Agenda - Planning Commission - 09/05/2013

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July 25, 2013 I Volume 7 I Issue 14 Zoning Bulletin district court's decision for substantially the same reasons cited by the district court. The Court of Appeals adopted the district court's opinion. The court explained that to determine whether a procedural due pro- cess violation has occurred, courts must engage in a two-step analysis: (1) determine whether there exists a property interest of which a person has been deprived; and (2) if so, determine if the procedures followed by the state were constitutionally sufficient. Under New York law, further explained the court, a nonconforming use that predates the enactment of a restrictive zoning ordinance is a vested right and is entitled to constitutional protection. Here, the court found it undisputed that Edelhertz had a vested prop- erty right in the nonconforming use of its property as a nonowner oc- cupied multiple dwelling. Although it was unclear when the Property became a nonconforming use, the court found it clear that a nonowner occupied multiple dwelling was a nonconforming use in the City's R-1 zone, and that Edelhertz had maintained the property as such since obtaining title to it in 1993. Moreover, Edelhertz's nonconforming use remained in effect upon enactment of the Zoning Amendment, which mandated its discontinuance within five years. Thus, concluded the court, Edelhertz did have a vested property right in the maintenance of the Property as a nonconfoiiuing use. The court, however, also concluded that Edelhertz's property interest had not been deprived here by the type of notice given by the City prior to the Zoning Amendment. The court explained before a deprivation of a property interest occurs, the Due Process Clause requires, at a minimum, that the government provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." "However, due process protections are not required when the government takes ac- tion that is legislative rather than adjudicative." As such, procedural due process claims "must be dismissed when they challenge purely legisla- tive action." The court explained that in the Second Circuit (governing Connecti- cut, New York and Vermont), "the test for determining whether official action is adjudicative or legislative focuses on the function performed by the decisionmaker, not on the method of selecting the decisionmaker, or on the form in which the decision is announced." Action is adjudica- tive when it is: (1) based on "facts about the parties and their activities, businesses, and properties"; and (2) "designed to adjudicate disputed facts in particular cases." Action is legislative when it: (1) considers "general facts which help the tribunal decide questions of law and policy and discretion"; and (2) has "general application and look[s] to the future." In other words, "[a]djudicative decisions apply a statute or legal standard 'to a given fact situation involving particular individuals,' whereas legislative action entails 'the formulation of a general rule to be applied . . . at a subsequent time.' " 4 ©2013 Thomson Reuters