a landowner to continue a nonconforming use where the owner made substantial expenditures prior to the amendment of applicable zoning laws.46

(c) The doctrine that the court will apply the law in effect when it is making its decision may nullify a validly commenced Article 78 proceeding based upon a mistaken interpretation of the municipal zoning regulations.47

For example, as to the last mentioned doctrine, if the basis of your Article 78 proceeding was that a building inspector and/or a board of appeals misinterpreted the local zoning code, the board of trustees may amend the code during the Article 78 proceeding to conform with the interpretation of the building inspector and/or the board of appeals, and the court will then apply the law in effect when it is making its decision (even if the statute is first amended on appeal from the supreme court to the appellate division), not the law as it was in effect at the time of your application to the building department, or your appearance before board of appeals, or even your argument to the supreme court. Similarly, if you challenge the denial of a building permit and the zoning is amended to preclude the use for which you wanted to build the building, the courts are obliged to apply the new law.48

E. APPELLATE REVIEW

1. ARTICLE 78 PROCEEDINGS

(a) SUBSTANTIAL EVIDENCE TEST.

Any aggrieved person may make application to the supreme court to challenge the determination of a board of appeals, a planning board, or of any officer, department, or other board or bureau of a village, pursuant to Article 78.49 If upon the hearing by the supreme court, it appears to the court that testimony is necessary to properly dispose of the case, the court has the power to take evidence or to appoint a referee to take such evidence as the court may direct.50 Usually, the appeal is taken after the particular board has held a hearing and the sole issue will be whether or not, based upon that record, the board’s determination was illegal, arbitrary, or an abuse of discretion.51

The general rule is that the determination of a board, which made its determination after a hearing, must be upheld if it is supported by substantial evidence in the record. Accordingly, the court’s function in an Article 78 proceeding which has been commenced to challenge the determination of a board of appeals after a hearing is limited to reviewing whether such determination is supported by substantial evidence.52 The court cannot substitute its judgment for that of a board of appeals, and because the determination of a board of appeals is presumed to be correct, it cannot be set aside unless it is arbitrary and capricious.53

As a matter of law, the decision of a board of appeals cannot be arbitrary and capricious if it is supported by substantial evidence. The substantial evidence test is met when, from the record considered as a whole, there is a rational basis for sustaining the board’s determination.54 Substantial evidence is more than mere conjecture or bare surmise, but is less than a preponderance of the evidence, overwhelming evidence, or evidence beyond a reasonable doubt. It consists of proof within the record taken as a whole, of such quality and quantity, that, from the evidence submitted, it can be concluded the board’s determination was reasonably and logically reached.55

Another definition of “substantial evidence” is that the record contains evidence consisting of such relevant proof as a reasonable mind may accept as adequate to support a conclusion of ultimate fact.56

Perhaps the best explanation was offered more than 60 years ago:

“Where there is conflict in the testimony produced before the Board, where reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another witness be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the Board. The Courts may not weigh the evidence or reject the choice made by the Board where the evidence is conflicting and room for choice exists.”57

A determination which is supported by substantial evidence cannot be arbitrary and capricious because the rationality of the decision of the board is what is being reviewed.58

Perhaps the most important recent case on this issue is the Court of Appeals decision in Ifrah v. Utschig, 98 N.Y.2d 304 (2002). I highlight this case because, although it did not state any new law, it reviewed a set of facts upon which the appellate division, based upon precedent, could rightly have assumed that the board of appeals had acted in an arbitrary and capricious manner, based upon the large number of nonconforming lots in the area,59 and reversed the appellate division, reinstating the determination of the board of appeals, mentioning other significant factors which the board of appeals properly relied upon in making its determination.60 The case is important because I see it as part of a major recent swing by the Court of Appeals in support of local zoning board determinations.

(b) BOARD MEMBERS MAY RELY UPON THEIR OWN KNOWLEDGE

The members of a board may use their own knowledge in rendering a determination. Members of such boards commonly are persons who have resided in the community for many years and are selected, at least in part, because of their presumed knowledge of the community and its problems.61 They should not be expected to decide issues without utilizing that knowledge, nor would it be wise for them to do so.62 Accordingly, a board may act upon its own knowledge of conditions and/or its personal inspection.63 And, while the comments of neighboring residents may be emotional, those comments, taken together with the personal knowledge and familiarity that board members have of a project may be sufficient to sustain a board’s determination that a proposed project will have an adverse impact.64

Moreover, the members of a board, using their “common sense judgment,” have the authority to rationally reject the assurances of an applicant’s expert when he opines that the granting of an application will not adversely impact upon the community, when that judgment establishes a rational basis to find that, if approved, the use would be inimical to the public health and welfare.65

However, if a board does rely upon its own knowledge or a personal inspection, it must set forth in its return to the court the facts known to the members, but not otherwise disclosed.66 It is usually best to set forth such facts either during the hearing or in the board’s determination.

2. PLENARY ACTIONS CHALLENGING REZONING.

Generally, it has been said that in order to challenge a rezoning, a party has to overcome the presumption of the law's validity and prove the unconstitutionality of the rezoning beyond a reasonable doubt.67 One of the strongest cases to support that concept dealt with the Town of Mamaroneck rezoning a 150-acre tract of land, which had been used as a country club since 1921. The Town rezoned the property from single-family homes to a Recreation Zone.68 In upholding the rezoning, the court stated an important principle that is worth quoting:

“That defendant Board had before it other less restrictive options to choose from in arriving at its ultimate conclusion with respect to zoning is irrelevant So long as the method and solution the Board eventually chose substantially advances the public interest, it is not this Court’s place to substitute its own judgment for that of the Zoning Board. . . . it is similarly not for this Court to determine if, in regulating land use, the rezoning determination was more stringent than one might reasonably conclude was necessary to further public objectives (. . . . [‘That a land use regulation may be somewhat overinclusive or underinclusive is, of course, no justification for rejecting it’]).”69

3. SETTLEMENT WITH VILLAGE BOARD OF TRUSTEES

Note that in settling a matter with a village board of trustees or a town board, such board may not usurp the jurisdiction of its local zoning board of appeals and may not settle a matter which, in substance, grants a variance without having followed the required procedures and involvement of the board of appeals. Any such settlement can be set aside.70

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1 Village Law § 7-712-c(1); see also Town Law § 267-c(1).

2Village Law § 7-740; see also Town Law § 282 and General City Law § 38.

3Gernatt Asphalt Products v. Town of Sardinia, 87 N.Y.2d 668 (1996).

4DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91 (2001).

5Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989).

6Sometimes the village can create that statutory authority pursuant to the Municipal Home Rule Law, but it may have to do so by expressly superseding the Village Law. See Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989), invalidating a required park fee for site planning approval without having indicated an intent to supersede the Town Law.

7Phillips v. Town of Clifton Park Water Authority, 286 A.D.2d 834, 835 (3rd Dept. 2001), appeal denied 97 N.Y.2d 613 (2002).

8Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158 (1976).

9 Phillips v. Town of Clifton Park Water Authority, 286 A.D.2d 834 (3rd Dept. 2001), appeal denied 97 N.Y.2d 613 (2002). The Town had argued that it is not fair to charge existing users for capital improvements to meet new demand created by growth generally, what the court classified as a classic "welcome stranger" philosophy. The court said while there might be a strong equitable concept to support the philosophy, the philosophy is not well grounded in law. Because the subject fee imposes the burden of the capital improvements upon a discrete group of residents, when, in fact, the benefit of the capital improvements is to be enjoyed by all, the fee, in substance, is that of an unauthorized, and therefore prohibited, tax.

10See, Goshen LLC v. Village of Goshen, 289 F. Supp.2d 441 (S.D.N.Y. 2004) affirmed ___ F.3d ___, 2004 U.S. App. LEXIS 20871 (2nd Circ. 2004), which clearly sets forth the requirements for both 42 USC § 1983 “takings” claims and United States Constitution 14th Amendment “due process” claims. § 1983 provides, in pertinent part, that a person cannot be deprived of his or her property under color of law. For § 1983 taking claims, plaintiff must meet a two pronged test for ripeness: (1) there must be a final decision and (2) if the municipality provides a reasonable and adequate provision for obtaining compensation, the plaintiff must first seek compensation from the municipality.

The 14th Amendment provides, in pertinent part, that a person cannot be deprived of his or her property without due process of law. For “due process” claims, the plaintiff must prove that he has a constitutionally protected property interest, and then establish the deprivation without due process. The “due process” property interest must be based upon a legitimate claim of entitlement, and not just an abstract need or desire for it. In zoning cases, the main element in determining the existence of a property interest is often the extent to which the deciding village board may exercise discretion in reaching its decision. If the village board has discretion, the plaintiff does not have a vested right.

11Westchester Day Sch. v. Village of Mamaroneck, 386 F.3d 183 (2nd Circ. 2004).

12Crowley v. Courville, 76 F.3d 47 (2nd Cir. 1996)

13Bower Assocs. v. Town of Pleasant Valley, 2 N.Y.3d 617 (2004).

14Bower Assocs. v. Town of Pleasant Valley, 2 N.Y.3d 617 (2004).

15Village Law 7-712-a(5)(b) and Town Law § 267-a(5)(b).

16Village Law § 7-712-c; Village Law § 7-740; from the filing of the decision with the town clerk Town Law § 267-c and Town Law § 282.

17Village Law § 7-712-a; Town Law § 267-a. For an interesting discussion of what constitutes the filing of the decision, see Stanley v. Board of Appeals, 168 Misc. 797 (Sup. Ct. Rockland Co. 1938)

18Arrandale Civic Assoc. v. Zon. Bd. of App. Vill. of Great Neck (Sup. Ct. Nassau Co., J. Galasso, November 3, 2004)

19Scurka v.Carnazza, ___A.D.3d ___, 784 N.Y.S.2d 625 (2nd Dept. 2004).

20Save the Pine Bush, Inc. v. Albany, 70 N.Y.2d 193 (1987); and Steen v. Quaker State Corp., ___A.D.3d ___, 785 N.Y.S.2d 55 (3rd Dept. 2004).

21Matter of Tall Trees Construction Corp. v. Zoning Board of Appeals of Town of Huntington, 97 N.Y.2d 86 (2001).

22Eastport Alliance v. Lofaro, ___A.D.3d ____, 787 N.Y.S.2d 787 (2nd Dept. 2004).

23Smith v. Town of Plattekill, ___ A.D.3d ___, 787 N.Y.S.2d 406 (3rd Dept. 2004).

24GML § 50-e(1)(a) and § 50-i(1). Rattner v. Planning com. of Pleasantville, 156 A.D.2d 521 (2nd Dept. 1989), appeal dismissed 75. N.Y.2d 897 (1990).

25Lopez v. Shaughnessy, 260 A.D.2d 551 (2nd Dept. 1999) and CPLR § 214.

26Ferruggia v. Zoning Bd. of Appeals, 5 A.D.3d 682 (2nd Dept. 2004).

27Ferrando v. N.Y. City Bd. of Stds. & Appeals, ___ A.D.3d ___, 785 N.Y.S.2d 62 (1st Dept. 2004).

28Headriver, LLC v. Town Bd., 2 N.Y.3d 766 (2004). This holding can cause unusual situations when, as in the cited case, the town had approved the application on a 3-2 vote, but the application was deemed denied because a super majority vote was required to override the commission’s recommendation to deny the application. In such proceedings, the town is placed in the position of having to defend the denial of an application that, by a majority vote, it would have approved.

29Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6 (1975).

30Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals of the Town of North Hempstead, 69 N.Y.2d 406 (1987).

31Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals of the Town of North Hempstead, 69 N.Y.2d 406 (1987).

32See Douglaston Civic Association, Inc. v. Galvin, 36 N.Y.2d 1 (1974) for the support of the statements in this paragraph.

33Perhaps the leading case on this issue is The Society of the Plastics Industry, Inc., v. County of Suffolk, 77 N.Y.2d 761, (1991), which recently was concisely summarized in Croton Watershed Clean Water Coalition Inc. v. Planning Board of the Town of Southeast, 5 Misc. 3d 1010A, 2004 N.Y. Misc. LEXIS 2037 (Sup Ct Westchester Co, 2004) and paraphrased by me in the following three paragraphs.

34Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510 (1986) is freely quoted, without quotation marks, and paraphrased by me in this part of my presentation with regard to “ripeness”.

35Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52 (1978).

36Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52 (1978).

37Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52 (1978).

38Grimpel Associates v. Cohalan, 41 N.Y.2d 431 (1977).

39Cherry v. Brumbaugh, 255 A.D. 880 (2nd Dept. 1938).

40Miller v. Kozakiewicz, 300 A.D.2d 399 (2nd Dept. 2002).

41Citineighbors Coalition of Historic Carnegie Hill v. N.Y. City Landmarks Pres. Comm'n, 2 N.Y.3d 727 (2004).

42Downes v. Town of Southampton ____A.D.3d ___, NYLJ 2/14/05, p. 34, col. 6 (2nd Dept 2005).

43Citineighbors Coalition of Historic Carnegie Hill v. N.Y. City Landmarks Pres. Comm'n, 2 N.Y.3d 727 (2004).

44Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165 (2002).

45Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165 (2002); and Stockdale v. Hughes, 189 A.D.2d 1065 (3rd Dept. 1993).

46Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165 (2002); and Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 N.Y.2d 114 (1990).

47Sexton v. Zoning Bd. of App. of Oyster Bay, 300 A.D.2d 494 (2nd Dept. 2002), and Evans v. Town of Greenfield Zoning Bd., 3 A.D.3d 705 (3rd Dept. 2004).

48Ronsvalle v. Totman, 303 A.D.2d 897 (3rd Dept. 2003); and D’Agostino Brothers Enterprises v. Vecchio, __ A.D.3d ___, 786 N.Y.S.2d 90 (2nd Dept. 2004).

49Village Law § 7-712-c [specifically with regard to boards of appeals]; Village § 7-740 [specifically with regard to planning boards]; Town Law § 267-c [specifically with regard to boards of appeals]; and Town Law § 282 [specifically with regard to planning boards].

50Village Law § 7-712-c [specifically with regard to boards of appeals]; Village § 7-740 [specifically with regard to planning boards]; Town Law § 267-c [specifically with regard to boards of appeals]; and Town Law § 282 [specifically with regard to planning boards].

51St. Onge v. Donovan, 71 N.Y.2d 507 (1988).

52Cowan v. Kern, 41 N.Y.2d 591 (1977); and DaSilva v. Zoning Bd. of Appeals, 255 A.D.2d 458 (2nd Dept. 1999), appeal denied 94 N.Y.2d 761 (2000).

53People ex rel Hudson-Harlem Valley Title & Mortgage Co. v. Walker, 282 N.Y. 400 (1940); and Community Synagogue v. Bates, 1 N.Y.2d 445 (1956).

54Purdy v. Kriesberg, 47 N.Y.2d 354 (1979); Elliott v. New York City Loft Bd., 205 A.D.2d 460 (1st Dept. 1994); and Imhof v. Zoning Bd. of Appeals, ___ A.D.3d ___, 789 N.Y.S.2d 54 (2d Dept. 2004).

55300 Gramatan Ave. Associates v. State Division of Human Rights, 45 N.Y.2d 176 (1978).

56Party City Nanuet v. Bd. Appeal Town of Clarkstown, 212 A.D.2d 618 (2nd Dept. 1995).

57Stork Restaurant Inc. v. Boland, 282 N.Y. 256 (1940).

58Pell v. Board of Education, 34 N.Y.2d 222 (1974); and K & Y Corp. v. Duffy, 190 A.D.2d 672 (2nd Dept. 1993).

59 33 of the 39 lots within 500 feet of petitioner's parcel were substandard, and 20 of those 39 lots were smaller than the smaller of the two lots that would be created by the subdivision.

60The architectural style of the houses, built more than 60 years ago, which would be disturbed by the addition of a modern home on the subdivision; there was a 50-foot average spacing between the existing residences and the frontages on the street give the impression of larger lots: and evidence of traffic flow, safety, and parking impacts.

612 Salkin, New York Zoning Law and Practice (4th Ed.) §28.18.

622 Salkin, New York Zoning Law and Practice (4th Ed.) §28.18.

63Community Synagogue v. Bates, 1 N.Y.2d 445 (1956); and 2 Salkin, New York Zoning Law and Practice (4th Ed.) §28.18.

64Brick Hill Const. Corp. v. Zoning Bd. of Appeals, 74 A.D.2d 810 (2nd Dept. 1980), affirmed 53 N.Y.2d 621 (1981).

65Market Square v. Town of Guilerland, 109 A.D.2d 164 (3d Dept. 1985), affirmed 66 N.Y.2d 893 (1985).

66Community Synagogue v. Bates, 1 N.Y.2d 445 (1956).

67Village of Valatie v. Smith, 83 N.Y.2d 396 (1994).

68Bonnie Briar Syndicate, Inc., v. Town of Mamaroneck, 94 N.Y. 2d 96 (1999). Although Bonnie had substantial discussion about the issue of a zoning law as a “regulatory taking,” that issue is not addressed here because it is covered by another speaker at today’s program.

69Bonnie Briar Syndicate, Inc., v. Town of Mamaroneck, 94 N.Y. 2d 96 (1999). /p>

70 Buckley v. Town of Wappinger, ___ A.D.3d ___. 785 N.Y.S.2d 98 (2nd Dept. 2004).

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