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.

pumpkinsBeginning in 1974, Suffolk County enacted a series of laws, now codified as Chapter 8 of the Suffolk County Code, which sought to preserve agricultural lands. In exchange for paying an owner for the development rights of his/her farmland, the owner agreed to a covenant restricting the land to agricultural or open space. Between 1974 and 2010, more than 9,000 acres of farmland were preserved through this program.

In 2010, the County enacted Local Law 52-2010, which allowed the County to permit some development of these preserved properties, even though the owner previously had been paid taxpayer dollars to forego such development. Previously, absent a referendum of the electorate, there was an express prohibition against alienating the development rights that were preserved via this program. The 2010 amendment allowed special use permits and hardship exemptions to be issued, enabling owners or lessees of property in the program to expand agricultural use by constructing new or additional structures and amusement attractions. These included things such as greenhouses, barns, farm stands, special events and parking. Rather than requiring a referendum of the electorate, the permits and hardship exemption requests were to be handled by the Suffolk County Farmland Committee, made of up nineteen members, nine of whom were appointed by the County Executive. The other ten members were composed of persons selected by the ten Suffolk County towns, with each town getting one member.

In 2013, the County enacted Local Law 44-2013, which added a few refinements to the permit and hardship exemption program. It added agricultural tourism, horse boarding operations, hay rides, mazes and u-pick operations to the list of permitted uses.

The 2010 and 2013 local laws were challenged by the Long Island Pine Barrens Society, Inc., claiming that the laws violated a whole host of statutes and public policy. On September 28, 2016, Justice Thomas F. Whelan issued a ruling siding with the Pine Barrens Society, in which he declared the two local laws to be null and void. Justice Whelan also issued a permanent injunction that prohibited the granting of permits and hardship exemptions. He explained that the two local laws were, in effect, a “give back” to the owner of the development rights that had been bought, and paid for, by the County. Justice Whelan determined that this “give back” was a substantial intrusion and diversion of County assets for the personal gain, use and enjoyment of a private property owner, in contravention of public rights to use and enjoy the property as preserved open spaces and open areas.

The next step is up to Suffolk County to determine whether to appeal the decision. Unless it does so and is successful in overturning the ruling, the County cannot use these two local laws to allow development of preserved farmland.

 

th3QKHUYHKThere has been a lot of recent press about water pollution caused by PFOS and PFOA, in particular at Hoosick Falls in upstate New York and at the Stewart Air National Guard Base in Newburgh. You may have wondered what the heck these chemicals are and should we be worried about them on Long Island. Here is some information to help answer these questions.

 Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are fluorinated organic chemicals that are part of a larger group of chemicals known as perfluoroalkyl substances. They are highly resistant to water, grease and stains, a characteristic that explains why they were widely used in carpets, clothing, furniture fabric, food packaging, and cookware. PFOA was used to make Teflon®. PFOA and PFOS are components of firefighting foam used at airfields.

Although the US production of these chemicals has been phased out, these chemicals are resistant to environmental degradation. As a result, they are still widely distributed in the environment and have been found to accumulate in humans, wildlife and fish.

In May 2016, the USEPA issued a health advisory about acceptable levels of PFOS and PFOA in drinking water. If drinking water contains PFOA or PFOS above 70 parts per trillion (ppt), the USEPA recommends that steps be taken to notify the public and health officials in order to limit exposure and identify the source. This is an extraordinarily low concentration. Picture a swimming pool full of one trillion (1,000,000,000,000) ping pong balls. Now picture 70 of them painted yellow and the rest of them (999,999,999,930) painted white. That’s 70 ppt. In April 2016, the New York State Department of Environmental Conservation (NYSDEC) added PFOS and PFOA to its list of hazardous substances.

In June 2016, the NYSDEC announced that it had reached settlements holding Saint-Gobain Performance Plastics Corporation and Honeywell International Inc. responsible for the PFOA water contamination in the Hoosick Falls area in upstate Rensselaer County. These plants manufactured Teflon®. Among other things, the settlement requires the companies to: (i) investigate PFOA contamination at four Honeywell and two St. Gobain plants; (ii) investigate the feasibility of an alternate water supply for the area; (iii) fund filtration systems for the local municipal water supply; and (iv) continue to pay for bottled water for local residents until the filtration systems are installed and working.

Two months later, in August 2016, the NYSDEC declared municipal landfills in the Village of Hoosick Falls and in the towns of Petersburgh and Berlin to be potential state Superfund sites. Monitoring wells at the Hoosick Falls site contained concentrations up to 21,000 ppt of PFOA, which is 3,000 times the USEPA health advisory limit. Samples from leachate on the Petersburgh/Berlin site contained concentrations up to 4,200 ppt of PFOA.

In early August 2016, the NYSDEC named the Stewart Air National Guard Base in Newburgh as a New York State Superfund site based on PFOS contamination. PFOS was used in Class B firefighting foam at the air base. PFOS contamination was detected in Lake Washington, which served as Newburgh’s primary water supply. Concentrations up to 5,900 ppt were found in an outfall from the air base that drained into Silver Stream, a primary tributary of Lake Washington.

Can it happen on Long Island? It already has. In July 2016, PFOS was detected in public supply wells near the Air National Guard Base at Gabreski Airport, in Westhampton Beach.  Concentrations of PFOS at 14,300 ppt were detected in monitoring wells. Groundwater downgradient of the current fire training area contained concentrations of PFOS at 58,900 ppt and PFOA at 6,930 ppt. Groundwater downgradient of the former fire training area contained concentrations of PFOS at 44,300 ppt and PFOA at 653 ppt. Not surprisingly, Gabreski was declared a state Superfund site a few weeks ago.

 

How The Difference Adversely Impacted A Property Owner In A Condemnation ProceedingToday’s blog post concerns a property owner receiving substantially less than it wanted when its property was taken in an eminent domain proceeding because the “highest and best use” it claimed was applicable to the site required an area variance and a zoning change, rather than a special use permit. The awarded amount was about $1 million less than the property owner was seeking. The case, Matter of the Application of the Town of Oyster Bay v. BPJ Marine Corp., Supreme Court Nassau County, Index # 18701/2010, Justice Thomas A. Adams, December 3, 2013, affirmed, 139 AD3d 741 (2d Dept 2016) pitted BPJ Marine Corp., doing business as Gus Marine in Massapequa (the “Marina”) against the Town of Oyster Bay (the “Town”). It demonstrates the pitfalls facing an owner trying to establish the “highest and best use” of a parcel to maximize the condemnation award when the zoning prohibits the use.

The Marina

The Marina is located on a canal in Massapequa. It is composed of 2 parcels, divided by Alhambra Road. The eastern parcel is about 18,000 square feet in size. About 44% of that eastern parcel (7,900 square feet) is underwater. The eastern parcel has 180 feet of waterfront, all of which is bulk-headed except for a 10-foot boat ramp. The eastern parcel is about 75 feet wide, from the street line to the bulkhead. The western parcel is about 10,100 square feet and does not directly abut the water. Both parcels together are approximately 0.6 acres. The site is zoned as General Business (“GB”).

Prior to 2005, the Town permitted townhouse developments in GB zones as a special use. The site to the north of the Marina was developed as a townhouse complex 7 years before 2005, after obtaining a special use permit. In 2005, the Town enacted a local law prohibiting townhouses in GB zones. That 2005 local law was in effect at the time of vesting. Vesting is the point of time at which title to the land is deemed to be in the hands of the condemnor and no longer in the hands of the private owner. See New York State Eminent Domain Procedure Law (“EDPL”) § 402(B).

The Condemnation

The Town decided to condemn the Marina and made advance payments of $939,000 and $175,536.75 to the Marina. Not unexpectedly, the Marina claimed that the payments were woefully inadequate. The matter then proceeded to court.

The Marina claimed that the “highest and best use” of the site was as a townhouse condominium, asserting that 7 townhouses could be built at the site. The Marina asserted that the western parcel could be used for 2 of the 7 townhouses (with a value of $480,000) and the eastern parcel for 5 townhouses (with a value of $1,231,000.) Taking into account other factors, such as the cost to remediate the bulkhead and backfill it, the Marina claimed that the full value of the “highest and best use” award should have been $1,711,000.

The Town disagreed, asserting that the “highest and best use” of the site was as a marina and based its advance payments on that assessment. The Town presented evidence at trial that a townhouse complex had no reasonable probability of ever being approved for the site. The Marina would need to obtain a change of zone as it could not get a special use permit in light of the 2005 local law. Moreover, since the Marina was a conforming use in the GB zone, it could not take advantage of a Town code provision that allowed the Town to swap out a non-conforming use with a less intrusive non-conforming use.

The trial court and the Appellate Division agreed with the Town. The courts held that there was no reasonable probability that the Marina would get the site re-zoned to permit townhouses because of the express prohibition of townhouse construction in the GB zone in the 2005 local law. The courts noted that even if the zoning board of appeals overlooked that prohibition, the size of the area variance was massive and would not be granted. In making a determination to grant or deny an area variance, the zoning board of appeals would have to consider and balance the following factors: (1) will granting the area variance produce an undesirable change in the character of a neighborhood; (2) can the benefit sought by the applicant be achieved in some other feasible method; (3) is the requested relief substantial; (4) would the area variance, if granted, have an adverse effect or impact on the physical or environmental conditions of the neighborhood; and (5) is the condition requiring the area variance self-created.

The courts determined that the substantial size of the relief militated against the Marina. The courts noted that a townhouse complex under the zoning code needs a minimum of a 5-acre lot. The Marina was asking to build on a site that was less than 1 acre and a significant portion of the site was underwater land. The courts determined that the zoning board of appeals has never granted such an area variance of this magnitude. The courts also found that the problem was self-created because any developer that would submit a plan for seven townhouses on this undersized site couldn’t claim that it didn’t know how drastically undersized it was.

The trial court determined that the appropriate award was $35 per square foot, which amounted to about $732,000.

Although not mentioned in the decisions, since the award from the court was less than the advance payments made by the Town, under § 304(H) of the EDPL, the Marina may be subject to having to repay the amount that exceeds the advance payments. Not a happy ending for Gus Marine.