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ALG In Court

In the Matter of 7-Eleven, Inc., et al. v. Incorporated Village of Mineola, et al.

 

The Amato Law Group, PLLC, ("ALG") recently won a significant victory in the Appellate Division, Second Department on behalf of its long time client, 7-Eleven, Inc. ALG’s lawyers successfully argued before a three judge appellate panel, and scored a key victory for the client. The case began when 7-Eleven applied to the Village of Mineola for a Special Use Permit to construct a convenience store in the Village of Mineola ("Application"). In support of its Application, 7-Eleven submitted reports and testimony from numerous well-respected and highly credentialed experts, who gave evidence on all the relevant areas of inquiry, including engineering, planning, traffic analysis and real estate appraisal. This objective evidence demonstrated conclusively that the Application complied with all of the Village’s SUP requirements, and was uncontested. 


Completely ignoring the evidence, the Village denied the Application based on certain imagined and unsubstantiated “traffic and safety” issues. The Village did not introduce or rely on any expert testimony, objective evidence or professional studies, and offered no evidence other than its own "lay opinion" which was simply conjecture and speculation. The Village also failed to acknowledge that all of their “theories” had been conclusively and thoroughly refuted by the uncontroverted experts. 


Moreover, as 7-Eleven demonstrated, its proposed use as a convenience store was no more intensive than the permitted uses in that district. New York law is clear that where a SUP applicant can show its use is no more intensive than as-of-right uses in the district, the municipality must issue the SUP. In the written denial, the Village simply dismissed this issue, without any analysis of its own. In fact, the Village made no attempt to compare the proposed 7-Eleven use to any of the permitted uses in that zoning district. 


7-Eleven appealed the Village’s arbitrary denial of the Application to the New York State Supreme Court, on the grounds that the Village’s findings were not supported by substantial evidence in the record, and on the grounds that the proposed use would have no greater impact on traffic than an as-of-right use at the site. The Supreme Court, instead of crediting the uncontroverted expert evidence and testimony, simply accepted the Village’s unsupported and arbitrary imaginings as fact, and ignored the long standing case law holding that a SUP must be granted where the proposed use is less intensive than as-of-right uses in the same district. 


ALG's appellate team quickly appealed the Supreme Court's decision to the Appellate Division, on the grounds that the Supreme Court had abused its discretion. The Appellate Division agreed with ALG's position completely, overturned the Supreme Court’s decision, and expressly directed the Village to approve the Application. The Appellate Division concluded that the Village's decision was not supported by evidence in the record, and therefore was arbitrary and capricious. Moreover, the Court reasserted the principle of law that a SUP must be granted where the Village fails to compare the intensity of use of the proposed use to the intensity of permitted as-of-right uses in the same zoning district. Here, as the Appellate Division noted, there was no evidence that 7-Eleven's proposed use of the premises would have a greater impact on traffic than any as-of-right use. 


In a final attempt to stall the Application, the Village then sought leave to appeal the Appellate Division's ruling to the Court of Appeals, but the Court summarily dismissed their application for leave to appeal.

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New York SMSA Ltd. Partnership v. Town of Oyster Bay

 

The Amato Law Group asserted claims on behalf of its client, New York SMSA Limited Partnership doing business as Verizon Wireless (“Verizon Wireless”), against the Town of Oyster Bay and the Town of Oyster Bay Zoning Board (the “Board”), in connection with the Board’s unlawful denial of Verizon Wireless’s application for a special use permit to build a wireless facility in a church located in East Norwich. The Board’s conduct in denying this application violated the Telecommunications Act of 1996 and Article 78 of the New York Civil Practice Law and Rules. Accordingly, United States District Judge Margo K. Brodie of the Eastern District of New York entered judgment on behalf of Verizon Wireless and ordered the Board to issue the special use permit. In issuing its decision, the Court noted that the Board’s decision denying the special use permit was arbitrary and capricious and not supported by sufficient evidence. In addition, the Court recognized that Verizon Wireless demonstrated that there was a gap in wireless service, that its proposed wireless facility would remedy that gap while causing only a minimal intrusion on the community, and that the church and its members supported Verizon Wireless’ plan.  

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Muttontown Acres, LLC v. Incorporated Village of Muttontown, et al.

 

The Amato Law Group asserted claims on behalf of its client, Muttontown Acres, LLC (“Plaintiff”), which operates the Woodside Acres Golf & Country Club located in the Incorporated Village of Muttontown (the “Village”). Plaintiff sought to annul Village Local Law 1 of 2012, (the “Local Law”), which was adopted by the Incorporated Village of Muttontown Board of Trustees (the “Board”) in March 2012. Plaintiff alleged, among other things, that the Local Law improperly targeted Plaintiff’s property and effectively precluded its development. Justice James P. McCormack of the Supreme Court in Nassau County declared the Local Law null and void, finding that the manner in which the Board adopted the Local Law violated the procedural and substantive requirements of the New York State Environmental Quality Review Act, and noted that “the evidence indicates that the motivating factor for the laws’ enactment was to restrict the plaintiff/petitioner’s attempts to subdivide and ultimately further develop the property.” .  

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Verizon Wireless v. Village of Floral Park Board of Trustees

 

The Amato Law Group asserted claims on behalf of its client, New York SMSA Limited Partnership doing business as Verizon Wireless (“Verizon Wireless”), against the Village of Floral Park Board of Trustees (the “Board”) in connection with the Board’s unlawful denial of Verizon Wireless’s application for a special use permit to build a wireless facility on the roof of a commercial building.  Based upon the Board’s violation of the Telecommunications Act of 1996 and Article 78 of the New York Civil Practice Law and Rules in denying that application, United States District Judge Arthur D. Spatt of the Eastern District of New York entered judgment on behalf of Verizon Wireless and ordered the Board to issue the special use permit.  In issuing its decision, the Court noted that the Board’s decision denying the special use permit had no basis in law and disregarded most of Verizon Wireless’s uncontroverted evidence that the proposed facility satisfied applicable zoning requirements, would remedy a demonstrated gap in network coverage, and would have a negligible impact on the community.  

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Hoy v. Incorporated Village of Bayville

 

The Amato Law Group defended its client, New York SMSA Limited Partnership doing business as Verizon Wireless (“Verizon Wireless”), against an action by Thomas Hoy and Elke Hoy (“Plaintiffs”), property owners in the Village of Bayville (the “Village”).  Verizon Wireless, along with several other wireless communications providers (the “Wireless Defendants”), operate approximately fifty antennas on a water tower owned by the Village and located near the Plaintiffs’ property.  The Plaintiffs alleged, among other things, that operation of the antennas violated the restrictive covenants in the deed that conveyed the property to the Village, which prohibit the property from being put to commercial uses or uses found to be “offensive, dangerous or obnoxious” to property owners within one mile of the property.  United States District Judge Joseph F. Bianco of the Eastern District of New York granted in part the Wireless Defendants’ motion to dismiss Plaintiffs’ claims.  Specifically, the Court held that the Plaintiffs did not have the legal capacity to enforce the restrictive covenant that preserved the property for municipal and recreational purposes for the benefit of the People of Bayville, noting that the covenant “is not intended to benefit a specific group of neighbors nor is it intended to permit enforcement of the [covenant] by every resident of Bayville.”  In addition, the Court dismissed the Plaintiffs’ claim of deprivation of their constitutional property rights, noting that the Plaintiffs failed to articulate the rights they were owed and how the Village deprived them of those rights. The Amato Law Group asserted claims on behalf of its client, New York SMSA Limited Partnership doing business as Verizon Wireless (“Verizon Wireless”), against the Town of Oyster Bay Zoning Board of Appeals (the “Board”) in connection with the Board’s unlawful denial of Verizon Wireless’s application for a special use permit to build a wireless facility.  Finding that the Board’s conduct violated the Telecommunications Act of 1996 and Article 78 of the New York Civil Practice Law and Rules, United States District Judge Joanna Seybert of the Eastern District of New York entered judgment on behalf of Verizon Wireless and ordered the Board to issue the special use permit.  In issuing its decision, the Court noted that the Board’s decision denying the special use permit was not supported by substantial evidence and that Verizon Wireless sufficiently investigated alternative sites that might create less disruption to the community’s zoning plans, and met its burden of demonstrating that the proposed facility would remedy a demonstrated gap in network coverage.

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New York SMSA Ltd. Partnership v. Town of Oyster Bay Zoning Board of Appeals


The Amato Law Group asserted claims on behalf of its client, New York SMSA Limited Partnership doing business as Verizon Wireless (“Verizon Wireless”), against the Town of Oyster Bay Zoning Board of Appeals (the “Board”) in connection with the Board’s unlawful denial of Verizon Wireless’s application for a special use permit to build a wireless facility.  Finding that the Board’s conduct violated the Telecommunications Act of 1996 and Article 78 of the New York Civil Practice Law and Rules, United States District Judge Joanna Seybert of the Eastern District of New York entered judgment on behalf of Verizon Wireless and ordered the Board to issue the special use permit.  In issuing its decision, the Court noted that the Board’s decision denying the special use permit was not supported by substantial evidence and that Verizon Wireless sufficiently investigated alternative sites that might create less disruption to the community’s zoning plans, and met its burden of demonstrating that the proposed facility would remedy a demonstrated gap in network coverage.

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