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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.

th2WTV7493 A recent appellate court case, Matter of Lazarus v Board of Trustees of the Village of Malverne, 31 NYS3d 207 [2d Dept 2016], involves the approval of a special use and the denial of a special exception for the same residential premises. Here are the facts of the case.

The house in question is a two-story single-family Cape Cod style home located in a Residence B district in the Village of Malverne (“Village”).  The owner and her husband live on the second floor and her adult son rents the first floor.   The owner installed a second kitchen on the second floor and constructed a deck and attached exterior staircase without any building permits.  The second-story deck and exterior staircase were initially constructed in 1981.  At the time, a special exception permit was not needed for this structure.  The deck was removed in 2007 and was rebuilt in 2010 with the exterior staircase going from ground level to an entrance on the second floor.

In 2011, the owner sought a special use permit for the existing kitchen on the second floor. She also sought a special exception permit to approve the “mother/daughter” occupancy and to maintain the second-story deck and exterior staircase.  In October 2013, after three public hearings, the Village Board of Trustees (“Village Board”) granted the mother/daughter status and the special use permit to maintain the second-floor kitchen.  However, the Village Board denied the special exception to legalize the second-story deck and exterior staircase.  The owner commenced an Article 78 proceeding against the Village, challenging the decision.

In July 2014, the trial court granted the petition and annulled the determination of the Village Board. The trial court reasoned that by approving the mother/daughter status and the special use permit for the kitchen, the Village Board should have also approved the secondary access point. Otherwise, access to the second story would encroach upon the privacy of the parents and their adult son.  The trial court also noted that the Village could impose appropriate safeguards for the second-story entrance.

The Village appealed and in July 2016, the appellate court reversed and dismissed the proceeding.   The appellate court explained that a use variance allows the property to be used in a manner that is “inconsistent with a local zoning ordinance” and a special exception allows the property to be used in a manner “that is consistent with the zoning ordinance, although not necessarily allowed as of right.”  The owner did not seek a use variance in this instance, but instead, sought a special exception.

The appellate court determined that the Village Zoning Code prohibits decks above the first floor grade of a dwelling and requires a special exception from the Village Board for any deck constructed above the first floor. But in this case, the home owner wasn’t merely asking approval for an above-grade deck.  She was asking for approval of the deck and staircase, deemed a structure by the court.  However, the Village Zoning Code does not explicitly allow for a structure under this special exception provision.  As a result, the appellate court agreed with the Village Board’s determination that the deck/staircase structure was inconsistent with the surrounding single-family neighborhood and, thus, not entitled to a special exception.  Bottom line, the owner was allowed to keep her second-story kitchen but not the second-story deck, staircase and separate entrance.

welcome_bayville_signIn a determination dated June 30, 2016, the Honorable Jerome C. Murphy, Supreme Court, Nassau County, annulled and vacated the Village of Bayville’s local laws amending its zoning code based on the Village’s failure to comply with the New York State Environmental Quality Review Act (“SEQRA”).  See Save Bayville Now, Inc., v Incorporated Village of Bayville.  The challenged local laws, adopted on June 22, 2015, authorized the occupancy of ground floor units with residential apartments in business districts, reduced the required setback from 250 feet to 50 feet for the distance that a combined business/residential use could be from a residentially-zoned parcel and defined a “residential building” as containing five units or more. Previously, residential apartments in this zoning district were only permitted on the second floor, and this type of combined business/residential use was not permitted within 250 feet of residentially-zoned property.

Petitioner, a civic association with at least two of its members residing within 100 and 150 feet of the business district, challenged the adoption of the local laws pursuant to SEQRA. The Court first explained standing in zoning cases. Relying on Matter of Sun-Brite Car Wash v Board of Zoning and Appeals of Town of N. Hempstead, 69 NY2d 406 [1987], which held that “standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules.” The Bayville Court first determined that Petitioner had the requisite standing to bring the proceeding, and then went on to determine that SEQRA had not been complied with by the Village when it enacted the local laws.

The Court noted that SEQRA requires local governments to consider environmental impacts of the adoption of local laws by identifying the environmental impacts reasonably anticipated from the proposed action, taking a “hard look” at those areas of environmental concern and providing a reasoned elaboration in connection with the basis of its determination. The civic association alleged that the Village failed to sufficiently review potential impacts from the zoning amendments including traffic and parking issues, septic issues, flooding and flood plain issues, population concentration and the impact on the value of surrounding properties. The Village adopted a negative declaration in connection with the adopted local laws and determined that it would conduct specific SEQRA review in the future upon the application of specific sites within the district. Petitioner argued that this constituted segmentation of the SEQRA process and was unlawful. Segmentation is defined as the “division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance.” 6 NYCRR Part 617.2(ag). SEQRA states the following with regard to segmentation:

Considering only a part or segment of an action is contrary to the intent of SEQR. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related action should be identified and discussed to the fullest extent possible. 6 NYCRR Part 617.3(g)(1). Id.


The Court determined that the Village acknowledged the potential for “environmental damage” but failed to prepare an Environmental Impact Statement (“EIS”). An EIS provides “a means for agencies, project sponsors and the public to systematically consider significant adverse environmental impacts, alternatives and mitigation.” 6 NYCRR Part 617.2(n). An EIS is required when the lead agency (in this case the Village) determines that “the action may include the potential for at least one significant adverse environmental impact.” 6 NYCRR Part 617.7(a)(1) (emphasis added). As a result, the Court found that “the Village’s deferred consideration of recognized potential environmental damage” rendered the Village’s adoption of the local laws amending the zoning ordinance “arbitrary, capricious, and not undertaken with regard to the applicable provisions of SEQRA.” The Court annulled and vacated the local laws.

Although not cited by the Court, it bears reminding that courts have long determined the threshold for requiring an EIS is low. See, H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232 [4th Dept. 1979]; Barrett v Dutchess County Legislature, 38 AD3d 651[2d Dept. 2007].) Therefore, once the Village identified “environmental damage” in connection with the proposed local laws, the preparation of an EIS was required pursuant to SEQRA.

This ruling is consistent with other recent SEQRA segmentation cases involving the adoption of local laws. In Citizens Concerned for Harlem Valley Environment v Town Board of Town of Amenia, 264 AD2d 394 [2d Dept. 1999], leave to appeal denied, 94 NY2d 759 [2000], local laws rezoning property were annulled based upon segmented SEQRA review. In that case, the appellate court determined that “the rezoning at issue was an integral part of a mining proposal that would have obvious potential environmental impacts. The Town Board was obligated to consider these environmental concerns at the time of the rezoning and it failed to do so.” See also, Scenic Hudson, Inc. v Town of Fishkill Town Bd., 258 AD2d 654 [2d Dept. 1999].

 

beeWhen people think of beekeeping on Long Island, they think of vast open space and the farms and apiaries they travel past out east where a jar of local honey can be picked up on the side of the road during the summer season. What most people are not aware of is that, not only are there hundreds of beekeepers caring for several hundred honeybee hives all across Long Island, but also, many municipalities across Long Island have land use controls in place to regulate beekeeping.

Backyard beekeepers, or novice beekeepers as we are sometimes called, have become vital in Long Island’s efforts to reestablish lost colonies of bees and offset the natural decrease in pollination by wild bees over the last few years. Keeping bees dramatically improves pollination, and the honey you can harvest is not the only reward. Today, the value of keeping bees goes well beyond the obvious. Without bees, Long Island would not be able to grow apples, pumpkins, strawberries, tomatoes, onions, carrots and eggplant, just to name a few.

Although mostly permitted in Suffolk County, in recent years, the practice of beekeeping has become more and more popular in Nassau County. Despite being expressly prohibited in Glen Cove, Long Beach, North Hempstead and Oyster Bay, the Town of Hempstead, where most of the County’s population resides, and which serves as a model for many of its incorporated villages, permits beekeeping via special exception from its Board of Appeals.

It is the hope of many backyard beekeepers that with increased education for our local officials, and greater awareness by those non-beekeepers, that favorable  beekeeper land use regulations can be implemented across all Long Island Towns, Cities and Villages.

If you do get the go ahead from your local municipality, the Long Island Beekeeper’s Club, which was created in 1949, and today boasts more than sixty members with ten master beekeepers, is a great place to get started. It provides meetings and classes educating beekeepers on what, where and how to become a successful beekeeper.  The Club’s website provides membership information and a schedule of upcoming meetings and classes.

Honeybees are amazing, gentle creatures. They nurture the beauty and fertility of the earth with their gift of pollination.  For Long Island, the good news this season is that our honeybees are making a comeback, a comeback my husband and I are very proud to be a part of.

JeanMarie Killeen is a paralegal in the Land Use & Municipal practice group at Farrell Fritz.

In our July 18th post, we discussed the North Shore Helicopter Route and its fast-approaching expiration date.  In that post, we noted that the Federal Aviation Administration (the “FAA”) had not yet decided what to do about the route and told you we would keep you apprised of future developments.  Here’s that update.  In the Monday July 25, 2016 edition of the Federal Register, the FAA announced a final rule that extends the North Shore Helicopter Route for four more years.  The new expiration date is August 6, 2020.

th3MRVYBS8In the Federal Register notice, the FAA notes that the original purpose of the route was to ameliorate noise from helicopters operating over Long Island.  When it originally adopted the rule in 2012, the FAA gave the rule a two-year duration to obtain data on pilot compliance and whether the route improved the noise situation.  The FAA extended the rule in 2014 for another two years to allow it more time to consider whether to make the rule permanent.  Since the 2014 extension, the FAA has undertaken a variety of helicopter research initiatives that will allow it to model helicopter noise and identify noise-abatement procedures.  These research projects are on-going and some aspects of the research are not expected to be completed until 2017.

The FAA will need time to consider the results of the research projects and thereafter determine the appropriate action to take.  As a result, the FAA determined that extending the North Shore Helicopter Route rule for another four years is the best way to “avoid disruption of the current operating environment.”

So for at least the next four years, helicopters will continue to fly over Long Island Sound, about a mile off-shore, before they cross over land at Riverhead, Southold and Shelter Island to head south to the Hamptons.