On July 7, 2017, Judge William G. Ford issued a decision in the case Matter of 7-Eleven, Inc. v. Town of Babylon, Supreme Court, Suffolk County, 2017 NY Slip Op 31467(U) , in which the Town was excoriated for its mishandling of a site plan approval and building permit application. Although the applicant prevailed in court, it took five years to get there, during which the site remained vacant and unproductive. Here’s how it unfolded.

The Facts

In July 2012, 7-Eleven applied for a building permit and certificate of occupancy for a site in Wyandanch. The property contained a defunct automobile repair shop, garage and canopies for an abandoned gasoline service station. 7-Eleven proposed to tear down this eyesore and improve it with a 24-hour 7-Eleven store, a use it contended was as-of-right. The Town, however, had other ideas. The Town’s Building Division initially provided comments in July 2012, which were followed by comments from other Town divisions, including traffic safety, engineering, the fire marshal, environmental control, highways and planning that were issued from July to October 2012.

The Town’s Traffic Division issued comments in October 2012 in which it objected to the project on the grounds that there was insufficient on-site customer truck parking, an inadequate truck loading zone, and inadequate setbacks for trash enclosure and mechanical equipment, which it claimed were too close to residential dwellings. It also raised concerns about an existing 7-Eleven, located within ½ mile of the project. It had issues about ingress and egress that it believed would cause increased traffic and parking on nearby residential streets.

7-Eleven responded to these various comments in February 2013, when it submitted architectural drawings and a revised site plan as well as comments prepared by its expert engineering consultant. This submittal addressed the issues raised by the Town Traffic Division. 7-Eleven included three customer truck parking spaces and a dedicated delivery truck loading zone. 7-Eleven proposed to limit all deliveries to box trucks and modified the trash enclosure and loading zone to decrease noise and lessen visual impacts.

The Town responded with further comments which were provided to 7-Eleven in December 2013.   In particular, the Town’s Traffic Division objected to the revised site plan.

The Town Planning Board then held a public hearing at which further revisions to the site plan were requested. These revisions concerned traffic flow and several covenants and restrictions that would (1) prohibit tractor trailer truck deliveries, (2) limit delivery hours, (3) prohibit truck parking on residential streets, (4) limit hours of operation, and (5) require a security protocol. 7-Eleven agreed to all the covenants and restrictions except it would not agree to limit the hours of operation. The public hearing was left open for the receipt of a traffic study. That study determined that vehicle traffic would be relegated to the major thoroughfare (Straight Path) and would not have a major impact on pedestrian or bus stop safety.

The general public also weighed in on the proposal, via written comments, petitions and letters, objecting to the project.  These opponents were concerned with increased traffic and crime and decreased residential property values and public safety. The operator of the other 7-Eleven, located ½ mile away, also submitted comments, which the court noted “would later loom large” in the Town’s subsequent handling of the application. This operator contended that siting the store so close to his existing store would oversaturate the market and lead to increased competition. He also noted that his donation of surplus food to local charities would decrease and also questioned enforcement of the tractor trailer prohibition.

Although 7-Eleven objected, the public record was held open. During this extended comment period, the Town’s Traffic Division raised concerns about truck parking and traffic. It announced in February 2014 that it would not take any further action to review the application unless and until 7-Eleven undertook further site plan revisions to address its concerns.

In response, 7-Eleven made additional revisions to its site plan. These were shared with the Traffic Division in April 2014 and formally filed with the Town in May 2014. Among other things, 7-Eleven confirmed its commitment to limit deliveries to box trucks, and modified its customer parking and loading zone. It also closed off access from certain streets and proposed to install fencing that would reduce vehicle headlights shining into residential areas. It relocated the trash enclosure and mechanical equipment further away from residential neighbors and eliminated a pedestrian walkway near a residential street.

In July 2014, the Town Traffic Division issued another memo, this time finding fault with the dedicated customer truck parking stall.

7-Eleven filed its final site plan in May 2015.   It also filed engineered drawings,traffic and planning studies, and an appraisal, all dated in April 2015. 7-Eleven also filed an affidavit from its senior regional director and requested that the hearing be finally closed. The affidavit rebutted the comments of the operator of the other 7-Eleven.   It also submitted an affidavit from its engineer in which it contended that its proposed use was superior to seven other similarly-situated commercial uses approved by the Town in the preceding two years.

In September 2015, the Planning Board held a meeting and adjourned the applications. Thereafter, in February 2016, additional comments were issued by the Town’s Traffic Division in which it noted its agreement with the operator of the other 7-Eleven and rejected the opinion of 7-Eleven’s regional director about truck traffic, parking and impacts on the adjacent residential neighborhood. But that was not the end of the Town’s Traffic Division’s comments. Two months later, in April 2016, the Town’s Traffic Division issued a memo to the effect that the proposed covenants and restrictions were insufficient. As a result, the Town requested that 7-Eleven submit yet another revised site plan.

At this point, 7-Eleven had had it; and in June 2016, it sent a demand letter to the Town calling for an up or down determination on its application. In August 2016, the Planning Board denied the application. The rationale given for the denial was the safety of the residential neighborhoods that abutted the site on two sides, the adverse impact on traffic and parking, and public safety concerns.

Not surprisingly, 7-Eleven sued.

The Lawsuit

The Town claimed its decision should be upheld by the Court on the grounds it was rational and based on substantial evidence. The Town also contended its decision was not final, contending that 7-Eleven’s lawsuit was not ripe because it failed to apply to the Zoning Board of Appeals for variance relief. The Court didn’t buy these arguments.

The Court first discussed the ripeness issue. It noted that a land use and zoning matter is final when the “development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” but that an applicant “will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile.” Thus, resort to a zoning board of appeals is unnecessary if it “lacks discretion to grant variances or dug in its heels and made clear that all such applications will be denied.” The Court noted that 7-Eleven sought site plan review and a building permit to demolish existing structures and to construct a new building. Neither was granted by the Town, essentially stymying the project. Moreover, since the application was as-of-right, and the setbacks the Town claimed were applicable did not apply to this corner lot, there is no variance that it needed from the Town Zoning Board of Appeals.

The Court then took aim at the Town’s discretion argument. In rejecting it, the Court noted that the Town gave into public pressure about traffic, crime and property values plummeting. The Court found that the Town improperly ignored the concessions made by 7-Eleven to ameliorate the supposed impacts. It also focused on the multiple revisions and the lack of evidence in the record supporting the Town’s decision.

Conclusion

7-Eleven has the financial wherewithal to see a project through, despite the years it takes to get it approved on Long Island. Other applicants may not have the ability to withstand such an extended and expensive proposition to open a business, redevelop a blighted site and revitalize a neighborhood.

According to the American Planning Association, a “floating zone” is a zoning district that “delineates conditions” rather than the more traditional use classifications that are typically found on zoning maps. While a floating zone is contained in a zoning code, it is only added to the zoning map after a project seeking that designation is approved. Thus, it “floats” in the zoning code until it is used for a particular project.

floating

Lindenhurst’s Downtown Redevelopment District Floating Zone

The Village of Lindenhurst Board of Trustees approved a new local law at its June 6, 2017 meeting that creates a Downtown Redevelopment District Floating Zone. The purpose of this Floating Zone is to use Smart Growth principles to encourage development of the downtown area. The Village Trustees believe this new zone will foster mixed-use redevelopment, including pleasant and attractive residential developments within walking distance of the Lindenhurst Long Island Rail Road station and the central business district.

The Process

The local law contains a two-step process for changing a site to the Floating Zone designation. First, a conceptual development plan and reclassification of specific parcels will need to be approved by the Board of Trustees. The second step will entail an approval of a detailed site development plan, and subdivision plat, if applicable, by the Board of Trustees.

The change of zone application to a Floating Zone needs to include a statement describing the nature of the project and how it advances the purpose of the Floating Zone. It also needs to describe adjoining and surrounding properties, the availability of community facilities and utilities, and anticipated traffic generation. The applicant also has to discuss open spaces proposed for the development.

The conceptual development plan needs to be drawn to scale and indicate the approximate location and conceptual design of all buildings, parking areas and access drives. It also needs to show the neighboring streets and properties and include the names of the owners of property located within 200 feet of the site. A traffic study can be requested by the Board of Trustees.

The local law provides that if the Board of Trustees entertains an application to change zoning to the Floating Zone, it will hold a public hearing. The local law also provides that if the Board of Trustees decides not to entertain such an application, it can do so with or without a public hearing and with or without SEQRA review.

The Criteria 

The local law provides criteria for the Board of Trustees to consider for Floating Zone applications. These include: (1) the location of the proposed development and its proximity to the railroad station and central business district; (2) minimum site size, dimensions and topography; (3) ownership of the parcels; (4) permitted uses; (5) height of structures, which is limited to 53 feet; (6) maximum density, which is limited to 37 units per acre; (7) maximum occupancy for residential units, which is set at two for studio units and the number of bedrooms plus two for all other units; (8) minimum floor area of any residential unit, which is set at 580 square feet; (9) minimum building setbacks, which are set at  ten feet for front and rear yards, side yard setbacks are ten feet for one side yard and twenty feet total for side yards; (10) parking minimums for retail and office use is one space per 250 square feet; multi-family residential use is based on the types of units – studios require 1.15 parking spots per unit, one-bedroom units require 1.30 spots per unit, two-bedroom units require 1.75 spots per unit and three or more bedroom units require 2.0 spots per unit; (11) basements and cellars are not allowed to be used for living, sleeping or habitable space; and (12) each building must have security and fire alarms.

It will be interesting to see if this new zoning classification helps Lindenhurst revitalize its downtown.

 

The Town of Babylon’s plan to revitalize the Route 110 corridor in East Farmingdale, NY keeps moving forward. The Town began targeting this area for transformation in 2005. It now looks like the Town may be closer than ever to achieving its goal of redeveloping 100 acres surrounding the intersection of Route 110 and Conklin Street.redevelopment shutterstock_601952789

The targeted area poses challenges to redevelopment. There are height constraints and a runway protection zone associated with Republic Airport. The Route 110-Conklin Street intersection is user unfriendly and unsafe. The automobile-oriented nature of the area, including large parking lots, limited sidewalks, and widely disbursed buildings, is not conducive to pedestrian and bicycle users. In addition, past industrial uses may have left a legacy of contamination.

East Farmingdale Design Charrette

Residents, business owners and other interested parties participated in a multi-day meeting in January and February 2017 with a design team hired by the Town to flesh out ideas and concepts of what the community wants to see in this redevelopment effort. In April 2017, the results of this meeting, referred to as a design charrette, were presented by the design team in a report entitled East Farmingdale Design Charrette.

The lynchpin of the design hinges on re-opening and upgrading the East Farmingdale Long Island Rail Road station, which has been shuttered for almost 30 years. The MTA earmarked $5 million from its capital budget toward this effort. This closed station is adjacent to properties that were part of Republic Airport and are currently owned by the state. The plan calls for these parcels to be the core of a transit-oriented development location. The plan also includes a bus rapid transit  stop that Suffolk County is planning for the Route 110-Conklin Street intersection.

Redevelopment Wish List

The charrette participants came up with a wish list of big ideas. These include walkways, pedestrian crossings, bicycle lanes, and mixed use retail and residential with pocket parks. The residential components would include single family homes, apartments and affordable housing. Other ideas coming out of the charrette were a museum, transit hub, and green space. The design team commented on the desire of many participants for a village-like feel, rather than an urban city vibe, for the redevelopment. The design team also noted that community gathering spaces and cultural facilities are currently missing from the targeted area and should be included in the redevelopment.

The design team drafted a Form-Based Code that will help guide future development. The code, while still a first draft, provides physical details such as height restrictions, distances between buildings, landscape specifications and open space requirements.

Check out the Town of Babylon’s website for more information about this project.

seqraThe New York State Department of Environmental Conservation (“NYSDEC”) proposed significant changes to the State Environmental Quality Review Act (“SEQRA”) regulations almost 5 years ago. The NYSDEC recently indicated that these proposed regulations finally will be enacted this year. The proposed regulations will streamline the SEQRA process. This post discusses changes to Type II actions under the proposed regulations.

Type II Projects

Type II actions do not require SEQRA review. The proposed regulations will add over a dozen different specific actions to this category. Some of the more interesting additions to Type II actions include:

  • In cities, towns, or villages with adopted zoning laws or ordinances, reuse of a commercial or residential structure not requiring a change in zoning or a use variance, unless it meets or exceeds certain specified thresholds.
  • In cities, towns, and villages with adopted subdivision regulations, a “minor” subdivision that does not involve construction of new roads, water, or sewer infrastructure and is not part of a larger tract subdivided within the previous 12 months.
  • A recommendation of a county or regional planning board issued pursuant to General Municipal Law §§ 239-m or 239-n.
  • Replacement, rehabilitation, or reconstruction of a structure or facility on the same site, including upgrading buildings to meet energy codes or to incorporate green building infrastructure techniques, within certain specified thresholds.
  • Installation of up to five megawatts of solar energy arrays on certain existing structures, including landfills, brownfield cleanup sites, and residential and commercial parking facilities.
  • Installation of cellular antennas or repeaters on certain existing structures.
  • Installation of fiber-optic or other broadband cable technology in existing highway or utility rights-of-way.
  • Specified brownfields clean-up agreements.
  • Acquisition, sale, lease, annexation, or transfer of any ownership of land to undertake any activity on the new list of Type II actions.
  • Disposition by a municipal or state agency of land, by auction, where there is no discretion on its part on the outcome, such as when a municipality or a state agency acquires land through foreclosure and is required to dispose of the site through a public auction to the highest qualified bidder.      

Conclusion

The NYSDEC is accepting comments on the proposed regulations until May 19, 2017 and intends to enact them in the Fall.

Two recent New York cases brought to mind the well-known poem about trees. No, not the one written by Joyce Kilmer. The other one, written by Ogden Nash. Who can ever forget those immortal words. “I think that I shall never see a billboard lovely as a tree.” Yes, the cases involve billboards and zoning.

But first some history.evil-trees

Sky Signs

One of the first reported cases on municipal regulation of outdoor advertising, People v Wineburgh Advertising Company, 19 NY 126 [1909], involved the regulation of “sky signs” by the City of New York. That regulation limited rooftop signs on private property to 9 feet above the front wall or cornice and prohibited taller signs no matter how securely the signs were affixed to the building. Wineburgh Advertising sought to install a sign on the roof of the 10-story office building located at 27 East 22nd  Street in Manhattan. The bottom of the proposed sign was to be 5 feet 6 inches above the roof and soar to 20 feet 6 inches above the roof. It was to be set back 40 to 50 feet from the building line. The City refused to approve the sign on the grounds it was a safety hazard and the legal challenge ensued.

In rejecting the City’s decision and finding it arbitrary and unlawful, the New York Court of Appeals noted that no such height restriction applied to other roof-top structures, such as tanks, towers, chimneys, flagpoles, balustrades, finials or ornamental finishes. The Court determined that the City’s objection to the sky sign was not a safety issue, but rather sought to control the advertising that would be placed on the sign. The building was allowed to install its sky sign.

Now for the two new cases.

Colossal Murals

In Matter of Skyhigh Murals – Colossal Media, Inc. v Board of Standards and Appeals of the City of New York, 2017 NY Slip Op 30088(U) [Supreme Court, NY County, January 13, 2017], a 900 square foot hand painted advertising sign was proposed to be located on the side of a building in Williamsburg, Brooklyn. The building is located within a M1-1 manufacturing zoning district. Directly across the street, in a MX-8 Special Mixed Use zoning district, is a residential building. The sign would face this residential building.

First the Department of Buildings, and then the Board of Standards and Appeals (BSA), rejected the application on the grounds the sign violated the City’s Zoning Resolution as it would adjoin a residential zoning district. The Court rejected the argument and castigated the BSA for having “muffed such a simple and obvious statutory interpretation.”    According to the BSA, the building was located in “co-designated” residential and mixed use zones. The Court explained that the Zoning Resolution superimposed the MX-8 zoning district on paired M1 and Residential Districts. Thus, it did not matter that the residential building was located in the residential part of the paired districts. It was located in the MX-8 zoning district. The Court permitted the installation of the sign.

Billboards     

The second case comes from upstate and concerns billboards along an interstate highway. In Matter of Expressview Development Inc. v Town of Gates Zoning Board of Appeals, __ AD3d __2017,2017 Slip Op 00874 [4th Dept. 2017], the zoning provision in question prohibited commercial advertising signs that were not located on the site of the business being advertised. The site in question abutted an interstate highway. It was composed of 6 contiguous vacant parcels that combined into an oddly-shaped site. The site had been acquired back in the mid-1980s and had been approved as an industrial park in 1982. The owner never developed the park and it remained vacant. The site had been on the market for years with little interest.

In 2009, Expressview Development made an offer to purchase the site contingent upon it being able to construct billboards that would be visible from the interstate highway. The prospective purchaser applied for use and area variances to construct the billboards, which were denied by the Zoning Board of Appeals. The board determined that the billboards violated the zoning code restriction as they would be used for advertising of commercial enterprises not operating at the site. The board also found that the proposed billboards would adversely affect the character of the neighborhood and would result in billboard overload as there were already more than enough signs on that stretch of highway.

The Appellate Division agreed with the Zoning Board of Appeals. Wholly unsympathetic to the owner, (the Court referred to the owner as a “careless land buyer”), the Court rejected the property owner’s hardship claim. The Court also noted that the “off-premises” zoning restriction applicable to commercial advertising did not violate free speech rights.

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

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

Huntington’s Proposed Ban

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

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

Town of Islip’s Short-Term Rental Law

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

Village of Great Neck Estates Short-Term Rental Law

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

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

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

Purpose of Moratorium

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

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

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

Exemptions

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

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

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

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

The Planning Board Decision

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

Plaintiffs Challenge The Planning Board’s Determination

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

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

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

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

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

The Outcome

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

Complete Streets refers to roadway design aimed at ensuring safe and convenient access for all users, whether on foot, on a bicycle, in vehicles, or using other transit modes. Long Island Complete StreetsHere on Long Island, roadway design has primarily focused on one mode of transportation – the automobile. But that is changing. Now, roadways are looked at as more than merely motor parkways. They are viewed as economic drivers, health promoters, and environmental enhancers. All it takes is a little planning and the desire to make positive changes that benefit all segments of the community.

The New York State Complete Streets Act

New York State officially got into the Complete Streets game in August 2011, when the Governor signed into law the Complete Streets Act (CSA). This statute requires state, county, and local agencies to consider safety, access, convenience and mobility in transportation projects that are state and federally funded.  The CSA includes Complete Streets design features that allow the roadways to be shared. These features make sense and run the gamut from installing appropriate road signage, constructing crosswalks with pedestrian control signals, constructing bicycle lanes and bus pull outs and implementing traffic calming measures.

In response to the CSA, the New York State Department of Transportation (NYSDOT) developed a series of policies and guidance for Complete Streets. These include:

  • a bicycle/pedestrian policy aimed at increasing these modes of transportation in a safe manner and to promote transit-oriented development
  • a traffic calming policy aimed at reducing the negative impacts of motor vehicle use, alter driver behavior and improve conditions for walkers and bicyclists
  • a highway design manual that contains technical design guidance based upon federally-approved design practices
  • a regional NYSDOT bicycle/pedestrian coordinator to help communities promote programs to increase walking and cycling

Suffolk County’s Complete Streets Policy

In 2012, Suffolk County established a Complete Streets policy. This policy recognizes that walking and bicycling are important modes of transportation and recreation and promote health, fitness, and economic development. The policy requires the Suffolk County Department of Public Works to evaluate the feasibility of Complete Streets design features at the planning stages of projects.

Town of Babylon’s Sustainable Complete Streets Policy

In July 2010, Babylon adopted its Sustainable Complete Streets Policy. This policy takes into consideration motor vehicle drivers, public transportation vehicles, pedestrians and bicyclists of all ages and abilities in the design, construction and retrofitting of the Town’s roadways. The Town commissioned the development of a Master Plan for Sustainable Complete Streets, which will include best practices, such as median islands, narrower travel lanes, secure bike facilities, tree covers, streetscaping and lighting. It also calls for intermodal transit facilities that allow easy transfer between the modalities.

Village of Great Neck Plaza

In February 2012, Great Neck Plaza adopted its Complete Streets Policy Guide. Its stated purpose is to take “a well-balanced approach to transportation planning” and optimize “transportation accessibility and choices.” The Village’s policy seeks to address the needs of motorists, pedestrians, bicyclists, children, disabled persons, elderly citizens, movers of commercial gods and users of public transportation in the planning, construction and retrofitting of streets, bridges and other aspects of the transportation network.   It sets forth specific design elements to be considered for its main roads, including:

  • specified lane widths
  • specified parking lanes
  • ADA-compliant sidewalks
  • landscaped medians
  • improved signage
  • textured crosswalks
  • bus shelters
  • porous pavement
  • bioswales
  • pedestrian-scale lighting
  • bicycle racks
  • parking meters
  • benches

Complete Streets policies are popping up across Long Island and promote safe and efficient roadway design. These policies will play a larger role in the governmental approval process in the future.