Oklahoma-City-Vacant-House-BuyerThe Towns of Babylon and Hempstead have recently enacted legislation designed to combat the blight associated with “zombie” homes and other vacant and abandoned properties. Both laws create a registry and require the payment of fees to offset the costs associated with monitoring and inspecting properties that are required to register.

Town of Babylon

The Town of Babylon’s law, known as the “Mortgage-in-Default Registry” law, requires banks and other lenders to register with the Town within ten days after a home mortgage goes into default. The law, which is based on similar legislation enacted in Jacksonville, Florida, sets forth certain maintenance and security requirements for the property and requires lenders to inspect the property monthly while it is in default. Lenders are obligated to report each time a mortgage changes hands, and the new lender must register with the Town as well.

Under the new legislation, lenders are required to pay an annual registration fee of $200 per property to a company hired by the Town to manage the registry. Failure to register and pay the fee or to comply with the new law’s property maintenance and security requirements will subject first-time violators to a fine of $250 to $1,000 and up to 15 days in jail.

Town of Hempstead

The Town of Hempstead’s new registry law, known as the “Maintenance of Vacant Buildings” law, goes beyond the measure adopted in Babylon in that it applies to all vacant residential and commercial properties, regardless of whether they are in default or in the foreclosure process. The Town’s new law requires landlords to register with the Town within 30 days of a building becoming vacant, pay an annual fee to cover the Town’s administrative costs to maintain the registry, and monitor and inspect properties.

Hempstead’s annual fees start at $500 and increase each year by $500 until a maximum annual fee of $3,000 is reached. The registry fees are in addition to the $25,000-$35,000 deposit that lenders of properties in foreclosure must post under the Town’s anti-zombie legislation adopted in May.

Landlords are also required to submit a plan to either demolish the building, keep the property secured and properly maintained, or detail how the structure will be rehabilitated within a year.

According to Town Supervisor Anthony Santino, the new measure is not intended to be punitive, but rather is designed to create a financial incentive for landlords to get their vacant buildings occupied and back to productive use as soon as possible.

The measures adopted in Babylon and Hempstead are the latest attempts by Long Island municipalities to tackle the problems associated with vacant and abandoned properties. These laws come on the heels of New York State’s anti-zombie property legislation known as the Abandoned Property Neighborhood Relief Act of 2016 that was signed into law by Governor Andrew Cuomo in June, which, among other things, created a statewide registry of abandoned properties.

pumpkinsBeginning in 1974, Suffolk County enacted a series of laws, now codified as Chapter 8 of the Suffolk County Code, which sought to preserve agricultural lands. In exchange for paying an owner for the development rights of his/her farmland, the owner agreed to a covenant restricting the land to agricultural or open space. Between 1974 and 2010, more than 9,000 acres of farmland were preserved through this program.

In 2010, the County enacted Local Law 52-2010, which allowed the County to permit some development of these preserved properties, even though the owner previously had been paid taxpayer dollars to forego such development. Previously, absent a referendum of the electorate, there was an express prohibition against alienating the development rights that were preserved via this program. The 2010 amendment allowed special use permits and hardship exemptions to be issued, enabling owners or lessees of property in the program to expand agricultural use by constructing new or additional structures and amusement attractions. These included things such as greenhouses, barns, farm stands, special events and parking. Rather than requiring a referendum of the electorate, the permits and hardship exemption requests were to be handled by the Suffolk County Farmland Committee, made of up nineteen members, nine of whom were appointed by the County Executive. The other ten members were composed of persons selected by the ten Suffolk County towns, with each town getting one member.

In 2013, the County enacted Local Law 44-2013, which added a few refinements to the permit and hardship exemption program. It added agricultural tourism, horse boarding operations, hay rides, mazes and u-pick operations to the list of permitted uses.

The 2010 and 2013 local laws were challenged by the Long Island Pine Barrens Society, Inc., claiming that the laws violated a whole host of statutes and public policy. On September 28, 2016, Justice Thomas F. Whelan issued a ruling siding with the Pine Barrens Society, in which he declared the two local laws to be null and void. Justice Whelan also issued a permanent injunction that prohibited the granting of permits and hardship exemptions. He explained that the two local laws were, in effect, a “give back” to the owner of the development rights that had been bought, and paid for, by the County. Justice Whelan determined that this “give back” was a substantial intrusion and diversion of County assets for the personal gain, use and enjoyment of a private property owner, in contravention of public rights to use and enjoy the property as preserved open spaces and open areas.

The next step is up to Suffolk County to determine whether to appeal the decision. Unless it does so and is successful in overturning the ruling, the County cannot use these two local laws to allow development of preserved farmland.


thOn July 11, 2016 and August 22, 2016, we blogged about how to successfully prepare and record a deed in the State of New York.  Just a few days ago, a question arose as to whether joint tenants with rights of survivorship can hold title to real property in unequal interests.  Although I emphatically stated in our July 11, 2016 post that joint tenants can only hold title in equal shares, I wavered in my answer when I was met with opposition by others who emphatically stated that joint tenants can, in fact, hold title in unequal interests.  So this blog post is intended to set the record straight.  Under New York State law, persons holding title to real property as joint tenants with rights of survivorship must hold title in equal interests.

The three types of real property ownership interests consist of (1) tenants by the entirety, reserved to married couples only, which by its terms creates a survivorship interest in each party; (2) joint tenants, which creates a survivorship interest between the parties, and must be clearly stated on the deed in order for the joint tenancy to exist; and (3) tenants in common, which creates no survivorship interest between the parties and is typically used when friends or persons other than married or familial parties purchase, most often, investment properties.  When a deed is silent as to the ownership interest, such as John Doe and Mary Smith, unless John Doe and Mary Smith are married, the law presumes that the parties intended to create a tenancy in common, with no survivorship interest between the parties.

And, to further set the record straight – the term “joint tenants with rights of survivorship” is a misnomer.  The legal term “joint tenants” provides each titled owner with the right of survivorship.  Consequently, when drafting a deed, indicating the ownership interest between the parties as “joint tenants” is sufficient to create a right of survivorship between the parties.  (See EPTL 6-2.2).  Having said that, when creating a joint tenancy between parties, attorneys routinely indicate ownership interests as “joint tenants with rights of survivorship.”

Understanding the three types of ownership interests becomes of utmost importance when multiple parties take title to real property.  For example, in the State of New York, if John Smith and Mary Smith, his wife, take title to real property together with their children Jack Smith and Meg Smith, the interest created here is an undivided 50% ownership interest in the property by John and Mary Smith and a 25% tenant in common interest to each child, Jack and Meg.  The tenant in common ownership interest arises because the deed is silent as to the ownership interests among all four parties.  Upon the death of husband John, Mary remains a 50% owner; and her two children, Jack and Meg, each own the remaining 25%, all as tenants in common.

This scenario would change in the event that Jack, the son, was to die first.  In this instance, John and Mary Smith, husband and wife, remain 50% owners, Meg remains a 25% owner, and the heirs of Jack inherit his 25% interest.  If the deed had read:  “John Smith and Mary Smith, husband and wife, and Jack Smith and Meg Smith, as joint tenants with rights of survivorship”, then each of the parties, regardless of the spousal relationship, would own 25%.  Upon the death of any owner, the surviving parties would equally inherit the decedent’s share.  If Meg were to pass on first, then John’s, Mary’s and Jack’s interests would increase to 1/3 each.

There are numerous examples of cases where the ownership interests of the parties are disputed.  In most cases, the language set forth in the deed by the attorney draftsman is the cause of the litigation.   In reconfirming that joint tenants must hold equal ownership interests, I came across a 1996 Westchester County, Supreme Court case, Prario v. Novo 168 Misc.2d 610, whereby the trial court not only sets out the law, but also provides great examples of who owns what in specific ownership scenarios.  Most drafting mistakes arise when individuals hold title along with married couples.  To avoid creating an ownership interest that the parties did not anticipate, the drafter must carefully read the language set forth in the deed to ensure that the interests created are, in fact, the interests that the parties desire.  Perhaps printing out a copy of Prario, supra, will assist in avoiding critical ownership interest mistakes.

One footnote:  The joint tenant equal ownership interest theory does not necessarily mean that in a partition action, or action for divorce, each party will walk away with equal monetary amounts.  We will leave that discussion for another day!

th3QKHUYHKThere has been a lot of recent press about water pollution caused by PFOS and PFOA, in particular at Hoosick Falls in upstate New York and at the Stewart Air National Guard Base in Newburgh. You may have wondered what the heck these chemicals are and should we be worried about them on Long Island. Here is some information to help answer these questions.

 Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are fluorinated organic chemicals that are part of a larger group of chemicals known as perfluoroalkyl substances. They are highly resistant to water, grease and stains, a characteristic that explains why they were widely used in carpets, clothing, furniture fabric, food packaging, and cookware. PFOA was used to make Teflon®. PFOA and PFOS are components of firefighting foam used at airfields.

Although the US production of these chemicals has been phased out, these chemicals are resistant to environmental degradation. As a result, they are still widely distributed in the environment and have been found to accumulate in humans, wildlife and fish.

In May 2016, the USEPA issued a health advisory about acceptable levels of PFOS and PFOA in drinking water. If drinking water contains PFOA or PFOS above 70 parts per trillion (ppt), the USEPA recommends that steps be taken to notify the public and health officials in order to limit exposure and identify the source. This is an extraordinarily low concentration. Picture a swimming pool full of one trillion (1,000,000,000,000) ping pong balls. Now picture 70 of them painted yellow and the rest of them (999,999,999,930) painted white. That’s 70 ppt. In April 2016, the New York State Department of Environmental Conservation (NYSDEC) added PFOS and PFOA to its list of hazardous substances.

In June 2016, the NYSDEC announced that it had reached settlements holding Saint-Gobain Performance Plastics Corporation and Honeywell International Inc. responsible for the PFOA water contamination in the Hoosick Falls area in upstate Rensselaer County. These plants manufactured Teflon®. Among other things, the settlement requires the companies to: (i) investigate PFOA contamination at four Honeywell and two St. Gobain plants; (ii) investigate the feasibility of an alternate water supply for the area; (iii) fund filtration systems for the local municipal water supply; and (iv) continue to pay for bottled water for local residents until the filtration systems are installed and working.

Two months later, in August 2016, the NYSDEC declared municipal landfills in the Village of Hoosick Falls and in the towns of Petersburgh and Berlin to be potential state Superfund sites. Monitoring wells at the Hoosick Falls site contained concentrations up to 21,000 ppt of PFOA, which is 3,000 times the USEPA health advisory limit. Samples from leachate on the Petersburgh/Berlin site contained concentrations up to 4,200 ppt of PFOA.

In early August 2016, the NYSDEC named the Stewart Air National Guard Base in Newburgh as a New York State Superfund site based on PFOS contamination. PFOS was used in Class B firefighting foam at the air base. PFOS contamination was detected in Lake Washington, which served as Newburgh’s primary water supply. Concentrations up to 5,900 ppt were found in an outfall from the air base that drained into Silver Stream, a primary tributary of Lake Washington.

Can it happen on Long Island? It already has. In July 2016, PFOS was detected in public supply wells near the Air National Guard Base at Gabreski Airport, in Westhampton Beach.  Concentrations of PFOS at 14,300 ppt were detected in monitoring wells. Groundwater downgradient of the current fire training area contained concentrations of PFOS at 58,900 ppt and PFOA at 6,930 ppt. Groundwater downgradient of the former fire training area contained concentrations of PFOS at 44,300 ppt and PFOA at 653 ppt. Not surprisingly, Gabreski was declared a state Superfund site a few weeks ago.



Rising sea levels and erosion have caused severe damage to Asharoken Avenue, the only road into or out of the Village of Asharoken.  These conditions continue to endange the lives and property of the people that live on Eatons Neck.  Yet, despite the potential benefits from a mulit-million dollar federally funded project that will protect Asharoken Avenue, the Village remains steadfast in its attempts to wall off the beach to Village residents only, even though the waterfront protection project is being funded by state and federal taxpayer dollars.

Since colonial settlers arrived on these shores, the residents of Long Island have had their beach rights protected.  Now, it seems, in a  process that has lingered for years,  the Village is attempting to characterize this federal project as merely roadway protection with no provision for the general public to access the beaches, despite the fact that the general public is paying the lion’s share of the costs.

The proposed protection of Asharoken Avenue by the U.S. Army Corps of Engineers (Army Corps) is basically a beach renourishment project.   Federal law requires public access wherever the Army Corps performs beach protection or renourishment; yet many Village residents and beach lot owners remain vehemently opposed to public access to their properties.

As the sea level rises, the Village Trustees are now being forced to think about what needs to be done with ever increasing cries for help from homeowners and public officials.  The end result may be  the Army Corps using the power of eminent domain to protect the public’s right to the shoreline.  It remains to be seen if the Village can have its cake and eat it, too.

How The Difference Adversely Impacted A Property Owner In A Condemnation ProceedingToday’s blog post concerns a property owner receiving substantially less than it wanted when its property was taken in an eminent domain proceeding because the “highest and best use” it claimed was applicable to the site required an area variance and a zoning change, rather than a special use permit. The awarded amount was about $1 million less than the property owner was seeking. The case, Matter of the Application of the Town of Oyster Bay v. BPJ Marine Corp., Supreme Court Nassau County, Index # 18701/2010, Justice Thomas A. Adams, December 3, 2013, affirmed, 139 AD3d 741 (2d Dept 2016) pitted BPJ Marine Corp., doing business as Gus Marine in Massapequa (the “Marina”) against the Town of Oyster Bay (the “Town”). It demonstrates the pitfalls facing an owner trying to establish the “highest and best use” of a parcel to maximize the condemnation award when the zoning prohibits the use.

The Marina

The Marina is located on a canal in Massapequa. It is composed of 2 parcels, divided by Alhambra Road. The eastern parcel is about 18,000 square feet in size. About 44% of that eastern parcel (7,900 square feet) is underwater. The eastern parcel has 180 feet of waterfront, all of which is bulk-headed except for a 10-foot boat ramp. The eastern parcel is about 75 feet wide, from the street line to the bulkhead. The western parcel is about 10,100 square feet and does not directly abut the water. Both parcels together are approximately 0.6 acres. The site is zoned as General Business (“GB”).

Prior to 2005, the Town permitted townhouse developments in GB zones as a special use. The site to the north of the Marina was developed as a townhouse complex 7 years before 2005, after obtaining a special use permit. In 2005, the Town enacted a local law prohibiting townhouses in GB zones. That 2005 local law was in effect at the time of vesting. Vesting is the point of time at which title to the land is deemed to be in the hands of the condemnor and no longer in the hands of the private owner. See New York State Eminent Domain Procedure Law (“EDPL”) § 402(B).

The Condemnation

The Town decided to condemn the Marina and made advance payments of $939,000 and $175,536.75 to the Marina. Not unexpectedly, the Marina claimed that the payments were woefully inadequate. The matter then proceeded to court.

The Marina claimed that the “highest and best use” of the site was as a townhouse condominium, asserting that 7 townhouses could be built at the site. The Marina asserted that the western parcel could be used for 2 of the 7 townhouses (with a value of $480,000) and the eastern parcel for 5 townhouses (with a value of $1,231,000.) Taking into account other factors, such as the cost to remediate the bulkhead and backfill it, the Marina claimed that the full value of the “highest and best use” award should have been $1,711,000.

The Town disagreed, asserting that the “highest and best use” of the site was as a marina and based its advance payments on that assessment. The Town presented evidence at trial that a townhouse complex had no reasonable probability of ever being approved for the site. The Marina would need to obtain a change of zone as it could not get a special use permit in light of the 2005 local law. Moreover, since the Marina was a conforming use in the GB zone, it could not take advantage of a Town code provision that allowed the Town to swap out a non-conforming use with a less intrusive non-conforming use.

The trial court and the Appellate Division agreed with the Town. The courts held that there was no reasonable probability that the Marina would get the site re-zoned to permit townhouses because of the express prohibition of townhouse construction in the GB zone in the 2005 local law. The courts noted that even if the zoning board of appeals overlooked that prohibition, the size of the area variance was massive and would not be granted. In making a determination to grant or deny an area variance, the zoning board of appeals would have to consider and balance the following factors: (1) will granting the area variance produce an undesirable change in the character of a neighborhood; (2) can the benefit sought by the applicant be achieved in some other feasible method; (3) is the requested relief substantial; (4) would the area variance, if granted, have an adverse effect or impact on the physical or environmental conditions of the neighborhood; and (5) is the condition requiring the area variance self-created.

The courts determined that the substantial size of the relief militated against the Marina. The courts noted that a townhouse complex under the zoning code needs a minimum of a 5-acre lot. The Marina was asking to build on a site that was less than 1 acre and a significant portion of the site was underwater land. The courts determined that the zoning board of appeals has never granted such an area variance of this magnitude. The courts also found that the problem was self-created because any developer that would submit a plan for seven townhouses on this undersized site couldn’t claim that it didn’t know how drastically undersized it was.

The trial court determined that the appropriate award was $35 per square foot, which amounted to about $732,000.

Although not mentioned in the decisions, since the award from the court was less than the advance payments made by the Town, under § 304(H) of the EDPL, the Marina may be subject to having to repay the amount that exceeds the advance payments. Not a happy ending for Gus Marine.

10187-5810-100208151901-6962-displayOn July 21, 2016, the Appellate Division, Third Department, upheld a decision of the trial court in  Lavender II v. Board of Zoning Appeals of the Town of Bolton, 141 A.D. 3d 970 (3d Dept., 2016) (Krogmann, J. ,Warren County) holding that a Castle located in a residential zone along panoramic Lake George, could not be used for commercial purposes such as weddings, large parties and other social receptions.  Id.

In early 2010, petitioner, John A. Lavender, II, began advertising Highlands Castle on the internet describing the property as “a perfect setting for a special gathering with family and friends . . . or any other meaningful experience you can envision.” Id.  The Castle is located in a residential zone. 

In 2012, the local Zoning Administrator determined that the rental activities did not violate the Town Code.  An appeal was taken by the neighbors, which resulted in a determination by the Zoning Board of Appeals of the Town of Bolton, finding that “the activities conducted at Highlands Castle are commercial in nature and are not customarily associated with the use of a single-family dwelling. ”  Id.

Petitioner filed an Article 78 proceeding.  In 2013, the  trial court affirmed the Zoning Board’s decision concluding that the activities conducted at Highlands Castle violated the single-family dwellings and associated permitted uses as defined by  Bolton Town Code Section 200.8.  Despite the trial court decision, petitioner continued to  use Highlands Castle for weddings, events, and even an American Bar Association event.  A restraining order was issued in 2013, and a final decision dismissing petitioner’s claims was rendered by the trial court in 2015.

Petitioner filed an appeal.  In upholding the trial court decision, the Third Department stated that there “is no dispute that the physical structure situated on petitioner’s property falls squarely within the definition of a single family dwelling.”  The Court further stated that the relevant inquiry “distills to whether petitioner’s use of the property as a venue for weddings, receptions and other events constitutes an “accessory use” within the meaning of the Town Code.”  Id.

The Court noted that petitioner’s contention that “Highlands Castle is held out merely for residential use” is entirely belied by the record.   Highlands Castle was offered for rent, with an emphasis on weddings, large parties and other receptions.  Petitioner marketed the property on the internet and even offered a comprehensive package, including photographers, food and vendors to meet every need.

Of critical importance to the Court was the fact that not only was Highlands Castle never rented out for even one single family use, but also, there was no evidence offered to support a finding that use of Highlands Castle for commercial purposes fits within the definition of permitted accessory uses as set forth in Bolton Town Code Section 200.8.  In light of the record and the lack of evidence proffered by petitioner, the Third Department stated that the decision by the Zoning Board of Appeals of the Town of Bolton was neither irrational nor unreasonable.

Of interesting note:  the Highlands Castle website continues to offer the property for weddings, parties and receptions to be held at Highlands Castle, the Castle Cottage, and the Royal Bedroom.  Same can also be found on Airbnb- refer to our earlier post, by Anthony S. Guardino, discussing Airbnb land use pitfalls.



In prior posts, we discussed sand mining in Southampton, Pine Barrens Credits and the State Environmental Quality Review Act (“SEQRA”). A recent case out of Suffolk County touches on all three areas, so we decided to write a blog post on it.

pbmap_article_slideshow_03The case, Matter of the Application of the Long Island Pine Barrens Society, et al. v. The Central Pine Barrens Joint Planning & Policy Commission and Westhampton Property Associates, Inc., 2014 NY Slip Opinion 30560(U)(Supreme Court, Suffolk County, February 27, 2014), affirmed, 138 AD3d 996 (2d Dept. 2016), involved the granting of an “extraordinary hardship” exemption by the Pine Barrens Commission to Westhampton Property Associates, (“WPA”). WPA wanted to expand its 111-acre sand mine partially located in the Core Preservation Area (68.07 acres) and partially located in the Compatible Growth Area (46.93 acres). The sand mine had been operating prior to 1981, and mining activities occurred at parts of the site since 1957.

The sand mine held permits from the New York State Department of Environmental Conservation (NYSDEC), which limited the depth of the mine to 45 feet above sea level. The mine was approaching this limit and wanted to be able to dig down to 26 feet above sea level. The proposed depth would be about six feet above the groundwater table. This change in depth is considered an expansion of the pre-existing mining use and is therefore considered new development under the Pine Barrens Comprehensive Land Use Plan. Therefore, in addition to obtaining a permit modification from the NYSDEC, WPA was required to obtain approval from the Pine Barrens Commission because it was partially located in the Core Preservation Area. In order to obtain this approval, WPA needed to demonstrate that it was entitled to an “extraordinary hardship” exemption under the Long Island Maritime Reserve Act of 1993 (the “Pine Barrens Act”), codified at Environmental Conservation Law (“ECL”) 57-0101 et seq.

Establishing An Extraordinary Hardship Exemption

ECL 57-0121(10) sets forth the criteria that an applicant must show to establish an “extraordinary hardship” exemption. The applicant must demonstrate that “the particular physical surroundings, shape or topographical conditions of the specific property involved would result in an extraordinary hardship, as distinguished from a mere inconvenience…” This requires providing evidence “that the subject property does not have any beneficial use if used for its present use…and that this inability to have a beneficial use results from unique circumstances peculiar to the subject property which: (i) Do not apply to or affect other property in the immediate vicinity; (ii) Relate to or arise out of the characteristics of the subject property rather than the personal situation of the applicant; or (iii) Are not the result of any action or inaction by the applicant or the owner or his or her predecessors in title including any transfer of contiguous lands which were in common ownership on or after June 1, 1993.”

The Pine Barrens Commission’s Review Of WPA’s Application For An Exemption

WPA submitted its application to extend the depth of its mining operations to the Pine Barrens Commission in November 2011. It also provided for a conservation easement that would preserve the property as open space after the mine was ultimately closed and restoration activities were completed. The Pine Barrens Commission first requested lead agency status to conduct the SEQRA review, which would be coordinated with the NYSDEC and other interested municipal agencies. The Commission also prepared a draft report in January 2012, in which it analyzed all potential environmental impacts and applied the “extraordinary hardship” criteria to the application. This was followed by a series of three public hearings. After considering all of the documentary evidence and the testimony at the hearings, the Pine Barrens Commission issued a negative declaration in October 2012, and adopted a resolution granting WPA the “extraordinary hardship” exemption.

The Pine Barrens Society Challenges The Exemption

The Pine Barrens Society commenced an Article 78 proceeding to challenge the decision of the Pine Barrens Commission. The trial court rejected the Society’s arguments and dismissed the petition. The Court first looked at whether the Pine Barrens Society, its Executive Director and two members of its Board of Directors had standing to bring the proceeding. The trial court found that none of the individual petitioners had standing because none of them alleged they lived in close proximity to the project and their claims of injury were general in nature. One individual claimed to be a teacher who used the Pine Barrens to help educate and was also an avid hiker. The Executive Director claimed he visited the Pine Barrens often and used them to teach and motivate the public about drinking water protection. The trial court then determined that since none of the members of the Pine Barrens Society had standing, the organization lacked standing. Although the finding of lack of standing was itself grounds for dismissal, the trial court went on to determine the case on the merits. It found that the Pine Barrens Commission gave the application the “hard look” required by SEQRA and that its determination was not arbitrary and capricious.

The Pine Barrens Society appealed the decision to the Appellate Division. The appellate court disagreed with the trial court and found that the Pine Barrens Society and its Executive Director had standing. The appellate court noted the Executive Director used and enjoyed the Pine Barrens to a greater degree than most members of the public and the threatened injury of development in the Core Preservation Area was in the zone of interest covered by the Pine Barrens Act. The appellate court also found that the Pine Barrens Society had standing since a member had standing and  the interests it raised in the action were germane to its purposes. The ruling finding standing, however, was a pyrrhic victory as the appellate court agreed with the trial court on the merits.

 The appellate court found that the Pine Barrens Commission’s decision to grant the “extraordinary hardship” exemption was not arbitrary, capricious or an abuse of discretion. The appellate court found that the decision was consistent with the purpose of the Pine Barrens Act, that it would not result in substantial impairment of resources in the Core Preservation Area, and the circumstances were peculiar to the site and was not self-created or due to action or inaction of the property owner. 


yellow-garbage-bagsSuffolk Supreme Court Justice has upheld Southold Town’s “yellow bag” law which requires residents to place refuse in Town issued yellow garbage bags.   Proceeds from the sale of the yellow bags is used to operate a transfer station located in Cutchogue.

In March, 2012, Go-Green Sanitation, a garbage carter, was hauled into Justice Court by the Town for operating without the proper permit and for failing to comply with the yellow bag law. The Town also obtained a short-lived restraining order from Suffolk County Supreme Court prohibiting the private carter from collecting trash from its residents not contained in the required yellow bags.

In response to the Town’s claims,  and without opposition from the Town, in July 2012, Go-Green removed the state court action to federal court alleging five counterclaims, including: (1) that the Town violated its due-process rights by effectively barring it from conducting business in the Town; (2) that Go-Green did not dispose of its trash at the Cutchogue transfer station, as such, it should not be subject to the yellow bag fees and (3) the yellow bag fees constituted  an illegal user fee or tax and as a result thereof,  Go-Green sought to add an additional Southold Town resident defendant in an effort to establish a taxpayer claim against the Town.

On June 12, 2015, in a well-reasoned fifteen (15) page opinion, Eastern District Court Judge Arthur Spatt,  declined to exercise federal jurisdiction over Go-Green’s  counterclaims holding (1) that Go-Green failed to plead and/or establish a federal claim and (2) although Go-Green alleged that it envisioned filing an amended pleading to assert a proper party and proper taxpayer claim;  the Court noted that the pleading before the court, did not, in fact, contain a proper party or a properly pled taxpayer claim.   As such, the federal court lacked subject matter jurisdiction and the matter was remanded back to State Supreme Court for a final determination.

On remand, in a recent July 2016 decision,  Supreme Court Justice Paul Baisley, Jr., found that the Town’s controversial law bears a reasonable relation to the public good as it was enacted to promote recycling.   Judge Baisley further found that the Town did not exceed its authority because the yellow bag law is not an illegal tax.  So, for now, and perhaps until a properly pled taxpayer action is asserted, residents and carters alike should refer to the Town of Southold’s website to determine what their respective yellow bags fees will be.


On July 11, 2016, I began a short blog series on how to successfully prepare and record a deed in New York State.  In that post, we reviewed the various types of deeds available such as warranty deeds, bargain and sale deeds and executors deeds.  We also discussed the importance of securing a copy of the last deed of record and ensuring that when preparing a new deed, you do not deviate from name spellings and owner capacities, such as tenants by the entirety, joint tenants and tenants in common.   The newly prepared deed should reflect the name of the owner/seller as it exactly appears, and in the capacity that the owner/seller received title to the property.

voidable-contractsGiven that my practice areas are land use development and transactional real estate, today’s post will discuss deed transfers where no consideration is paid by the buyer.  You may have occasion to provide no consideration deed transfer preparation when, for example, clients are transferring a real estate asset from their individual capacity to a corporate or LLC capacity.  In other words, the seller is not receiving any money for the transfer because in most instances, the seller is retaining some beneficial ownership in the property.  For instance, if John Smith is transferring a real estate asset to No # Main Street LLC, where John Smith is the sole member of the LLC; No # Main Street LLC may elect not to pay any money for the real estate asset because the transfer is done for liability purposes, and John Smith will continue to remain in possession and control of the asset.  Similar types of no consideration transfers are also popular when a marital asset is being transferred as the result of a divorce or newly married couple.

The examples set forth above are usually undertaken in good faith and with the intent to manage a real estate asset in the manner desired by the owner/seller.  However, attorneys should be careful to ask the right questions to determine the owner/seller’s actual intent in transferring a real estate asset, because no consideration transfers can raise additional title insurance exceptions in the future.   Likewise, no consideration deed transfers can bring unwanted liability, such as existing judgments and liens, upon the new owner and potential state and federal tax consequences to both the seller and no consideration buyer.

So how does a real estate practitioner properly transfer an asset for no consideration, while at the same time, ensuring that the parties involved are protected from any negative consequences?  The answer is simple; due diligence and disclosure.  The reasons are abundant as to why It is  not sufficient to secure a copy of the existing deed and then simply prepare a new deed.   First, when a real estate asset is transferred for no consideration, the existing judgments, liens and mortgages transfer with the asset.  Although the new buyer does not become personally liable for the debts, the new buyer cannot transfer the asset without paying off the debts.  In the example above, assume that John Smith transferred his real estate asset to No # Main Street LLC, but John Smith failed to advise his attorney that he has a number of judgments and liens against him.  Because the transfer is for no consideration, the judgments and liens against John Smith will continue to run with the land.  Now, assume that John Smith is not the only member of No #  Main Street LLC, but instead, John Smith has a partner, Mary Jones, who has no idea that John Smith has existing debts.  Those debts will now potentially affect Mary Jones’ interest in the real estate asset owned by No # Main Street LLC.

In addition, no consideration deed transfers raise questions with respect to the intent of the seller.  In the above example, perhaps John Smith intended to transfer the real estate asset in an attempt to avoid his existing creditors.  Because No # Main Street LLC did not pay any consideration for the transfer, a title exception will be raised when No # Main Street LLC sells the asset requiring proof that John Smith did not transfer the asset to avoid the existing creditors.  If No # Main Street LLC had paid value for the asset, it is less likely that a title insurance exception would be raised.

Other impacts of no consideration deed transfers include acceleration of existing mortgages.  Most mortgages contain an acceleration provision if the asset is transferred to someone other than the mortgage borrower.  Although in practice it is less likely that the lender will accelerate a mortgage that is not in default, nonetheless, the no consideration parties to the deed must be advised that this risk exists.

Likewise, when transferring real estate assets that arise from a divorce or a new marriage, the attorney preparer should take care to determine whether value is actually being paid or received for the transfer.  If John and Mary get divorced, and as part of his settlement, Mary transfers her interest in the real estate asset to John, that asset should be valued; and, unless it is specifically defined otherwise, consideration should be paid on the value of Mary’s one-half interest in the asset.  This is where accountants and tax attorneys should be consulted, to ensure that negative tax consequences do not arise from the no consideration transfer.

Finally, the way to avoid the pitfalls discussed above is to secure, at a minimum, a real estate asset last owner with judgment and lien search from your preferred title insurance provider.   Review the report to determine whether a no consideration deed transfer will raise more questions than it might solve.  Also, discuss the intentions of all parties to a no consideration deed transfer, as negative consequences can arise for all parties involved.