|CASE UPDATE REPORT
Elizabeth Cassidy and Christine Kowalski
The Land Use Law Center is pleased to present this edition of the Case Update Newsletter. We hope to continue the Land Use Law Center’s traditional and unique focus on land use issues that are important to the New York practitioner and local official. The newsletter will summarize relevant State and Federal judicial decisions, and provide links to these decisions if possible. Although these summaries have been carefully researched and written by law students these summaries are not offered as definitive work on the cases. Please consult the full case and/or an experienced land use attorney.
United States Court of Appeal, Second Circuit
Goldstein v. Pataki, No 07-2537-cv (2d Cir. Feb. 1, 2008).
The Atlantic Yards project meets the public use requirement under eminent domain law. This case arises from the proposed use of eminent domain for the Atlantic Yards project in Brooklyn, New York. The Plaintiffs are group of property owners whose property lies within the takings area. This action was originally brought in the Eastern District of New York against Bruce Rather, the developer of the project and various officials and agencies of New York City and New York State. The action alleges that the use of eminent domain in this case violates the “Public Use” Clause of the Fifth Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
The focus of the appeal is on the public use claim. The plaintiff-appellants contend that the District Court overlooked substantial allegations that the public uses described by the defendant-appellees are mere pretexts. The court groups the allegations into five discrete categories: Bruce Ratner was the impetus behind the project; the MTA departed from convention in awarding Ratner the Atlantic Yards Project; public uses which justify eminent domain are post hoc justifications; public review process was a sham; lastly, references to other lawsuits regarding the Atlantic Yards project but do not address whether the public use of the Project was pretextual.
The Court’s opinion focused on the pretext claims. The Court ultimately held that the pretext argument fails because the project bears “at least a rational relationship to several well-established categories of public uses among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass transit improvements.” As such the federal claims challenging the takings in the Atlantic Yards project are dismissed.
N.Y. Supreme Court, Appellate Division
Annabi v. City Council of City of Yonkers,
2008 WL 258165 (N.Y.A.D. 2 Dept.)
City ordinance not referred to county planning board rendered ordinance invalid. The City Council wished to approve an 81.4 acre mixed-use development project. The Westchester County Planning Board, however, recommended that the project be significantly modified. When the County Planning Board recommends modification or disapproval of the project, the City Council must approve with a supermajority of its members. In response to the Planning Board’s recommendation to modify or disapprove the project, the Yonker’s City Council enacted a new ordinance which removed the supermajority requirement to overturn the Planning Board’s negative recommendation. The issue in the case is whether the ordinance was properly enacted and properly referred to the County Planning Board as required by General Municipal Law (GML) § 239-m. GML § 239-m requires that all zoning actions and amendments affecting real property within 500 feet of a municipal boundary must be referred to the County Planning Board. Both the Supreme Court and the Second Department found that the ordinance affects the entire city and thus is within 500 feet of a municipal boundary. Yonker’s failure to refer the ordinance to the County Planning Board is a jurisdictional defect which renders the ordinance invalid.
Paulsen Development Company of Albany, LLC, v. County of Schenectady Department of Engineering and Public Works & Town of Niskayuna Planning Board,
849 N.Y.S.2d 129 (3d Dept. 2008).
Engineering department acted arbitrarily when in failure to grant a permit to connect subdivision roads to existing roads because of too much traffic when a traffic report indicated that such a connection would not significantly impact traffic. Petitioners sought to develop 52 acres in Niskayuna (Schenectady County). The Niskayuna Planning Board granted preliminary approval subject to the condition that the subdivision roads connect to Lori Drive. The purpose of this condition is to connect city neighborhoods and make emergency vehicle access easier. Petitioners were also required to obtain a permit from the County of Schenectady Department of Engineering and Public Works because the subdivision would affect a county road. The Department of Engineering and Public Works, contrary to the Planning Board, indicated that it did not want the subdivision roads to connect to Lori Drive because there would be too much traffic. The petitioner filed this action seeking a judgment directing that either that Department of Engineering grant its permit or the Planning Board remove the condition requiring connection to Lori Drive. The Supreme Court granted relief against the Department of Engineering, which subsequently appealed. In its appeal, the Department argued that the Supreme Court erred in its decision because a county superintendent or director of public works is accorded considerable discretion in imposing upon permits terms and conditions. Reviewing the lower court decision under the arbitrary and capricious standard, the court found that the department had acted in an arbitrary manner. A traffic report stated that the proposed subdivision would not have a significant impact on the existing roadway system. Furthermore, evidence was presented that the proposed connections met “recognized traffic safety standards established by the Town of Niskayuna, New York State Department of Transportation…and the American Association of State Highway and Transportation Officials.” The Third Department held that the Department of Engineering had acted arbitrarily in light of such evidence.
Schiener v. Town of Sardinia,
2008 WL 344690 (N.Y.A.D. 4 Dept.)
Legal causes of action challenging procedures followed by Town Board in enactment of zoning ordinance are subject to four month statute of limitations pursuant to CPLR Article 78 while causes of action challenging the validity of the statute itself are subject to a six-year statute of limitations. In 2005, the Town of Sardinia adopted a Zoning ordinance. In response, plaintiff filed a complaint containing five causes of action. The first four causes of action related only to procedures followed in enacting the statute while the fifth cause of action challenged the validity of the statute itself as being inconsistent with the Comprehensive Plan as required by Town Law § 263. The Appellate Division modified the decision of the Supreme Court, holding that the Supreme Court properly ruled that the four causes of action were properly dismissed as time-barred, but the fifth cause of action, which challenged the substance of the statute itself, was subject to a six-year statute of limitation.
Advocates for Prattsburgh, Inc v. Steuben County Industrial Development Agency,
2008 WL 275101 (N.Y.A.D. 4 Dept.)
(1) Setback requirements restricting location of wind turbine generators did not amount to a de facto taking, (2) Industrial Development Agency was proper lead agency, and (3) Industrial Development Agency conducted adequate review. Ecogen, LLC proposed construction and operation of a wind farm which would be located partially in the Town of Prattsburgh (Steuben County) and partially in the Town of Italy (Yates County). The Steuben County Industrial Development Agency (SCIDA), acting as the lead agency for State Environmental Quality Review Act (SEQRA) purposes, approved a final generic environmental impact statement.
Petitioners claimed that the setback requirements amounted to a de facto taking. The court held that the setback requirements did not amount to a de facto taking because they did not place any restrictions upon property owners who do not consent to having wind turbine generators on their property. The Court cited Cities Serv. Oil Co. v. City of New York, 5 N.Y.2d 110,117 (1958), which held that ‘acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking with the meaning of the constitutional provision.’
Petitioners contended that SCIDA was not the proper lead agency for purposes of SEQRA review, but the court held that this contention was without merit. Industrial development agencies have statutory authority to provide financial assistance to projects for the benefit of their jurisdiction. Where an industrial development agency notifies other involved agencies of intent to serve as lead agency and no interested agency objects, and the record establishes that, prior to assuming the status of lead agency, SCIDA notified the other involved agencies and received no objection. Though SCIDA cannot fund a project occurring partially outside Steuben County without the consent of other involved municipalities, failure to obtain consent before SEQRA review begins does not affect status as lead agency because all conditions precedent to funding be met before an agency assumes status of lead agency.
The Court held that SCIDA conducted adequate SEQRA review. After “reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion,”1 the Court found that SCIDA took the requisite “hard look” in approving the final generic environmental impact statement.
Supreme Court of New York
Brander v. Town of Warren Town Board,
847 N.Y.S.2d 450 (2007)
Special use permits granted by Town Boards are annulled for failure to comply with SEQRA – lead agency failed to consider possible alternatives to proposal, failed to timely address mitigation issues, and improperly assigned SEQRA duties to other agencies. Petitioners from Towns of Warren and Stark filed Article 78 proceeding against the respective Town Boards challenging special use permits granted by the boards to authorize the construction of the Jordanville Wind Power Project. Petitioners alleged that Town Boards violated SEQR. With respect to the State Environmental Quality Review Act (SEQRA), the court held that: (1) Scoping was not required by regulation or Town Board, but the (2) Hard look requirement not satisfied.
With respect to the investigation of proposed alternatives, the Court must ensure that the lead agency has satisfied substantive and procedural requirements of SEQRA and its regulations. In order for alternatives to be meaningful, any choice among alternatives must be based on an awareness of all reasonable options. Court found that boards failed to consider all reasonable options because they failed to evaluate possible alternative involving fewer or shorter turbines, the phasing in of turbines, the location of turbines. Boards also didn’t provide the level of detail necessary to permit comparable assessment of those alternatives (nothing showed that a project of a different scale was infeasible).
The Supreme Court held that granting the special use permits was arbitrary and capricious because the towns deferred mitigation issues until the completion of SEQRA process, which denied petitioners and other members of public their intended input with respect to whether such analysis and mitigation is appropriate and acceptable (specifically addressing historic preservation, noise, and avian impacts).
The Supreme Court also held that by improperly relying on plans for future mitigation and assigning those duties to other agencies such as the public service commission and Office of Parks Recreation and Historic Preservation, the board failed to take requisite hard look at an area of environmental concerns.