Now more than ever, climate resiliency along our coastlines is an important aspect of long range municipal planning.   Back in 1981, the New York State Legislature enacted the Waterfront Revitalization of Coastal Areas and Inland Waterways Act, N.Y. Exec. Law § 910. (the “NYS Coastal and Waterways Act”).

Coastal communities and communities on designated inland waterways are eligible to participate in the Local Waterfront Revitalization Program. Coastal communities are communities on the Long Island Sound, the Atlantic Ocean, New York Harbor and the waters around New York City, the Hudson River, the Great Lakes, Niagara River or the St. Lawrence River; eligible communities on designated inland waterways include communities located on an inland waterbody, such as a major lake, river or the State Canal, or other inland waterway designated by Article 42 of the Executive Law.

Among other things, the NYS Coastal and Waterways Act encourages local governments to participate in the State’s coastal management efforts by submitting local waterfront revitalization programs (“LWRPs”) to the Secretary of the DOS for approval. See N.Y. Exec. Law § 915(1).  Under the Act, any local government, which has any portion of its jurisdiction contiguous to the state’s coastal waters or inland waterways may submit an LWRP to the Secretary of State.  See, NYS Guidebook.  If an LWRP is approved by the Secretary , state agency actions in that municipality must also “be consistent to the maximum extent practicable with the local program.” Id. at § 915(8).

Unfortunately, the Act is silent regarding the relationship between the LWRP and local comprehensive land use plans and zoning.   However, to ensure that local development and waterfront revitalization plans are appropriately integrated into the local land use planning and zoning regulatory framework, many municipalities have incorporated their approved LWRPs into zoning regulations.  As a result, the LWRP policy document may serve as a legal foundation for zoning changes in part, due to their incorporation into the comprehensive plan.  By doing so, municipalities are able to effectively provide implementation mechanisms that support the principles and goals delineated in the waterfront plan through the use of their zoning powers.  See generally, Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y.2d 96, (1999), 

The Department of State’s Division of Local Government provides training assistance to municipalities relating to zoning procedures in addition to other practical legal and technical advise.   See, www.dos.state.ny.us/lgss.

 

unanimous-cartoon

Generally, when a majority of the members of a zoning board of appeals (ZBA) either votes in favor of or against an action, the board is considered to have acted.  What if a ZBA is unable to take any kind of majority action, ending up with a tie vote?  The result hinges on the dual jurisdictions many ZBAs enjoy.

All ZBAs are directly given appellate jurisdiction by state law; however, where a local law or ordinance grants a ZBA additional powers, the additional powers are referred to as “original jurisdiction.”  Examples of a ZBA’s original jurisdiction include the power to grant special use permits.

In Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86 [2001], the Court of Appels  determined the effect of repeated tie votes by the Town of Huntington ZBA for variances.  The court held that “when a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial.”

This conclusion led the Legislature, in 2002,  to codify an amendment to Town Law § 267-a that added a new subsection entitled “Voting requirements.”  In particular, Town Law 267-a(13)(b) states:

“Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied….” (emphasis added).

So, what happens when a ZBA casts a tie vote in an application for a special use permit?  Nothing, according to the Third Department’s recent decision in Matter of Alper Restaurant Inc. v. Town of Copake Zoning Board  Of Appeals, 2017 NY Slip Op 02871 [3d Dept 2017].  In Alper, the Court affirmed the Supreme Court’s decision that a 2-2 vote issued for a special use permit was a non-action, because there was no majority vote; and the ZBA was exerting its original jurisdiction over the applicant’s special use permit.  This enabled the ZBA to vote again on the same matter and grant it with a 3-2 vote.

Thus, an appeal or variance is considered to be denied by statute if a tie vote is cast when considering a variance. This is not so when the same board is voting on a special use permit.  A tie vote in connection with a special permit results in a non-action.  This begs the question of whether ZBA’s voting multiple times on special use permits is the desired result?

childrightslogoenSometimes called a “case of the race,” the common law doctrine of vested rights is “one of the most troublesome areas of land use regulation.”  Exeter Building Corp v Town of Newburgh, 114 AD3d 774 [2d Dept 2014].

In New York, the “vested rights” doctrine is equitable in nature and implicated when a property owner or developer seeks to continue the use of property in a way that was permissible before an  enactment or amendment of zoning regulations no longer permits it.   Town of Orangetown v. Magee, 88 NY2d 41 [1996].

Generally, an owner of real property can acquire common-law vested rights to develop property in accordance with the prior zoning regulations when (1) in reliance on a legally issued permit, the landowner (2) effects substantial changes and incurs substantial expenses to further the development and (3) the landowner’s actions relying on the valid permit(s) are so substantial that the municipal action results in serious loss rendering the improvements essentially valueless.  Id.  As a result, the “race” becomes whether the developer gets the project completed or at least substantially completed to satisfy the Magee test before the municipality get its zoning code in place.

Recently, in Exeter Building Corp v. Town of Newburgh, the Court of Appeals affirmed a determination by the Appellate Division holding that the developer had not vested a plan to build 136 townhouse units, because it could not have reasonably relied on valid permits when warned repeatedly of a rezoning by the Planning Board.  In Exeter, the Court of Appeals refined the reliance test in Magee, holding that is was not “reasonablefor the developer  to rely on a conditional  site  plan approval placing emphasis on the Town Planning Board’s repeated warnings of the proposed rezoning.

Now, not only must developers listen for the starting gun in a vested rights case, but they must also consider the reasonableness of a municipality’s warning. Such an additional qualifier seems to give the government a head start.

For a detailed discussion of vested rights and the underlying Appellate Division case, see one of our earlier blog posts, Appellate Court Rules on Common-Law Vested Rights.

 

Kadir van Lohuizen / NOOR for New York Times Climate change / sea-level rise in Fiji The shoreline of Vunidoloa is heavily eroded due to the rising waters. Vunidoloa is situated on the Natewa Bay on Viti Levu, Fiji's main island. Vunidoloa has 140 inhabitants and frequently floods due to the rising waters. The situ ation became so precarious that the government decided to relocate the village. Unfortunately the site was poorly designed and is eroding before anyone moved there.

Asharoken, N.Y. January 10, 2017 — Swayed by public opinion, the Incorporated Village of Asharoken (“Asharoken”) opted out of a federal beach nourishment plan implemented by the Army Corp of Engineers (“ACOE”) in order to prevent the general public from accessing the Villages’ private beaches.

Asharoken is a narrow isthmus connecting the Village of Northport on the ‘mainland’ of Long Island with the hamlet of Eatons Neck, which is part of an unincorporated area located in the Town of Huntington. Asharoken is bordered by Huntington Bay, Northport Bay, and Eatons Neck. The eastern coast of Asharoken fronts along the Long Island Sound.

Asharoken Avenue, the village’s main road, is the only land evacuation route for village residents and about 1,400 non-village residents of Eatons Neck.  Without this land bridge, Eaton’s Neck and Asharoken would both be cut off from the mainland.

Asharoken experiences moderate to severe beach erosion on the areas fronting the Long Island Sound. This erosion is caused by storm-induced waves and wave run-up from hurricanes and nor’easters. The village has experienced damages from multiple storm events, most recently Hurricane Sandy in October 2012.

In spite of the known safety risks of their precarious evacuation route, the Asharoken Board of Trustees passed a resolution last Tuesday, effectively opposing a $20 million dune restoration project because of the federal government’s mandate for public access to the beaches when taxpayer dollars are utilized. In order to receive funds for the beach nourishment project, Asharoken would be required to add five public walkways to access the beach and five public parking areas at half-mile intervals along the project’s 2.4-mile stretch along Asharoken Avenue.

Despite a history of rising sea levels, the Asharoken Trustees capitulated to resident outcry over the potential loss of their private beach rights rather than balance their decision on the public health, safety and welfare of the Village and Town residents.

Only time will tell if this game of Russian roulette ends well.

aid157119-728px-Install-Posts-in-the-Water-for-a-Dock-or-Pier-Step-1  In New York, as a general rule, the touchstone of riparian rights has been the ownership of land touching a navigable waterway. See Bromberg v. Morton 64 AD2d 684 [2d Dept 1978].  As a result, unless expressly reserved by deed, if a waterfront lot is partitioned, any resulting lot that no longer physically touches the water  becomes non-waterfront property and loses its riparian rights.  Durham v. Ingrassia, 105 Misc2d 191 [Sup Ct., Nassau County 1980].

However, there is a developing line of case law in the Second and Third Departments holding that an easement that provides access to a navigable waterway provides the beneficiary of the easement with the riparian right to construct a dock equal to that of the actual waterfront owner.  See Briggs v. Donna, 176 AD2d 1105 [3d Dept 1991].

In Briggs v. Donna, the Third Department held that although there is no language in any of the plaintiffs’ deeds expressly granting a right to construct a dock, the plaintiffs’ dock at the foot of an easement was a “reasonable use” of the easement and incidental to plaintiffs’ access rights under the easement.  In short, the easement holder, a non-waterfront landowner, possessed the same riparian rights as the actual waterfront landowner to build a dock to navigable water.

Relying on this reasoning, the Second Department, in Monohan v. Hampton Point, 264 AD2d 764 [2d Dept 1999], reinforced the position that riparian rights extend from an easement to access navigable water.  In that case, the court held that, as a matter of law, the easement to access the water was sufficient to create the riparian right of wharfing out, and the subject dock located at the end of an easement leading to a navigational portion of the waterway was a reasonable and incidental use of the easement.  See also, Hush v. Taylor 84 AD3d 1532 [3d Dept 2011] Installation of a dock at the end of an easement of this type “is a reasonable use incidental to the purpose of the easement” and is, therefore, permissible).

Under the right circumstances, Courts have reasoned that the existence of an easement to the water’s edge would have been “without purpose” if it did not provide for the construction of a dock or pier to provide access to the waterway.

As a result, this line of case law seems to remove the need for landowners to actually own waterfront land in order to exert their riparian right of access by a dock or pier. Instead, an easement running to the shoreline includes the right to construct a pier or dock to obtain access to navigable water.

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Rising sea levels and erosion have caused severe damage to Asharoken Avenue, the only road into or out of the Village of Asharoken.  These conditions continue to endanger the lives and property of the people that live in Eatons Neck.  Yet, despite the potential benefits from a multi-million dollar federally funded project that will protect Asharoken Avenue, the Village remains steadfast in its attempts to wall off the beach to Village residents only, even though the waterfront protection project is being funded by state and federal taxpayer dollars.

Since colonial settlers arrived on these shores, the residents of Long Island have had their beach rights protected.  Now, it seems, in a  process that has lingered for years,  the Village is attempting to characterize this federal project as merely roadway protection with no provision for the general public to access the beaches, despite the fact that the general public is paying the lion’s share of the costs.

The proposed protection of Asharoken Avenue by the U.S. Army Corps of Engineers (Army Corps) is basically a beach renourishment project.   Federal law requires public access wherever the Army Corps performs beach protection or renourishment, yet many Village residents and beach lot owners remain vehemently opposed to public access to their properties.

As the sea level rises, the Village Trustees are now being forced to think about what needs to be done with ever increasing cries for help from homeowners and public officials.  The end result may be the Army Corps using the power of eminent domain to protect the public’s right to the shoreline.  It remains to be seen if the Village can have its cake and eat it, too.

rezoning-imageIf you own property in the Moriches and Eastport area, now is a good time to check your zoning.  On July 12, 2016, the Town Board of Brookhaven, on its own motion, rezoned approximately 1400 parcels,  which included about 1,200 acres in Moriches, Center Moriches, East Moriches and Eastport (the “Greater Moriches Area”).   Spearheaded by Councilman Daniel Panico, this is part of a larger plan to “preserve” areas along Montauk Highway from Moriches to Eastport in an effort to retain the area’s rural character.  Essentially this was a “downzoning” of the area.

The rezonings were a result of the Town’s planning study known as the Greater Moriches Zoning Re-Evaluation Study,  (“Study”) which again sought to resolve zoning issues plaguing the Greater Moriches area and identified in a multitude of planning and civic studies performed over the past 20 years.   Many of those recommendations had not been implemented for various reasons.  Aimed at reducing “sprawl”, the Study sought to address incompatible land use mixes and limit potential sites for “big box stores” along Montauk Highway and the Frowein Road corridors.  Pursuant to the State Environmental Quality Review Act (“SEQRA”), the Study was also the subject of a DGEIS, known as, Draft Generic Environmental Impact Statement (DEGIS) for the Draft Comprehensive Zoning Re-Evaluation of Montauk Highway Corridor for Moriches, Center Moriches, East Moriches and Eastport, which studied the impacts and provided a land use rational for the proposed rezoning. On June 9, 2016, a findings statement was adopted by the Town Board which paved the way for the rezonings to proceed.

Although characterized as a rezoning affecting large swaths of land along Montauk Highway in the Great Moriches Area, the actual rezoned properties resemble a patchwork of parcels located in business districts and along waterways in the area.  In fact, sizable amounts of the rezoned parcel are municipal or State-owned properties that in many cases had already been preserved as open space.

Opponents of the rezoning, as one would guess, were property owners who had invested in the area and were concerned that property values would fall.  As a rule of thumb, removing commercial zoning in an area prevents further development and decreases the tax base which generally helps to off-set the cost of community services.

What no one can know is whether the Town’s latest approach will preserve the charm of “the Moriches” or stagnate the area.  In September, the Town Board plans to hold more public hearings on similar rezoning proposals in Eastport and Center Moriches.  For a complete viewing of the public hearings regarding the rezoning please visit the Town of Brookhaven webcast.

 


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

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

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

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

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

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

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

vapingTurns out Oscar winner Leonardo DiCaprio can’t vape at the Oscars or in the Village of Lindenhurst.

On March 2, 2016, the Village was the first municipality to crack down on this latest smoking trend – vaping.  The Village  adopted a moratorium prohibiting any new vape stores from being opened in the Village’s business zone.  This temporarily suspends a landowner’s right to obtain development approvals while the municipality considers the potential adoption of such a local law.  Basically, a moratorium preserves the status quo – in this case, no new vape stores.

Vaping involves the use of battery-powered devices to heat an oil-based liquid which is then exhaled, creating a smoke-like vapor.  Considered by some to be the last resort to help smokers quit smoking, vaping by non-smokers has also become trendy among non-smokers. Vaping opponents are concerned about the unknown health risks and addictive qualities it may hold over young users.  Most, but not all, oils used for vaping contain various amounts of nicotine that can be adjusted at the vape store.

Although the prohibition of vaping is not yet law, it will be interesting to see what happens when the smoke of the Village’s moratorium clears.

bulkhea1Villages of Quogue and West Hampton Dunes – The New York Court Of Appeals recently rejected the Town of Southampton Trustees’ appeal to regulate structures along the shoreline in the incorporated villages of the Town.  The cases involved parallel Second Department decisions in the villages of Quogue and West Hampton Dunes, where homeowners constructed shoreline-protecting structures without permits from the Trustees. The Trustees claimed to have jurisdiction over such matters, based on colonial patents.  Pursuant to a 19th-century state law, the Appellate Division decisions eviscerate Town Trustees’ jurisdiction in incorporated villages.

The denial of certiorari by the Court of Appeals,  the State’s highest court, is a major win for the Villages, and is the proverbial “nail in the coffin” of the Town Trustees’ long-held policy of regulating and prohibiting shore-hardening structures in villages throughout Southampton.  It will be interesting to see how the Town Trustees and the Villages will handle such a sea change.

An earlier Long Island Land Use & Zoning blog post concerning the appellate court rulings can be found here.