Dreikausen v. Zoning Bd.
| Decision Date | 06 June 2002 |
| Citation | 774 N.E.2d 193,746 N.Y.S.2d 429,98 N.Y.2d 165 |
| Parties | In the Matter of MARGRET DREIKAUSEN et al., Appellants, v. ZONING BOARD OF APPEALS OF THE CITY OF LONG BEACH et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Charles S. Kovit, Hewlett, for appellants.
William G. Holst, Corporation Counsel, Long Beach (Corey E. Klein and Noreen O. Costello of counsel), for Zoning Board of Appeals of City of Long Beach, respondent. Zapson & Galanter, New York City (Michael G. Zapson of counsel), for Bay Club of Long Beach, Inc., respondent.
Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock, Lisa M. Burianek, John J. Sipos, Joseph Perretta and Denise A. Hartman of counsel), for State of New York, amicus curiae.
As this zoning dispute has made its way through the courts to us, the question has become one of mootness. We now dismiss the appeal as moot.
The case centers on a 56,000 square foot commercially zoned waterfront property located on Reynolds Channel in Long Beach.1 The site was used as a marina, which after decades of financial difficulty, in 1991 ultimately went into bankruptcy. The property, located in an otherwise residentially zoned neighborhood, is bounded by single- and two-family homes, a youth center, and a veterinarian and pet center (the only other business in the immediate area).
In 1999, Keystone Design and Construction Corporation entered into a contract to purchase the site for $2,400,000, with the intention of developing condominiums. Keystone applied to respondent Zoning Board of Appeals of the City of Long Beach (the Board) for a use variance, proposing to build 23 semi-attached condominium units and 35 boat slips on the property. That application was denied, setting in motion the events leading to this appeal.
Keystone reapplied for a use variance, reducing the proposed number of condominiums to 20. At a February 24, 2000 Board hearing, Keystone's counsel supported the application with traffic and environmental studies, testimony from a real estate appraiser, and estimates of expected costs and profits associated with the construction. Petitioners—four owners of neighboring single-family homes—and several other local residents present at the hearing spoke in favor of a residential use of the property, but opposed construction of a "wall" of condominiums. That very day, Keystone's owner formed a related corporation, Bay Club of Long Beach, Inc., which purchased the property. On May 26, 2000, the Board for a second time denied the use variance, based on a failure to submit sufficient financial proof of need for the variance, and concern that the extra boat slips could lead to overcommercialization of the property.
Following the Board's decision, Bay Club again sought a use variance, this time based on a scaled-back proposal of 20 condominiums and 20 boat slips. At a June 22, 2000 hearing on the application, Bay Club introduced first, a brief letter from Pam-Tom Realty, Inc., the prior owner, reciting without specifics its financial difficulties over the previous 25 years in operating the marina and its unsuccessful efforts to sell the property; second, a letter from a potential purchaser stating with minimal financial detail its reasons for not pursuing the acquisition; and third, documents from Pam-Tom's 1991 bankruptcy case, including unsupported valuation figures for the property. Several local residents in attendance at the June hearing again spoke both in favor of residential use for the site and against the condominium proposal. Petitioner Edward Arata asked that Bay Club be required to cease excavation and remove the heavy equipment from the site until the Board rendered its decision.
On July 27, 2000, the Board voted unanimously to grant the use variance and additionally granted a rear yard area variance, which petitioners do not challenge. That same night, unknown at the time to the Board, the Nassau County Planning Commission separately recommended denial of a use variance on the ground that the property could and should be put to permitted uses. Shortly thereafter, the Board issued a negative declaration under the State Environmental Quality Review Act (SEQRA).
On August 28, 2000, the Board adopted a resolution effectuating its grant of the variance. The Board found that Bay Club had introduced sufficient evidence of its need for a use variance in that the proposed project would bring the site more into harmony with the essential residential character of the neighborhood; Bay Club is unable to realize a reasonable return from commercial uses of the property, as evidenced by the prior owner's bankruptcy and difficulty selling the property; Bay Club's hardship—as the owner of the only commercially-zoned property in the area—is unique; and Bay Club's hardship is not self-created because, regardless of ownership, the site cannot be used for commercial purposes.
Petitioners on September 6, 2000 filed an article 78 proceeding in Supreme Court, challenging the Board's grant of the variance as illegal, arbitrary, capricious and unsupported by substantial evidence in the record, and further contending that Bay Club failed to prove any of the statutory factors required for a use variance.2 Petitioners requested no preliminary injunctive relief. On February 13, 2001, Supreme Court dismissed the petition, finding the Board had acted within its discretion in granting the variance based on Bay Club's unchallenged proof of need. By this time, work at the site was underway, with the marina torn down, the bulkhead repaired, utilities reconfigured, foundation permits issued and pouring of foundations for the condominiums begun.
Petitioners first sought injunctive relief on February 22, 2001, in conjunction with their appeal to the Appellate Division, after learning that the City was about to issue building permits for the condominiums. In their order to show cause, petitioners observed that Bay Club had already begun pouring the foundations pursuant to previously granted permits, and that further building permits would be issued imminently. Petitioners resisted posting any undertaking, arguing that Bay Club should have included the foreseeable costs of delay in its purchase price, and that they should not have to bear large undertaking costs both because of the merit of their position and because "it is not at all clear whether they could or would do it" if required by the court. Accordingly, they requested that the undertaking, if imposed at all, be "as low as possible." The Appellate Division denied petitioners' requests for a temporary restraining order and preliminary injunction, and subsequently denied both their request for a calendar preference and Bay Club's cross motion to dismiss the appeal as moot.
In October 2001, the Appellate Division affirmed dismissal of the petition on the ground that the record contained sufficient proof of Bay Club's unnecessary hardship to support the Board's decision to grant the variance (287 AD2d 453). A dissenting Justice urged reversal and denial of a use variance on the ground that Bay Club failed to submit "competent financial evidence" of any of the applicable statutory factors, particularly noting that its proof of an inability to realize a reasonable return from permitted commercial uses fell short of the "dollars and cents" proof historically required by this Court (see e.g. Matter of Village Bd. of Vil. of Fayetteville v Jarrold, 53 NY2d 254 [1981]). Neither Appellate Division writing addressed mootness.
Around the time this Court granted leave to appeal in January 2002 (97 NY2d 608), 12 of the units had been fully constructed with the remaining eight in various stages of completion, and the offering literature was on file with the Attorney General.3
Petitioners, who now seek demolition of the units, argue that their appeal remains justiciable given that they promptly filed an article 78 proceeding and sought preliminary relief from the Appellate Division prior to actual construction. Respondent Bay Club contends that the Board's decision to grant the variance—reviewable only for an abuse of discretion (see e.g. Matter of Cowan v Kern, 41 NY2d 591, 598 [1977])—was supported by record evidence of undue hardship, and has been rendered unreviewable by substantial completion of the project.
Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual...
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...rendering a decision that would effectively determine an actual controversy" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ; see Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 147......