Bleakley Platt Partner Lino Sciarretta Obtains Significant Land Use Rulings in New York’s Appellate Division
Good things come to those who persevere.
Since 2014, BPS partner Lino Sciarretta has represented Formation-Shelbourne Senior Living Services in connection with its plan to construct an assisted living facility in the Town of Greenburgh, New York. The plan was met with fierce opposition by various civic associations, as well as by the Greenburgh Fire District (“GFD”), but after an approval process that spanned more than three years the necessary permits and approvals were obtained. Then came the litigation.
On February 16, 2022, New York’s Appellate Division, Second Department, issued a trio of rulings that finally clear the way for Formation-Shelbourne’s assisted living facility to be constructed.
The GFD and the civic associations, collectively, filed three, separate Article 78 proceedings challenging the grant of the area variances by the ZBA (the “ZBA Article 78”) and the special permit from the Greenburgh town board (the “Special Permit Article 78”). On behalf of our client we moved to dismiss the ZBA Article 78 filed by GFD on statute of limitations grounds and subsequently moved to dismiss the Special Permit Article 78 filed by GFD and the civic associations on standing and res judicata grounds. The lower court (J. Cacace) found in our client’s favor in all three proceedings. The Petitioners appealed.
Lino Sciarretta argued all three appeals on November 29, 2021, with the assistance of BPS associate Daniel Fix. On February 16, 2002, the Appellate Division, in three separate decisions, upheld the lower court’s rulings in all respects. All three decisions are significant in the land use area, particularly on the issues of when an Article 78 proceeding challenging a ZBA determination must be commenced, and who has standing to bring such a proceeding.
The Appellate Division found (1) that the Petitioners lacked standing to challenge the Town’s New York State Environmental Quality Review Act (“SEQRA”) determination; (2) that their challenges to the Zoning Board’s grant of area variances were untimely; and (3) that their challenges to the Town Board’s grant of a Special Permit to Formation-Shelbourne to construct an Assisted Living Facility were without merit. Court costs were also awarded.
In the first decision and order, the Appellate Division held that a challenge to a ZBA area variance determination must be instituted within 30 days after the ZBA’s “determination” was filed in the office of the Town Clerk. N.Y. Town Law § 267-c. That “determination” need not be a formal decision, but can be a letter, minutes or other instrument that must 1) memorialize the ZBA’s determination, 2) note how its members voted, and 3) be filed with the Town Clerk. Here, the ZBA filed a document called the “meeting results” first and then subsequently filed a written “decision.” Based on the case law of various Appellate Departments, the 30-day statute of limitations commenced upon the filing of the meeting results, not the later filed decision. The Appellate Division found that dismissal of the GFD proceeding was proper.
In the second and third decision and orders, the Appellate Division upheld the dismissal of the GFD and civic association proceedings based on standing and res judicata. As to GFD, the Appellate Division found that its claims raised in the Special Permit Article 78 as to SEQRA were the same as those raised in the ZBA Article 78. The Court also found that GFD failed to establish both an injury-in-fact and that the asserted injury was within the zone of interests sought to be protected by the statute alleged to have been violated. GFD did not allege any cognizable injury with respect to increase in the number of emergency calls due to the proposed assisted living facility. The Court also found that GFD’s allegations were conclusory and speculative and insufficient to establish standing.
As for the civic associations, the Court found that in land use matters, the individual petitioners must show they would suffer a direct harm or injury that is in some way different from the public at large. Allegations of close proximity to a project, the Court found, “may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury.” However, the Court held that petitioners failed to establish that their properties were located in sufficient proximity to the proposed development (not just the property line) to give rise to an inference of damage or injury. Also, petitioners’ allegations failed to set forth an actual injury distinct from that suffered by the public at large.
For more information concerning these important appellate rulings, or to consult concerning any zoning or land use issue, please contact Lino Sciarretta at (914) 287-6177 or via email, LSciarretta@bpslaw.com.