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.

sandcastlesLike waves hitting a sandcastle, the Appellate Division, Second Department, dealt a serious blow to the perceived authority and jurisdictional reach of the Southampton Town Trustees in three recent decisions, (Semlear v. Incorporated Village of Quogue, 2015 NY Slip Op 03345 (April 22, 2015), Semlear v. Albert Marine Construction, 2015  NY Slip Op 03344 (April 22, 2015) and Incorporated Village of West Hampton Dunes v. Semlear, 2015 NY Slip Op 03325 (April 22, 2015).

In suits against the Village of Quogue and Albert Marine Construction, the Trustees sought to enjoin the defendants from placing structures along the shoreline without a Trustee permit.  The Trustees contended that the installation of shoreline protection structures violated their right to regulate such activities along ocean beaches of the Town.  Around the same time, the Village of West Hampton Dunes also filed a suit against the Trustees, seeking a declaration that the Trustees have no regulatory authority in the Village or along its waterfront.

Dealing squarely with the subject matter of the Trustees’ regulatory jurisdiction, the Court held in all three decisions that the Trustees have no lawful power to grant or deny permits in connection with development, construction, or use of shore hardening structures anywhere within the ocean beach areas of the incorporated villages of Quogue and West Hampton Dunes.  Relying on two acts passed by the State Legislature in 1818 and 1831, the judges declared that the Trustees could only regulate enumerated activities stated in those acts such as collecting natural resources like seaweed and fish from the shoreline and nothing more.  The Court went on to state that “any attempt” to exercise such power over the ocean beaches within these villages is “null and void”.

Although the Trustees have long defended their right to regulate structures and activities along the shoreline by virtue of the 1686 Dongan Patent, these three decisions drastically erode their authority in the incorporated villages of the Town of Southampton.   The ripple effects of these cases will likely impact how property owners go about protecting their waterfront homes in the Town of Southampton and incorporated villages located within its boundaries.

Although the law has long favored the free and unencumbered use of property, the Broadway Flushing Homeowners Association, Inc. (“BFHA”)  recently obtained a legal victory upholding a 1909 private covenant that continues to preserve the park-like character of its suburban neighborhood in North Flushing.  See, Broadway Flushing Homeowners’ Association, Inc. v Eastern NY Enterprises, Inc., (Supreme Court, Queens County, 2013).   Put in place by the Rickert-Finlay Realty Company in the early 190o’s, the covenant’s purpose was to promote the “garden city” ideals of a planned suburban community by preserving large corner lots.  As a result of winning a permanent injunction, the BFHA prevented the defendant, a developer, from subdividing an oversized corner lot into two single-family home sites.

The defendant purchased the property with the intention of tearing down the existing single-family house and subdividing the property.  Although called “hidden agreements” by the defendant’s architect, a standard title search revealed the existence of several private restrictive covenants.  The defendant claimed that the private covenants should be disregarded because the subdivision of the property was in compliance with the New York City zoning laws.

However, regardless of the existing zoning, the BFHA established that the 1909 covenant continues to serve a legitimate purpose as part of a general plan for the permanent preservation of the community’s suburban character.  The Court agreed with the BFHA that the neighborhood preservation purpose of the private covenant remains as compelling today as it did the day it was created.  In reaching its decision that the community continues to benefit from this more than 100-year old covenant, the Court took judicial notice of the “rampant development of McMansions” in other parts of suburbia, and stated that such a “crisis” was averted here by this private restrictive covenant.

This decision underscores the continued vitality of private covenants that conflict with less restrictive underlying zoning and may be a way for communities to better protect their quality of life.  From a developer’s perspective, it also highlights the importance of obtaining a title search as part of the due diligence process to ensure there are no private restrictions in the chain of title that can interfere with a development plan.