Petitioners, residents and nearby occupants (“Petitioners”), commenced a hybrid Article 78 proceeding and declaratory judgment action against the Planning Board of the Village of Tuckahoe (“Board”) and others in Murphy v. Planning Board of Tuckahoe (Sup. Ct. Westchester County 2017), to annul a negative declaration issued by the Board. The Board initially issued a conditional negative declaration (“CND“) for a project to construct a hotel, restaurant and parking lot (“Project”) at a former marble quarry and dump site (“Site”). Petitioners filed suit after the Board amended its CND to a negative declaration.

The Site had been a quarry from the late 1800s until the 1930s, after which private entities and municipalities used the Site for dumping. In 2014, the project’s developer, Bilwin Development Affiliates, LLC (“Developer”), conducted environmental testing which revealed concentrations of volatile organic compounds, semi-volatile organic compounds and inorganic compounds at the Site. The Developer applied for admission into the New York State Brownfield Cleanup Program (“BCP”), which the New York State Department of Environmental Conservation (“DEC”) accepted. During plan preparation for the BCP, the Developer submitted an application to the Board for site plan approval for the Project; and the Board declared itself lead agency for SEQRA review.

In July 2015, after its review, the Board issued a draft conditional negative declaration (“CND”) with time for notice and comment. The Board ultimately adopted the CND in September 2015, categorizing the Project as an unlisted action with the condition that the Developer meet all DEC and Department of Health requirements.

Before and after issuance of the CND, the Developer – in conjunction with the DEC and the Board – performed additional Site investigations and prepared plans for remediation and containment. The final plans for the Project included remediation specifications for the contaminated soil, a community air monitoring plan and construction of a hotel and parking lot as a Site cap. The DEC determined that the remediation plan would eliminate or mitigate all significant threats to public health and the environment presented by contamination.

In October 2016, after a number of public meetings and comments, the Board amended the CND to a negative declaration based upon the DEC’s determination, the remediation plans and other documents in the record. This amendment occurred over a year after the issuance of the draft CND (July 2015). Petitioners sued to annul this decision claiming, among other things, that: (1) SEQRA regulations do not allow the amendment or rescission of a CND unless the lead agency later determines a positive declaration is appropriate; and, (2) the lead agency failed to take a “hard look” at evaluating the environmental impact of the methods to be used in removing contaminated soil and monitoring contaminants. Petitioners also challenged the issuance of the CND.

First, although SEQRA regulations require rescission of a negative declaration or CND if new substantive information or changes cause the lead agency to determine a significant adverse environmental impact may result, the regulations do not prohibit amendments to a CND that remove conditions. 6 NYCRR § 617.7(d)(2), (f)(1). Moreover, SEQRA regulations permit a lead agency, at its discretion, to amend a negative declaration (a CND is a type of negative declaration) at any time prior to the decision to approve an action. 6 NYCRR § 617.7(e). Therefore, the Board was allowed to amend or rescind the CND.

Second, with respect to excavating the contaminants, Petitioners argued that the proposed methods to remediate and monitor were unsafe. Notably, Petitioners did not argue that the proposed methods would have an adverse environmental impact. Petitioners cited their experts’ methods and opinions, which the Board already reviewed during the comment period. The Court held that, at best, Petitioners merely indicated a disagreement between Petitioners’ experts and the Board as to the preferred methods to remediate and monitor – which is not grounds to overturn the Board’s decision to issue the negative declaration.

Lastly, the Court held that Petitioners’ challenge to the underlying CND was untimely. The draft CND was published on July 21, 2015, the period of limitations began to run thirty (30) days later on August 20, 2015, and expired four (4) months later on December 20, 2015. Petitioners could not attack the underlying CND eleven (11) months past the period of limitations by virtue of seeking to annul a later amendment to that CND.

Based upon the foregoing, and other reasons, the Court dismissed these challenges.

In People Theatres of N.Y. Inc. v. City of New York, 2017 N.Y. Slip Op. 04385, various owners of adult businesses (“Plaintiffs”) brought separate actions against the City of New York (“City”) based upon First Amendment challenges seeking relief against zoning ordinances that bar adult establishments from operating in, among other areas, all residential districts and most commercial and manufacturing districts (“Ordinance“). The cases were consolidated; and after the trial court’s initial determination, the cases experienced a complex procedural history, having been appealed to the Court of Appeals twice over the course of fifteen (15) years.  A comprehensive discussion of this case and its lengthy history can be found in this extended blog post.

Here, the Ordinance at issue sought to combat negative secondary impacts relating to sexually focused businesses, which impacts were  demonstrated in a 1994 study conducted by the City.  Whether and how the Ordinance applied to particular adult businesses was the impetus for prior litigation in 1995.  In 1998, the City created the so-called 60/40 rule.  Under this rule, any commercial establishment with at least 40% of its customer-accessible floor/cellar area or stock-in-trade used for adult purposes qualified as an “adult establishment” covered by the Ordinance.  Plaintiffs modified their businesses to comply with the 60/40 rule.   The City, however, believed that while many operators were achieving “technical compliance” with the rule, their compliance was a sham. According to the City, the businesses still primarily focused on sexually explicit activities or materials; and their non-explicit materials were an afterthought that did not generate sales.  To shore up enforcement, the City amended the Ordinance in 2001 to effectively eliminate the 60/40 rule (“2001 Amendments”).

The main issue in this case was the relationship between (1) the standard that applies to First Amendment challenges in the context of ordinances affecting adult uses, and (2) the burden of proof a municipality must meet in order to sustain such ordinances. The Court held that “intermediate scrutiny” applies in this type of First Amendment adult use zoning context, which requires that an ordinance be narrowly tailored to the municipality’s justified purpose and assure reasonable alternative avenues of communication.  When applying intermediate scrutiny, a court must balance the interests at stake while assessing a municipality’s factual judgments.  The burden of proof relative to the municipality’s factual judgments is “modest” (no pun intended) and akin to substantial evidence, which is accorded more deference than that given to administrative agencies.

As such, the standard of review in this case is intermediate scrutiny, while the burden of proof is similar to substantial evidence.

The governing legal precedent is set forth in Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), wherein the Supreme Court set forth the three-part burden shifting test, which describes a municipality’s burden of proof to sustain its laws in the face of a First Amendment challenge.   First, the municipality must “fairly support” its rationale for the ordinance. Second, a challenger must cast direct doubt upon the rationale – either by (I) demonstrating the municipality’s evidence does not support the rationale, or (ii) furnishing evidence disputing the municipality’s factual findings. If the challenger cannot cast doubt, then the municipality wins. If the challenger is able to cast doubt, then the third step comes into play; and the burden shifts back to the municipality to supplement the record with evidence renewing support to justify the ordinance.

Here, after applying the Alameda three-prong test, the Court reversed the Appellate Division holding that  the lower court’s mechanical approach was improper and confused the ultimate standard of review (intermediate scrutiny) with the evidentiary burden (similar to substantial evidence) borne by the City. Because the third step of the Alameda analysis obliges a modest burden of proof akin to substantial evidence, it was an error for the lower courts to determine that the City failed to meet its burden.  In this instance, the City met its burden of showing continued focus on sexually explicit activities and materials by the Plaintiffs’ businesses – despite any 60/40 compliance. Therefore, the Appellate Division was reversed and the Ordinance was sustained.

The State liquor law preempts  local municipalities from restricting hours of operation for businesses selling alcoholic beverages for on-premises consumption.   Accordingly, local municipalities should use caution when imposing conditions upon establishments regulated by the State Liquor Authority and would be wise to consider alternative ways to manage late hours accompanied by public imbibing.

shutterstock_542466670In February 2017, the United States District Court for the Western District of New York issued a decision in Obsession Sports Bar & Grill, Inc. v. City of Rochester  (“Obsession“) involving State law preemption of local laws limiting hours of operation for certain businesses such as bars and restaurants.  The federal Obsession case involved section 1983s  claims following successful litigation in State Court. Although the federal Obsession case addressed constitutional claims only,  the decision casted stark attention upon the legal precedent set forth in the underlying State Court case, wherein the Fourth Department upheld the trial court’s holding that the State’s liquor laws preempted the City of Rochester (“City“) from restricting Obsession’s hours of operation.  Id.

In August 2011, Obsession obtained a liquor license from the State Liquor Authority authorizing the retail sale of alcoholic beverages for on-premises consumption of alcoholic beverages at its bar and grill.  Under the State Alcoholic Beverages Control Law (“ABC Law“), as amended by Monroe County local law, persons holding liquor licenses are permitted to sell alcohol, on-premises, Monday through Saturday from 8:00 a.m. until 2:00 a.m. and Sunday from 10:00 a.m. to 2:00 a.m.  In addition, these establishments may remain open an additional one-half hour to permit customers to consume their beverages, i.e. until 2:30 a.m.

Obsession’s business was located in the City’s C-1 zoning district, which permits small-scale commercial uses and restricts evening hours of operation for restaurants and bars to 11:00 p.m.  Although the City partially granted Obsession’s variance by permitting the establishment to remain open until 12:00 a.m. Monday through Thursday and until 2:00 a.m. on Friday and Saturday, the City’s local laws still forced Obsession  to close several hours earlier than required by the ABC Law, as well as earlier than similar businesses located in neighboring zoning districts.

In November 2012, Obsession commenced a state court Article 78 proceeding against the City alleging that the ABC Law preempted the local ordinance vis-à-vis hours of operations.   The City argued  that the State law did not preempt the ordinance because the ordinance did not directly address the sale or consumption of alcoholic beverages.  The trial court found in favor of Obsession holding that the City’s local ordinance was an impermissible exercise of municipal zoning power and null and void in the face of the ABC Law’s conflicting and preemptive provisions.  The Fourth Department unanimously affirmed; and in 2014, leave to appeal to the Court of Appeals was denied.

Although Obsession may have prevailed in the State court with respect to the pre-emption question,  the federal court ultimately concluded that the City did not violate Obsession’s constitutional rights because Obsession did not show that the City’s actions were arbitrary, conscience-shocking or oppressive in the constitutional sense.  Despite this holding, the Court did note that the City may have been negligent. The Court opined that municipalities could and should consider alternative means to address the potential adverse effects of bars and restaurants that operate in the later evening hours.  To placate opposition to development, redevelopment and applications of the like, municipalities should consider alternative regulations, including but not limited to outdoor seating restrictions, light pollution, kitchen hour limitations and parking limits.

shutterstock_1842816On April 27, 2017, the Town Board of the Town of Brookhaven approved a change of zone for Rock Hill Golf and Country Club from a one-acre residential lot zone to the Golf Course District.  Manorville’s Rock Hill is the first private course to join the Town’s newly created Golf Course District.

The district is designed to protect and preserve Long Island’s golf courses amidst rapid redevelopment.  The open spaces, vistas, greenery and outdoor recreation have recently experienced a surge of transition into multi-family dwellings and housing complexes.  The new zone removes some of the allure for such transitions and provides golf course owners and operators with more tools to be successful, including added permitted uses and on-site functionality.

Rock Hill joins Mill Pond and Rolling Oaks in the Golf Course District.

This month, U.S.-based energy giant Invenergy expects to break ground on New York’s second largest solar farm project at the former Tallgrass golf course in Shoreham.  A leader in wind and solar development, energy storage and natural gas operations, Invenergy will add the Shoreham Solar Commons to its portfolio.

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The Long Island Power Authority approved the solar array in 2016 and, in early 2017, the New York State Comptroller and Attorney General green-lit the project.  Last month, Invenergy finalized its acquisition of the Tallgrass property.  Invenergy awaits the Town of Brookhaven’s issuance of the building permit for the project.

The 150-acre array will generate 24.9 megawatts (50,000 megawatt hours per year) – enough to power approximately 4,500 homes – under a 20-year power-purchase agreement with LIPA.  Notably, the 24.9 megawatts comes in just under the 25 megawatt threshold that would have triggered a more extensive review process under New York’s Power Act of 2011 that was signed into law by Governor Cuomo on August 4, 2011 (codified in Article 10 of the New York Public Service Law).

Unlike many other solar farms proposed on Long Island and elsewhere, Shoreham Solar Commons will not require clearcutting trees.  Tallgrass was fittingly a “links style” golf course, a more traditional style course hosting open spaces, high grass and bunkers rather than trees and brush.  In addition, Invenergy has pledged to plant 2,000 evergreen trees to buffer the array.

Invenergy will employ upwards of 100 people during construction over the next year, but there are no plans for full-time jobs after the array is built.  The Commons will pay approximately $670,000 per year to its local taxing districts – almost ten times more than the taxes paid by Tallgrass.  The tax figure will increase prospectively.

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The Town of Brookhaven has engaged in efforts to preserve Long Island’s links and, last month, took the first steps towards fulfilling its endeavor. On March 2, 2017, the Brookhaven Town Board unanimously adopted two resolutions rezoning Mill Pond and Rolling Oaks golf courses, respectively, from a residential district to the newly created golf course district. See, p. 2, 151-161.  Recent closure and redevelopment of renowned eighteen-rounders, including the Links at Shirley and Tall Grass, precipitated the Town’s concern and concerted efforts to act.

A housing development replaced the Links at Shirley after it closed in 2011.  A separate housing development failed to precipitate at Tall Grass several years ago; and over the next few months, the State’s second largest commercial solar farm will consume the bunkers, water hazards and greens in Shoreham. Notably, Commack-based development firm Heatherwood has added housing to its golf course in Manorville and has future plans to add housing to its Centereach club.

Brookhaven’s latest zoning ordinance developments seek to protect and promote our Island’s golf courses, which provide greenery, open spaces, vistas, outdoor activities for our residents and visitors and economic stimulus for the immediate areas. The resolutions placed the two Town-owned properties into the new golf course district – which move accomplishes two major items.

First, the rezone protects the courses by making redevelopment into other residential uses less attractive and adds another hurdle to the redevelopment process. For example, a developer seeking to excise parcels zoned within the golf course district to build housing must not only purchase the parcels from the Town, but must also seek a rezone from the golf course district to a residential or mixed-family district. In seeking a rezone, the developer must obtain Town Board approval. Moreover, if objectants file a protest petition, then a supermajority of the Town Board must approve the rezone. The additional hurdle to redevelopment inevitably creates hesitation for lending prospects, because lenders require certainty to finance such projects.

Second, the new golf course district permits the course operators to make additional improvements to promote their courses and venues. Permitted accessory uses include bars, catering halls, spas, game rooms, health clubs, physical therapy facilities and major restaurants. Such enhancements will allow golf course operators to promote their clubs with added entertainment and event planning.

Brookhaven initially planned to rezone more courses, including privately-owned courses, but the owners’ concerns of the rezone affecting their abilities to borrow funds prompted a pause on this maneuver. There are approximately eight other golf courses located within the Town; two courses operated by the Village of Bellport and the Village of Port Jefferson, respectively, are not affected by the latest rezone.

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Last Wednesday, LIPA unanimously approved Deepwater Wind’s proposal to build the nation’s largest offshore wind farm approximately 30-35 miles off the coast of Montauk, New York.  Construction will include fifteen turbines with a 90 megawatt capacity able to power 50,000 homes.  The turbines will be built out of sight to address vehement public comments against blighted ocean vistas.

IT IS NOT THE FIRST AND IT WILL NOT BE THE LAST

Long Island’s latest offshore wind farm approval is not the first of its kind in the United States.  America’s first offshore wind farm located three miles off the coast of Block Island, Rhode Island, began delivering energy to the Ocean State in December 2016.  Although our neighbor to the north took the inaugural step, New York leads the charge into the future of offshore renewable energy development.  Our coastline boasts some of the world’s strongest offshore winds, and New York State plans to take advantage of these endless oceanic gusts.

The Montauk project is part-and-parcel of a 250-plus square mile area to be developed, with upwards of 200 turbines generating an estimated 2.4 gigawatts to power 1.25 million homes.  New York is studying a 16,740 square-mile area (an area approximately twice the size of New Jersey) stretching from south of Manhattan eastward into the Atlantic, extending out to the break of the continental shelf.  In addition, last month the federal government leased 80,000 acres of land south of Queens County, New York, to international energy giant Statoil for development.  Statoil endeavors to build seventeen miles offshore and provide 800 megawatts of power.  The federal government recently awarded several other offshore leases for development up and down the east coast, from Rhode Island to Virginia.

NOTES FROM BLOCK ISLAND – THE LOCAL IMPACTS OF DEVELOPMENT

Deepwater Wind’s Block Island project boosted the local economy and showcases many benefits of clean, renewable energy development.  Five offshore turbines harness wind energy capable of powering 17,000 homes.  This wind energy meets 90% of Block Island’s power needs, and additional energy is sent back to the electricity grid.  The developer (Deepwater Wind) is a locally-based company and is an expanding business in the region.  During construction, the project employed more than 300 local workers over two years, including local contractors.  Many more workers will be employed to maintain, repair and update the farm.  Atlantic Pioneer, the vessel that transported the project’s crews, was built in Rhode Island and will service the Block Island farm for at least twenty years.  Lastly, and most importantly, the farm accomplished the overall goal of harnessing wind energy by producing upwards of 30 megawatts of clean, renewable energy.

WHAT’S ON THE HORIZON

New York City and Long Island consume almost half of New York’s annual electricity usage, and continued development of Long Island’s East End fuels electricity consumption.  In an effort to suffice 50% of the State’s electricity needs with renewable energy by 2030, public and private parties alike are investing tremendously to research and develop additional sites to harness nature’s invisible gift.  To provide for efficient and cost-effective paths to develop offshore wind farms, the State issued a Blue Print for the New York State Offshore Wind Master Plan in September 2016 and anticipates releasing an Offshore Wind Master Plan by the end of 2017.