Environmental—Amendments to Special Permit Upheld—Town Board’s Visit to Site and Discussions Did Not Violate Open Meetings Law—Officials Travelled to Florida on Chartered Plane and Acceptance of Snacks During One Day Trip to View Similar Project Even If Such Trip Violated General Municipal Law Section 805-a(1)(a), a Private Person Lacks Standing to Enforce Its Mandate—”Contract Zoning” and “Spot Zoning” Claims Dismissed

This case involved an Article 78 proceeding and an action for a declaratory judgment. The petitioners sought to block what was described as the “largest-ever housing development project in Orange County—the Tuxedo Reserve” development (project). The court dismissed the petition, holding, inter alia, that the petitioners lacked standing to challenge amendments to a specialpermit.

The project involved approximately 2,400 acres of land. Prior to 1998, the owner’s predecessor had applied for approval of a Planned Integrated Development (PID). In 1998, the town board (board) adopted a Local Law which modified the town’s existing laws concerning PIDs, but specifically exempted the subject site. In 2004, following an environmental review pursuant to the NYS Environmental Quality Review Act (SEQRA), the board issued a special permit and preliminary plan approval. A substantial portion of the property was to be preserved as open space and there had been no challenges to any aspect of the SEQRA process or the special permit.

In 2007, the board had granted the owner’s application to amend the special permit authorizing the addition of approximately five acres of land. In Feb. 2008, the board approved a second amendment which authorized certain waivers from and modifications to the special permit with respect to a limited area of the development. In each instance, the board determined that a Supplemental Environmental Impact Statement was not required and there were no challenges to such determinations.

In August 2008, the owner sought to further amend the special permit to permit an increase in commercial development, “alter the type, location and mix of owner-occupied single family homes, multi-family units and active senior housing units…,” and “develop 32-acres within a new development area, previously proposed as permanent open space.” The board required the preparation of a Draft Supplemental Environmental Impact Statement relating to “some, but not all, of the proposed amendments.” Following public hearings, the board issued a Preliminary Final Supplemental Environmental Impact Statement and required modifications to the proposed amendments.

In September 2010, the board and Town Planner met and discussed the project at a hotel in Princeton, New Jersey. “[T]wo additional meetings of the full…Board to discuss the Project occurred thereafter later in the day at the Town Hall office of the Township of Robbinsville, New Jersey….” Those meetings occurred without any formal published notice. Additionally, the Town Supervisor, a board member and the Town Planner had traveled to Florida to tour a residential project developed by the owner. They traveled on a private plane and allegedly had meals and other accommodations provided at the owner’s expense.

In November 2010, the board accepted a Final Supplemental Environmental Impact Statement (FSEIS). The board adopted an SEQRA findings statement, granted an amendment to the special permit, and adopted a Local Law regarding an amendment to the 1999 Local Law, which permitted changing of the approved mix uses within the project.

Thereafter, the petitioners commenced this “hybrid action for a judgment premised upon CPLR 7803(3) and for a declaratory judgment pursuant to CPLR 3001….” Petitioner “A” is a not-for-profit corporation that was formed “for the purpose of conserving the natural resources and preserving the community character in and around [the Village].” Petitioner “B” is a not-for-profit corporation which exists to “raise awareness and advocate for the protection and preservation of the Ramapo Highlands and the Ramapo River Watershed.” Individual petitioners included members of “A” and “B.”

The petitioners alleged that they would be “adversely impacted by the proposed development project,” that the board’s acceptance of the FSEIS and the adoption of the finding statements was deficient and violated several provisions of SEQRA. The court dismissed such claims because the petitioners had failed to demonstrate that they had standing to assert their claims under SEQRA.

A petitioner challenging an SEQRA determination must demonstrate “that the in-fact injury of which it complains…falls within the zone of interests,” “which SEQRA seeks to promote or protect, and ‘that it would suffer direct harm, injury that is in some way different from that of the public at large.’” Moreover, the injury must be “environmental in nature.” People or entities which own properties in close proximity to a subject site benefit from a “presumption that they are adversely affected by the alleged SEQRA violation and, accordingly, need not allege a specific harm.” Here, the petitioners asserted harm arising from a deficient environmental review in connection with the owner’s August 2008 application for amendments to the special permit. They may not seek relief based on “some other or prior alleged nonfeasance or misfeasance.”

The petitioners had failed to meet their burden of demonstrating that their properties were “located in the immediate vicinity of” the changes to the prior development plan. Neither “A” nor “B” were entitled to the benefit of the presumption since there was no allegation that they owned any real property. In order to establish “associational standing,” “A” and “B” had to establish, inter alia, that their interests are “germane to [their] purposes,” and “that neither the asserted claim nor the appropriate relief requires the participation of the individual members” and that one or more of their members would have standing.

The petitioners had alleged that they would suffer as a result of impacts from “increased vehicular traffic,” “pollution of drinking water, and…diminution of their enjoyment of the ‘historic, quaint character of Tuxedo Park.’” The court found that they had failed to meet their burden of proof as to each such allegation. “Most, and in some instances all, of the individual petitioners allege they will suffer the same harms as a result of changes wrought by” the subject approvals. The court found that the allegations were “speculative and conclusory,” and lacked “any evidentiary support.” The petitioners also failed to demonstrate that their alleged injuries would be different “from that of the public at large.” The court cited a “wide swath of preserved open space,” i.e., “the Conservation Buffer and an additional expanse of preserved open space,” in noting that the individual petitioners’ properties were not located in the “immediate vicinity of the site(s) to which” the proposed action related.

Additionally, the petitioners had alleged, inter alia, that the board had taken a trip to New Jersey and held meetings “which were neither ‘publicly noticed’ nor ‘open to the public’ in violation of ‘section 104 of the Public Officers Law (the Open Meetings Law).” The board members had stated that they had wanted to view a similar planned community to observe what the “community’s actual experience was with the municipal cost to serve a development of this type.” The board members had traveled to a New Jersey township to view such a project and to speak with local municipal officials. The board members alleged that they had not discussed the project or otherwise conducted business. The petitioners had not submitted any evidentiary material which controverted the board’s allegations.

The court explained that a trip taken by members of a public body to acquire information that “will provide them with a greater understanding of the issues involved in their determination of an application before them does not violate the Open Meetings Law” and “conclusory and speculative allegations that a violation occurred” will not support a claim “for voiding an action, particularly where…the petitioners fail to assert any facts controverting the members’ sworn allegations that there was no violation.”

As to board members traveling to Florida at the owner’s expense, and whether such travel and accommodations “constituted ‘impermissible gifts’ in violation of General Municipal Law [GML] 805-a(1)(a),” board members submitted affidavits wherein they stated that they had flown aboard an airplane chartered by the owner “to tour four existing planned communities which were similar to the type of development contemplated for [the project],” they had been provided “sandwiches, soda and chips for lunch” and they had returned to New York the same day. The petitioners argued that the trip resulted in “a more favorable attitude” toward the project. However, the petitioners submitted no evidentiary material which contradicted the officials’ denial of such allegations. Moreover, even if “the travel and/or snacks constituted ‘gifts’ within the meaning of [GML] 805-a(1)(a), there is no statutory provision pursuant to which a private person has standing to enforce its mandate.”

The court explained that arguably, there may be a claim to void a determination based upon allegations that voting members of a municipal body should have been disqualified “due to a perceived conflict of interest which was likely to have unduly influenced or otherwise tainted the proceedings which resulted in the determination.” However, here, the court found that the petitioners complaint did “not rise to the level of a conflict of interest, much less one that was likely to have unduly influenced or otherwise tainted the Town Bd’s determination of [owner's] applications….” The petitioners failed “to controvert the sworn allegations of the officials involved that they were not personally influenced.”

The court then rejected claims that the board’s action constituted “impermissible contract zoning” because the special permit sought to limit the authority of future town boards. The provisions cited by the petitioners in support of such claim were “conditions imposed by the [Board] following its review of [the owner's] August 2008 application.” Such conditions included the “leasing and licensing to the Town of space within Tuxedo Reserve,” the donation to the Town of land, dedication of certain roads and provided that the restated permit was to be recorded in the chain of title to the property and, was to run with the land. The petitioners complained that the owner’s obligations to meet such conditions “were triggered by its receipt of building permits.”

The court explained that “conditions per se do not void zoning amendments.” There was no evidence that the board had committed itself to the determinations in the restated permit before it actually adopted those enactments, or as consideration for any obligations imposed upon the owner.

The court also dismissed, inter alia, the petitioner’s “spot zoning” claim. Spot zoning involves the “singling out of a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners….” Spot zoning violates Town Law 263, which requires that land use regulations be made “in accordance with a comprehensive plan.”

The court explained that “the mere fact that a zoning amendment will benefit the landowners that applied therefor does not establish that the result is spot zoning; it must also be demonstrated that said benefit will come ‘at the expense and detriment of their neighbors, without public advantage or justification.’” Here, the petitioners failed to demonstrate such an affect. The court cited the “extensive review undertaken by the municipality with sufficient forethought to insure that it would be in keeping with a comprehensive plan calculated to serve the general welfare of the community” and that was “indicative that it is not spot zoning.” Accordingly, the court dismissed the petition in its entirety.

Matter of Tuxedo Land Trust v. The Town of Tuxedo, 13675/10, NYLJ 1202545044913, at *1 (Sup., OR, Decided March 5, 2012), Lefkowitz, J.

Landlord-Tenant—Parolee Living in Drug Treatment Program for in Excess of 30 Days Granted Tenant Status and Could Only Be Removed Pursuant to a Special Proceeding—Wrongful Eviction—Illegal Lockout

The petitioner commenced a proceeding by order to show cause in lieu of petition and notice of petition, seeking to be restored to possession of an apartment (apartment). The apartment was located in a building owned by a respondent LLC and leased to respondent “A,” which operates the building as a not for profit drug treatment and counseling program (program). “A”‘ is licensed by the NYS Office of Alcohol and Substance Abuse. However, “A” did not have a license and was not registered to operate a transitional housing program. Respondent “B” is the facility director employed by “A.” The petitioner had occupied the apartment since August, 2010. He had moved into the apartment after he was paroled from prison. The NYC Department of Social Services paid rent on the petitioner’s behalf. The rent was paid directly to “A” from August 2010 through February 2012.

The petitioner testified that in February 2012, he was advised that he could not continue to occupy the apartment. “B” advised the petitioner that since “he had graduated from ‘the program’ he could no longer reside in the…apartment and would be transferred to a different facility…which is for graduates of ‘the program.’” The petitioner advised “B” that he was not interested in moving from the apartment. “B” continued to deny petitioner access to the apartment. The petitioner acknowledged that he had graduated from the program, but denied that he had agreed to leave the apartment without legal process. The petitioner had left the building for “fear of creating a problem and subjecting himself to arrest and went to the police department.” The police contacted “B” who advised them that the petitioner had graduated from the program and had refused to enter a graduate facility. The petitioner was advised to commence a proceeding in Housing Court.

“A” argued that the petitioner “is a licensee and not a tenant.” “A” emphasized that the only lease for the apartment was between the building owner and “A.” That lease did not name the petitioner as a tenant and prohibited the subletting and assigning of the premises. Therefore, “A” argued, that the “petitioner is not a tenant and pursuant to the rules of ‘the program’ was subject to removal without legal process.” “A” further argued that the petitioner “was not forcibly removed from the premises but voluntarily surrendered possession.”

The court held that the petitioner was “not a tenant of the building’s owner,” but there was a landlord tenant relationship between the petitioner and “A.” Since the petitioner had lawfully occupied the apartment “for [30] or more consecutive days and rent was paid on petitioner’s behalf on a monthly basis,” the court concluded that RPAPL §711 is applicable and the petitioner could not be removed from the apartment “except in a special proceeding.” The court also cited The Unlawful Eviction Law, NYC Admin. Code §26-521 which:

prohibits any person from evicting or attempting to evict an occupant of a dwelling unit, after thirty consecutive days of lawful occupancy, by:

(1) using or threatening the use of force to induce the occupant to vacate the dwelling unit; or (2) engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant in the use or occupancy of the dwelling unit, to induce the occupant to vacate the dwelling unit…; or (3) engaging or threatening to engage in any other conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling unit or to induce the occupant to vacate the dwelling unit…

The court explained that “installations of new locks, denial of access, forcible entry and deprivation of personal property without benefit of any legal process constitutes wrongful eviction.” Further, “imposition of an ‘elaborate, cumbersome and unpredictable procedure’ for access following the changing of locks as well as failing to make keys available to the tenant after changing the locks constitutes an illegal lockout.” Further, “[i]nducing occupants into leaving and then preventing their return constitutes an illegal lockout.” Thus, the court held that the petitioner should not have been removed except by a special proceeding.

Additionally, the court explained that in order to establish abandonment, the respondent would have to demonstrate

(1) Intention to abandon or relinquish, and (2) some overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. The burden of proving an abandonment or surrender is on the party seeking to establish it or relying upon such abandonment or surrender.

Thus, the court held that the petitioner could not be removed except after a special proceeding was commenced and a warrant of eviction issued. Here, the petitioner “did not abandon or surrender possession of the…apartment and was unlawfully locked out.” The court did not make any findings as to “the regulatory status of petitioner’s occupancy” since that issue was “not before the court.”

Comment: In a New York Law Journal article dated March 20, 2012 by Christine Simmons, Matthew Main, of MFY Legal Services, which represented the petitioner, opined that the subject decision is “one of the first to reject the common defense of three-quarter houses—that such occupants are only ‘licensees’ of the programs.” “[T]hree-quarter houses are one-and two-family houses, as well as larger apartment buildings, that rent shared rooms to homeless people for profit and claim to provide supportive services financed by government agencies.” Main “speculated that they force out residents once they have completed their treatment so they can bill Medicaid for new residents who have not completedtreatment.”

The article reported that Christopher B. Kinzel, counsel for the not-for-profit drug program had asserted that the petitioner “never was a tenant” and he was “a ‘mere licensee.’” Kinzel had argued that the petitioner’s stay “was not free and unencumbered, as it would have been for a lawful tenant.” Kinzel further stated that the petitioner was “restricted in activities, roommates, personal possessions, visitors and when he could leave” and the petitioner was “informed that his stay was on a temporary basis.” Kinzel also indicated that his client was appealing the subject decision.

Finally, Kinzel stated that he would not define the subject drug program facility as “a three-quarter house,” which he called “a ‘very loose term that’s tossed around’ and different people define it differently.” He emphasized that the drug program’s business model did not rely on “letting go of residents who have completed their treatment.” Rather, “space is limited” and “[w]hen somebody has completed the program, they need to be able to make way for the next needy person.”

Although the court ordered the petitioner to be restored to the apartment, the Division of Parole had subsequently directed that the petitioner move to another facility.

Gregory v. Crespo, 801290/12, NYLJ 1202545578195, at *1 (Civ., BX, Decided March 6, 2012), Rodriguez, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.