mosqueOn December 31, 2016, U.S. District Judge Michael Shipp of the District of New Jersey authored a 57-page opinion granting partial summary judgment to plaintiffs, The Islamic Society of Basking Ridge (“Islamic Society”) holding that defendants, the Township of Bernards (“Bernards”), violated Islamic Society’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).  The Bernards Planning Board denied Islamic Society’s site plan application seeking to construct a mosque in a residential zone on the basis that (1) a mosque is not considered a church under Bernards’ zoning code and (2)  Bernards’ parking ordinance was not adhered to.

FACTS

In November 2011, Islamic Society purchased property in a residential section of Bernards with the intention of constructing a 4,252 square foot mosque on the property.  The site plan called for 50 parking spaces based on estimated occupancy of 150 people.  The parking spaces provided were in compliance with Bernards’ parking ordinance applicable to churches at a ratio of 3:1 .

Over the course of three and a half years, Islamic Society’s site plan application underwent 39 meetings and was subjected to intense neighborhood opposition and scrutiny.    According to the decision, competing expert testimony was provided by parking experts and asserted that although Bernards does not, and has never, relied on the Institute of Transportation Engineers (“ITE”)  Parking Generation data,  Bernards required Islamic Society to apply the ITE data applicable to mosques, which estimated required parking spaces between 36 and 110.  Bernards compromised at 107 parking spaces, when in fact, only 50 were required under Bernards accepted church parking ratio of 3:1.

The rationale for the increased parking requirement rested on Bernards’ determination that a mosque is not a church, despite the fact that Bernards’ zoning code does not state that a mosque is not considered a church.  Bernards did not stop there.  Bernards went on to say that only Christian places of worship are considered  churches, and as a result thereof, not only was the 3:1 parking ratio not applicable to Islamic Society’s site plan application, but also, Bernards maintained discretion in reviewing Islamic Society’s application and essentially had unfettered discretion in determining parking requirements.

At the conclusion of all hearings and testimony, Bernards’ planning board denied the site plan application.  Islamic Society commenced an action in federal court alleging violations under RLUIPA.

DECISION

In granting partial summary judgment, the Court rejected Bernards’ position that mosques are not considered churches.   In fact, the Court specifically stated that a mosque or any place of religious worship, whether a church or not, is protected under RLUIPA.  Bernards’ unsupported determination that mosques are not considered churches violated Islamic Society’s rights under the Nondiscrimination Provision of RLUIPA.

Additionally, with respect to the increased parking, and Bernards’ position that it maintained unfettered discretion to determine parking requirements, the Court relied upon its determination that a mosque is entitled to the same protections as a church;  as such, the Bernard parking ordinance ratio of 3:1 should have been applied equally to Islamic Society as it had historically been applied to Christian and Baptist churches and synagogues that were previously approved in Bernards.  Further, the Christian, Baptist and Jewish places of worship were typically granted in less than six months, and in most instances, with less then four public hearings.

CONCLUSION

The decision in this 57-page case cannot be justly analyzed in a short blog post.  Given the state of our country at this time, when it comes to freedom of religion and the consequences that we suffer as a result of our differing beliefs, it would be a worthwhile allocation of any land use attorney’s time to read this decision.  If nothing else, it reminds us all that one of the basic tenets of our American freedoms is the freedom to be different and be accepted.

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

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

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

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

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

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

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

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

Happy New Year to all.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

thOn July 11, 2016 and August 22, 2016, we blogged about how to successfully prepare and record a deed in the State of New York.  Just a few days ago, a question arose as to whether joint tenants with rights of survivorship can hold title to real property in unequal interests.  Although I emphatically stated in our July 11, 2016 post that joint tenants can only hold title in equal shares, I wavered in my answer when I was met with opposition by others who emphatically stated that joint tenants can, in fact, hold title in unequal interests.  So this blog post is intended to set the record straight.  Under New York State law, persons holding title to real property as joint tenants with rights of survivorship must hold title in equal interests.

The three types of real property ownership interests consist of (1) tenants by the entirety, reserved to married couples only, which by its terms creates a survivorship interest in each party; (2) joint tenants, which creates a survivorship interest between the parties, and must be clearly stated on the deed in order for the joint tenancy to exist; and (3) tenants in common, which creates no survivorship interest between the parties and is typically used when friends or persons other than married or familial parties purchase, most often, investment properties.  When a deed is silent as to the ownership interest, such as John Doe and Mary Smith, unless John Doe and Mary Smith are married, the law presumes that the parties intended to create a tenancy in common, with no survivorship interest between the parties.

And, to further set the record straight – the term “joint tenants with rights of survivorship” is a misnomer.  The legal term “joint tenants” provides each titled owner with the right of survivorship.  Consequently, when drafting a deed, indicating the ownership interest between the parties as “joint tenants” is sufficient to create a right of survivorship between the parties.  (See EPTL 6-2.2).  Having said that, when creating a joint tenancy between parties, attorneys routinely indicate ownership interests as “joint tenants with rights of survivorship.”

Understanding the three types of ownership interests becomes of utmost importance when multiple parties take title to real property.  For example, in the State of New York, if John Smith and Mary Smith, his wife, take title to real property together with their children Jack Smith and Meg Smith, the interest created here is an undivided 50% ownership interest in the property by John and Mary Smith and a 25% tenant in common interest to each child, Jack and Meg.  The tenant in common ownership interest arises because the deed is silent as to the ownership interests among all four parties.  Upon the death of husband John, Mary remains a 50% owner; and her two children, Jack and Meg, each own the remaining 25%, all as tenants in common.

This scenario would change in the event that Jack, the son, was to die first.  In this instance, John and Mary Smith, husband and wife, remain 50% owners, Meg remains a 25% owner, and the heirs of Jack inherit his 25% interest.  If the deed had read:  “John Smith and Mary Smith, husband and wife, and Jack Smith and Meg Smith, as joint tenants with rights of survivorship”, then each of the parties, regardless of the spousal relationship, would own 25%.  Upon the death of any owner, the surviving parties would equally inherit the decedent’s share.  If Meg were to pass on first, then John’s, Mary’s and Jack’s interests would increase to 1/3 each.

There are numerous examples of cases where the ownership interests of the parties are disputed.  In most cases, the language set forth in the deed by the attorney draftsman is the cause of the litigation.   In reconfirming that joint tenants must hold equal ownership interests, I came across a 1996 Westchester County, Supreme Court case, Prario v. Novo 168 Misc.2d 610, whereby the trial court not only sets out the law, but also provides great examples of who owns what in specific ownership scenarios.  Most drafting mistakes arise when individuals hold title along with married couples.  To avoid creating an ownership interest that the parties did not anticipate, the drafter must carefully read the language set forth in the deed to ensure that the interests created are, in fact, the interests that the parties desire.  Perhaps printing out a copy of Prario, supra, will assist in avoiding critical ownership interest mistakes.

One footnote:  The joint tenant equal ownership interest theory does not necessarily mean that in a partition action, or action for divorce, each party will walk away with equal monetary amounts.  We will leave that discussion for another day!

10187-5810-100208151901-6962-displayOn July 21, 2016, the Appellate Division, Third Department, upheld a decision of the trial court in  Lavender II v. Board of Zoning Appeals of the Town of Bolton, 141 A.D. 3d 970 (3d Dept., 2016) (Krogmann, J. ,Warren County) holding that a Castle located in a residential zone along panoramic Lake George, could not be used for commercial purposes such as weddings, large parties, and other social receptions.  Id.

In early 2010, petitioner, John A. Lavender, II, began advertising Highlands Castle on the internet describing the property as “a perfect setting for a special gathering with family and friends . . . or any other meaningful experience you can envision.” Id.  The Castle is located in a residential zone. 

In 2012, the local Zoning Administrator determined that the rental activities did not violate the Town Code.  An appeal was taken by the neighbors, which resulted in a determination by the Zoning Board of Appeals of the Town of Bolton, finding that “the activities conducted at Highlands Castle are commercial in nature and are not customarily associated with the use of a single-family dwelling. ”  Id.

Petitioner filed an Article 78 proceeding.  In 2013, the trial court affirmed the Zoning Board’s decision concluding that the activities conducted at Highlands Castle violated the single-family dwellings and associated permitted uses as defined by  Bolton Town Code Section 200.8.  Despite the trial court decision, petitioner continued to use Highlands Castle for weddings, events, and even an American Bar Association event.  A restraining order was issued in 2013, and a final decision dismissing petitioner’s claims was rendered by the trial court in 2015.

Petitioner filed an appeal.  In upholding the trial court decision, the Third Department stated that there “is no dispute that the physical structure situated on petitioner’s property falls squarely within the definition of a single family dwelling.”  The Court further stated that the relevant inquiry “distils to whether petitioner’s use of the property as a venue for weddings, receptions, and other events constitutes an “accessory use” within the meaning of the Town Code.”  Id.

The Court noted that petitioner’s contention that “Highlands Castle is held out merely for residential use” is entirely belied by the record.   Highlands Castle was offered for rent, with an emphasis on weddings, large parties, and other receptions.  Petitioner marketed the property on the internet and even offered a comprehensive package, including photographers, food, and vendors to meet every need.

Of critical importance to the Court was the fact that not only was Highlands Castle never rented out for even one single family use, but also, there was no evidence offered to support a finding that use of Highlands Castle for commercial purposes fits within the definition of permitted accessory uses as set forth in Bolton Town Code Section 200.8.  In light of the record and the lack of evidence proffered by petitioner, the Third Department stated that the decision by the Zoning Board of Appeals of the Town of Bolton was neither irrational nor unreasonable.

Of interesting note:  the Highlands Castle website continues to offer the property for weddings, parties, and receptions to be held at Highlands Castle, the Castle Cottage, and the Royal Bedroom.  Same can also be found on Airbnb- refer to our earlier post by Anthony S. Guardino discussing Airbnb land use pitfalls.

 

 

On July 11, 2016, I began a short blog series on how to successfully prepare and record a deed in New York State.  In that post, we reviewed the various types of deeds available such as warranty deeds, bargain and sale deeds and executors deeds.  We also discussed the importance of securing a copy of the last deed of record and ensuring that when preparing a new deed, you do not deviate from name spellings and owner capacities, such as tenants by the entirety, joint tenants and tenants in common.   The newly prepared deed should reflect the name of the owner/seller as it exactly appears, and in the capacity that the owner/seller received title to the property.

voidable-contractsGiven that my practice areas are land use development and transactional real estate, today’s post will discuss deed transfers where no consideration is paid by the buyer.  You may have occasion to provide no consideration deed transfer preparation when, for example, clients are transferring a real estate asset from their individual capacity to a corporate or LLC capacity.  In other words, the seller is not receiving any money for the transfer because in most instances, the seller is retaining some beneficial ownership in the property.  For instance, if John Smith is transferring a real estate asset to No # Main Street LLC, where John Smith is the sole member of the LLC; No # Main Street LLC may elect not to pay any money for the real estate asset because the transfer is done for liability purposes, and John Smith will continue to remain in possession and control of the asset.  Similar types of no consideration transfers are also popular when a marital asset is being transferred as the result of a divorce or newly married couple.

The examples set forth above are usually undertaken in good faith and with the intent to manage a real estate asset in the manner desired by the owner/seller.  However, attorneys should be careful to ask the right questions to determine the owner/seller’s actual intent in transferring a real estate asset, because no consideration transfers can raise additional title insurance exceptions in the future.   Likewise, no consideration deed transfers can bring unwanted liability, such as existing judgments and liens, upon the new owner and potential state and federal tax consequences to both the seller and no consideration buyer.

How does a real estate practitioner properly transfer an asset for no consideration, while at the same time, ensuring that the parties involved are protected from any negative consequences?  The answer is simple; due diligence and disclosure.  The reasons are abundant as to why It is not sufficient to secure a copy of the existing deed and then simply prepare a new deed.  First, when a real estate asset is transferred for no consideration, the existing judgments, liens and mortgages transfer with the asset.  Although the new buyer does not become personally liable for the debts, the new buyer cannot transfer the asset without paying off the debts.  In the example above, assume that John Smith transferred his real estate asset to No # Main Street LLC, but John Smith failed to advise his attorney that he has a number of judgments and liens against him.  Because the transfer is for no consideration, the judgments and liens against John Smith will continue to run with the land.  Now, assume that John Smith is not the only member of No #  Main Street LLC, but instead, John Smith has a partner, Mary Jones, who has no idea that John Smith has existing debts.  Those debts will now potentially affect Mary Jones’ interest in the real estate asset owned by No # Main Street LLC.

In addition, no consideration deed transfers raise questions with respect to the intent of the seller.  In the above example, perhaps John Smith intended to transfer the real estate asset in an attempt to avoid his existing creditors.  Because No # Main Street LLC did not pay any consideration for the transfer, a title exception will be raised when No # Main Street LLC sells the asset requiring proof that John Smith did not transfer the asset to avoid the existing creditors.  If No # Main Street LLC had paid value for the asset, it is less likely that a title insurance exception would be raised.

Other impacts of no consideration deed transfers include acceleration of existing mortgages.  Most mortgages contain an acceleration provision if the asset is transferred to someone other than the mortgage borrower.  Although in practice it is less likely that the lender will accelerate a mortgage that is not in default, nonetheless, the no consideration parties to the deed must be advised that this risk exists.

Likewise, when transferring real estate assets that arise from a divorce or a new marriage, the attorney preparer should take care to determine whether a value is actually being paid or received for the transfer.  If John and Mary get divorced, and as part of his settlement, Mary transfers her interest in the real estate asset to John, that asset should be valued; and, unless it is specifically defined otherwise, consideration should be paid on the value of Mary’s one-half interest in the asset.  This is where accountants and tax attorneys should be consulted, to ensure that negative tax consequences don’t arise from the no consideration transfer.

Finally, the way to avoid the pitfalls discussed above is to secure, at a minimum, a real estate asset last owner with judgment and lien search from your preferred title insurance provider.   Review the report to determine whether a no consideration deed transfer will raise more questions than it might solve.  Also, discuss the intentions of all parties to a no consideration deed transfer, as negative consequences can arise for all parties involved.


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.

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.

In recent months, the Village of Sag Harbor and the Village of Patchogue enacted moratoriums aimed at halting large-scale residential development, and in Patchogue’s case, including multi-family residential development.  Both Villages learned that enacting moratoriums is not only subject to referral to the Suffolk County Planning Commission (“SCPC”) pursuant to General Municipal Law § 239-m but also, moratoriums can be subject to intense scrutiny by constituents and other governmental agencies, such as the SCPC.

What is a Moratorium?

Moratoriums, a word that brings angst to landowners and developers, are used by municipalities to temporarily control development while they study and potentially adopt changes to their comprehensive plans or to their land use regulations.   Often described as a means to preserve the status quo, a moratorium can halt all development in a community or can be tailored to a specific land use or aimed at a specific zoning district.  Moratoriums can include exemptions that allow some development to continue. For example, a municipality may exempt applications that have already been approved but not yet started.

Municipalities adopt moratoriums for several reasons: (1) prevent a rush to develop; (2) prevent inefficient or impractical growth; (3) address new types of land use not currently covered by their comprehensive plans or land use laws; (4) prevent hasty decisions that could adversely impact landowners, developers or the public; and (5) prevent construction that may be inconsistent with a future land use plan. If a municipality adopts a moratorium, it should make sure it is temporary, is for a reasonable time frame, has a valid public purpose,  balances benefits and detriments of the moratorium, adheres to the procedure for adoption of local laws and ordinances, and contains a time certain when it expires.sag%20harbor%20sign[1]

Sag Harbor’s 2015 Moratorium Did Not Comply with GML § 239-m

The Village of Sag Harbor enacted an 180-day moratorium on July 14, 2015, that temporarily suspended the Village’s authority to process and/or grant approvals for building permits for certain one-family detached dwellings.  The moratorium was triggered by the recent development of one-family homes of “a size and scale that are inconsistent with the historic and rural character of the Village” and conflict with the purposes of the Zoning Code. Id.  In other words, the Trustees were concerned about the explosion of McMansions being built in the community.

The Village wanted time to consider gross floor area requirements and enacted the moratorium to preserve the status quo and avoid overburdening Village planning staff and boards.  The moratorium contained an exclusion that allowed the construction of homes that had been issued building permits before June 9, 2015.  It also allowed homes not exceeding 3,500 square feet to be constructed on lots of 20,000 square feet or less, or not exceeding 5,000 square feet on lots larger than 20,000 square feet.  It also excepted from coverage, alterations or improvements to existing one-family detached homes that did not constitute “substantial improvement.”  Id.

Although this moratorium was filed with the New York State Department of State, news reports note that constituents, unhappy with the moratorium, argued that the Village did not refer the moratorium to the SCPC for a determination of regional significance as required by GML § 239-m.  That could have been fatal to the moratorium.

Sag Harbor’s 2016 Moratorium Did Comply with GML § 239-m

On January 12, 2016, the Village of Sag Harbor enacted a local law that put in place “temporary interim building restraints on building permits for certain one family detached dwellings pending the conclusion of the Planning Update and SEQRA Process for the enactment of permanent regulations for development and redevelopment of residential dwellings.” Id. The 2016 local law states it replaces the previously-enacted July 2015 moratorium and will be in place until permanent rules are adopted.  According to news reports, this local law was referred to the SCPC and that the SCPC  determined it was not of regional significance.  The Village also filed the 2016 local law with the New York State Department of State

Like the July 2015 moratorium, the 2016 local law contains exclusions.  Any application that received an exemption under the 2015 moratorium and any application that meets the interim development standards in the 2016 local law are excluded from the restraints contained in the 2016 local law.  Whether the 2016 local law results in a construction boom of single family detached homes using the interim building restrictions or turns out to be, in effect, a moratorium, remains to be seen.

Patchogue’s 2015 Moratorium Complied with GML § 239-m But Was Met With Harsh Criticism

imageRYN72OD9Since 2008, the Village of Patchogue has been a pioneer in land-use revitalization and redevelopment.  The Mayor reports that more than 600 people have moved to the 2.2 square miles comprising the confines of the Village.  Population estimates are said to be in the range of 12,500 people.  However, along with these pioneering efforts to rebuild and revitalize the Village’s main street and to promote multi-family downtown living, the Village is experiencing parking, traffic. utilities and general health, safety and welfare obstacles.

In response to the housing explosion, in 2011, the Village enacted its first 180-day moratorium on new apartment houses, garden apartments, townhouses, residential uses and buildings over three stories in certain of its zoning districts, including all floating zones.  Id. At that time, the SCPC approved the moratorium upon condition that (1) the Village investigate whether there are less burdensome alternatives to the moratorium and (2) the production of hard evidence supporting the necessity for the moratorium.

In 2013, the Village once again requested an 180-day moratorium on change of use, an increase in the intensity of use or an increase in occupancy in the D-3 Business District to meet the parking requirements set forth in the Village Code.  The SCPC, although reluctant to grant another 180-day moratorium, approved the referral.  Id.

In 2015, for the third time, and now reaching a moratorium of 540 days, the Village requested a further 180 day moratorium to provide Patchogue with time to evaluate and consider the impact of multi-family housing on parking, traffic, health, safety and general welfare toward a “carefully considered comprehensive plan.” Id. Although the SCPC staff report recommended disapproval of the Village’s request finding that the Village had not moved forward with a plan despite the prior moratoriums; the SCPC granted Patchogue’s request following a meticulous and careful recitation by the Mayor detailing the pioneering efforts and overall success of the Village’s efforts to revitalize an otherwise stagnant downtown.

The Village of Patchogue is in many ways a trailblazer and a model for downtown revitalization and multi-family development.   However, as any trailblazer knows, growth and divergence are never easy or without criticism.  Although Patchogue followed the proper procedure in referring its moratorium request to the SCPC,  all eyes will be on the Mayor and the Village to ensure that this moratorium, will, in fact, be the last.

Conclusion

It would be wise for all municipalities to take note of the Suffolk County Planning Commission’s developing scrutiny in connection with multiple requests to extend moratoriums.  The Commission’s comments are a reminder of the importance to seriously consider the impact of land use development, of whatever kind, on the municipalities’ overall ability to (1) serve land owner’s desires to develop their property and (2) the municipalities’ ability to serve those development needs as they apply to nature and character of the community, parking, traffic and the overall health, safety and general welfare of the community.