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Long Island Land Use & Zoning

The North Shore Helicopter Route – Sure Beats The Long Island Expressway

Posted in FAA, North Shore Helicopter Route

thECI3BDWXPicture it – another hot and humid summer afternoon on Long Island. There you are, you master of the universe, sipping a margarita or perhaps a frozen daiquiri, or both, as you lounge on the patio of your beachfront home enjoying another weekend in the Hamptons. Not a care in the world. And then you hear that the Federal Aviation Administration (the “FAA”) has not extended the North Shore Helicopter Route rule, which will expire on August 6th. You start to tremble. What will happen on August 7th with no North Shore Helicopter Route rule? Will you be forced to travel in bumper-to-bumper traffic on the Long Island Expressway, take a bus or the Long Island Rail Road? Yikes. Take another sip of your frozen concoction and relax. Commuting by helicopter to and from the East End will not end even if the rule is not extended. Moreover, the FAA is actively involved with stakeholders on this issue and is considering various actions.

20140527__-Long-Island-Helo-offshore-route-map-by-NewsdayPrior to 2008, helicopters transporting folks between New York City and the Hamptons used three common flight paths: (1) the northern route, flying along the northern coast of Long Island; (2) the southern route, flying along the southern coast of Long Island; and (3) the LIE route, flying above that famous highway. Helicopter pilots preferred the northern route because it was faster and was less prone to weather delays than the southern route. Residents on the north shore were less enthusiastic as the summer helicopter traffic over their homes rapidly expanded as did the level of noise they incurred at all hours of the day and night.

As a result, in 2008, the FAA added the North Shore Helicopter Route to its flight charts as a voluntary means of diverting helicopter traffic flying overhead along the northern coast line, placing the route about a mile off the coast over the Long Island Sound. The North Shore Helicopter Route starts off of Huntington, (about 20 miles east of New York City) and continues to the end of Orient Point on the North Fork.

The North Shore Helicopter Route was made mandatory in 2012 by the FAA. The rule mandating the off-shore northern route was initially enacted for a two-year period. It was extended for an additional two years in 2014 and will expire on August 6, 2016, absent a further extension.

The North Shore Helicopter Route rule is codified at 14 CFR Part 93 and requires helicopters to fly at least 2,500 feet above sea level along the route over the Long Island Sound. The rule does not contain “waypoints,” which means that helicopters do not have to pass over specific points along the route. Also, there are no specific transiting points along the route, meaning that helicopter pilots are free to choose where they turn toward the south. In addition, a helicopter pilot can deviate from the route at any point for safety reasons or because of weather conditions or when transitioning to or from a point of landing. Typically, helicopters cross over land at Riverhead, Southold and Shelter Island to head south to the Hamptons.

There has been some talk about changes to the North Shore Helicopter Route, such as requiring helicopters to fly around Orient Point and Plum Island before heading south. An off-shore South Shore Helicopter Route is also a possibility. We’ll keep you posted of further developments.

 

HOW TO Successfully Prepare and Record a Deed in New York: The Do’s and Don’ts, Part One

Posted in Bargain and Sale Deed with Covenants, Bargain and Sale Deed Without Covenants, Deed Transfers, How To, Joint Tenants, Property rights, Quitclaim Deed, Tenants by the Entirety, Tenants in Common, Warranty Deed

As any New York State attorney would most likely agree, ownership and title to real property can play an integral role in the practice of not only transactional real estate law, but also, land use development (our specialty area), matrimonial law, trusts and estates law, elder law, corporate law, and numerous other practice areas.  In fact, no matter what your practice area is, it is quite likely that you will routinely be called upon to review a deed, transfer a real estate asset, set up a trust or life estate, confirm ownership or simply review a deed to insure it accurately reflects the property owners, the property owners’ interests and identifies the correct property as stated on the deed.

title deedAlthough this sounds simple enough, from my experience, many an attorney has not only improperly prepared a deed, but also, he has encountered multiple hurdles in successfully recording a deed.  Suffice it to say that prior to becoming a member of the Bar, my career began in the Title Insurance Industry, which by all accounts provides me with some insider expertise to share with you today!

The Do’s and Dont’s to successfully drafting and recording a deed will greatly exceed the attention span of a single blog post.  As such, continue to read our weekly post’s for additional do’s and dont’s tips.  For today, we start at the beginning:  How to prepare a deed insuring that the seller (grantor) and purchaser (grantee) are properly reflected.  

In New York State, there are multiple kinds of deeds, but in general, those most commonly used to transfer title are Warranty Deeds, Bargain and Sale Deeds without Covenants, Bargain and Sale Deeds with Covenants and Quitclaim Deeds.  Prior to the advent of title insurance, the type of deed carried specific warranties which protected a purchaser from claims against their ownership.  Given that title insurance is common practice today, the type of deed is less significant, and under most circumstances a Bargain and  Sale  Deed with Covenants is the generally preferred deed type.   However, this rule is not always preferred, particularly if the real estate transfer is undertaken for estate planning purposes, is the result of a death, involves a no consideration transfer between husband and wife or relatives or related business entities.  Further blog posts will address these exceptions.

For today,  Don’t Number 1– when asked to transfer a real estate asset, do not assume that your client owns the property!  It is incumbent upon an attorney to secure a copy of the last deed of record from the County Clerk’s Office or City Register’s office.  Only after the last deed of record has been produced and reviewed with the client should the process of drafting a new deed begin.

Don’t Number 2 when preparing the deed, do not deviate from the proper names on the last deed of record or deviate from the legal property description.  If the owner’s name on the deed is Mary S. Smith and Mary is transferring to John J. Jones, do not drop Mary’s middle initial.  Likewise, if Mary S. Smith is now known as Mary S. Adams, the deed should be prepared as such: “Mary S. Smith, now known as Mary S. Adams.”  The deed drafter must take care to insure that the chain of title accurately reflects ownership interests.  If the drafter were to prepare the deed with Mary S. Adams as the owner, because that is what Mary S. Adams advised the drafter, the deed would contain a defect causing potential problems for future buyers and sellers.

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Similar to the types of deeds available for use   in New York, there are multiple types of interests that a seller or buyer can utilize when purchasing property.  Title to real estate is held typically in one of three ways: (1) Tenants by the Entirety, reserved only to married persons; (2) Joint Tenants, reserved to persons who hold equal shares of the real estate asset, with rights of survivorship; and (3) Tenants in Common, reserved to persons and business entities holding fractional ownership interests, with no rights of survivorship.

Do Number 1 ask a lot of questions.  Although deed preparation is typically assigned to the seller/grantor, if you represent the buyer/grantee, be sure that your clients understand their ownership interests.  Not every married couple prefers to hold title as tenants by the entirety.  There may be financial concerns, prior marital commitments or some other personal reason why a married couple would not want to hold title to real property as tenants by the entirety.

Do Number 2 if the property is owned by any number of business organizations such as Limited Liability Companies, Joint Ventures or Limited Partnerships, insure that all interests are accounted for and that no fractional share of the real estate asset has already been transferred, sold or conveyed.  Likewise, insure that the the person signing the deed has capacity to transfer the asset.

And to wrap up this first blog post respecting the Do’s and Don’t of deed preparation, for those of you practicing in the world of land use, take a minute to secure the last deed of record before you make a land development application to a municipality or government agency.  Many times your client is not the property owner, but instead, your client may be the tenant, co-tenant or sub-lessee/or.  Only the actual landowner has capacity to make a land development application, as such, stay one step ahead of the curve and insure that your client is the real estate asset owner, and if not, secure the property owner’s consent before you begin the process.

New State and Local Laws Combat the Blight of “Zombie Properties”

Posted in Foreclosure, Legislation, Zombie Properties, Zombie Property

DADPIC1On June 23, 2016, Governor Andrew Cuomo signed the Abandoned Property Neighborhood Relief Act of 2016, a bill to combat the blight that vacant, neglected and abandoned properties – referred to as “zombie properties” – have on New York communities.  See, pg. 27, Part Q.   The sweeping legislation includes several measures designed to reduce the number of foreclosures, assist homeowners who are facing foreclosure, and protect property values by ensuring that properties in foreclosure are properly maintained during the foreclosure process.  Specifically, the new legislation:                       

  • Imposes a pre-foreclosure duty on banks and other lenders to maintain a residential property during the foreclosure process.
  • Creates a toll-free hotline for people to report potentially vacant or abandoned sites, and an electronic database to provide streamlined access to information for affected communities.
  • Provides for an expedited foreclosure process for vacant and abandoned properties and requires the foreclosing party to move to auction within 90 days of obtaining a foreclosure judgment.
  • Establishes a Consumer Bill of Rights to inform property owners of their rights in foreclosure proceedings and protect them from predatory and deceptive foreclosure practices.
  • Creates a Community Restoration Fund that will allow the State of New York Mortgage Agency (SONYMA) to purchase defaulted mortgage notes and offer partial loan forgiveness to help families afford and keep their homes.

“Zombie Properties”

Zombie properties are properties that have been abandoned by their owners – often after they have received a foreclosure notice – which then languish, unmaintained, until the foreclosure process has been completed.  These vacant properties create a blight on the neighborhood because they sit neglected for years on end while the lengthy foreclosure process runs its course.  During this time, many of these properties fall into significant disrepair, which then drags down the values and appearance of other properties in the neighborhood.  Last year, New York Attorney General Eric Schneiderman estimated that there were as many as 16,700 zombie properties in New York.

New Lender Obligations

To curb the threat that zombie properties pose to communities, the law imposes a pre-foreclosure duty on those who hold a mortgage on a vacant or abandoned residential property to maintain and secure it during the foreclosure process.  This obligation is triggered when the mortgagee becomes aware of the vacancy, or there is a reasonable basis for the lender to believe the property is vacant and abandoned.  Lenders that fail to properly maintain and secure a property face civil penalties up to $500 per violation, per property, per day.  Prior to the legislation, there was no legal obligation to maintain a property in foreclosure until there was a judgment of foreclosure and sale.

Town of Hempstead’s Approach

In the wake of the State’s zombie properties law, the Town Board of the Town of Hempstead recently adopted Local Law No. 46-2016 – modeled after similar laws adopted in several upstate New York communities – that will ensure that banks and other lenders will fulfill their maintenance obligations under the new State law.  The Town’s law requires mortgagees to post a $25,000 security deposit each time a house in the Town of Hempstead goes into foreclosure.  This money can be used by the Town for lawn care, graffiti removal, snow removal and other home maintenance in the event that the lender fails to maintain the property.

After years of tolerating the scourge of zombie properties, State and local governments have acted to give regulators and law enforcement the tools they need to tackle the problems associated with vacant and abandoned properties.  These measures should help revitalize communities that have suffered the consequences of zombie properties by improving conditions, both aesthetically and economically.

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

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

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

The Facebook Posts and Text Messages

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

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

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

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

The Court Finds The Village Guilty Of Spoliation Of Evidence

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

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

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

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

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

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

The Proposed Project

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

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

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

The Litigation Begins in 2007

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

The Accreditation Local Law

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

The Dormitory Local Law

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

The Wetlands Local Law

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

Other Claims

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

2013 Ruling On The Motion To Dismiss

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

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

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

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

2015 Ruling On The Motions For Summary Judgment

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

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

Next Steps

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

 

No More General Municipal Law 239-m County Referrals!

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

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

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

What is General Municipal Law 239-m?

General Municipal Law 239-m states in relevant part:

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

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

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

(iii) issuance of special use permits;

(iv) approval of site plans;

(v) granting of use or area variances;

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

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

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

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

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

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

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

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

When Does General Municipal Law 239-m Apply?

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

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

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

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

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

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

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

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

Spreading the Word about Inter-Municipal Cooperation

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

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

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

Vested Rights – When They Vest And When They Do Not

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

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

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

Vested Rights Upheld

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

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

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

Vested Rights Rejected

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

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

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

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

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

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

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

Conclusion

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

 

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

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

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

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

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

1) that a positive declaration appears to be unauthorized;

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

3) the action is not subject to SEQRA.

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

The Ranco Facts

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

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

Two Requirements for Judicial Review

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

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

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

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

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

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

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

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

The Ranco Court Clarifies and Limits its Prior Ruling

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

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

The Chilling Effects of Ranco

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

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

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

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

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

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

nys-from-spaceClean Energy Standard

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

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

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

NYS Funding For Renewable Energy Projects

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

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

Wind Power

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

Hydropower

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

Biomass

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

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

Solar Power

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

Geothermal

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

Fuel Cells

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

Conclusion

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

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Pine Barren Credits-There’s Money In Those Trees

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

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

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

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

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

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

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

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