Posted inUncategorized

New York Appellate Court Determines That Maintaining Status Quo Is Essential to Combat Mootness in Challenging ZBA Variance Actions

This post was authored by Tyler Doan, Esq.

Petitioner owns real property on a short dead end roadway in the City of Ithaca abutting Summit Avenue. An adjacent property, that Summit Ave is on, has been owned by various entities during the relevant period. In 2017, after the then owner of the subject property blocked a portion of Summit Ave on the property in preparation for constructing an apartment complex there, the Petitioner commenced and an action contending, among other things, that it had a right of unobstructed access to Summit Ave because the roadway was either a public street or subject to a right-of-way in its favour. In March of 2018 the Supreme Court determined that the petitioner did not have an easement running over the southern portion of Summit Ave, which is the portion of the property that had been blocked. In December of 2019, the Supreme Court granted a summary judgment dismissing the remaining causes of action and determining that Summit Ave was a private roadway and not a public street. In December of 2019, the Petitioner appealed and the Third Department Appellate Division affirmed in May of 2021.

While the lawsuit was ongoing, an entity acting on behalf of Respondent, the then-owner of the subject property, sought an area variance allowing construction of structures on the subject property that deviated from the lot coverage and setback requirements of the City of Ithaca Zoning Ordinances. Respondent City of Ithaca ZBA granted the requested variance in October of 2019, prompting Petitioner to commence a CPLR article 78 proceeding against the ZBA and the then-owner of the subject property. The ZBA granted a second area variance in February 2020 that accounted for changes made to the project design to ensure that the City of Ithaca Fire Department could access the subject property. Petitioner then commenced a second article 78 proceeding challenging that determination. The then-owner and the ZBA separately moved, in lieu of serving answers, to dismiss the petitions. In October of 2020, the Supreme Court granted those motions. The ZBA granted a third area variance in April 2021 which also addressed lot coverage and setback requirements and was needed for a requested subdivision of the subject property and the issuance of a building permit. Petitioner commenced another article 78 proceeding to challenge that determination. Respondents and the ZBA separately moved to dismiss the petition in lieu of serving an answer. In August 2021 the Supreme Court granted those motions. Petitioner appeals both the October 2020 and the August 2021 judgments.

In determining the controversies were moot, the Appellate Division reasoned that since Petitioner made minimal efforts to maintain the status quo, including failing to secure its continued use of Summit Ave or stop construction, to the point that construction had been completed for some time and ” much of it has been leased out and is occupied”, that the construction on the property cannot be done without causing undue hardship to all involved, that there was no bad faith in the building of the apartment complex, and that a prior determination was made that Summit Ave was not a public street and that Petitioner did not have a right-of-way over the portion at issue, the controversies were moot and dismissed.

EPG Associates, LP v City of Ithaca Board of Zoning Appeals, 2023 WL 4239290 (NYAD 3 Dept. 6/29/2023)