Kadir van Lohuizen / NOOR for New York Times Climate change / sea-level rise in Fiji The shoreline of Vunidoloa is heavily eroded due to the rising waters. Vunidoloa is situated on the Natewa Bay on Viti Levu, Fiji's main island. Vunidoloa has 140 inhabitants and frequently floods due to the rising waters. The situ ation became so precarious that the government decided to relocate the village. Unfortunately the site was poorly designed and is eroding before anyone moved there.

Asharoken, N.Y. January 10, 2017 — Swayed by public opinion, the Incorporated Village of Asharoken (“Asharoken”) opted out of a federal beach nourishment plan implemented by the Army Corp of Engineers (“ACOE”) in order to prevent the general public from accessing the Villages’ private beaches.

Asharoken is a narrow isthmus connecting the Village of Northport on the ‘mainland’ of Long Island with the hamlet of Eatons Neck, which is part of an unincorporated area located in the Town of Huntington. Asharoken is bordered by Huntington Bay, Northport Bay, and Eatons Neck. The eastern coast of Asharoken fronts along the Long Island Sound.

Asharoken Avenue, the village’s main road, is the only land evacuation route for village residents and about 1,400 non-village residents of Eatons Neck.  Without this land bridge, Eaton’s Neck and Asharoken would both be cut off from the mainland.

Asharoken experiences moderate to severe beach erosion on the areas fronting the Long Island Sound. This erosion is caused by storm-induced waves and wave run-up from hurricanes and nor’easters. The village has experienced damages from multiple storm events, most recently Hurricane Sandy in October 2012.

In spite of the known safety risks of their precarious evacuation route, the Asharoken Board of Trustees passed a resolution last Tuesday, effectively opposing a $20 million dune restoration project because of the federal government’s mandate for public access to the beaches when taxpayer dollars are utilized. In order to receive funds for the beach nourishment project, Asharoken would be required to add five public walkways to access the beach and five public parking areas at half-mile intervals along the project’s 2.4-mile stretch along Asharoken Avenue.

Despite a history of rising sea levels, the Asharoken Trustees capitulated to resident outcry over the potential loss of their private beach rights rather than balance their decision on the public health, safety and welfare of the Village and Town residents.

Only time will tell if this game of Russian roulette ends well.

At its January 10, 2017 meeting, the Town Board of the Town of Huntington held a public hearing to discuss its proposed ban on short-term rentals.  Several residents testified at the public hearing in opposition to the ban, explaining why short-term rentals are important to the Town.  A few residents explained that these short-term rentals helped them pay their bills and promoted tourism. Other residents explained that they would be homeless without access to short-term rentals as they allow these residents to remain in the area while house-hunting.  Other residents questioned the basis for the ban, asking the Town for evidence of “quality of life” issues allegedly raised by short-term rentals.  The Town reserved decision on the proposal.  Stay tuned for further developments.

Last April, my colleague Anthony Guardino blogged about the Town of Southold’s local law banning “transient rental properties”, which Southold defined as dwellings that are rented out for less than fourteen nights at a time.   Now the Town of Huntington, New York is considering enacting a similar local law.

Huntington’s Proposed Ban

house for rent shutterstock_84704473The Town of Huntington proposes to ban short-term rentals a/k/a “transient rental property” of less than 30 days. The proposal also would prohibit the issuance of rental permits to transient rental properties.    If you are interested in commenting on this proposal, you should attend the public hearing, which is scheduled for Tuesday evening, January 10, 2017 at 7:00 p.m. in Town Hall, located at 100 Main Street in Huntington.

According to the sponsors of the proposal, council members Mark Cuthbertson and Tracey Edwards, complaints have been received over the past year from neighbors of residences who rent out rooms on a short-term basis, raising quality of life issues. The rooms are often advertised on Airbnb, Home Away and VRBO websites. Town rental permits typically are not obtained for these units, meaning they are not certified as meeting Town Code requirements. The Town permits bed-and-breakfast facilities, (referred to as Bed-and-Breakfast Homestays in the Town Code), but these facilities require approval from the Town Board to lawfully operate.

Town of Islip’s Short-Term Rental Law

The Town of Islip enacted a local law on December 15, 2015 concerning transient rental property.  Under the Islip Town Code, a dwelling unit is presumed to be transient rental property if it is advertised on short-term rental websites and is offered for less than fourteen nights. Interestingly, and not surprisingly, the definition excludes dwelling units located on Fire Island. (Islip Town Code § 68-649).  Islip requires a rental occupancy permit to lawfully rent out a dwelling unit and prohibits a rental occupancy permit being granted to transient rental property. (Islip Town Code § 68-650).

Village of Great Neck Estates Short-Term Rental Law

The Village of Great Neck Estates enacted a local law on October 10, 2016 that prohibits transient dwelling units in all zoning districts unless a transient dwelling unit permit is obtained from the Village.  Such permits only can be issued twice a year for any particular dwelling unit, must specify the proposed occupant on the application and are not transferrable to other occupants. (Village of Great Neck Estates Code § 230-22).  A transient dwelling unit covers a rental that lasts less than eight consecutive days, and a unit that is advertised on short-term rental websites is presumed to be a transient dwelling unit.

Stay tuned for an update after Tuesday’s public hearing.

logo-colorBefore we blog our way into 2017, we wanted to take a moment to review the topics that we blogged about in 2016 and to remind our readers that the land use practice group at Farrell Fritz is a diverse group of attorneys, which is why the topics that we blog about are quite diverse.

For example, it is not uncommon for our practice group to be involved in a large-scale transactional development project, while at the same time, we are drafting or answering an order to show cause; drafting easement agreements; exploring an adverse possession claim; resolving environmental issues; preparing, presenting and defending applications; and litigating our way through a criminal zoning code violation.   Our diverse legal talents are reflected in the topics that we chose to blog about in 2016.

We started the 2016 blogging year, for example, discussing riparian rights, climate change,  e-waste regulationsPine Barrens credits and renewable energy.  As the spring and summer approached, we tackled summer rental laws and the controversial role that Air BnB plays in short-term rentals.  During this time, we also blogged about the increasing presence of Vape stores on Long Island and how municipalities are tackling Vape store land use regulations.

One very popular 2016 topic in the land use community focused on the use of Drones and Drone regulation.   We will, of course, follow this developing topic in 2017, so be on the lookout for our Drone updates.favicon

Likewise, and always a controversial land use topic, is the use of moratoriums. Last year we blogged about the Village of Patchogue’s and the Village of Sag Harbor’s use of moratoriums to slow Village development.   We also addressed the hot topic of “zombie houses” by discussing not only what a “zombie house” is, but also blogged about legislation at the state, county and local levels aimed at combating the increasing number of zombie homes and decreasing the negative impact that these homes have on our communities.

 And, always relevant topics in the land use arena, we blogged about easements, SEQRA, farmland preservation, special permits and variances, the Hamptons helicopter route, rezoning the East End in Moriches and Eastport, General Municipal Law 239-m referrals, and non-conforming uses.

Finally, no year in review would be complete without mention of Facebook and the pitfalls that all litigants face when they take to social media during the pendency of a  land use lawsuit.  Check out our post on the monetary and other sanctions that the Village of Pomona suffered.

The above is just a quick snapshot of the topics that we blogged about in 2016.   We will kick off 2017 next Monday, January 9, 2016 with our new year’s post by Charlotte A. Biblow, Esq.   We hope you enjoyed our year in review and that in the coming year, you will help us increase our readership by forwarding our posts to your colleagues and friends and inviting them to subscribe to our weekly blog by email.

Happy New Year to all.

Monopole-TowerB1On December 21, 2016, the Appellate Division, Second Department, rendered yet another decision whereby an appeal was dismissed “as academic” on the grounds that during the pendency of the appeal, the land use development project that was the subject of the lawsuit/appeal was completed.

In Bruenn v. Town Board of the Town of Kent, 2014-07666 (2d Dept., December 21, 2016), petitioners/appellants Bruenn commenced a hybrid proceeding pursuant to CPLR Article 78 seeking a declaration that two (2) 2013 resolutions adopted by the Kent Town Board authorizing construction and operation of a 150-foot monopole wireless communications tower were null and void.    The trial court dismissed the hybrid proceeding holding that the resolutions were not null and void.  Bruenn appealed.

During the pendency of the appeal, construction of the monopole was completed by defendant, Homeland Towers, LLC (“Homeland”).  As a result thereof, in or around September 2015, Homeland made a motion to dismiss the appeal on the grounds that Bruenn’s claims were rendered moot by construction and completion of the monopole.   Although the Appellate Division initially held the motion in abeyance and referred it to the three panel of justices charged with determining the underlying appeal, the panel ultimately determined that a decision on the merits of Bruenn’s claims was academic, as Bruenn failed to seek preliminary injunctive relief, and as a result, Homeland’s motion to dismiss the appeal on mootness grounds was granted.

This decision reminds practitioners of the important role that preliminary injunctions play in land use development disputes.  Failure to seek injunctive relief at the outset will, in most cases, preclude review of the merits of the appeal.   In Bruenn, the Court stated that Bruenn’s explanation that monetary constraints precluded Bruenn from moving for injunctive relief was unavailing.  It is well established law that failure to seek an injunction stopping a project at its earliest stages will result in a mootness defense so long as the continued construction is not performed in bad faith or without authority.  Id.   Moreover, it was established that the work performed by Homeland could not readily be undone without substantial hardship.  Since construction of the monopole was an isolated event, not subject to “recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise,” the Appellate Division granted Homeland’s motion to dismiss and as a result, rendered any determination on the merits “academic.”  Id.

Jointly responsible for enforcing the federal Fair Housing Act (“FHA”), the U.S. Departments of Justice and Housing and Urban Development (“the Departments”) have issued numerous guidance documents and policy statements to help the public and state and local governments fully understand the FHA.  In November 2016, the Departments issued a new guidance document (“guidance document”) addressing FHA compliance in connection with state and local land use laws and practices.  The FHA prohibits discrimination in housing on the basis of race, color, religion, sex disability, family status or national origin. 42 U.S.C. §§ 3601-19. The updated guidance document addresses the following issues, among others:

  • How the FHA applies to state and local land use and zoning;
  • When land use/zoning practices can constitute intentional discrimination;
  • How state and local land use laws can violate the FHA by unintentional discrimination;
  • How state and local governments that consider the fears or prejudices of community members when enacting their land use laws on housing can violate the FHA;
  • Who qualifies as a person with a disability under the FHA
  • What are group homes within the meaning of the FHA and the application of the FHA to group homes;
  • Reasonable accommodation under the FHA;
  • Whether a state and local government can impose health and safety regulations on group home operators;
  • Spacing requirements;
  • How a local government can violate the FHA by failing to grant a request for a reasonable accommodation;
  • How the Supreme Court Olmstead Ruling regarding the Americans with Disabilities Act is consistent with the FHA.  (Persons with disabilities have the option to live and receive services in the most integrated setting appropriate to their needs).

Long Island municipalities seeking to regulate multifamily or group housing through their zoning powers must carefully consider the FHA in both their enactment of local laws and treatment of such facilities. Not only does it violate the FHA to yield to community opposition based on fear of, or prejudice towards, such establishments, but governments must be ready to make “reasonable accommodations” to those with disabilities. The guidance document shows how local governments can violate the FHA when they refuse to “grant a reasonable accommodation to its zoning or land use ordinance when such accommodation may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.” (See guidance document, page 8).  Many municipalities limit the number of unrelated persons who can live together in residential zoning districts as part of their definition of a family. These laws are typically valid, provided they are reasonable and do not discriminate on the basis of disability or protected class. However, the guidance document states that such laws, if enacted for the purpose of limiting the number of persons with disabilities who may live in a group home, or exclude or limit group homes in certain zoning districts, can have an unjustified discriminatory effect and may violate the FHA. (See guidance document, page 11). Finally, the guidance document states “…a group home that provides housing for a number of persons with disabilities that exceeds the number allowed under the family definition has the right to seek an exception or waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that instance, but the ordinance would not be invalid.” Id.

Understanding the nuances of the Fair Housing Act as it is applied to state and local land use laws is essential for municipalities enacting and enforcing such laws, a task made easier by the Departments’ comprehensive guidance on the matter.

 

hour-glassUnder New York State law, zoning boards and planning boards are authorized to impose reasonable and appropriate conditions  and restrictions on the grant of a variance or special permit, provided that they are directly related to, and incidental to, the proposed use of the property.  Such conditions shall be consistent with the spirit and intent of the zoning ordinance and shall be imposed for the purpose of minimizing any adverse impact such variance or special permit may have on the neighborhood community.  As a further limitation on the imposition of conditions, said conditions must also be authorized by the zoning ordinance.

In Matter of Ronald Citrin v. Board of Zoning and Appeals of Town of North Hempstead, 2016 NY Slip Op 06827 (2d Dept., October 19, 2016), the Town of North Hempstead Zoning Board of Appeals granted Petitioners’ application, brought pursuant to Town Code § 70-225(E), for a special permit.  The special permit sought to continue the use of a parking lot that was located adjacent to its restaurant and extended into the residentially-zoned portion of the Petitioner’s split-zoned lot.  The Zoning Board granted the Petitioner’s application to continue the use of the parking lot in the residence district, but imposed a five-year durational limit on the grant.

The Petitioners commenced a CPLR Article 78 proceeding, seeking to annul the five-year durational limit. After the Supreme Court denied the petition and dismissed the proceeding, the Appellate Division, Second Department, reversed and annulled the portion of the Zoning Board determination that imposed the five-year duration limit.  The appellate court found that the Zoning Board did not have the authority to impose a duration limit on the special permit because Town Code § 70-225(E) does not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section.  Accordingly, it was improper for the Board to include a five-year durational limit on a special permit granted pursuant to that provision.

IMG_0713At its November 17, 2016 meeting, the East Hampton Town Board (Town Board) unanimously adopted a local law that temporarily suspends the authority of the East Hampton Town Planning Board to grant certain site plan and subdivision approvals for properties located on or adjacent to Montauk Highway in Wainscott. The moratorium applies to non-residential Central Business or Commercial Industrial zoning districts or properties in residential zoning districts used for non-residential uses. The moratorium lasts for one year.

Purpose of Moratorium

The purpose of the moratorium is to allow the Town to complete its Wainscott Hamlet Study and to implement recommendations from that study. The Wainscott Hamlet Study will evaluate future commercial needs of the community in accordance with the goals set forth in the Town’s 2005 Comprehensive Plan.

According to the local law, Wainscott, as the entry point into the Town, experiences extremely high traffic volumes. In particular, traffic jams along Montauk Highway are causing impacts to residential neighborhoods, as motorists seek alternate routes through the area. The Town claims that development of commercial property along Montauk Highway in Wainscott will exacerbate the traffic logjams and increase risks to pedestrians.

The Town anticipates that the study will recommend the creation of a walkable hamlet center, rather than the current sprawl of commercial sites along Montauk Highway. The Town is concerned that without the moratorium, any traffic mitigation and pedestrian safety recommendations arising from the study will not be implementable if development continues unabated in the interim.

Exemptions

The local law contains exemptions. If a site plan or subdivision application has undergone a public hearing and has been approved prior to the effective date of the moratorium, the project can proceed.  In addition, the local law contains an undue hardship exemption. In order to qualify for the undue hardship exemption, the applicant has to demonstrate to the Town Board that (1) the failure to grant the exemption will cause the applicant undue hardship that is substantially greater than the harm to the general public by granting the exemption, (2) the proposal will not have adverse effects on the Town’s goals, and (3) the proposal is in harmony with the existing character of the Town.

It will be interesting to see what recommendations emanate from the study and which ones the Town ultimately implements.

land bankAlthough the use of land banks has been in existence for many years in other states, it was not until after the New York real estate market collapsed in or around 2008  that the New York State Legislature enacted the 2011 New York State Land Bank Act (“Land Bank Act”). 

The Land Bank Act authorizes local governments with taxing authority, and thus foreclosure powers,  to create and administer not-for-profit land bank corporations, whose primary purpose is to purchase, lease, sell, demolish and/or  revitalize blighted properties,  otherwise known as “zombie properties,” in an effort to return these properties to a profitable and purposeful  use.   

There are presently fifteen land banks across New York State, with three additional land banks in the works.  Suffolk County formed one of the first land banks, known as the Suffolk County Land Bank Corporation (‘SCLBC’), in 2013.   The initial primary purpose of the SCLBC was to purchase brownfields properties.  In 2016, however, the SCLBC announced that it is entering a pilot program designed to purchase approximately eleven zombie homes in the Brookhaven, Islip and Babylon areas.  The Nassau County Land Bank Corporation advises that it will focus on purchasing some 1,956 blighted residential and zombie properties throughout Nassau County.

In October 2016, the New York State Comptroller’s Office issued a 22-page summary defining the purpose of the Land Bank Act, while also providing a candid discussion of the monetary pitfalls facing land banks. The summary questioned whether land banks will be effective in not only combating blight and providing necessary revitalization, but also in securing the funds necessary to foster their longevity. 

Presently, land banks are primarily funded by subsidies and grants.  As the cost of purchasing, carrying, demolishing and/or renovating blighted properties can be extraordinarily high, without tax abatements or partnerships with local and state governments, land banks are not generating sufficient profits to reinvest in other blighted properties.   The consequence is that the process of redevelopment is  slow moving and uncertain. 

Contrary to the New York State Comptroller’s October 2016 summary,  on November 1, 2016, the New York State Attorney General’s Office issued a 26-page report entitled “Revitalizing NY State, A report on New York Attorney General Eric T. Schneiderman’s Land Bank Community Revitalization Initiative”  (“AG Initiative”).  The AG Initiative states that the Initiative “is helping communities across New York State address vacancy and blight . . . [and] is advancing efforts to rebound from the housing and economic crisis.”  Id.

The AG Initiative further reports that “[o]ver the past three years, my office has committed more than $30 million through two competitive rounds of funding to help kick-start these vital community-based organizations, enabling them to get down to the business of rebuilding communities.”  Id.  The first competitive rounds of funding arose from a financial settlement with large banks involved in the mortgage crisis known as the “National Mortgage Settlement.” See  New York State Comptroller’s Office Report, October 2016, supra.  

According to the AG Initiative, as a result of recent settlements with two more banks, an additional $20 million is expected to be available shortly for distribution to the existing land banks.  Id.

For the time being, although land banks rely primarily on funds provided from settlements between the New York State Attorney General’s Office and banks, land banks remain in a tenuous financial predicament.  The future success of these land banks relies heavily on their ability to increase grant availability  and to find inventive ways to turn a profit more quickly.

 

We recently came across an interesting decision from a federal appeals court involving a town’s rescission of a 25-year-old negative declaration issued under the New York State Environmental Quality Review Act (SEQRA).  A “negative declaration” is a written determination by a lead agency that a proposed action will not result in significant adverse environmental impacts. Because of the convoluted history of the matter as it wound its way through both state and federal courts, we think you may find it interesting as well.

In Leonard, et al, v. Planning Board of the Town of Union Vale, __F.3d __ (2d Cir. September 2, 2016), the Second Circuit Court of Appeals ruled that the 2012 rescission of a 1987 negative declaration was not a final determination, requiring the applicant to complete the SEQRA review process before resorting to court.    Here’s the history.

The Planning Board Decision

In 1986, plaintiffs applied to have their 950-acre property, located in the Town of Union Vale in Dutchess County, designated as an “open development area” under Town Law § 280-a(4).  Town of Union ValeThe application was granted by the Town, which permitted the site to be subdivided into private lots with private roads.  In 1987, the Planning Board of the Town of Union Vale (Planning Board) issued a negative declaration with respect to the entire project.   The first section of the project was approved in 1987 and was developed with large single-family homes.  In 2009, plaintiffs applied for a subdivision of the next section.  Changes to the layout required by the Planning Board for this second phase would cause significantly more ground being disturbed than was initially planned.  In 2012, the Planning Board determined that the application was incomplete and decided a new SEQRA review was required because the 1987 negative declaration did not apply to the current application.

Plaintiffs Challenge The Planning Board’s Determination

Plaintiffs sued the Planning Board in state court in 2012, challenging the incompleteness determination. The state trial and appellate courts determined that the 2012 Planning Board incompleteness resolution was improper and annulled it. The courts further ruled that the Planning Board must consider the 2012 application on the basis of the 1987 negative declaration unless the Planning Board determines that the 1987 negative declaration should be amended or rescinded.  The Planning Board held a public hearing in June 2013.  It thereafter adopted a resolution rescinding the 1987 negative declaration on the grounds that the project, and the applicable regulations, had undergone substantial changes since 1987; and the project may result in significant adverse environmental impacts.  According to plaintiffs, no specifics about any such impacts were contained in the resolution.

Not surprisingly, plaintiffs sued again. In 2013, plaintiffs commenced another action in state court, alleging federal due process violations and state law violations. The defendants removed the case to the federal district court, which remanded the state claims back to the state court and dismissed the federal due process claims on the grounds that plaintiffs did not have a property right in the negative declaration. See Leonard et al., v. The Planning Board of the Town of Union Vale, 154 F.Supp.3d 59, 67-68 (SDNY 2016).

Plaintiffs appealed the federal district court’s dismissal of the federal due process claims.  Following the United States Supreme Court ruling in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,  473 US 172 (1985), and the Second Circuit’s prior rulings  in Southview Associates,  Ltd., v. Bongartz, 980 F.2d 84 (2d Cir. 1992) and Kurtz v. Verizon New York, Inc., 758 F.3d 506 (2d Cir. 2014), the Second Circuit ruled that before plaintiffs can bring a federal due process challenge to a local land-use claim, the local agency must render a “final decision.”

The Second Circuit found the negative declaration rescission was not a final decision because plaintiffs’ application was still pending before the Planning Board, and the Town still needed to complete the project’s SEQRA review.  The Second Circuit noted that in rare exceptional cases, the finality requirement can be excused.  This requires a showing that the Planning Board already made up its mind and that further proceedings before the Planning Board were futile or that the board used unfair tactics to delay the approval process.  In this case, the Second Circuit found these futility criteria missing.  It also noted that the mere fact that plaintiffs would incur expenses to go through the SEQRA process was not a basis for finding futility.    See Leonard, et al, v. Planning Board of the Town of Union Vale, __F.3d __ (2d Cir. September 2, 2016).

In October 2015, the state court dismissed the remanded state claims, finding that the Planning Board’s rescission was not arbitrary or capricious and did not violate law. That decision is on appeal to the state appellate court.

The Outcome

Plaintiffs incurred a lot of legal fees and spent more than three years challenging the 2012 rescission in both federal and state courts and wound up back where they started – before the Planning Board going through the SEQRA process.