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Long Island Land Use & Zoning

Facebook Posts And Text Messages Result In Monetary And Other Sanctions Being Imposed Against A Municipality

Posted in Congregation Rabbinical College Of Tartikov, Evidence, Facebook, First Amendment, Freedom of Religion, Sanctions, Social Media, Spoliation, Village of Pomona

In last week’s post, we discussed the case of Congregation Rabbinical College of Tartikov, Inc., v. Village of Pomona. That case involves a contested land use application for a rabbinical college that has cost the Village of Pomona and its tax payers in excess of $1.5 million in legal fees to defend.  This week’s post looks at the Facebook posts and text messages that were posted and sent after the litigation began, and the sanctions that were imposed by the Court against the Village for its failure to disclose them during discovery.

The Facebook Posts and Text Messages

evidenceIn May 2013, a Village Trustee posted a comment on her personal Facebook page about her disapproval of an all-male gathering of Hasidic/Orthodox Jews at a municipal facility. Their religion was not explicitly mentioned in the Facebook post.  This posting was followed by what the Court described as “an angry text message exchange” between the Village Trustee and the Mayor of the Village, which resulted in the Trustee deleting her Facebook post.

In March 2015, the Mayor posted a comment to his personal Facebook page about an article in a local newspaper. In the posting, the Mayor slammed the 2013  posting by the Trustee (who by then was no longer a Trustee), noted that her 2013 post was particularly egregious in light of the pending lawsuit, was a “total lapse in reason and judgment,” and mentioned that text messages had been exchanged between them at the time.  The Mayor also noted that he couldn’t conceive of anyone considering the former Trustee as a viable candidate if she ever ran for election again, given her “predisposition to making such blatant and inappropriate remarks.”

The Mayor’s Facebook posting was quickly followed by a discovery demand by the plaintiffs asking for all social media postings and comments, including the text message exchange. The Village Defendants responded that the Mayor did not have a copy of the 2013 Trustee Facebook post and produced only a part of the text message exchange.  The part that was produced was an eye-opener.  It had the Mayor asking the Trustee whether it was her “intention to cause damage to the village” and “is it your intent to jeopardize the target…then you are succeeding and may cause us to loose! (sic).”   The portion of the Trustee’s responsive text that was produced noted that the Trustee understood the Mayor’s anger and would review her postings and delete them “to make sure there are no more unfortunate mistakes.”   The Mayor responded that his head was about to explode, that a case in New Jersey found that an official’s comments in an non-official setting led the court to find potential prejudice and publicly commenting on an all-male gathering related to a religious entity “is not good.”

Plaintiffs alleged that the Mayor lied about preservation of evidence when he certified interrogatory responses in July 2013, two months after the initial Facebook and text message exchange, that all relevant evidence had been preserved by the Village.

The Court Finds The Village Guilty Of Spoliation Of Evidence

In his September 2015 summary judgment decision, the Court ruled that the Village was under an obligation to preserve this evidence. The Court rejected the Village’s contention that its officials did not think the post and texts were relevant, noting that once litigation has commenced, the usual retention procedures must be suspended and a “litigation hold” must be put in place to ensure relevant documents are preserved. In finding the Village guilty of spoliation of evidence, the Court cited to that fact that the lawsuit was commenced in 2007, 6 years before the Trustee’s Facebook page posting, the posting concerned a gathering of individuals of the same religious observation as the plaintiffs, the Mayor’s strong reaction to the posting and the Trustee’s comment about her “unfortunate mistakes” to demonstrate that the Facebook post and text messages should have been preserved and were relevant to the case. The Court also determined that the destruction of this relevant evidence had been done in bad faith.

As a result, the Court ruled that severe sanctions were warranted. These include an adverse inference of the Village’s discriminatory motivation. At trial, the jury will be instructed that the Facebook post indicated discriminatory animus toward the Hasidic Jewish population. While the Village will be allowed to present evidence that the challenged laws were not adopted for discriminatory purposes, the adverse inference may be difficult to overcome. The Court also awarded attorneys fees as a sanction.  In a ruling dated May 25, 2016, the Court directed the Village to pay legal fees totaling $42,940.00 to the plaintiffs’ attorneys.

To read more about the underlying issues please see our prior posting at http://www.lilanduseandzoning.com/2016/06/20/1424/. The matter is scheduled for trial sometime later this year.

How To Spend Over $1.5 Million (And Counting) of Taxpayer Funds Defending A Land Use Claim

Posted in Establishment Clause, First Amendment, Freedom of Religion, Special Use Permit, Village Law, Village of Pomona

pomonaThis blog post discusses the hotly contested litigation between the Village of Pomona (the “Village”) and the Congregation Rabbinical College of Tartikov (the “Congregation”) about a proposed rabbinical college. The case, Congregation Rabbinical College Of Tartikov, Inc., v. Village of Pomona, pending in the federal district court for the Southern District of New York, was commenced in 2007. The Village has incurred over $1.5 million in legal fees to date defending the case and that figure is likely to double by the time the case goes to trial later this year. The case involves a plethora of land use and zoning issues. We decided to write two posts on this interesting case. This week’s post will provide information about the claims asserted in the case and the decisions issued by the Court. Next week’s post will deal with sanctions issued against the Village for mishandling evidence.

The Proposed Project

The Village is a small community located in Rockland County. Its zoning code classifies the entire village as R-40, generally limiting development to single-family homes on lots that are at least 40,000 square feet in size (about 1 acre). In 2004, the Congregation purchased a large tract of property (about 100 acres) located in the Village. The Congregation intends to develop the site into a rabbinical college for its Orthodox Jewish community. The rabbinical college will train rabbinical judges. That training can take up to 15 years and includes study and prayer from 5 am to 10 pm each day. The development includes residential housing for students, faculty and their families, 10 synagogues, 4 rabbinical courtrooms and libraries. The Congregation contends that the students must live, study and pray in the same place full-time, in a Torah Community, separated from the outside world and that this requires multi-family housing be available at the site to accommodate the families of the students and faculty. There would be between 50 and 250 housing units, which will consist of apartments with 3 to 4 bedrooms, ranging in size from 1,800 to 2,000 square feet. The Congregation claims that the property is the only available parcel of land that is large enough and situated in close proximity to the religious infrastructure and population required for the rabbinical college.

The Congregation never filed any formal application with the Village for the rabbinical college. The Village initially found out about the rabbinical college when a group opposed to the development leaked a preliminary sketch to Village officials.

In 2007, the Congregation reached out to Village officials to discuss the project and to request a public hearing. In response, the Village’s Board of Trustees responded that a public hearing is premature in light of the fact that the project is illegal and requires a zone change. The Congregation responded by requesting that the Board of Trustees exercise its authority under federal law and grant an exemption as a religious institution that is not subject to local zoning. The Village rejected the exemption request. The Congregation’s response was to file the lawsuit.

The Litigation Begins in 2007

In the action, the Congregation objects to several local land use ordinances, some of which were enacted after the project was under discussion with Village officials. It also raises constitutional challenges and other claims.

The Accreditation Local Law

The Village Code allows for educational institutions as a special use. The Congregation contends that the definition of educational institution in the code prevented it from obtaining a special use permit because of an illogical accreditation requirement it can never meet and because of other building restrictions contained in the law. Under the Accreditation Local Law, an educational institution is defined as a private or religious school that conducts a full-time curriculum a minimum of five days a week for seven months a year and is accredited by the State Department of Education or similar recognized accrediting agency. This local law also contains minimum lot area, maximum development intensity, frontage, access, set back, parking and noise guidelines. The initial definition of educational institution was adopted in 2001 when a different Orthodox Jewish organization attempted to build a Yeshiva (a primary and pre-school facility) on the site and was modified in 2004, after the Congregation purchased the site.

The Dormitory Local Law

Although the Village Code allows dormitories, the code requires that they relate to an educational institution, and cannot have the separate cooking, dining and housekeeping facilities required for the rabbinical college. The definition of dormitory was amended in late 2004 to exclude single family, two-family or multi-family from its purview. In 2007, the Village limited the size of dormitory buildings to not more than 20% of the total square footage of all buildings on a lot. The Congregation contends these changes were adopted to thwart its project, which requires a large number of separate housing units for its students, faculty and their families.

The Wetlands Local Law

In 2007, the Village enacted a wetlands protection ordinance that requires a 100-foot buffer around wetlands that are 2,000 square feet or larger. The Congregation contends that this local law was specifically enacted to prevent it from developing the site since its site contains 37 acres of wetlands. The Congregation also contends that the local law contains exemptions that applied to almost every lot in the village except the Congregation’s parcel.

Other Claims

The Congregation claims that the Village’s zoning and environmental ordinances violate the equal protection clauses of the federal and state constitutions, the free speech, free exercise and free association clauses of the first amendment of the federal constitution, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal Fair Housing Act, the New York State Civil Rights Law and various other state common law claims.

2013 Ruling On The Motion To Dismiss

The Village’s initial response to the lawsuit was to file a motion to dismiss. Part of the claims were dismissed but several survived. In a decision issued in January 2013, the Court made the following rulings. It initially found that the Congregation has standing as it suffered an injury-in-fact as a result of the alleged illegal conduct of the Village; that there is a causal link between the challenged regulations and this injury; and there is a non-speculative likelihood that the injury can be remedied by the relief requested in the complaint.

The Court then evaluated the second ground asserted by the Village for dismissal – ripeness. In particular, the Village claims that the Congregation’s facial challenges to the zoning code, the equal protection clauses of the federal and state constitutions, the free speech, free exercise and free association clauses of the first amendment of the federal constitution and the federal RLUIPA are not ripe for adjudication since the Congregation had not applied for a permit. The Court rejected this challenge noting that a facial challenge is ripe as soon as the regulation is enacted (although it did dismiss one part of the free association facial challenge regarding familial association.)

In assessing the facial challenges, the Court explained these types of claims require a party to demonstrate that the mere enactment of the legislation violates its rights. The Court considered the Congregation’s assertion that the Village had a discriminatory motive behind the enactments. The timing of the enactments and questionable public comments made by government officials preceding the enactments suggested a discriminatory motive. The Court also considered the discriminatory effect of the local laws. Here, the effect is that the local laws prevent the rabbinical college from being built because of the restrictions on the type of housing that is allowed, the requirement that the college be accredited because there is no equivalent accreditation agency for a rabbinical college and the State Education Department does not accredit any college until after it is opened and operating. The Congregation also asserts that the Village adopted a series of laws over the years to prevent the development of this site and nearby sites by Jewish institutions while at the same time allowing other non-Jewish religious organizations to develop sites within the village.

The Village also claimed the Congregation’s as-applied challenges to the zoning code are not ripe because the Congregation has not formally applied to the village. The Court agreed that the Congregation’s as-applied challenges under the free speech, free exercise and free association clauses of the first amendment and the equal protection clause of the fourteenth amendment of the federal constitution, RLUIPA and state law are not ripe and dismissed them.

2015 Ruling On The Motions For Summary Judgment

The parties engaged in extensive discovery after the motion to dismiss was decided. They then filed motions for summary judgment, which the Court ruled on in September 2015. The Court granted summary judgment to the Village on the free speech and New York common law claims (meaning that those claims were dismissed); granted summary judgment to the Congregation on certain affirmative defenses asserted by the Village and granted the Congregation’s motion for sanctions. The Court determined that there are material issues of fact associated with the remaining claims that require a trial.

The jury will decide whether the prohibitions found in the laws, such as the inability to meet the accreditation requirements and the dormitory restrictions that prohibit the housing units required by the college, violate the rights of the Congregation. The jury will determine whether the multi-family housing units are necessary for the Congregation to exercise its religious beliefs, and whether the wetlands restrictions were drafted to target the 100 acre parcel. The jury will decide whether the local laws were passed with a discriminatory purpose and effect and whether the Congregation’s free association and free exercise of religion rights were violated by the Village. The jury will decide whether the rabbinical college must include the housing and other accessory structures for the Congregation to be able to exercise its religious beliefs and whether the Village’s actions placed a substantial burden on the exercise of the Congregation’s religious beliefs.

Next Steps

The case is expected to go to trial soon, but that is unlikely to be the end of the matter. The losing side is likely to appeal. And the animosity between the Village, its residents (who are footing the bill for the defense of this lawsuit) and the Congregation will continue to grow.

 

No More General Municipal Law 239-m County Referrals!

Posted in GML-239-m, Nassau County Planning Commission, Planning Board, Positive Declaration, Suffolk County Planning Commission, Town of Babylon, Town of Huntington, Town of Islip

As New York State land use practitioners and those interested in land use development, we are all well aware of the perils of failing to refer a land use application to the governing county land use commission.  When discussing the referral process with my colleagues and those responsible for  General Municipal Law 239-m referrals, such as town and village zoning and planning boards, their board members and their support staff, the usual response is “We refer everything.”

building permitThis pervasive misunderstanding of what types of land use applications must be referred, and when they must be referred, leads not only to delays in processing applications for public hearings, but also overloads county land use commissions, leading to delays in land use decisions and diverting the county planning commissions from their role in evaluating projects of countywide concern.

What is General Municipal Law 239-m?

General Municipal Law 239-m states in relevant part:

(a) “[t]he following proposed actions shall be subject to the referral requirements of this section, if they apply to real property set forth in paragraph (b) of this subdivision:

(i) adoption or amendment of a comprehensive plan pursuant to section two hundred seventy-two-a of the town law, section 7-722 of the village law or section twenty-eight-a of the general city law;

(ii) adoption or amendment of a zoning ordinance or local law;

(iii) issuance of special use permits;

(iv) approval of site plans;

(v) granting of use or area variances;

(vi) other authorizations which a referring body may issue under the provisions of any zoning ordinance or local law.

(b) The proposed actions set forth in paragraph (a) of this subdivision shall be subject to the referral requirements of this section if they apply to real property within five hundred feet of the following:

(i) the boundary of any city, village or town; or

(ii) the boundary of any existing or proposed county or state park or any other recreation area; or

(iii) the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway; or

(iv) the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines; or

(v) the existing or proposed boundary of any county or state owned land on which a public building or institution is situated; or

(vi) the boundary of a farm operation located in an agricultural district, as defined by article twenty-five-AA of the agriculture and markets law, except this subparagraph shall not apply to the granting of area variances.”  Id.

When Does General Municipal Law 239-m Apply?

When sections 239-m (a) and (b) are read in conjunction with each other, only specific actions must be referred, and only when said specific actions are located within 500 feet of designated boundaries.  Despite the clear language of the statute, it has become routine for towns and villages to refer all land use actions of any kind wherever located.

In an effort to combat unnecessary referrals, the Suffolk County Planning Commission adopted legislation providing towns and villages located in Suffolk County with an opportunity to enter into an Inter-Municipal Agreement (“IMA”) whereby specific types of land use applications are per se designated applications of local determination and do NOT require referral to the Suffolk County Planning Commission.

On September 3, 2008, the Suffolk County Planning Commission adopted legislation which specifically exempts the following land use applications from GML 239-m referral requirements:

1.  All area variances associated with single-family residences;

2.  Change of one permitted use to another with no changes in parking requirements (i.e. retail to office);

3. Minor additions less than 1,000 square feet with no change to use or occupancy;

4. Site plan applications proposing less than 5,000 square feet of new or renovated floor area or less than 10,000 square feet of land disturbance;

5. Exception:  Actions that have been given a Positive Declaration pursuant to SEQR or actions involving property abutting state or county parkland, the Atlantic Ocean, Long Island Sound, any bay in Suffolk County or estuary of any of the foregoing bodies of water shall be subject to the full review process.

Spreading the Word about Inter-Municipal Cooperation

Despite this clear exemption, and although the Towns of Babylon, Islip, Huntington, Riverhead and Southold have entered into IMAs with Suffolk County Planning, many other towns and villages have not.    When discussing the availability of the IMA option with colleagues and town and village officials, many are not even aware of this option.  This option is also available in Nassau County.

So, now that you are aware of the IMA option and how valuable this option can be in moving land use applications more quickly and without unnecessary municipal review, we land use practitioners must stick together and spread the word.  If you are a town or village official or a planning or zoning board member, please investigate this option with your governing county land use commission.

As land use attorneys and those participating in the development community know, the land use approval process is subject to many layers of oversight and review.  It is incumbent upon us to spread the word that one layer of review can  be eliminated by implementing an IMA with your specific county.  In so doing,  not only  will the overall time for a land use application decrease at the town and village level, but also, county planning commissions will be able to commit the necessary resources to evaluate projects of countywide concern, as they are specifically designed to do.

Vested Rights – When They Vest And When They Do Not

Posted in Common-law Vested Rights, Grandfather clause, Non-Conforming Uses, Property rights, Vested Rights

Zoning codes are often at odds with a property owner’s intended use for its site. In certain situations, a property owner may be able to use the site as intended. For example, if the actual use pre-dates the zoning code change, it can continue as a non-conforming use. This is frequently referred to as the “grandfather” doctrine.House on Law Book shutterstock_105894032

A property owner may also find refuge in the doctrine of “vested rights.” Under this doctrine, the zoning change does not prevent the intended use even if it is not a grandfathered use. Two recent cases, one from the Court of Appeals and the other from the Appellate Division, explain when rights vest and when they do not vest.

Vested Rights Upheld

In Matter of Waterways Development Corp. v Town of Brookhaven, 126 AD3d 708 [2d Dept], leave to appeal denied, 25 NY3d 909 [2015], in which we represented the developer, the Appellate Division determined that the developer of a multi-phase residential development had a vested right to construct three mid-rise residential buildings. These mid-rises, the final phase of the development, had been granted height variances in 1986 that allowed the buildings to be three-stories in height rather than conform to the zoning code limitation of two-and-a-half stories high.

Fifteen years later, in 2001, the developer applied for building permits for the mid-rise buildings, which the Town refused to issue. The appellate court, and the trial court before it, sided with the developer and determined that the Town’s refusal to issue building permits for the mid-rises was wrong because the developer had a vested right to complete the project and the variances were still valid. The appellate court also found that the Town acted arbitrary and capricious in denying the building permits and the Town’s decision was not entitled to deference under the circumstances.

The Court agreed with the developer that the development was a single integrated project. Six of the seven phases had been constructed at the time the developer applied for building permits for the mid-rises. That construction included project-wide infrastructure that benefited not just the six phases but also the contemplated mid-rises. The developer incurred substantial expenditures in good-faith reliance on the continuing validity of the variances, which had been expressly granted “for the life of job.” The Town had not objected to issuing building permits for the first six phases of the project, which construction extended over many years. All of the factors led the Court to conclude that the developer had a vested right to construct the mid-rise buildings.

Vested Rights Rejected

signsIn March 2016, the Court of Appeals issued a decision in which it found that a property owner had no vested right to a large outdoor advertising sign, even though the municipality had issued a building permit for the sign and the property owner had constructed it. In Matter of Perlbinder Holdings LLC v Srinivasan, 27 NY3d 1 [2016], the site previously had a large outdoor advertising sign affixed to the side of a building. A permit for that sign was issued in 1980. Thereafter, the City enacted a zoning regulation that prohibited outdoor advertising signs in that zoning district.

The original sign was grandfathered in as a non-conforming use. In 2002, the owner of the site obtained a variance to construct a high-rise building. The variance allowed the original sign to be relocated with slightly modified dimensions. The owner never built the high-rise. In 2008, the original building, which had become dangerous, along with the original sign, was demolished in accordance with an emergency declaration.

The owner then applied for two permits to build a new support structure for a free-standing sign and to install a new double-side large bill-board type sign on that structure in the middle of the now-vacant property. The department of buildings rejected the application, finding that the new sign could not be considered “grandfathered in” unless it was single-sided like the original sign and was placed in the same location as the original sign.

The borough building commissioner overruled that decision and approved the new sign and support structure on the ground that the new sign was grandfathered in under the zoning resolution. Permits to install the sign and support structure were issued. After the sign was constructed on the support structure, a routine audit of the department of buildings determined that the sign permit had not been lawfully approved and the department of buildings revoked the permit as being improperly granted.

The owner appealed the revocation to the New York City Board of Standards and Appeals (BSA), which affirmed the revocation because the sign violated the zoning resolution. The BSA determined that the non-conforming use had been lost since the original sign had been demolished more than two years before. The BSA also determined that it did not have jurisdiction to rule on the owner’s claim that it had installed the sign in good faith reliance on the permits.

The owner then commenced an Article 78 proceeding to annul the BSA’s determination and reinstate the permits for the new sign. The trial court dismissed the petition, affirming the decision of the BSA. The Appellate Division reversed and remanded the matter to the BSA, holding, as a matter of law, that the owner had established good faith reliance and ordered the BSA to determine on remand if the owner was entitled to a variance based on certain city charter provisions. Leave to appeal was granted and the case went to the Court of Appeals.

The Court of Appeals determined that the zoning resolution prohibited advertising signs in that zoning district and the new sign was not entitled to grandfather status. The Court rejected the owner’s vested rights argument. The Court explained that an owner can acquire vested rights to develop property in accordance with prior regulations when it effects substantial changes and incurs substantial expense to further the development in reliance on a legally issued permit but vested rights cannot be acquired if the permit relied upon was invalid. Since the sign permit was wrongfully issued to the owner, the Court of Appeals decided that the vested rights doctrine did not prevent the municipality from revoking the permit.

Conclusion

These cases make it clear that if a party claims it acquired vested rights in a project that no longer conforms to zoning, it will need to show the approval it is relying upon was validly issued or that it is single integrated project, in addition to demonstrating it conducted substantial construction and incurred substantial cost.

 

Court Clarifies and Limits Prior Ruling on Challenges to SEQRA Positive Declarations

Posted in Article 78, DEIS, Positive Declaration, Ripeness, SEQRA

iStock_000075777829_Large_BW

A recent ruling by the New York Court of Appeals strictly limits a developer’s right to appeal a positive declaration under the State Environmental Quality Review Act (“SEQRA”).  A “positive declaration” triggers the need for a draft environmental impact statement (“DEIS”) because there is a finding that the project has the potential to result in one or more significant adverse environmental impacts.

On March 31, 2016, the New York Court of Appeals issued its decision in Matter of Ranco Sand and Stone Corp. v. Vecchio2016 N.Y. Slip Op. 02477 (March 31, 2016).  In Ranco, the Court clarified its 2003 ruling in Matter of Gordon v. Rush, 100 N.Y.2d 236 (2003), which permitted an aggrieved developer to immediately challenge a town board’s positive declaration under SEQRA without first having to prepare a DEIS and complete the SEQRA environmental review process.

The Gordon decision caused some confusion among the lower courts, prompting the Court of Appeals to revisit the issue in Ranco and clarify its prior ruling.  As explained in Ranco, a positive declaration cannot be immediately challenged in an Article 78 proceeding unless the developer can establish at least one of the following:

1) that a positive declaration appears to be unauthorized;

2) the agency issuing the positive declaration is unauthorized; or

3) the action is not subject to SEQRA.

The Ranco decision is discussed in greater detail in my May 25, 2016 NYLJ article entitled Court Limits Judicial Review of SEQRA Positive Declaration.

The Ranco Facts

The Ranco case arose after Ranco Sand and Stone Corp. applied to the Smithtown Town Board to rezone, from residential to heavy industrial use, one of two contiguous parcels Ranco owns.  After the Town’s Planning Board and Planning Department recommended approval of the application, the Town Board, acting as lead agency under SEQRA, adopted a resolution issuing a positive declaration that rezoning the parcel “may have a significant effect on the environment”, which required Ranco to prepare a DEIS.  Rather than endure the time and expense of preparing a DEIS – estimated to cost between $75,000 and $150,000 – Ranco promptly commenced an Article 78 proceeding against the Town Board.  Ranco sought to annul the positive declaration as “arbitrary, capricious, and unauthorized” and requested an order directing the Town Board to process the rezoning application without a DEIS.

The Town Board moved to dismiss the petition for failure to state a cause of action.  The Supreme Court, Suffolk County, granted the motion, finding that the matter was not ripe for judicial review.  The Appellate Division, Second Department, affirmed.  It concluded that the positive declaration was the initial step in the decision-making process rather than a final administrative determination and, therefore, did not give rise to a justiciable controversy.  The Court of Appeals granted leave to appeal.

Two Requirements for Judicial Review

In referencing Gordon, the Court found that immediate judicial review of a determination was warranted when two requirements were satisfied:

1)  The town board’s action had to “impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” This threshold requirement consisted of “a pragmatic evaluation . . . of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.”

2) The apparent harm inflicted by the action “may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.”

The Court concluded in Gordon that the Board’s action was ripe for judicial review because both the above requirements were met.  The Town’s positive declaration imposed an obligation on the developer to prepare and submit a DEIS after they had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency.  Moreover, it found that further proceedings would not remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS.

In Ranco, the Court agreed that the Town Board’s positive declaration imposed an obligation on Ranco that satisfied the first requirement of the ripeness-for-review analysis.  The Court failed, however, to find that the second requirement was met notwithstanding that the Court acknowledged Ranco could not recoup the costs and time incurred in preparing a DEIS, even if its application is ultimately successful.

In apparent recognition of its seemingly inconsistent application of the two-part test, the Court stated that when a positive declaration appears to be unauthorized, such as when a proposed action is not subject to SEQRA or when an administrative agency is not empowered to serve as lead agency, it might be ripe for judicial review.  The Court concluded that because Ranco did not claim the positive declaration was unauthorized or that the action was not subject to SEQRA, and because it had not presented any other basis to find that the Town Board had acted outside the scope of its authority, its petition for judicial review was denied as being not ripe for judicial review.

In the Ranco decision, the Court of Appeals referenced its ruling in Gordon, wherein it found that a positive declaration was ripe for judicial review when two requirements were satisfied. First, the agency’s action had to “impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” This threshold requirement, the Gordon Court said, consisted of “a pragmatic evaluation . . . of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.”  To satisfy the second requirement, there had to be a finding that the apparent harm inflicted by the action “may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.”

In Gordon, the Court concluded that the Board’s action was ripe for judicial review.  The Town’s SEQRA declaration imposed an obligation on the petitioners to prepare and submit a DEIS after they “had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency.”  No apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS.

The Ranco Court Clarifies and Limits its Prior Ruling

The Court in Ranco agreed that the Town Board’s positive declaration imposed an obligation on Ranco that satisfied the first requirement of the ripeness-for-review analysis.  It failed, however, to find that the second requirement was met, despite the fact that the Court acknowledged that Ranco could not recoup the costs incurred and time spent on preparing a DEIS, even if its application is ultimately successful.

In apparent recognition of its seemingly inconsistent decisions and to avoid any further confusion, the Court specifically limited Gordon.  It held that Gordon stands for the proposition that an immediate challenge to a positive declaration may be ripe for judicial review only where the positive declaration appears unauthorized, such as when the administrative agency is not empowered to serve as lead agency or a prior negative declaration obviates the need for a DEIS, or when the proposed action is not subject to SEQRA.  The Ranco Court concluded that because Ranco did not claim the positive declaration was unauthorized or that the action was not subject to SEQRA, and because it had not presented any other basis to find that the Town Board had acted outside the scope of its authority, its petition was deemed not ripe for judicial review.

The Chilling Effects of Ranco

The Ranco decision significantly limits the situations in which an aggrieved party can commence an immediate challenge to the issuance of a positive declaration.  Given the large financial expense and the considerable amount of work and time involved in preparing a DEIS, the Court’s ruling is likely to mean, in many instances, that a positive declaration will be the death knell of a project.

Perhaps more disturbing is the fact that aggrieved developers who believe their projects have been wrongly made the subject of a positive declaration must first pay tens or even hundreds of thousands of dollars for the right to bring an Article 78 challenge and will not have the ability to recoup those costs, even if they ultimately prevail in their claim.

Without any financial accountability for their actions, decision-makers who are critical of a development project can now use a positive declaration to advance an anti-development agenda under the guise that they are merely being diligent stewards of the environment.

Renewable Energy – It’s Not Just Blowing In The Wind

Posted in Agriculture, Biomass, Clean Energy, Farming, Fuel Cells, Geothermal, Global warming, Hydropower, Renewable Energy, Solar Power, Wind Turbine

New York State is actively promoting the development and implementation of renewable energy sources. New York State’s 2015 Energy Plan has a goal of 50% of power coming from renewable sources by 2030.

nys-from-spaceClean Energy Standard

Late last year, the Governor directed the New York State Department of Public Service (NYSDPS) to develop a Clean Energy Standard that will mandate requirements to ensure that the 50% renewable power goal is met. On January 25, 2016, the Staff of the NYSDPS issued a white paper that discusses four principal policy objectives in developing the Clean Energy Standard. These are:

  1. increasing renewable electricity supply to achieve 50% electric generation by renewable sources by 2030;
  2. supporting construction of renewable generation in the state;
  3. preventing premature closure of upstate nuclear facilities; and
  4. promoting the progress of the Governor’s Reforming the Energy Vision.

The New York State Public Service Commission is holding a series of public comment meetings throughout the state to get public feedback on what should be included in the Clean Energy Standard. The Long Island office of the NYSDPS held public comment hearings this past week. If you missed those hearings, you can still comment on the proposed standard by filing written comments with the Public Service Commission by May 31, 2016. (A link to the NYSDPS Staff White Paper and other documents on the Clean Energy Standard can be found here.

NYS Funding For Renewable Energy Projects

th5CE2WD5VA few weeks ago, the Governor announced that New York State is making available $150 million in funding to support large-scale renewable energy projects across the state. The $150 million will be awarded through a competitive process. Contracts will be awarded for a term of up to 20 years. The initial application to qualify for this funding must be submitted to the New York State Energy Research and Development Authority by May 26, 2016. More information can be found by clicking here.

The term “renewable energy” conjures up rows of solar panels. However, as noted in New York State’s 2015 Energy Plan, only about 25% of rooftops in the nation are suitable for solar panels. Where is the rest of the “renewable energy” to come from? Here is a quick description of renewable sources that state and local municipalities in New York may rely on to meet the 50% goal.

Wind Power

Harnessing wind power goes back hundreds of years. Those windmills in Holland are not just tourist attractions. Wind power today is more likely to come in the form of large wind turbines. The large blades rotate by the force of the wind, which rotates the shaft and spins the generator to create electricity. Land-based large-scale wind power facilities generated over 1,360 megawatts of power in New York in 2012. Offshore wind power plants are being studied and have the potential to provide between 350 to 700 megawatts of power.

Hydropower

As of 2010, hydropower represented 15% of power generation in New York State. One type of hydropower uses dams to store water in reservoirs. When the water is released, it activates generators to produce electricity. Another type is called run-of-river facilities. These depend upon drops in elevation to produce electricity. Another type of hydropower, hydrokinetic, generates electricity from free-flowing water going over turbines that are placed below water surfaces in tidal areas, rivers, canals, or wastewater treatment plants. Hydrokinetic technology is promising but not yet commercialized.

Biomass

Biomass is organic matter derived from living organisms.  It can be used as a source of energy.  Obtaining energy from biomass, also called bioenergy, is  not a new technique.  Wood is the major source of bioenergy, and it produces energy when it is burned.  Other sources of biomass include agricultural and forest waste, paper and pulp waste, and municipal waste.  There produce energy when they are burned.

Biofuels is another category of biomass, which convert biomass into liquid fuel used in transportation. Ethanol and biodiesel are probably the most well-known examples. Corn or soybeans are combined with other ingredients to make these fuels. Landfills are another source of biomass fuels. The decomposition of landfill waste produces methane gas that can be collected and used as fuel.

Solar Power

Solar energy can come from the familiar solar photovoltaic panels used to produce electricity Another type of solar power, solar thermal power, is used to meet non-electric generating demands. It uses the sun’s power to directly heat water or interior spaces.

Geothermal

This type of renewable power uses heat from below the earth‘s surface to generate electricity and comes from subterranean hot water or steam reservoirs. This heat is accessed by drilling into the earth to tap these sources. Geothermal energy can be used in both large and small scale facilities. Large utilities use geothermal power to drive generators and produce electricity. A single home can also tap into a geothermal source for heating and cooling, usually through a heat pump. In winter, the pump transfers heat from the earth into a home; it reverses the process in summer, cooling the home by transferring heat from it back into the earth.

Fuel Cells

A fuel cell is composed of two electrodes (one positive and one negative) and an electrolyte that is located between the two electrodes. A chemical reaction happens inside the fuel cell that generates electricity. The most common fuel cell used in electric vehicles uses hydrogen and oxygen. The chemical reaction generates electricity to power the car and creates water as the exhaust product.

Conclusion

Renewable sources have the potential to generate significant amounts of energy in place of fossil fuels. It will be interesting to see what techniques the Clean Energy Standard will mandate to achieve the 50% by 2030 goal and also what public-private partnerships apply for the $150 million being made available by the State of New York as part of its effort to achieve this goal.

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Pine Barren Credits-There’s Money In Those Trees

Posted in Pine Barren Credits, Property rights, Town of Southampton

tree-dollar-signOn July 14, 1993, the Long Island Pine Barrens Protection Act was signed into law by Gov. Mario Cuomo, creating one of the largest comprehensive land management plans in New York history.

After the State Legislature determined to protect approximately 100,000 acres of the Long Island Pine Barrens, the towns of Brookhaven, Riverhead and Southampton had to implement a plan for the preservation of this land thereby protecting drinking water on Long Island’s east end.  The overall process called for the protection of the 52,500-acre Core Preservation Area, by forbidding all new development in that area.  Since a majority of the area was privately owned, the municipalities were faced with the problem of compensating owners for the value of the land that was no longer capable of development without running afoul of a regulatory taking.

Key to the process of pine barren land preservation is the use of a development technique know as a transfer of development rights (TDR) program.  Basically, the TDR program, aptly named the Pine Barren Credit (PBC) Program insures that economic value is given to the sterilized property in the form of a PBC as recognition that development rights for the property can be transferred  by the land owners to a third-party for monetary value or to a “bank” known as the “Pine Barren Clearing House.” The Pine Barren Clearing House was expressly created by state law for the specific purpose of purchasing and selling the TDR’s for use in specific areas of a Town and is overseen by a five member Clearinghouse Board of Advisors.  The registry of PBC’s and  their transfers are updated  monthly.

The PBC can be used to transfer development rights from the core pine barrens parcels known as a “sending zone” to property in specially designated areas outside the pine barrens core known as “receiving zones.” Thus, areas outside the Pine Barren Core may be developed more intensely.

When might a project require a PBC?: (1) a change in an existing building’s use or an increase in floor area that results in a design sanitary flow rate exceeding Suffolk County Department of Health Services (“SCDHS”) Article 6 limits; (2) a new project that exceeds the allowable sanitary volume specified by SCDHS; (3) a project that increases the  number  of units or homes above what is allowed by zoning; or (4) a change in land use or zoning.

One of the benefits of the PBC system is that the TDR’s can be purchased by third parties in the open market.  Such a broad approach creates a market for the use of development rights and has the potential to significantly increase the density of the permitted zoning.  Such an increase in density is an major incentive for owner/developers in the “receiving areas.”

Stay tuned for a more detailed look at how PBC’s are transferred and redeemed.

Suffolk County’s New Agricultural and Farmland Protection Plan

Posted in Agriculture, Farming

farmlandIn December 2015, Suffolk County adopted an Agricultural and Farmland Protection Plan. The previous plan was adopted twenty years ago. This new plan discusses the current state of agriculture, sets goals for the future and provides recommendations to increase competitiveness and resiliency. Here are some highlights from the 2015 Plan.

Fun Facts

Did you know that Suffolk County is ranked third in value of agricultural production in New York? Pretty remarkable when you consider that the sector has shrunk from more than 100,000 acres of farmland decades ago to about 39,000 acres currently (about 6% of all the land located in the county). The last decade has actually seen a small increase in farmland acreage and a stabilizing of the number of farms located in Suffolk County. Half the acreage is protected by municipal governments or by non-for-profit organizations. The remaining farmland acreage is unprotected. Because farmland is typically flat and cleared, it is often a target for redevelopment.

The vast majority of Suffolk County farms are small, with about a third having less than 9 acres and another third being between 10 and 49 acres. The type of crops grown here has changed. Once known for vast potato farms, Suffolk County farmland is now more likely to be used to grow nursery stock, sod or wine grapes. Aquaculture is also on the rise, aided by the adoption of the Suffolk County Shellfish Aquaculture Lease Programaquaculture

2015 Plan’s Vision

The 2015 Plan’s vision is “to foster adaptable public policy along with the commitment and support of the farming community to protect, encourage and sustain agriculture as an industry for future generations in Suffolk County.” The Plan’s vision wants local public policy to “strongly support…economic environments where agriculture can flourish” and “anticipate new challenges to Suffolk’s farming community and be flexible enough to embrace new solutions when needed.”

Goals

The 2015 Plan has several goals These include:

(1) preserving agriculture as an essential industry, preserving the quality of life in the county and generating economic activity to sustain complementary industries such as tourism;

(2) purchasing development rights to the unprotected farmland;

(3) incentivizing farmers to use best management practices to protect ground and surface waters, prevent erosion, and increase resilience to climate change and extreme weather events;

(4) retaining the culture of farming which strengthens community identity and contributes to economic development; and

(5) maintaining economic viability of the farming industry.

Objectives

The 2015 Plan also has numerous objectives for these goals. These objectives include:

(1) supporting public policy to protect health, safety and the environment without hindering or discouraging agriculture;

(2) leveraging investments in infrastructure to support new farms and expanding marketing opportunities;

(3) nurturing public/private interest in diversification of crops, best management practices, and educational and technical support for farming;

(4) identifying challenges and creating strategies for overcoming challenges faced by farms;

(5) developing long-term strategies to protect ground and surface waters and preserve agricultural soils;

(6) identifying new crops and new methods to market them;

(7) preserving farmland; and

(8) maximizing governmental farmland preservation funds to protect Suffolk’s farmland.

Strategies

Chapter 5 of the 2015 Plan contains many strategies to promote agriculture and agri-tourism. Some of these strategies include:

(1) taking advantage of the growing interest in farming by educating people about agricultural careers on Long Island;

(2) creating internships and apprenticeship programs;

(3) continuing to purchase farmland development rights;

(4) leveraging state and federal funding for farmland preservation;

(5) legislative reform to counter the impact of state and federal inheritance taxes on farmland;

(6) incorporating renewable energy as a way to counteract high energy and fuel costs;

(7) recommendations on branding, direct marketing opportunities, and investing in local food hubs and incubators;

(8) planning for climate change; and

(9) eliminating excessive regulations.

Related Programs and Town Regulations

The 2015 Plan also identifies municipal policies, programs, plans and regulations that concern agriculture and aquaculture. Some of these include:

(1) Suffolk County Farmland Purchase of Development Rights Program;

(2) Suffolk County Shellfish Aquaculture Lease Program; and

(3) Town and Village Comprehensive Plans and Zoning and Subdivision Regulations that relate to agriculture.

The 2015 Plan gives examples of the latter. It notes that the Town of Babylon’s comprehensive plan does not discuss or set goals for agriculture. Its zoning code permits agricultural occupations in four of its fourteen zoning districts and has distance restrictions for horses and livestock. The Town of Brookhaven’s comprehensive plan does not have a section dedicated to agriculture but does have a section in its town code regarding the right to farm and protected farm practices.

The Town of East Hampton’s comprehensive plan has one stated goal related to preserving agriculture. It has a right to farm policy, a community preservation fund, and allows farming in many of its zoning districts. The Town of Huntington’s comprehensive plan includes a chapter on open space, including agriculture. It has an environmental open space and park fund and allows agriculture in fourteen of its 33 zoning districts. The Town of Islip allows agriculture in six of its 27 zoning districts, but there are also buffer zones and livestock restrictions. The Town of Riverhead’s comprehensive plan has a chapter on agriculture and town regulations giving farmers the right to farm without undue interference from adjacent landowners.

Shelter Island’s comprehensive plan does not discuss agriculture, but it does have a community preservation fund. It allows agriculture in four of its eleven zoning districts. The Town of Southampton’s comprehensive plan includes a section entitled “Vision for Agriculture,” which recognizes the importance of agriculture. Its town code recognizes the right to farm and exempts agriculture from noise pollution regulations. The Town of Southold’s comprehensive plan includes a chapter on agriculture, has a farm and farmland protection strategy and its town code recognizes farming as an essential activity.

Conclusion

Suffolk County’s new Agricultural and Farmland Protection Plan is a comprehensive approach to protect and preserve a vital industry. It will be exciting to watch the county implement this plan.

 

Are Sustainability Plans and Climate Action Plans Helping to Preserve the Future of Long Island?

Posted in Climate Change, Town of Huntington, Town of Southampton

Several weeks ago, we wrote about the Village of Great Neck Plaza implementing a climate action plan to combat climate change.  We now report on the efforts of other municipalities on Long Island to implement sustainability plans and climate action plans that are aimed at preserving and protecting Long Island’s future.  Can these plans achieve the goal of ensuring the long-term viability of this region?  You be the judge and let us know what you think.

What Is Sustainability?

In its Statement of Qualifications, Sustainable Long Island defines sustainability as “a method of harvesting or using a resource so that the resource is not depleted or permanently damaged.”  In other words, sustainability seeks to meet present needs without compromising the resources available to future generations.  It is a melding of economic development, environmental health and social equity principles for the betterment of the earth and its current and future inhabitants. Sustainability focuses on conservation of resources, adaptation and innovation, and reliance on renewable resources.   It also relies on zoning and land use changes that encourage sustainable development practices.

Long Island’s Attempts At Sustainability Planning

Long Island Regional Planning Council’s Sustainability Plan

In December 2010, the Long Island Regional Planning Council issued its report entitled Sustainable Strategies for Long Island 2035, the first phase of its sustainability plan for the region.  The plan cautioned that unless entrenched notions for development and growth are changed, Long Islanders face an economic, environmental and social catastrophe. The plan’s components include: (1) tax and governance; (2) economy; (3) environment and infrastructure; and (4) equity.

The plan includes several different strategies for each component.  The economy component has nine strategies, several of which target innovations in energy efficiency, renewable energy technologies, affordable housing, worker training for 21st century jobs including jobs in health care, green energy, and remediation of contaminated sites.   The environment and infrastructure component has ten sustainable transportation strategies, including creating transit-supported communities and significant improvement to the public transportation system.  It also has six strategies for environment and infrastructure, including protection of water resources, developing regional energy and energy conservation programs, creating a “zero waste plan,” developing a climate change resilience plan to address sea level rise and coordinating emergency preparedness.  It also has four land use strategies that include protecting open space and farmland and protecting neighborhood character with location-compatible new development.  The equity component has five strategies, including the development of workforce housing, establishing training, education and employment centers in low-income and minority communities.

Suffolk County Climate Action Plan

Suffolk County adopted its Climate Action Plan in June 2015.  This Climate Action Plan is a framework to combat climate change and saves the county over $5 million per year from reduced energy use.  The county installed energy efficient condensing blocks, lighting upgrades, occupancy sensors, low-emissivity windows and HVAC upgrades in 30 county buildings.  It also installed solar photovoltaic array panels on new and existing structures, installed an electric vehicle charging station, and met the LEED standards for new construction and reconstruction of existing county buildings.  The plan calls for enactment of policies to evaluate cool/green roofs and other energy conservation techniques.  It is also conducting biodiesel pilot programs. It is looking at its handling of wastewater and is evaluating ways to decrease solid waste including recycling programs  and “paperless” county offices.  It is also taking steps to implement design guidelines for new residential, commercial and industrial buildings to reduce energy consumption and improve environmental quality.  The county is also looking at acquiring more open space (the county owns in excess of 162,000 acres of preserved land) as part of its sustainability plan.

The Town of Southampton Sustainability Plan

The Town of Southampton added a sustainability element to its comprehensive plan at the end of 2013. It is referred to as the Southampton 400+ Sustainability Plan.  This plan is aimed at maintaining the unique characteristics of the town; in particular, the scenic vistas, maritime heritage and world-class beaches.  In fact, the mission statement notes that the town is using the word “sustainability”  to mean sustaining and preserving the beauty, farmlands, woodlands, walkable village centers, culture and history of the town.  The town notes the plan is aspirational, to be used in the planning and land use process, but that policy, budget and legislative changes to implement the plan will be handled separately in the future.

The plan aspires to minimize human degradation of nature, improve fisheries and agricultural lands,  reduce the use of man-made persistent chemicals, reduce fossil fuel use and create vibrant economic prosperity, culture and learning.  It seeks to expand the Sustainable Southampton Green Committee website to provide information about living green in the town.  It also seeks to restore and protect the town’s ground and surface waters by expanding the Suffolk County Clean Water Coalition and continuing its efforts to develop a septic system inspection program.  It seeks to diversify the local economy, will promote the town’s “Safe and Sustainable” procurement policy and will expand the town’s website to encourage sustainable business practices.

On the land use side, the town notes it intends to promote the voluntary transfer of development rights to shift development away from sensitive and open space parcels.  It will also implement a Complete Streets policy, where appropriate, to encourage increased use of bicycles and walkable downtowns.   The town intends to develop a climate action plan to lower its carbon footprint and use alternative energy sources.  It is considering amending its town code to implement green building practices found in LEED and other similar third-party rating systems.

The Town of Huntington Climate Action Plan  

The Town of Huntington adopted a Climate Action Plan in 2015.  It assessed municipal facilities and its operations, community-wide policies and initiatives , and climate change adaption and resiliency.   The town has already implemented energy conservation measures at Town Hall and other town-owned sites.  It upgraded HVAC systems and lighting and installed a 28kW solar photovoltaic generating system.  It conducted energy audits of its buildings.  It incorporated new energy requirements into the Town Energy Codes.  It is considering incorporating compliance with LEED principles in its building code as well as requiring green or cool roofs, improved insulation for new, and rehabilitation of existing, structures.  It is considering recommending the installation of solar panels on every facility that can reasonably support it.  It is looking at wind parks.  It is going to make additional upgrades to street lights and is looking at purchasing fuel efficient vehicles to replace its current fleet.  It intends to promote greater use of the HART bus system to raise ridership.  It is implementing paperless offices at town offices, reducing the use of Styrofoam and other disposal products and is considering a single town-wide water-wastewater district that includes sewered and un-sewered properties. It will consider reusing grey water where appropriate as well as ways to redesign recharge basins to enhance surrounding neighborhoods.

Okay readers, what do you think of these plans? Do you think they can achieve their goals of sustainability or decrease the impact on climate change? Let us know what you think.   We’d also like to hear from other municipalities regarding their sustainability and climate action plans.

Note: The author, Charlotte A. Biblow, a partner at Farrell Fritz, is president of the board of directors of Sustainable Long Island.

Mining in the Hamptons- Appellate Division Affirms Town of Southampton Zoning Board of Appeals Limitations on Pre-existing Nonconforming Uses Associated with Hamptons Mining Operation

Posted in Article 78, Mining, Non-Conforming Uses, Town of Southampton, Zoning Board

Located in the hamlet of Bridgehampton, Town of Southampton, a sand mine operation owned by Sand Land Corporation and run by Wainscott Sand & Gravel Corporation (“Sand Land”) had its zoning changed by the Town in 1972 from G-Industrial to CR Country Residence, now CR200, constituting five acre residential zoning. Upon the zone change, the sand mine became a pre-existing nonconforming use. But now, this sand mine finds itself located in an affluent residential neighborhood with assessed values ranging from $1.5 million to $3.8 million.  The sand mine also abuts the posh Golf at the Bridge, (now known as The Bridge Golf Club), a private golf and country club. Naturally, the activity at the sand mine creates truck traffic, noise, dust and odors normally associated with such businesses, which is at odds with the residential and private golf club uses nearby.  However, the expansion of Sand Land’s business activities to include a mulching operation and concrete processing facility incited the neighbors to challenge the pre-existing use.

Sand Land v Southampton Town Zoning Board of Appeals

Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix Concrete v. Town of Southampton et al. Therefore, there is no other location in the Town where Sand Land could move and legally operate its mining operation.

In 2005, the neighbors (funded in part by the Golf Club owners) brought a Town Law §268(2) action to enjoin Sand Land from certain uses of its property. While the action was still pending, Sand Land sought a pre-existing certificate of occupancy from the Town Chief Building Inspector. In 2011, the Chief Building Inspector issued a pre-existing certificate of occupancy for (i) the operation of a sand mine, (ii) the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and (iii) the storage, sale, and delivery of sand, mulch, topsoil, and wood chips.  The Chief Building Inspector denied that Sand Land had a pre-existing use to receive and process concrete, asphalt, pavement, brick, rock and stone into concrete blend. The neighbors appealed the Chief Building Inspector’s determination to the Zoning Board of Appeals.

The Zoning Board found that Sand Land was entitled to the pre-existing sand mine use including the storage, sale and delivery of sand and receiving trees, brush, stumps, leaves, and other clearing debris as a pre-existing accessory use to the mining operation.  However, the ZBA found Sand Land was not entitled to a pre-existing certificate of occupancy for (i) the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and (ii) the storage, sale and delivery of mulch, topsoil, and wood chips. The Zoning Board found those uses to be new and an impermissible expansion of the nonconforming mining operation, stating, “there is no case law or holding to date that finds the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and the storage, sale and delivery of mulch, topsoil and wood chips to be a part of, or a natural outgrowth of, sand mining” citing, McDonald v. Zoning Board of Appeals of the Town of Islip, 31 A.D.3d 642 (2d Dept. 2006).

Southampton Town Zoning Board Prevails

Sand Land sued the Zoning Board. In a decision dated February 18, 2014, the trial court overruled the Zoning Board and re-instated the decision of the Chief Building Inspector. Sand Land Corp. v Zoning Board of Appeals, 43 Misc. 3d 1202 (Sup. Ct. Suffolk Co. 2014). The Zoning Board and the neighbors appealed.  A few weeks ago, the Appellate Division found “it was reasonable for the ZBA to conclude, in effect, that these “new uses” constituted a “significant change” from the nonconforming sand mine operation and the accessory receipt of various yard debris.  Accordingly, the Supreme Court erred in annulling the ZBA’s determination.” In the Matter of Sand Land Corp. v Zoning Board of Appeals, 2016 Slip Op. 02372 (Appellate Division, 2d Dept March 30, 2016).

Is this Truly a Win for the Town and its Residents?

The ZBA can celebrate its reasoned determination being upheld, but the result of its determination created a practical difficulty within the Town. Sand Land may choose not to accept delivery of trees/brush, stumps, leaves, and clearing debris, since it is not permitted to process and sell it. Numerous East End businesses used Sand Land as the site where they brought their refuse. According to the ZBA determination, even the Town of Southampton itself used to bring debris to the site.  This forces local landscaping and other businesses in the Town to travel farther to find a permitted receiving area to dispose of their refuse.  Indeed, Newsday reported Supervisor Jay Schneiderman stating, in response to the Appellate Division’s decision, “there is clearly a need to process yard waste” and that “he is trying to find ways to expand the capacity of the town’s three disposal sites to accommodate the waste.”   Newsday, Bridgehampton Sand Mining Firm Barred from Processing Debris by Will James, April 9, 2016, available at newsday.com.

This is a perfect example of the difficulty with certain preexisting nonconforming uses. Although considered a nuisance by neighbors, they can be invaluable to a different faction of the community; in this case the landscaping business community, which plays an important role in keeping the Hamptons beautiful!