This post was authored by Amy Lavine, Esq.

The Fourth Department held in Matter of Friedman v. Town of Dunkirk, 221 A.D.3d 1581 (4th Dept 11/17/23), that the petitioner’s use of her property as a short-term vacation rental was not per se prohibited under the town’s single-family zoning.

As the court explained, the zoning board had determined that short-term rentals were not a permitted use in the single family residential  district because it had concluded that a group of transient or temporary tenants did not qualify under the zoning code’s definition of a “family.” This was not the correct interpretation. Based on the clear and unambiguous language in the ordinance, the court concluded that the transient or temporary nature of a group of tenants was just one factor that should be considered in determining whether they qualified as the “functional equivalent” of a “family” or not. As the court pointed out, the size of the group and their relationships to each other were also factors, since by the terms of the ordinance, if the petitioner had rented her property to three or fewer persons, or to four or more persons who were related by blood, marriage, or adoption, then those groups would meet the definition of a “family” without regard to whether their tenancy was transient in nature. The court therefore concluded that the zoning board’s determination lacked a rational basis, and it reversed the judgment insofar as appealed from and granted the petition insofar as it sought to annul the zoning board’s determination.

Matter of Friedman v. Town of Dunkirk, 221 A.D.3d 1581 (4th Dept 11/17/23).

This post was authored by Amy Lavine, Esq.

The Second Department held that the 30-day time period for challenging a preliminary subdivision approval began to run when the minutes containing the decision were filed with the village clerk. The court further explained that neither the fact that the planning board’s counsel indicated to the petitioners that a written decision would follow, nor the fact that the village clerk did not provide the petitioners with a copy of the duly filed minutes, demonstrated that the petitioners were misled or otherwise affected by any  uncertainty as to the date of the filing of the meeting minutes for timeliness purposes. Accordingly, under the circumstances, the lower court properly granted the motion to dismiss on the basis that the appeal was untimely filed.

Matter of Fox v. Planning Bd. of the Inc. Vil. of Plandome, 220 A.D.3d 772 (2d Dept 10/11/23).

This post was authored by Amy Lavine, Esq.

The petitioners sought to prevent the development of a commercial plaza in the Town of Brighton. They argued that the project would encroach upon a 10-foot strip of land over which the town held a perpetual and non-exclusive easement. The easement had been established for the maintenance of a public pedestrian pathway, and the petitioners contended that the encroachment would constitute an illegal alienation of public trust property.

The lower court disagreed with the petitioners and rejected their claims for declaratory and injunctive relief. It found that the public trust doctrine did not apply to the town’s easement and that the town had not constructively abandoned the easement in violation of the required statutory procedures for property disposition.

On appeal, the Fourth Department affirmed the lower court’s decision. The court noted that “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence,” and it similarly stated that it was required to view the record “in the light most favorable to sustain the judgment.” Applying this deferential standard of review, the court concluded “that there [was] a fair interpretation of the evidence supporting the court’s well-reasoned determinations.”

Clover/Allen’s Creek Neighborhood Association LLC v. M&F LLC, 222 A.D.3d 1420, (4th Dept 12/22/23).

This post was authored by Amy Lavine, Esq.

The plaintiff, 31FO, LLC, purchased a 10-acre waterfront property in the Village of Lloyd Harbor in 2019 for about $5 million. It intended to generate revenue from the property by making it available for television and film production work and other events rentals. Problems soon arose between 31FO, its neighbors, and village officials, however, and when it rented the property for a silent religious retreat attended by mostly South Asian participants in 2019, complaints were allegedly made by some of the neighbors about the “dark-skinned people in all white robes.” The village subsequently enacted two local laws to regulate the issuance of commercial filming permits on residential properties. Under this legislation, the village determined that it would only approve the plaintiff’s commercial filming permits if it obtained consent from the private road association to use the property’s access road for commercial filming projects. The private road association thereafter refused to grant consent for the plaintiff’s filming requests. 31FO alleged that the road association’s denials were the result of a conspiracy between the neighbors and the village to discriminate against it based on racial and religious animus by, and that this alleged conspiracy caused it to lose over $1 million in potential income. 31FO then filed an “everything but the kitchen sink” complaint in federal court, asserting various constitutional claims under 42 U.S.C. §§ 1981, 1983, and 1985 for racial and religious discrimination, conspiracy, retaliation, and violations of equal protection, due process, free speech, unreasonable searches, and regulatory takings.

The District Court for the Eastern District of New York first addressed whether 31FO had standing to bring claims of racial and religious discrimination. As an LLC, the court found it did not have standing to assert these claims because it did not qualify as a member of any protected racial or religious group, nor were its primary functions centered around any protected racial or religious classes. Although 31FO attempted to demonstrate standing through its associations with an Indian investor, the court emphasized that this investor was not a member of the LLC and the alleged investment relationship was too vague to establish independent standing for 31FO’s discrimination claims.

Next, the court evaluated 31FO’s claims that village officials had subjected the property to frequent  inspections that violated its Fourth Amendment right to be free from unreasonable searches.  According to the complaint, village police began regular patrols of the property after the silent religious retreat in 2019, entering and driving on the property more than 100 times without a warrant and without 31FO’s  permission, and it was also alleged that the building inspector had entered buildings on the property on various occasions, supposedly to investigate complaints made by neighbors about unauthorized work at the property. The village defendants argued against 31FO’s Fourth Amendment claims on the basis that it failed to allege any injury, but the court allowed these claims to proceed since “a plaintiff who has proven a civil rights violation but has not proven actual compensable injury may be entitled to an award of nominal damages.”

The court dismissed 31FO’s Fifth Amendment regulatory takings claim, however, finding that it failed to satisfy the factors under the Penn Central takings test. First, with respect to the “economic effect” of the regulations, the court found that 31FO did not plausibly allege that the village had forced it to “sacrifice all economically beneficial uses” of the property. Next, 31FO alleged that it had a reasonable “investment-backed expectation” that it could finance its purchase and maintenance of the property through commercial filming revenues, but the court disagreed because 31FO refused to acknowledge that the property was not zoned for commercial use and any expectations it might have had did not rise to the level of protected property interests. With respect to the last Penn Central factor, the court found that the “character of the village’s action” also supported a finding that no taking occurred, since the village’s regulations were not akin to a “physical invasion” but were rather in the “character” of traditional zoning regulations.

Next, the court dismissed 31FO’s claims alleging a conspiracy to deprive it of its civil rights under 42 U.S.C. §§ 1983 and 1985 because there were no factual allegations in the complaint showing a “meeting of the minds” or agreement to engage in discriminatory conduct between the village officials and the road association defendants.

Finally, the court concluded that 31FO’s remaining claims violated  Rule 8 of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim[s] showing that the [plaintiff is] entitled to relief” and that “[e]ach allegation [ ] be simple, concise, and direct.” The complaint was so broad and deficient that the court could not meaningfully evaluate any other claims that may have remained. The court therefore dismissed the entire complaint without prejudice, aside from 31FO’s Fourth Amendment claims.

31FO, LLC v. Inc. Vill. of Lloyd Harbor, 2023 WL 6385187 (EDNY 9/29/23)

This post was authored by Sebastian Perez, Esq.

The North West Neighborhood Association (NWNA), which represented local residents’ interests, challenged the adequacy and legality of the Council’s decision-making process under the Local Land Use Planning Act (LLUPA) and relevant city ordinances.

NWNA contended that the Council’s approval lacked a sufficient reasoned statement as required by LLUPA, which mandated that decisions be based on express standards and accompanied by a comprehensive explanation. The absence of detailed findings and justifications impeded meaningful judicial review and contravened statutory provisions aimed at transparency and accountability in land use decisions. NWNA also argued that the Council failed to justify deviations from the recommendations of the Planning and Zoning Commission (PZC), which raised concerns about procedural irregularities and the Council’s adherence to statutory authority. NWNA asserted that the Council’s decision-making process lacked clarity regarding critical factors such as fire safety and traffic impacts, which undermined the integrity of the approval process.

The district court, while acknowledging NWNA’s procedural challenges, rejected them, prompting NWNA’s appeal. The Court, after a thorough examination of the record and relevant legal standards, partially reversed the district court’s decision, and emphasized the importance of procedural regularity and substantive justification in land use decisions. Central to the Court’s ruling was the requirement for a reasoned statement elucidating the basis for the Council’s decision, encompassing factual determinations, legal conclusions, and compliance with applicable standards. The Court underscored the significance of clear and precise explanations to facilitate effective judicial scrutiny and safeguard appellants’ rights to due process. The Court found deficiencies in the Council’s reasoned statement, particularly regarding its failure to address fire service provisions and deviations from PZC recommendations. Such omissions undermine the legitimacy of the approval process and hinder the appellant’s ability to assess the decision’s validity. Additionally, the Court addressed NWNA’s procedural challenges concerning the Planned Unit Development (PUD) application, which emphasized the need to demonstrate prejudice to substantial rights to warrant reversal. While acknowledging procedural irregularities, the Court concluded that NWNA failed to establish prejudice directly attributable to the PUD approval, thereby upheld the Council’s decision in this regard.

Ultimately, the Supreme Court affirmed the principle that adherence to procedural regularity and substantive justification is essential in land use decisions to uphold the integrity of the planning process and protect the interests of affected parties.     

North West Neighborhood Association v City of Boise, 2023 WL 5761372 (ID 9/7/2023).

This post was authored by Sebastian Perez, Esq.

Erik S. Townsend (“Townsend”) appeals a decision regarding the use of his property in Cushing, Maine. The trial court found that Townsend’s short-term rentals violated a deed restriction limiting property use to private residential purposes by one family. Townsend appealed to the Supreme Judicial Court of Maine (the “Court”).

The subject property (the “Property”), located on a peninsula in Cushing, is part of a residential subdivision and subject to a restrictive covenant (the Covenant”). The Covenant restricts property use to private residential purposes by one family. The Property, encompassing a 5-acre lot with 5 bedrooms, 5 bathrooms, and a guest cottage, has not been his full-time residence since the 1970s, though he continues to store personal belongings there. In 2019, Townsend commenced renting the Property for short-term intervals to one group at a time through online platforms like Vrbo and Airbnb. The Morgan’s and Ward, Townsend’s neighbors (the “Neighbors”), filed a complaint against him, alleging violations of the Covenant. They contended that Townsend’s rentals, noise associated with them, and trash left on neighboring properties constituted breaches of the Covenant. Townsend, in turn, counterclaimed that the Neighbors were also in breach. The trial court granted summary judgment in favor of the Neighbors on their claims for declaratory and injunctive relief, though denying judgment on the nuisance claim. On a case of first impression for, the Court interpreted the meaning of a restrictive covenant concerning short-term rentals facilitated by online platforms. The Court, reviewing the deed restriction as a matter of law, emphasized the importance of ascertaining the parties’ intent. It interpreted key terms within the covenant, such as “private” and “residential purposes,” to determine whether Townsend’s rentals violated the Covenant. While acknowledging the potential adverse effects of short-term rentals on the neighborhood’s residential character, the Court primarily focused on whether Townsend’s activities constituted a “trade or business” under the Covenant. The Court concluded that Townsend’s pattern of rental activity amounted to a business operation, thus violating the covenant. Accordingly, the Court agreed the “Neighbors” were entitled to injunctive relief to prevent future violations. However, the Court found the injunction against Townsend to be vague and lacking specificity. It suggested defining “short-term rental” and setting limits on rental days per year to clarify compliance with the covenant. The court recommended drawing from municipal ordinances, state laws, and tax regulations to establish such limits.

The Court affirmed Townsend’s violation of the covenant but vacated the vague injunction. The case was remanded for the lower court to redefine the injunction with greater specificity, possibly involving an evidentiary hearing and party recommendations.

Morgan v Townsend, 2023 WL 5689342 (ME 9/5/2023)

This post was authored by Amy Lavine, Esq.

In the 2023 case Marom v. Town of Greenburgh, 2023 U.S. Dist. LEXIS 40899, 2023 WL 2457704 (SDNY 3/9/23), the District Court for the Southern District of New York dismissed the petitioner’s claim under the federal Mandamus Act seeking to compel the town to issue him a building permit because the because “while the Mandamus Act confers jurisdiction over actions concerning officers or employees of the United States, it does not provide jurisdiction over actions concerning state or local officials.”

The pro se petitioner, Michael Marom, sought a writ of mandamus directing the Town of Greenburgh, New York to issue a building permit for his property on South Healy Avenue. Marom had originally obtained a building permit in 2010 for the construction of a single-family home, but a zoning dispute arose after construction began, and the town rescinded the permit in 2011  after determining that it had granted a variance in error. After litigation, the town was directed to restore Marom’s permit in 2013, but another dispute arose in 2017 after the town issued multiple code violations against Marom related to the improper storage of materials and then moved to rescind his building permit. Marom claimed that the town subsequently ignored his application for a new building permit, and as a result of the town’s allegedly arbitrary  refusal to allow his permit, the partially-built structure he had been building fell into disrepair and violated his constitutional rights by depriving him of the lawful use of his property.

Preliminarily, because Marom was a pro se petitioner and not a licensed attorney, the court held that he could only assert claims on his own behalf and could not bring any claims on behalf of his wife. The court therefore construed his petition as bringing claims solely on his own behalf and it dismissed the claims asserted on his wife’s behalf without prejudice.

With respect to Marom’s claim seeking a writ of mandamus, the court explained that while federal courts are authorized under the All Writs Act to “issue all writs necessary or appropriate,” the statute does not create new jurisdiction where none exists. And while the Mandamus Act provided district courts with original jurisdiction over actions concerning officers or employees of the United States, it did not provide any federal jurisdiction over actions concerning only state or local officials. Accordingly, the court held that it had no mandamus jurisdiction over the Town of Greenburgh or its local officials and it therefore lacked the authority to grant the writ that Marom had requested. As a result, the court denied the petition and dismissed Marom’s action due to the lack of subject matter jurisdiction.

Marom v. Town of Greenburgh, 2023 U.S. Dist. LEXIS 40899, 2023 WL 2457704 (SDNY 3/9/23)

This post was authored by Amy Lavine, Esq.

The petitioner in the 2023 case Matter of Bonadonna v. Board of Zoning Appeals of the Inc. Vil. of Upper Brookville, 220 A.D.3d 855 (2d Dept 10/18/23), sought an after-the-fact approval for piers and perimeter fencing that he installed that exceeded the height restrictions imposed by the ordinance. After a public hearing, the zoning board denied the petitioner’s request for area variances, and the Appellate Division, Second Department affirmed on appeal.

The court found that the record reflected that the zoning board engaged in the balancing test required for area variances under state law and that it adequately considered the relevant variance factors, which included: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created….”

The court found that while the petitioner claimed the height variances would be consistent with fences and piers installed on other nearby properties, he failed to provide any evidence as to whether the conditions on those comparator properties were created before or after the height restrictions in the ordinance were adopted. In addition, the court found that that the zoning board rationally determined that the requested variances were substantial in nature, and that the zoning board was entitled to consider whether approving the variances would undermine the existing ordinance and set a negative precedent. The petitioner’s hardship was also entirely self-created, the court explained, it was rational for the zoning board to place particular weight on this criteria since the petitioner could have easily installed the fence and piers in compliance with the height limits in the ordinance.

Matter of Bonadonna v. Board of Zoning Appeals of the Inc. Vil. of Upper Brookville, 220 A.D.3d 855 (2d Dept 10/18/23)

The U.S. Environmental Protection Agency released the 2023 update to its Equity Action Plan, as part of the Biden-Harris Administration’s whole-of-government equity agenda. This Equity Action Plan is part of EPA’s efforts to implement the President’s Executive Order on “Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government,” which reaffirmed the Administration’s commitment to ensure equity and build an America in which all can participate, prosper, and reach their full potential.

Following robust engagement with community stakeholders, EPA identified eight priority strategies, which include four previously identified priorities carried forward from the 2022 Equity Action Plan and four newly identified strategies to support communities that have been historically underserved, as well as all communities across our Nation, these eight priority strategies are:

• Improve access for Communities to Federal Assistance.
• Reduce Cumulative Impacts and Health Disparities.
• Strengthen our Civil Rights Compliance Program.
• Protect Children from Exposures to Environmental Harms.
• Address Inequitable Access to Resources for Rural Communities.
• Ensure Public Access to EPA Programs and Address Environmental Harms for People with Disabilities.
• Strengthening Community-Based Participatory Science to Achieve Environmental Equity.
• Improve Data and Analytic Capacity to Better Identify and Remove Barriers.

Since the release of its first-ever Equity Action Plan in 2022, EPA has:

• Selected 11 Environmental Justice Thriving Community Technical Assistance Centers to receive a total of $600 million dollars through the Inflation Reduction Act to reduce barriers when accessing federal grant funding and will make approximately 2,000 subawards directly impacting and addressing issues at the community level.
• Created a robust technical assistance program to help eligible organizations access the $2 billion dollars available through the Environmental and Climate Justice Community Change Grants Program.
• Awarded over $11 billion to date in clean water investments from the Bipartisan Infrastructure Law under the State Revolving Funds, with at least 49% of this funding to go to disadvantaged communities.

As the backbone of work at EPA under the Biden-Harris Administration, the focus remains on ensuring no one is left behind because of the color of their skin or the zip code where they reside.

As this work continues, updates will be posted on EPA’s Equity Action Plan webpage. Learn more about the Administration’s equity work and check out all Federal Equity Action Plans.

The public comment period has been extended to March 15, 2024.

The New York State Department of Environmental Conservation (DEC) and New York State Energy Research and Development Authority (NYSERDA) released draft guidance for State entities to inform the investments and benefits reporting on compliance with the Climate Leadership and Community Protection Act’s (Climate Act) requirement that a minimum of 35 percent, with a goal of 40 percent, of the State’s clean energy investments benefit disadvantaged communities. The draft Disadvantaged Communities Investments and Benefits Reporting Guidance is a blueprint for reporting energy efficiency and clean energy programmatic investments by State entities in disadvantaged communities and will advance consistency and transparency in complying with the Climate Act’s equity provisions. 

Developed in collaboration with a number of New York State agencies and authorities, the draft guidance, when finalized, will provide the information state entities need to comply with the Climate Act’s equity mandate and account for energy efficiency and clean energy program investments in disadvantaged communities as defined and finalized by the Climate Justice Working Group (CJWG) in March 2023. This will help ensure that disadvantaged communities receive a minimum of 35 percent, with a goal of 40 percent, of the overall benefits of the state’s clean energy and energy efficiency programs, projects, or investments in the areas of housing, workforce development, pollution reduction, low-income energy assistance, renewable energy, transportation, and economic development.

All New Yorkers are welcome to provide input on how the state tracks progress toward addressing the interests and priorities of historically marginalized communities as the state continues to transition to an inclusive clean energy economy that reduces pollution, addresses systemic inequities, and expands economic opportunity for all New Yorkers.

An overview of the draft guidance was presented to the CJWG on November 14, 2023, and is now available for a public comment period.

Written comments on the proposed guidance may be submitted until close of business March 15, 2024. Contact: Alanah Keddell-Tuckey, NYSDEC – Office of Environmental Justice, 625 Broadway, Albany, New York 12233-1550 or email justice@dec.ny.gov. Include “Draft Disadvantaged Communities Reporting Guidance” in the subject line of the email.