Petitioners/plaintiffs, Soldatenko, et al., are the owners of property in the Village of Scarsdale. In May 2012, the plaintiffs made a “Request for Interpretation” to the Village Building Inspector, seeking a ruling that the lots were buildable as of right. The plaintiffs referred to the lots collectively as “Lot 117,” a designation from a 1926 subdivision map that was filed with the Village. The plaintiffs acknowledged that the lot was nonconforming under the current Zoning Law of the Village because it lacked the required street frontage, but they argued that the lot qualified as a buildable lot under the criteria of certain grandfathering provisions of the Zoning Law. The Village Building Inspector held that the subject lot was an existing nonconforming unimproved lot that lacked the necessary frontage required. The plaintiffs appealed his determination to the Village Board of Appeals. The Village Board of Appeals affirmed relying on Village Law § 7–736, which provided that “no permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan.” The plaintiffs thereafter commenced a proceeding to annul the determination. The plaintiffs acknowledged that a 1966 amendment to the official Village map resulted in “a complete loss of street frontage” for the subject lot, rendering it a nonconforming lot. But, they maintained that the lot could be developed as of right pursuant to the grandfathering provisions. The lower court agreed to annul because the Village Board’s interpretation of Village Law § 7–736 was “unreasonable.” Although the statute created “a potential obstacle to the issuance of a building permit,” it also provided for the possibility of an exception or a variance.

The appellate court stated that contrary to the determination of the lower court, the Village Board’s interpretation of Village Law § 7–736 was not unreasonable. Although an applicant can seek a variance from the statute’s requirements, the issue before the Village Board was whether the plaintiffs were entitled to develop the property as of right. The Village Board properly concluded that they could not because the lot failed to meet the access requirements of Village Law § 7–736. Consequently, the court should have confirmed the Village Board’s determination.

Soldatenko v Village of Scarsdale Zoning Bd. of Appeals, 2016 WL 1576925 (NYAD 2 Dept. 4/20/2016)


Petitioner Applebaum commenced a proceeding to review a determination of the respondent Village of Great Neck Board of Appeals granting an application of the respondent Old Mill II, LLC for variances and site plan approval. The trial court denied the petition and Petitioner appealed.

The appellate court affirmed and held that the board was entitled to rely on letters it obtained from municipal officials in making the zoning determination. “A determination of a zoning board should be sustained upon judicial review if it is not illegal, has a rational basis, and is not arbitrary and capricious” The determination to grant the application had a rational basis and was not arbitrary and capricious. There was no merit to the petitioner’s claim that the Board, in rendering its determination, improperly relied on letters it obtained from the Chief of the Great Neck Alert Fire Company and the Village of Great Neck Building Department without affording her an opportunity to respond, as the letters, which did not contain any new factual allegations, were prepared by municipal officials without a vested interest in the decision.

Applebaum v Village of Great Neck Bd. of Appeals, 2016 WL 1442271 (NYAD 2 Dept. 4/13/2016)


In 2007, Miller Beach Surf Club, Inc. (Surf Club), submitted applications to the Board of Zoning Appeals of the Town of Brookhaven (BZA) for certificates of an existing use and for an extension of a nonconforming use. The BZA granted the applications. In 2008, the petitioner Martinos commenced a proceeding to annul the BZA’s determination. The trial court granted the petition, annulled the determination, and remitted the matter to the BZA for a new determination.

Following remittal, the BZA granted the Surf Club’s applications again. The petitioner commenced a second proceeding alleging that the BZA’s determination was arbitrary and capricious. The trial court denied the parts of the petition which were to annul the BZA’s determination to grant the applications for a certificate of existing use and an extension of nonconforming use. The petitioner appealed.

The appellate court reminded that determinations of local zoning boards are entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational. Further, the court noted that “… nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance.” “ The owner must establish that the allegedly pre-existing use or structure was legal prior to the enactment of the prohibitive zoning ordinance. Here, the Surf Club established that its existing use of the clubhouse, office building, and one-family dwelling were legal prior to the enactment of the zoning ordinance, which rendered that existing use nonconforming. The Surf Club established the existence of a legal nonconforming use. However, the Surf Club’s erection of the decks, the awning, the gazebo, and the detached shed and the completion of certain alterations to its clubhouse, constituted an impermissible extension of the nonconforming use, not just a mere increase in volume or intensity of the same nonconforming use. Therefore, the BZA’s determination to grant the Surf Club’s application violated the Code of Town of Brookhaven § 85–883(A)(2), which prohibited the extension of nonconforming uses. Accordingly, the portion of the BZA’s determination which granted the Surf Club’s application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the court below.

Martinos v Bd. of Zoning Appeals of Town of Brookhaven, 2016 WL 1442176 (NYAD 2 Dept. 4/13/2016)



New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T) wanted to construct a 125-foot cellular antenna tower in Lexington, Kentucky. It applied for permission to do so with the Lexington-Fayette Urban County Government (“LFUCG”) Planning Commission and the Commission granted the application. The plaintiffs, Robbins and Lutz, who reside near the site of the proposed tower, appealed the commission’s decision which was dismissed because the plaintiffs failed to name the property owners as required by Kentucky state statute, KRS 100.347(4). While their appeal was pending, the plaintiffs filed a civil action asserting state-law tort claims of negligence, negligence per se, nuisance, and gross negligence.

The Federal District Court noted that the plaintiffs’ complaint was primarily based on the negative health effects that they alleged could result from exposure to a cell tower’s radio-frequency (RF) emissions, and that they sought to certify a class of individuals living within 500 meters of the proposed tower. The plaintiffs asserted that studies show “increased prevalence of adverse neurobehavioral symptoms or cancer in populations living at distances less than 500 meters from cell phone towers.” However, any claim based on alleged damages from the tower’s RF emissions was preempted and must be dismissed. The Court noted that the Telecommunications Act of 1996 (TCA) expressly prohibits state and local governments or any instrumentality thereof from regulating the “placement, construction, and modification of personal wireless services facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

The plaintiffs also asserted that the proposed tower would damage their health and wellbeing because of its noise, light, and aesthetic pollution. Further, the proposed tower would interfere with the use and enjoyment of Plaintiffs’ properties resulting in the diminution of the fair market value” of their properties. The court stated that the LFUCG planning commission specifically approved of the proposed location and design for the tower when it approved AT&T’s application. Article 25, the local zoning ordinance specifically regulates tower location and sets forth design standards. The ordinance makes clear that, in approving AT&T’s application, the LFUCG approved of the tower site and design. Because the tower had not yet been constructed, the plaintiffs had no claims based on any damages that the tower has actually caused. Instead, their complaint was with the commission’s approval. They asserted that the approval had already damaged their property values and that the proposed tower violated certain unnamed sections of the local zoning ordinance. 

As to the negligence claim, the plaintiffs stated that the defendants breached the duty of care “as a result of their negligent design and siting of the cell tower despite strong and vocal opposition by the surrounding residential property owners.” The court stated that these were conclusory allegations that cannot defeat a motion to dismiss.

Robbins v New Cingular Wireless PCS, LLC, 2016 WL 1089252 (EDKY 3/18/2016)


In 1979, Resha was notified by letter from the Metropolitan Department of Codes Administration that his property was in violation of a zoning ordinance that allowed a maximum of two dwelling units in the area at that time. Resha’s property contained five dwelling units. He was instructed to bring the buildings and premises into compliance with the zoning regulation and he appealed the zoning administrator’s decision to the board of zoning appeals (“BZA”), which permitted him to retain the five units for as long as he owned the property. In 2014, Resha wanted to sell the property so he petitioned the zoning administrator to remove the ownership condition so that another owner could maintain the five units on the property. The zoning administrator denied the application, and Resha appealed to the BZA, which removed the ownership condition.

Five neighbor property owners (“Homeowners”) challenged the BZA’s decision. The lower court vacated the BZA’s decision, finding that the BZA acted arbitrarily in removing the ownership condition and then failing to consider the effect of the decision of the creation of a new permanent variance without a determination that the property met the statutory standards. The matter was remanded to the BZA and Resha appealed. The Court affirmed. The Court did not buy Resha’s argument that the Homeowner’s were attacking the 1979 BZA decision long after the running of the statute of limitations since Resha himself triggered the current case when he filed another appeal with the BZA in 2014. The BZA’s action in the 2014 case changed the nature of the underlying variance. The courts have held that the sixty-day statute of limitations for filing a petition for writ of certiorari from the decision of an administrative tribunal is jurisdictional. The Homeowners got involved to oppose Resha’s request to allow the variance to apply to other owners and then filed a petition for writ of certiorari to challenge the BZA’s decision. This petition for writ of certiorari was filed within sixty days of the BZA decision.

The parties in the case agreed that the BZA properly removed the condition limiting the variance to Mr. Resha. A permit or variance to use land for a certain purpose is not personal to the owner but is a condition that runs with the land. The point of contention is whether the BZA should have gone further and considered the effect of this decision on the underlying variance. Tenn.Code Ann. § 13–7–207(3) states that variances are to be granted based only upon the condition of the property itself and resulting practical difficulties or undue hardship. Section 17.40.370 of the Metropolitan Government of Nashville and Davidson County—Code of Ordinances (“Metro Code”) states that the BZA “shall not grant a variance without an affirmative finding of fact on each of the following standards,” based upon the evidence presented of Physical Characteristics, Unique Characteristics, Hardship Not Self–Imposed, Financial Gain Not Only Basis, Financial gain is not the sole basis for granting the variance, No Injury to Neighboring Property, No Harm to Public Welfare, The granting of the variance will not be detrimental to the public welfare and will not substantially impair the intent and purpose of this Zoning Code, and the Integrity of Master Development Plan. The Court noted that Section 17.40.390 of the Metro Code provided that in the approval of a request for a variance, “findings shall specifically identify the unique characteristics of the property and the precise nature of the hardship”; in the case of a denial of such a request, “findings shall specifically identify the standards that were not met.” Here, no such findings were made by the BZA.

The Court said that by considering only the legality of the condition attached to the variance, the BZA acted arbitrarily. Taking away the limitation that the five-unit condition would only apply to Resha meant that there was a permanent use variance on that piece of property. This changed the nature of the variance. They agreed with the following conclusions of the court below that removing the condition but failing to address the effect of the decision was an arbitrary action by the Board. The Court further finds that the BZA acted outside of its jurisdiction when it essentially awarded Resha a new and permanent variance without assuring that the property met the necessary standards mandated by Tenn.Code Ann. § 13[7–207(3)] and Metro Zoning Code § 17.40.360. Although the Homeowners argued that the underlying variance was void as a matter of law, the court believed that the trial court properly vacated the BZA order and remanded for further consideration. The factors relevant to whether the property at issue meets the criteria described in Tenn.Code Ann. § 13–7–207 and Metro Code § 17.40.370 have not been developed or considered by the BZA.

Bell v Metro. Govt. of Nashville and Davidson County, 2016 WL 1119152 (TN App. 3/21/2016)

The Arrudas purchased a convenience store located in the town of Westport in 2005 on land that currently zoned for residential use. The store operates as a lawful, preexisting nonconforming use. The store was within commonly owned commercial space that also contained a beauty shop and an insurance company. In 2006, the Arrudas sought permission from the Westport zoning board to enlarge the convenience store by encapsulating the space then reserved for the beauty shop and the insurance company. The Arrudas also sought permission to sell beer and wine at the store. After a public hearing, the board granted permission for the store’s expansion but denied permission to sell beer and wine. No one appealed the board’s decision.

In September, 2011, the Arrudas leased the store to Rego while maintaining ownership of the property. The Arrudas again petitioned the zoning board allowing the sale of beer and wine at the store. The board voted unanimously in favor of the Arrudas on the ground that the addition of beer and wine sales to the store’s preexisting nonconforming use was not substantially more detrimental to the neighborhood.

Plaintiffs, abutters to the store, appealed. The lower court affirmed the board’s decision determining that the proposed sale of beer and wine failed to constitute a substantial change in use, and failed to constitute a detriment to the neighborhood. Abutters appealed again. The Appeals Court affirmed, holding that the owners’ proposed sale of beer and wine at store was not a substantial change in use and the convenience store was in operation before the land was zoned for residential use, thus, was protected as prior nonconforming use.

Pursuant to state statute (G.L. c. 40A, § 6), a prior nonconforming use of land is not subject to a later enacted ordinance or by-law. However, “any change or substantial extension of such use” falls outside this protection and therefore subject to later amendments to an ordinance or by-law. The question is whether the proposed use is a change or substantial extension under § 6. If the answer is “no,” then the proposed use is permitted as a protected prior nonconforming use. Moreover, under art. 4.1.2 even if the answer is “yes,” then the proposed use may be permitted if the board makes an additional finding that “such change shall not be substantially more detrimental than the existing non-conforming use to the neighborhood.” The three-prong test to determine whether a proposed use is a change or substantial extension and therefore subject to the prescribed finding requirement is: (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree, of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood. The burden is on the property owner to prove “the requisite similarity between the proposed use and the original nonconforming use” so as to have it protected as a prior nonconforming use.

Regarding Nature and purpose of prior use, the plaintiffs argued that the addition of beer and wine sales did not reflect the nature and purpose of the prior nonconforming use and therefore was not protected under G.L. c. 40A, § 6. However, the Court noted that the proposed sale of beer and wine “would occur in the same space as where other groceries and sundries are sold” and “those sales would integrate into the current operations of the store.” Here, the proposed use reflects the nature and the purpose of the prior use, thereby meeting the first prong of the test. The prior use consists of a neighborhood convenience store selling groceries and various sundries. The proposed use is the same, just with the addition of beer and wine. The court stated that their decisions did not require that a proposed use be indistinguishable from a prior use in order to be protected as a prior nonconforming use.

Regarding the Quality, character, and degree of use, the court stated the second prong may be satisfied when a proposed use is “reasonably adapted to the prior use,” is not “extraordinary or unreasonable,” and does not “change the fundamental nature of the original enterprise.” Here, the second prong of the test was satisfied. There was nothing to suggest that the proposed sale of beer and wine would change the quality and character, as well as the degree of use, of the convenience store. The beer and wine sales would not predominate but rather would “operate as an adjunct to the sale of groceries and sundries that the store presently sells.” The store’s twelve or thirteen beverage coolers, beer and wine would be placed in no more than five coolers. Furthermore, these products would occupy no more than twelve percent of the store’s space. The additional products simply reflect a small, reasonable expansion in convenience store inventory. Nothing in the record suggests that allocating twelve percent of a convenience store’s space to allow for beer and wine sales is an extraordinary or unreasonable change, nor would doing so change the fundamental nature of the convenience store.

Regarding different in kind in its effect on neighborhood, the plaintiffs pointed to potential increases in traffic and litter, as well as safety concerns related to inebriated customers. The court concluded that the third prong of the test was satisfied and that the sale of beer and wine would not affect the neighborhood in a way that is different in kind as compared to the current store. The court stated that although increased traffic is a legitimate consideration, the traffic concerns here “lie in the nature of the road” not the use of the store. Use of this road has increased in connection to population growth in the surrounding area. Furthermore, the topography of the road lended itself to speeding drivers. These factors were present regardless of whether the convenience store sold beer and wine. Similarly, any litter problems were likely to remain, notwithstanding the proposed use, because, it wad illogical that “an individual who purchases beer and wine is going to dispose of the container while out in the parking lot.” Further, the record did not support a finding that inebriated individuals would come to the store and be permitted to purchase beer and wine.

Almeida v Arruda, 89 Mass App Ct 241, 241-48 (MA App. 3/18/2016)

The City of Key West barred Buehrle from opening a tattoo parlor in the City’s designated historic district because of an ordinance that limited the number of tattoo parlors, permitting only two tattoo businesses as lawful non-conforming uses. It allowed these as part of the settlement of a prior lawsuit challenging the constitutionality of the ban. The City maintained that given its history, tattoo parlors were inconsistent with the historic character. It also feared that rash tourists would obtain regrettable tattoos, leading to negative association with Key West. Thus, it argued, permitting more tattoo parlors would adversely affect tourism.

Buehrle contended that the act of tattooing was entitled to First Amendment protection and that the ordinance was an unconstitutional restriction on his freedom of expression. The federal district court granted summary judgment for the City, and while agreeing with Buehrle that tattooing constitutes artistic expression protected by the First Amendment it nevertheless found the ordinance to be a reasonable time, place, and manner restriction.

The Eleventh Circuit Court of Appeals reversed and remanded, holding that as a matter of first impression, act of tattooing is artistic express protected by First Amendment; and that the city failed to meet its burden of demonstrating that ban served its alleged significant governmental interest of protecting historic district from deterioration.

While noting that the Court had never addressed whether tattooing was protected speech, it pointed to the Ninth Circuit decision in Anderson v. City of Hermosa Beach, where it held that tattooing was protected speech and that Hermosa Beach could not ban tattoo establishments from operating in the city. 621 F.3d 1051, 1055 (9th Cir.2010). The court joined the Ninth Circuit in holding that the First Amendment protected the act of tattooing because the court found tattooing to be virtually indistinguishable from other protected forms of artistic expression, noting that “A form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”

With respect to the City’s ban, the court noted that a municipality may regulate protected artistic expression only if the regulation is narrowly tailored to serve a significant governmental interest. The City argued that the ordinance’s purpose was to prevent the deterioration of the historic district. Specifically, the fear that allowing additional tattoo establishments to operate in the historic district would adversely impact the “character and fabric” of the district and thus the tourism. The Court observed that the City must demonstrate that it had a reasonable basis for believing that its regulation would further these legitimate interests. A municipality cannot “get away with shoddy data or reasoning. It “must rely on at least some pre-enactment evidence” that the regulation would serve its asserted interests. Such evidence can include anything “reasonably believed to be relevant—including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion.”

The court found that the City had failed to meet its burden. The only support for the City’s claim that the ordinance served significant governmental interests consists of statements by the City’s Director of Planning, in his deposition and an affidavit submitted in support of the City’s motion for summary judgment, asserting that Key West historically prohibited tattoo establishments from operating in the historic district; allowing tattoo establishments to operate there would impact the district’s “character and fabric,” which “could impact tourism”; and tourists might negatively associate Key West with tattoos that they had obtained there but come to regret.

However, the Court noted that these reasons were given in the context of Buehrle’s lawsuit, well after the enactment of the ordinance. They therefore could not serve as pre-enactment evidence that the ordinance served a significant governmental interest. Further, the court still found these statements inadequate because they were unsubstantiated. Significantly, the mere fact that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years did not support the conclusion that allowing more tattoo establishments would cause the district’s historical value to deteriorate and impact tourism. Even though the City conceded the absence of any ill effect as a result of the two tattoo establishments it currently allows to operate in the historic district, t failed to explain why allowing additional tattoo establishments to operate there would sour the district’s historical flavor, especially since the first two apparently have not done so. Particularly, there was a lack of evidentiary support for the City’s assertions concerning tattooing’s purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song.

The government bears the burden of showing that the articulated concern has more than merely speculative factual grounds. The City failed to satisfy its burden that it had a reasonable basis for believing that its ordinance would serve the significant governmental interests it propounds.

Buehrle v City of Key West., 813 F3d 973 (11th Cir. CA (FL) 12/29/15)

In 1987, in connection with a proposal to subdivide a 950-acre parcel of real property then owned by the plaintiffs/petitioners Leonard and Habiague in the Town of Union Vale, the Town Planning Board issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA). Thereafter plaintiffs/petitioners sought and received approval from the Planning Board to subdivide a portion of the property, which was developed.

In 2012, Habiague, Leonard, and the plaintiff/petitioner Dryfoos, to whom a portion of the property had been sold, applied for preliminary plat approval to subdivide the remainder of the parcel. The application used the 1987 negative declaration. The Planning Board determined that the 1987 negative declaration was inapplicable to the subject application and, therefore the application was incomplete. Plaintiffs/petitioners the commenced this action to recover damages pursuant to 42 USC § 1983, on the ground that the Planning Board’s determination concerning the negative declaration violated their substantive due process rights. The plaintiffs/petitioners appealed the trial court’s decision granting that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983; and (2) from an order of the same court which denied their motion for leave to renew their opposition to that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983.

The appellate court noted that to establish a violation of substantive due process rights, plaintiffs are required to establish “a cognizable or vested property interest, not the mere hope of one. Here, the plaintiffs/petitioners were required to establish a “legitimate claim of entitlement’ ” to have the 1987 negative declaration applied to their present application for preliminary plat approval. Because the Planning Board’s discretion in this respect was not “so narrowly circumscribed” the application of the 1987 negative declaration to the present project was “virtually assured,” the plaintiffs/petitioners failed to allege a cognizable property interest.

Leonard v Planning Bd. of Town of Union Vale, 136 AD3d 873 (NYAD 2 Dept 2/17/2016)

Editor’s Note: This posting is republished with permission from the RLUIPA Defense Blog

The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of a church’s claim that denial of a setback variance substantially burdened its religious exercise under the Religious Land Use & Institutionalized Persons Act (RLUIPA). In 2012, a religious congregation, Reconciling People Together in Faith Ministries, LLC (the “Congregation”), was formed in the City of Newport News, Virginia. The Congregation initially worshipped at a local business owned by its pastor, but sought to find an alternate location for religious use. The Congregation found a 0.32 acre property, owned by Andon, LLC, at 6212 Jefferson Avenue in the City that it believed would meet its religious needs. The Property is in the City’s commercial zoning district permitting a “community facility” subject to four conditions, one of which the Property does not meet: “no building or structure, nor accessory building or structure is located within 100 feet of any side or rear property line which is zoned single-family residential.”

Although the Congregation was aware that the Property did not meet one of the zoning requirements for “community use,” it entered into a lease agreement with Andon that was contingent upon Andon obtaining City approval to allow a church facility on the Property. To this end, Andon filed an application to vary the setback requirement with the City’s Board of Zoning Appeals (the “BZA”). However, the City Codes Compliance Department recommended denial of the application “because the property could be used for other purposes without a variance, and because denial of a variance would not cause Andon to suffer a hardship unique among other commercial property owners in the vicinity.” The BZA adopted the Compliance Departments recommendation and denied the application.

Andon and the Congregation both sued alleging a violation of RLUIPA’s substantial burden provision, because the variance denial caused “delay in obtaining a viable worship location” and “uncertainty as to whether … the [C]ongregation will be able to go forward with the lease of the [P]roperty.” According to the Congregation, it “could not find a[n alternative property] that was the appropriate size, location, and price” to be used by the Congregation as a place of worship, since “[m]any of the [alternative] buildings were too large and too expensive for [the] young congregation.”

The Fourth Circuit concluded that the Congregation could not establish a substantial burden claim because it never had a reasonable expectation that it could use the Property as a church. Important to the Court’s analysis, the Congregation was aware of the setback requirement before it agreed to lease the Property. Also, prior to Andon’s filing of the variance application, the City’s Zoning Administrator informed it that the application would be denied for failure to meet the setback requirement. “Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships.”

The Court also decided that the Congregation’s alleged inability to find another suitable property did not affect the result. According to the Court, the absence of alternate property capable of accommodating religious needs will not by itself support a substantial burden claim under RLUIPA. Further, the Court observed that if it “agreed with the plaintiffs that the BZA’s denial of a variance imposed a substantial burden on their religious exercise, we effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations. Such a holding would usurp the role of local governments in zoning matters when a religious group is seeking a variance, and impermissibly would favor religious uses over secular uses.”

Andon, LLC v City of Newport News, Va., 813 F3d 510 (VA 2/9/2016)

Petitioners/plaintiffs commenced a proceeding to review resolutions adopting the Comprehensive Plan for the Village of Woodbury and Local Law Nos. 3 and 4 of 2011 of the Village of Woodbury (hereinafter “the Zoning Amendments”), and for a judgment declaring that the Comprehensive Plan and the Zoning Amendments were void and unenforceable. Specifically, the petition/complaint alleged that the Comprehensive Plan and the Zoning Amendments were void and unenforceable on the ground that the Village of Woodbury Board of Trustees failed to strictly comply with the procedural and substantive mandates of the State Environmental Quality Review Act, and on the ground that the Board of Trustees failed to comply with General Municipal Law § 239–m. The petition/complaint also alleged, in the fourth cause of action, that the Comprehensive Plan and the Zoning Amendments amounted to unconstitutional exclusionary zoning, and sought a judgment declaring that the Comprehensive Plan and Zoning Amendments are void and unenforceable. The respondents/defendants Village of Woodbury, New York, the Village of Woodbury Board of Trustees, the Village of Woodbury Planning Board, and Gary Thomasberger moved to dismiss the fourth cause of action. The Supreme Court dismissed the fourth cause of action and awarded summary judgment to the petitioners/plaintiffs on the fourth cause of action. The court also granted the petition to annul the Comprehensive Plan and the Zoning Amendments.

The court first noted that 6 NYCRR 617.6(a)(4) permits an agency to waive the requirement for an environmental assessment form (hereinafter EAF) if a draft environmental impact statement is prepared or submitted. Because a draft environmental impact statement was prepared in this case, the failure to prepare an EAF did not amount to a failure to literally comply with SEQRA’s procedural requirements. Furthermore, the Board of Trustees satisfied SEQRA’s substantive requirements by analyzing a reasonable range of alternatives. Accordingly, the court found that the Supreme Court should have denied the petition to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to strictly comply with the procedural requirements of SEQRA.

As to the Board of Trustees’ alleged failure to comply with General Municipal Law § 239–m, the court found that no record evidence contradicted the Village Planner’s assertion that the report of final action was submitted following enactment of the Comprehensive Plan and the Zoning Amendments. Additionally, the revisions made to the Comprehensive Plan and the Zoning Amendments after referral were “embraced within the original referral.” The court therefore found that the Supreme Court should have denied the petition/complaint to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to comply with General Municipal Law § 239–m.

Lastly, the court found triable issues of fact existed as to whether the Comprehensive Plan and the Zoning Amendments amounted to unconstitutional exclusionary zoning. Thus, the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the fourth cause of action, but erred in searching the record and awarding summary judgment to the petitioners/plaintiffs on this cause of action.

Kiryas Joel v. Village of Woodbury, 2016 WL 1576897 (NYAD 2 Dept. 4/20/2016)

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