County residents, taxpayers, and property owners brought an action against the county legislature, alleging that local laws giving land owners who had transferred development rights to the county the opportunity to apply for agricultural development permits, special use permits, and hardship exemptions violated plaintiffs’ substantive and procedural due process rights and the provision of New York state constitution prohibiting gifts, loans, or credit by local political subdivision to persons, entities, or causes. Residents also sought a declaratory judgment that laws were null and void and a permanent injunction prohibiting granting of permits and hardship exemption to landowners pursuant to the laws.

At issue in this permanent injunction action was the validity of two local laws adopted in 2010 and 2013 by the County Legislature which amended various provisions of Chapter 8 of the Suffolk County Code entitled “Development Rights to Agricultural Land”. Chapter 8 of the 1985 Suffolk County Code codified the County of Suffolk’s previously granted authority under a series of local laws, first enacted in 1974, to purchase the development rights portions of agricultural lands in fee from the owners. In exchange for the County’s purchase of these future development rights, known as “PDRs”, the sellers conveyed to the County the development rights attached to their premises and agreed to restrict the use of their premises to agricultural production or open space by covenanting the County’s right to prohibit or restrict any use of the premises for any purpose other than agricultural production. A portion of the sales tax revenues collected by the County served as one source of the taxpayer funds expended by the County for its purchase of any PDRs under the terms of each PDR purchase agreement and conveyance.

The plaintiffs first contended that these amendments violated the “Gift and Loan” clause of the New York State Constitution. The court, however, found that the challenged amendments did not involve the gifting or lending of monies. While there was no question that development rights, standing alone, were valuable components of the “bundle of rights” associated with fee ownership and constituted both a valuable and transferable commodity, the challenged amendments only provided the opportunity to apply for agricultural development permits, special use permits and hardship exemptions. The court also found that the plaintiffs’ submissions failed to address that their PDR interests qualified as constitutionally protected property rights for purposes of substantive due process analysis and that the challenged amendments constituted an unreasonable exercise of the County’s police power which deprived the plaintiffs of their PDR interests in violation of the due process clauses.

The court next determined that a substantial intrusion or diversion of the County’s purchased development rights was effected by the amendments as they allowed the landowners to develop their property for their personal gain, use and enjoyment in contravention of the public’s right to use and enjoy such property as preserved open spaces and/or areas in their natural states as they existed at the time of the purchase. Furthermore, defendants failed to demonstrate that a park or a related public purpose existed in or was served by the development rights diverted to the landowners under the challenged amendments. The court therefore found that the plaintiffs established a prima facie showing that the challenged amendments were inconsistent with the public policy expressed in GML § 247 and were violative of the public trust doctrine and thus actionable under GML § 51.

Lastly, the plaintiffs contended that those portions of the challenged amendments which removed the unqualified requirement that a “mandatory referendum” be put to the people of Suffolk County prior to the alienation of purchased development rights, violated previous versions of the code and other local laws and were thus null and void. The plaintiffs were required to establish that the permit and hardship exemption processes set forth in the challenged amendments constituted an alienation of the County’s PDRs. The term “alienation” was defined in the Code as “the transfer of any development right in real property from the County to another”. Here, the court found that the permit and hardship exemption processes set forth in the challenged amendments constituted a “transfer” of purchased development rights and that the enactment of the amendments without a public referendum violated the SCC Chapter 8 provisions thereby rendering the amendments null and void.

Long Island Pine Barrens Society, Inc. v. Suffolk County, 39 N.Y.S.3d 710 (Suffolk Co. 10/28/2016)

EDF Renewable Energy (“EDF”) applied for a permit to construct approximately 25 wind turbines, 525 feet high, as well as roads, collection cables, and a substation on properties located in the Township’s C–1 (Conservation), A–1 (Agricultural), and I–1 (General Industrial) zoning districts. The zoning officer denied the application because the proposed use was not a permitted use in the districts. EDF appealed from the order of the Court of Common Pleas of Luzerne County, which affirmed the decision of the Foster Township Zoning Hearing Board to deny EDF’s application for a special exception to construct wind farms in the three different zoning districts in the Township.

The ZHB first claimed that for purposes of appeal, the date of entry of the ZHB’s order was the mail date of ZHB’s written decision: January 5, 2015. The ZHB further argued that EDF’s January 2, 2015 appeal, which referenced the ZHB’s December 3, 2014 decision, was taken from the ZHB’s oral decision and should be quashed as premature. EDF responded that the ZHB’s decision was in fact dated January 2, 2015, and expressly stated that an appeal must be filed “within thirty (30) days of the date of this letter.” Based on the date and language of the ZHB’s decision, the court concluded that the trial court did not err in denying the motion to quash the appeal as premature.

The court also found that, as the applicant for a special exception, EDF had the burden of proving that the proposed use met the objective standards set forth in the zoning ordinance. Specifically, EDF’s failure to submit a site plan as required by Ordinance Section 255–52(B) was sufficient grounds to deny the special exception application. Additionally, even though EDF referred to a map during the hearing, neither the map nor the testimony of EDF’s witnesses satisfied the Ordinance’s requirement for a site plan that reflected the location of all structures, existing and proposed; all open space areas; means of traffic access and all streets; contours of the site for each five feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site. Accordingly, the judgment of the trial court was affirmed.

EDF Renewable Energy, Appellant v. Foster Township Zoning Hearing Board, 2016 WL 6873015 (PA Commwlth 11/22/2016)

Plaintiff-Appellant BT Holdings, LLC appealed from the order and opinion of the United States District Court for the Southern District of New York, which granted Defendants-Appellees Village of Chester and Village of Chester Board of Trustees’s motion to dismiss BT Holdings’s regulatory takings claim as unripe. Plaintiff-Appellant’s complaint asserted a claim under 42 U.S.C. § 1983 alleging an unconstitutional regulatory taking in violation of the Fifth and Fourteenth Amendments. On appeal, Plaintiff-Appellant alleged that because its property lacked any zoning whatsoever and because both the Village’s Planning Board and its Zoning Board of Appeals could consider an application for a site plan or a variance only for a property already zoned, it would be futile to submit an application to either body.

At oral argument, the parties for the first time informed the court that the property in question had zoning applied to it almost four months earlier. Because both parties agreed that the property now has zoning, Plaintiff-Appellant had no justification for failing to submit a plan for developing its property, the required next step under regulatory takings ripeness analysis. Accordingly, BT Holdings was left only with the argument that there was a temporary taking for the period of time during which it “had no use of the property or was unable to use the property. The court found that this claim was also without merit, as Plaintiff-Appellant provided no evidence in the record that it ever formally petitioned the Village Board to apply one of the Village of Chester’s zoning districts to its property and that the Village Board voted against such a petition.

Because Plaintiff-Appellant’s claim of an ongoing regulatory taking was moot, and its temporary takings claim failed to satisfy the Williamson County test, the court affirmed the district court’s dismissal of this action.

BT Holdings v Village of Chester, 2016 WL 6561493 ( 2nd Cir. CA 11/4/2016)

This case arose from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Arthur Gilmore, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of racketeering. The indictment charged respondent with engaging in a racketeering enterprise whereby he used his office and position as an elected city councilman to extract bribes in the form of cash and other things of value from individuals and organizations having business before the council, in exchange for which respondent took actions favorable to these individuals and organizations. In July 2015, the ODC filed one count of formal charges against respondent, alleging that he violated Supreme Court Rule XIX, § 19 (lawyers convicted of a crime). Respondent, through counsel, answered the formal charges, essentially admitting to his misconduct and asking for a sanction “other than disbarment.” In mitigation, respondent offered that his conviction was based on only two violations, those being a $1,000 campaign contribution and a $207 payment for a constituent’s electric bill.

Here, the court weighed that fact that respondent knowingly and intentionally violated duties owed to the public and to the legal system by engaging in a criminal act while acting in his capacity as an elected official, causing actual harm. The court noted that the baseline sanction for this type of misconduct was disbarment. It found that many aggravating factors were present, included a prior disciplinary record, a dishonest or selfish motive, substantial experience in the practice of law, and illegal conduct. The court weighed that aforementioned against the mitigating factors of full and free disclosure to the disciplinary board and a “cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, remorse, and remoteness of the prior disciplinary offense.” After balancing these factors, the court held that temporary, rather than permanent disbarment was an appropriate sanction in this matter.

In re Gilmore, 2016 WL 6125390 (LA 10/19/2016)

Posted by: Patricia Salkin | December 3, 2016

Fed. Dist. Court in NY Dismisses of Discrimination Claims Against Town

Plaintiff Ovadia Avraham filed a civil rights action alleging that defendants were participants in a decades-long conspiracy whose primary object had been to prevent plaintiff from developing a parcel of waterfront land situated adjacent to the Lakeshore Yacht and Country Club (the “LYCC” or the “Club”) in Cicero, New York. Avraham’s initial seventy-six page complaint sought injunctive relief as well as millions of dollars in compensatory and punitive damages. The same day he instituted this lawsuit, plaintiff also filed two requests to “Remove/Transfer” certain pending state court actions in which he was a named defendant in an effort to consolidate those state actions as part of this federal one. A few days later, plaintiff filed two emergency motions seeking preliminary injunctive relief. On November 9, 2015, a Decision and Order was issued denying all four of Avraham’s pending motions, and concluding that plaintiff’s removal petitions were procedurally defective and that his requests for injunctive relief lacked the requisite supporting documentation. On April 21, 2016, Avraham moved to amend his complaint, submitting a fifty-six page proposed amended pleading along with seven short exhibits. Finally, on May 17, 2016, Avraham further supported his request for leave to amend with a sixty-eight page affirmation that described in greater detail the allegedly unlawful conduct on which his proposed amended complaint was based.

Avraham’s proposed amended complaint indicated that his civil RICO claims were based on mail and/or wire fraud. However, the vast majority of conduct Avraham described in his proposed pleadings, as well as in his affirmation, was time-barred by the four-year statute of limitations applicable to civil RICO claims. Additionally, Rule 9(b) requires allegations of fraud, such as those surrounding the acts on which Avraham’s proposed RICO claims were based, to be “stated with particularity.” As plaintiff’s RICO claims were only stated in conclusory fashion, the court dismissed them. Avraham’s proposed amended complaint also alleged defendants “engaged in hate crimes” in violation of New York Penal Law; however, the court noted that “plaintiff has no private right of action to enforce state criminal statutes and lacks the authority to institute a criminal investigation.”

The court next found that the municipal defendants who may have been empowered to interfere with Avraham’s milling supplier were not the defendants responsible for the racial and ethnic slurs that were directed toward plaintiff in the late 1990s or early 2000s. The court held that these instances of racial or ethnic animus, which occurred over a period of almost twenty years and are attributed to various identified and unidentified Club members, were not sufficiently connected to these municipal defendants to give rise to a plausible inference of animus. Accordingly, plaintiff’s § 1981 claims were also dismissed.

Avraham also alleged claims brought pursuant to 42 U.S.C. § 1983 based on the Equal Protection and Due Process clauses of the Fourteenth Amendment. As with his prior claims, the court found that plaintiff failed to identify which conduct was attributable to one or more of the six different defendants named in his proposed pleading, or how one or more of these defendants singled plaintiff out for this treatment without a rational basis on which to do so. Thus, plaintiff’s equal protection claims were dismissed. Moreover, without any additional evidence, the court found that “the fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” Lastly, Avraham’s permit-related claims focused on allegedly improper conduct by Town of Cicero officials and were not sufficiently connected to any alleged agreement to act in concert with LYCC members. Therefore, his claim based on a conspiracy to violate plaintiff’s constitutional rights was also dismissed.

Because none of these filings were sufficient to state a claim, the court held that permitting another opportunity to amend was unlikely to be productive. Accordingly, leave to replead was not granted.

Avraham v Lakeshore Yacht & Country Club, 2016 WL 6585589 (NDNY 11/7/2016)

Plaintiff Robert Cook owned two condominium units at Teal Lake Quiet Shores Condominiums in the Town of Spider Lake. Access to Cook’s units was provided by Ross Road. The Chippewa Valley Bank owned an adjacent parcel, and needed to obtain the approval of the Town of Spider Lake Plan and Review Commission to subdivide its property. Accordingly, the bank submitted a Certified Survey Map (CSM) to the Commission. The Board made the “findings of fact” that: the Commission’s approval of the CSM did not affect Cook’s ability to access his condominium units; the approval of the CSM did not make any changes to the private access road; and the Teal Lake Quite Shores Condominium Association was the proper party to appeal the Commission’s decision, not Cook. Based on these findings, the Board concluded Cook was not “a person aggrieved” by the Commission’s decision, and therefore lacked standing to appeal it. The Board dismissed Cook’s appeal, and the circuit court affirmed, concluding the CSM’s creation of two lots had “no articulable negative impact” on Cook. The court further concluded the condominium association, not Cook, was “potentially the proper party to any challenge to the CSM.”

The court first found that while the stated purpose of the Town’s land use ordinance was to promote “the public health, safety and general welfare,” Cook failed to explain how the specific decision at issue in this case, approval of the CSM, directly affected the legally protected interests of all landowners in the Town. Cook next argued he was aggrieved by the Commission’s decision because its approval of the CSM “devalued his property interest”; however, Cook failed to raise this argument before either the Board or the circuit court, and the court therefore declined to address it. Furthermore, Cook failed to cite any evidence regarding who owned the access road, who maintained the road, whether there was a maintenance agreement regarding the road, whether he was a party to that agreement, and the number of other parties who used the road to access their properties. Absent evidence on these points, the court found that it could not meaningfully address Cook’s claim that the subdivision of the bank’s property had directly affected his legally protected interest in using the road to access his condominium units. Moreover, Cook’s alleged injuries regarding maintenance of the private access road were purely speculative, as Cook failed to present any evidence, beyond mere conjecture, that increasing the number of owners of the property that was subject to the CSM from one to two would make it substantially harder to negotiate a maintenance agreement regarding the private access road.

In its decision, the Board found that the Commission’s approval of the CSM did not change the private access road, nor did it affect Cook’s ability to access his condominium units. Substantial evidence supports these findings. Furthermore, while Wis. Stat. § 62.23(7)(e)10 expressly permitted both aggrieved persons and taxpayers to challenge a board of appeals’ decisions via certiorari, § 62.23(7)(e)4 merely stated that aggrieved persons may appeal a plan commission’s decisions to the board of appeals, without mentioning taxpayers.  Thus, the court rejected Cook’s argument that he had standing to challenge the Commission’s approval of the CSM based solely on his status as a taxpayer.

Cook v. Town of Spider Lake Zoning Bd. of Appeals, 2016 WL 6592143 (WI App. 11/8/2016)

The Second Circuit Court of Appeals held that the District Court properly dismissed plaintiff Hampshire’s selective enforcement claim because Hampshire is not similarly situated to its alleged comparators. Specifically the Court noted that unlike the three other recreational clubs referenced, “Hampshire is   subject to different zoning regulations and initially did not have a Special Permit—facts that explain why it is not entitled to equal treatment with respect to its property use.”  The Court commented that the three other clubs were located in the MR zoning district, and that Hampshire’s property was split between the MR and R-20 zoning districts. Further, in dismissing the Equal Protection claim the Court said that, “Even if Hampshire were able to establish a class of similarly situated comparators, the District Court offers numerous reasons why the Village’s decision to award a probationary permit was not discriminatory under both “selection enforcement” and “class-of-one” theories.”

With respect to the retaliation claim, the Court of Appeals agreed that the 18 months between the  issuance of the violation notice and the pursuit of enforcement actions by the Village—the only plausible retaliatory conduct—were too remote in time from the plaintiffs’ protected speech to sustain its retaliation claim under the First Amendment.

Hampshire Recreation, LLC  v Village of Mamaroneck , 2016 WL 6820717 (2nd Cir. CA 11/18/2016)

Petitioners/plaintiffs, Panevan Corporation, the owner of property at 784 Central Park Avenue in the Town of Greenburgh, and 784 SCPA Rest. Corp. (hereinafter Rest. Corp.), an entity which leased that property, where it operated a diner, challenged a determination of the Greenburgh Planning Board which granted site plan approval and special permits to the respondent/defendant Dimitri Ostashkin, doing business as 788 Central Park Avenue. These special permits allowed for the development of Ostashkin’s property, which was located adjacent to 784 Central Park Avenue. The Town and the Planning Board moved to dismiss the proceeding on the ground that Panevan and Rest. Corp. lacked standing. The Supreme Court granted this motion to dismiss, and determined that the Planning Board properly granted site plan approval and the special parking permits to Ostashkin.

On appeal, the court first noted that “a local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion.” Here, the court found that contrary to Rest. Corp.’s contention, the determination regarding site plan approval had a rational basis, and was not illegal, arbitrary and capricious, or an abuse of discretion. Additionally, The Supreme Court properly determined that Panevan failed to establish standing.

Panevan Corp. v. Town of Greenburgh, 2016 WL 6604718 (NYAD 2 Dept. 11/9/2016)

Following a determination of the zoning board of appeals that the Village Planning Board had authority to review the petitioner’s application for a building permit, the petitioner appealed to the trial court which upheld the determination.  The appellate court affirmed noting, “Pursuant to the plain language of the Code of the Village of Tarrytown § 305–67, the Village of Tarrytown Planning Board had the authority to review the petitioner’s application for a building permit, which sought to construct a retaining wall, given that the proposed construction involved the disturbance of “steep slopes” on the subject property. Contrary to the petitioner’s contention, the ZBA either reasonably determined that the circumstances of the prior applications for building permits were distinguishable from those of the instant application, or otherwise provided a valid and rational explanation for its departure from its prior precedent.”  Reiterating that the ZBA’s determination is entitled to deference, the appellate Court found that the lower court properly upheld the ZBAs determination.

Bartolacci v Village of Tarrytown Zoning Board of Appeals, 2016 WL 6773977 (NYAD 2 Dept. 11/16/2016)

Randy Strode and Helen Strode sought review of the district court’s decision dismissing Randy’s zoning regulation inverse condemnation claim, granting a motion for summary judgment on Helen’s zoning regulation inverse condemnation claim, and granting a motion for summary judgment on the Strodes’ takings claim based on the load limit posted on a bridge located near their property. The District Court, Saunders County, dismissed husband’s inverse condemnation claims as time barred, and granted summary judgment for city and county.

In their first assignment of error, the Strodes argued that Randy’s takings claim was not subject to claim preclusion because the issue was not ripe until the district court’s decision in the 2003 case. The court first noted that, in the context of a regulatory taking, a cause of action for inverse condemnation begins to accrue when the injured party has the right to institute and maintain a lawsuit due to a city’s infringement, or an attempt at infringement, of a landowner’s legal rights in the property. Here, the City acted to implement the ordinance on the property when the City zoning administrator repeatedly notified the Strodes of their nonconforming use of the property between November 2002 and June 10, 2003, and also on June 10, 2003, when the City zoning administrator mailed Randy notice of his nonconforming use and the City’s intention to institute legal action if the Strodes did not conform their use to the PUB designation of the property. Since the City’s actions had an adverse economic impact on the Strodes’ right to use the property in the commercial manner that they wished, they gave rise to the Strodes’ right to institute and maintain a lawsuit against the City for its implementation of the ordinance upon the property. Accordingly, the City’s June 10, 2003 letter to Randy stating its intent to institute legal proceedings against him began the running of the statute of limitations on the Strodes’ claims. Because, Randy filed his inverse condemnation claim on September 5, 2013, the 10–year statute of limitations for inverse condemnation claims was exceeded. Accordingly, Randy’s inverse condemnation claim was barred by the statute of limitations.

As to Helen Strodes’ separate claim for inverse condemnation, the regulation at issue prevented the Strodes from transporting their goods across the bridge in semitrailer trucks that exceed 14 tons; however, the Strodes could use the railroad underpass for semitrailer trucks that exceed the 14–ton weight limit. Randy contended that this was not an adequate alternative, because the height of the railroad underpass is 11 feet 3 inches, and when he transports bulk amounts from his business, the semitrailer trucks usually reach 13 feet 6 inches. While the court noted this was a “more roundabout way” to perform his business, in which he would incur some damages, it did not constitute an injury different in kind than the general public, but only different in terms of degree. Additionally, the Strodes failed to present any evidence that the weight limit of the bridge decreases the economic value of the property. Even though Randy testified that it cost two to three times more to transport steel in smaller loads rather than in bulk, he did not conduct any analyses to either substantiate this claim or determine how the property had diminished in value by the weight limits on the bridge. Moreover, the court found that the Strodes failed to prove that the load limit interfered with any of their investment-backed expectations, as the load limit was posted on the bridge at least as early at 1990,prior to the Strodes’ purchase of the land.

Accordingly, the court held that the district court did not err in finding in favor of the City and the County, and affirmed.

Strode v City of Ashland, 295 Neb. 44 (NE 10/28/2016)


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