Header graphic for print

Long Island Land Use & Zoning

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.

gw-graphic-chart-epa-vs-ucs-state-renewable-energy-targets-FINAL

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!

Municipal Moratoriums, The Suffolk County Planning Commission and The Sag Harbor and Patchogue Experience

Posted in Moratorium, Suffolk County Planning Commission, Village of Patchogue, Village of Sag Harbor

In recent months, the Village of Sag Harbor and the Village of Patchogue enacted moratoriums aimed at halting large scale residential development, and in Patchogue’s case, including multi-family residential development.  Both Villages learned that enacting moratoriums is not only subject to referral to the Suffolk County Planning Commission (“SCPC”) pursuant to General Municipal Law § 239-m, but also, moratoriums can be subject to intense scrutiny by constituents and other governmental agencies, such as the SCPC.

What is a Moratorium?

Moratoriums, a word that brings angst to landowners and developers, are used by municipalities to temporarily control development while they study and potentially adopt changes to their comprehensive plans or to their land use regulations.   Often described as a means to preserve the status quo, a moratorium can halt all development in a community or can be tailored to a specific land use or aimed at a specific zoning district.  Moratoriums can include exemptions that allow some development to continue. For example, a municipality may exempt applications that have already been approved but not yet started.

Municipalities adopt moratoriums for several reasons: (1) prevent a rush to develop; (2) prevent inefficient or impractical growth; (3) address new types of land use not currently covered by their comprehensive plans or land use laws; (4) prevent hasty decisions that could adversely impact landowners, developers or the public; and (5) prevent construction that may be inconsistent with a future land use plan. If a municipality adopts a moratorium, it should make sure it is temporary, is for a reasonable time frame, has a valid public purpose,  balances benefits and detriments of the moratorium, adheres to the procedure for adoption of local laws and ordinances, and contains a time certain when it expires.sag%20harbor%20sign[1]

Sag Harbor’s 2015 Moratorium Did Not Comply with GML § 239-m

The Village of Sag Harbor enacted a 180-day moratorium on July 14, 2015 that temporarily suspended the Village’s authority to process and/or grant approvals for building permits for certain one-family detached dwellings.  The moratorium was triggered by recent development of one-family homes of “a size and scale that are inconsistent with the historic and rural character of the Village” and conflict with the purposes of the Zoning Code. Id.  In other words, the Trustees were concerned about the explosion of McMansions being built in the community.

The Village wanted time to consider gross floor area requirements and enacted the moratorium to preserve the status quo and avoid overburdening Village planning staff and boards.  The moratorium contained an exclusion that allowed the construction of homes that had been issued building permits before June 9, 2015.  It also allowed homes not exceeding 3,500 square feet to be constructed on lots of 20,000 square feet or less, or not exceeding 5,000 square feet on lots larger than 20,000 square feet.  It also excepted from coverage, alterations or improvements to existing one family detached homes that did not constitute “substantial improvement.”  Id.

Although this moratorium was filed with the New York State Department of State, news reports note that constituents, unhappy with the moratorium, argued that the Village did not refer the moratorium to the SCPC for a determination of regional significance as required by GML § 239-m.  That could have been fatal to the moratorium.

Sag Harbor’s 2016 Moratorium Did Comply with GML § 239-m

On January 12, 2016, the Village of Sag Harbor enacted a local law that put in place “temporary interim building restraints on building permits for certain one family detached dwellings pending conclusion of the Planning Update and SEQRA Process for the enactment of permanent regulations for development and redevelopment of residential dwellings.” Id. The 2016 local law states it replaces the previously-enacted July 2015 moratorium and will be in place until permanent rules are adopted.  According to news reports, this local law was referred to the SCPC and that the SCPC  determined it was not of regional significance.  The Village also filed the 2016 local law with the New York State Department of State

Like the July 2015 moratorium, the 2016 local law contains exclusions.  Any application that received an exemption under the 2015 moratorium and any application that meets the interim development standards in the 2016 local law are excluded from the restraints contained in the 2016 local law.  Whether the 2016 local law results in a construction boom of single family detached homes using the interim building restrictions or turns out to be, in effect, a moratorium, remains to be seen.

Patchogue’s 2015 Moratorium Complied with GML § 239-m But Was Met With Harsh Criticism

imageRYN72OD9Since 2008, the Village of Patchogue has been a pioneer in land use revitalization and redevelopment.  The Mayor reports that more than 600 people have moved to the 2.2 square miles comprising the confines of the Village.  Population estimates are said to be in the range of 12,500 people.  However, along with these pioneering efforts to rebuild and revitalize the Village’s main street and to promote multi-family downtown living, the Village is experiencing parking, traffic. utilities and general health, safety and welfare obstacles.

In response to the housing explosion, in 2011, the Village enacted its first 180 day moratorium on new apartment houses, garden apartments, townhouses, residential uses and buildings over three stories in certain of its zoning districts, including all floating zones.  Id. At that time, the SCPC approved the moratorium upon condition that (1) the Village investigate whether there are less burdensome alternatives to the moratorium and (2) the production of hard evidence supporting the necessity for the moratorium.

In 2013, the Village once again requested a 180 day moratorium on change of use, increase in intensity of use or an increase in occupancy in the D-3 Business District to meet the parking requirements set forth in the Village Code.  The SCPC, although reluctant to grant another 180 day moratorium, approved the referral.  Id.

In 2015, for the third time, and now reaching a moratorium of 540 days, the Village requested a further 180 day moratorium to provide Patchogue with time to evaluate and consider the impact of multi-family housing on parking, traffic, health, safety and general welfare toward a “carefully considered comprehensive plan.” Id. Although the SCPC staff report recommended disapproval of the Village’s request finding that the Village had not moved forward with a plan despite the prior moratoriums; the SCPC granted Patchogue’s request following a meticulous and careful recitation by the Mayor detailing the pioneering efforts and overall success of the Village’s efforts to revitalize an otherwise stagnant downtown.

The Village of Patchogue is in many ways a trail blazer and a model for downtown revitalization and multi-family development.   However, as any trail blazer knows, growth and divergence is never easy or without criticism.  Although Patchogue followed the proper procedure in referring its moratorium request to the SCPC,  all eyes will be on the Mayor and the Village to insure that this moratorium, will, in fact, be the  last.

Conclusion

It would be wise for all municipalities to take note of the Suffolk County Planning Commission’s developing scrutiny in connection with multiple requests to extend moratoriums.  The Commission’s comments are a reminder of the importance to seriously consider the impact of land use development, of whatever kind, on the municipalities’ overall ability to (1) serve land owner’s desires to develop their property and (2) the municipalities’ ability to serve those development needs as they apply to nature and character of the community, parking, traffic and the overall health, safety and general welfare of the community.

 

 

 

Justice Brennan’s “Miraculous Tool” Has Arrived: The Government Drone Zone

Posted in Drone, Fourth Amendment, Village Law, Village of Babylon, Village of Great Neck Estates, Village of Laurel Hollow

thNK2XLI7YOn February 26, 2016, we published our first Drone blog post: FROM PEEPING TOMS TO PEEPING DRONES: Help, Big Brother Government is Peeping in My Backyard.  We advised that New York State is presently considering multiple bills all designed to regulate drones and drone users.  Further, Suffolk County and the Town of Huntington adopted drone legislation specifically regulating private citizens’ rights to fly drones but specifically exempted itself, the government, from flying drones.

Now, before reading further, consider Justice Brennan’s 1989 dissenting opinion in Florida v. Riley, a Fourth Amendment case upholding the use of helicopter surveillance of marijuana plants, wherein Justice Brennan stated as follows:

William_Brennan_color“Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all—and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were.”

Well, less than thirty years later, and depending on where you live in this great state of New York, this “miraculous tool” now known as a drone, may very well provide the government with the right to hover over your enclosed courtyard or patio to determine if your property, or the use of your property, is compliant with the law.

The Village of Great Neck Estates, located in Nassau County, adopted a local law banning the use of drones unless “any such system, aircraft or equipment [is] operated by or under the authority of any governmental entity.” This broad governmental exemption speaks directly to Justice Brennan’s concern about privacy and just where to draw the line between the right to privacy and the right of the government to conduct surveillance.

The Village of Laurel Hollow, also located in Nassau County, adopted a local law banning drone use by any “person, entity or agency.”  Hence, drone use by local government is specifically prohibited in Laurel Hollow.

In our Peeping Tom post, we asked whether a local government could act on a neighbor’s complaint of an illegal apartment by flying a drone over the alleged violator’s property to gather evidence of the resident’s comings and goings.   The answer may be that those who live in Great Neck Estates can be surveilled while those who live in Laurel Hollow enjoy greater privacy.

As more municipalities consider drone legislation, the inevitable collision between privacy rights, government use and technology will undoubtedly ascend.   We suggest that you take your seat, buckle up and join as we travel from Town to Village in search of the next adopted drone legislation, including legislation recently debated and discussed by the Village of Babylon, located in Suffolk County.

th[9]

Erin A. Sidaras is Counsel at Farrell Fritz, P.C.

 

Is Your Summer Rental Legal? – Southold Town’s Short-Term Rental Law Comes Under Attack

Posted in Non-Conforming Uses, Short-Term Rentals, Town of Southold, Transient Rental Property

Crown Point neighborhood signsUsing Airbnb and similar web-based short-term rental services that enable homeowners to rent out their homes has become popular with budget-conscious travelers.  However, a growing number of municipalities believe that such transient rentals threaten the residential character and quality of life in the neighborhoods in which they occur and have adopted laws to regulate short-term rentals in their communities.

For instance, in August 2015, the Town of Southold adopted a local law banning “transient rental properties,” which are defined as dwellings that are rented out for a period of less than 14 nights at a time.  Under the law, rentals are presumed illegal if they are advertised on websites such as Airbnb, HomeAway and VBRO.  This presumption can be rebutted by presenting evidence to the Town’s Code Enforcement Officer demonstrating that the residence is not a transient rental property.  Violators face fines from $1,500 to $8,000 for a first offense, and from $3,000 to $15,000 for conviction of a second or subsequent offense within 18 months.

Proponents of Southold’s law claimed that homeowners who were offering their homes for short-term rental were essentially operating commercial businesses in residential neighborhoods that created quality of life issues for other residents.  Some residents also claimed these short-term rentals enjoyed a competitive advantage over local hotels and bed-and-breakfasts, which are subject to regulations that short-term rentals are not.  Opponents of the law argued that the Town Board failed to recognize the importance of short-term rentals, not only to North Fork homeowners who rely on the additional income, but also to the area’s tourism industry, which they claim suffers from a lack of traditional lodging.

In the first challenges to the law, an attorney representing a number of homeowners who had been advertising their homes for short-term rentals is claiming that his clients’ actions are “grandfathered” under the Town Code’s provisions which deal with “non-conforming uses” – uses that legally existed prior to the passage of the new legislation.  On March 25, 2016, two applications were filed with the Town’s zoning board of appeals seeking relief from the law.

While all sides will be monitoring these challenges closely, it is unlikely that the law’s validity will be decided at the zoning board of appeals level because the board’s decisions are likely to be challenged in a court of law.

Stay tuned, because as this year’s summer vacation season rapidly approaches, this East End hot-button topic will undoubtedly get hotter.

Easement Holder is “OUT” of the Game Before it Begins – Easement Lost to Adverse Possession

Posted in Adverse Possession, Easements

On at least three occasions, in 1961, 1966 and 1972, the parties to  a shared driveway easement confirmed its existence in writings contained in deeds and a stand-alone written agreement.

Despite this fact,  in a recent Kings County Supreme Court decision, plaintiffs Braunsteins, neighbors to the widow of famed baseball player Gil Hodges, were denied an injunction and effectively lost their rights to use the shared driveway to access their garage before they even purchased the property. Was this decision the right call or not?  Well, let’s review the play!

Court’s Reasoning

In deciding this case, the Court held that even before the Braunsteins purchased their property in 2002, Mrs. Hodges had acquired all rights to the easement by adverse possession based on the fact that the prior owners, the Golds, parked their vehicles on the street, not on the driveway.  Further, testimony in the form  of a non-party affidavit was submitted alleging that the Golds used the garage for storage and acknowledged that “t[he] driveway belongs to the Hodges family.”

In adopting these facts, the Court rejected Braunsteins’ uncontroverted evidence that between 2002 and 2013, the Braunsteins “were renovating their property and had workers using the driveway to finish construction and gain access to their garage.”  In fact, during the construction period, lasting almost 13 years, non-party Falco stated that Mrs. Hodges “always complied with the requests of Braunstein’s workers and/or agents’ requests to have her car moved from the driveway.  She either gave her car keys to the workers ‘for them to back the car out and then, after the delivery of the building materials, to park the car back onto the driveway or just moving it herself.’ “

According to the facts, at no time did Mrs. Hodges advise the construction workers or the Braunsteins that moving her car was merely a convenience.  This would have confirmed her contention that the easement which the Braunsteins believed they possessed, and was conveyed to them when they purchased the property 13 years prior, had been acquired years before their purchase by adverse possession as a result of the Golds’ non-use.

Flawed Reasoning?

This case could be analyzed for hours, and the facts supporting it are ripe for a re-play.   Here, the Court conclusively determined, by dismissing Braunsteins’ claims, that Mrs. Hodges established adverse possession by “clear and convincing credible evidence.”  This statement is simply not supported by the facts.  If the relief granted was merely to deny the injunctive relief request, and not to dismiss Braunsteins’ claims, then maybe a “foul” call would not be ripe.  In this case, however, the Court determined the ultimate relief based on contradictory evidence, such as the statement of Mrs. Hodges that she never moved her car.  This is clearly contradicted by the Affidavit of Ms. Falco, which states that Mrs. Hodges did move her car.

Likewise, having spent many years in the title insurance industry and upon reading this case,  questions instantly arose in my mind as to whether the easement in question was insured.  If it was, did the Golds sign an Affidavit or notify the Braunsteins that, despite three writings to the contrary, the Golds abandoned their absolute right to use the easement?  Would the Braunsteins have purchased the property if they knew that they had no access to their garage, and that the written easement was extinguished?

Implications of Decision

Further, what certainty do title insurers, sellers, purchasers and their attorneys have when more than 13 years later, a neighbor can successfully extinguish an easement, which has been established by 1) no less than three writings, 2) existing for nearly 52 years and 3) being in active use by the Braunsteins during their renovation project, as evidenced by their use of the easement, without objection, for more than 13 years.

Is this dispute in the first or the last inning?  Tune into Farrell Fritz’s regularly scheduled Monday blog posts to find out who the winning team is!

th[9]

Erin A. Sidaras is Counsel at Farrell Fritz, P.C.

Facebook

Twitter

LinkedIn

Village of Great Neck Plaza Leading The Way – Climate Change

Posted in Climate Change, Global warming

The Village of Great Nreduce-your-carbon-footprint-logoeck Plaza (“the Village”) may be small in size (about a third of a square mile) but it is leading the way on climate change on Long Island. In February 2016, it became one of the first villages on Long Island to adopt a climate action plan (CAP).[1]   The CAP stems from the Village’s October 2012 Climate Smart Communities (CSCs) pledge.

 

 

 

The CAP has nine major initiatives:

  • Reduce overall Green House Gas (GHG) emissions by 20% by 2020 below the 2005 baseline community-wide emissions.
  • Reach CSC Certification of a minimum of 150 points by 2017.
  • Upgrade old florescent lighting in Village Hall offices by 2017 to energy-efficient LED lighting.
  • Install upgraded timing switches for managing usage and temperature on heating and cooling systems in Village Hall by 2017.
  • Install motion sensors where feasible to turn off electricity when Village Hall offices are not occupied.
  • Complete the Green Innovation Grant Program (GIGP) project for the Sustainable Maple Drive Parking Lot Reconstruction by the end of 2016.
  • Develop multi-year strategy and costs by 2017 for converting existing Village streetlights to LED fixtures.
  • Through the Long Island Green Homes Program, encourage a minimum of 20 percent of the Village’s single-family homes[2] by 2017 to get a free energy audit and do the upgrade work to improve the energy efficiency of homes in the Village.
  • Explore other potential future actions in the CAP and determine by the end of 2017 a time line for their implementation, as may be feasible.

The CAP is divided into four sections: (1) Introduction; (2) Municipal Facilities and Operations; (3) Community-Wide Policies and Initiatives; and (4) Climate Change, Planning and Adaptation.

Municipal Facilities and Operations

The Village has control over Village Hall (a 20,000 square foot building), two parking structures, and a small fleet of vehicles. The Village intends to make significant changes to these assets to reduce its energy usage and GHG emissions by 20% by 2020.

In 2001, the Village conducted an energy audit of its Village Hall and its two parking garages. It tracked its energy and water consumption.  It already installed lighting controls and automatic sensors in Village Hall, digital temperature controls and timers for its HVAC systems, and lockboxes over thermostats.   It modified the lighting system in its garages to reduce consumption and electric usage during peak hours.  It is continuing its lighting upgrades in Village Hall.  It instituted a policy to shut off lights, computers and other electronic equipment when not in use. It is reconstructing one of the parking garages with green technology to include porous pavement, a rain garden, LED streetlights, solar metering stations, and low-maintenance landscaping.

It intends to consider changes to the Village Code to encourage the use of more efficient building products. It is considering a policy to mandate the Village to install energy and resource efficient equipment and building techniques in its own facilities.  It is looking at installing rooftop solar panels at Village Hall and using geothermal heating and cooling systems to replace its existing HVAC systems.  It is looking to replace its current vehicles with more fuel efficient models to cut fuel costs and GHG emissions.  It is also looking at alternative fuel vehicles.

The Village is looking at its solid waste and wastewater practices. It may create an e-waste program and encourage more recycling.  It may consider composting and re-use of grey water at Village facilities.

Community-Wide Policies and Initiatives

The Village has control of the policies that impact community emissions, including zoning authority and control over land use.  The Village is considering adopting the Energy Star Certified Home Program as a requirement for all new single-family home construction.  It may join the Long Island Green Home Coalition to promote energy audits by residents.  It may establish an energy consumption calculator to benchmark energy use at new and existing homes as a mechanism to calculate and reduce the Village’s carbon footprint. It may offer refunds of LEED certification fees for certain projects as an incentive.   It may require new residential construction to incorporate stormwater management features.  It may seek to encourage multiple dwellings to implement white rooftops to reduce energy usage in the hot summer months.

The Village may use its zoning power to facilitate solar panel installations on homes. It may  mandate use of recycled paper for newsletters and other publications or help them develop their web presence to eliminate paper copies.

The Village will seek to encourage bicycling, walking and transit ridership. (The LIRR Great Neck station is located in the Village.) It is working to improve vehicle and pedestrian access to shopping areas.  It may create bicycle lanes and promote more walkable activities.

The Village already has transit-oriented development zoning. It may look at other efforts such as smart growth initiatives, mixed-use development and perhaps establish a “Green Business Incubator.”

Climate Change, Planning and Adaptation

The Village intends to integrate climate change planning into its comprehensive plans, hazard mitigation plans, emergency management plans and post-disaster recovery plans. It is going to partner with local hotels and other structures to provide stormproof shelters.  It participated in the Nassau County Hazard Mitigation Plan to reduce the impacts of storms and to increase storm resiliency.  The Village completed a Tree Management and Implementation Plan to maintain a healthy tree stock.

It will be interesting to see if other municipalities on Long Island follow Great Neck Plaza and enact CAPs.

_______________________________________________________________________________________________________________________________________

[1] http://www.greatneckplaza.net/PDF%20files%20and%20forms/Climate%20Action%20Plan%20-%20Draft.pdf

[2] The Village has 148 single-family homes.  It also has 90 multi-family apartment buildings, over 260 retail stores, 40 office buildings, 2 four-star hotels, a nursing home, a senior independent living facility and a senior assisted living facility.