shutterstock_637510813On April 25, 2017, the Southold Town Board adopted Local Law No. 5 of 2017, which amends the Town’s Zoning Code as it relates to agricultural uses. Specifically, the local law amends and adds certain definitions to the Code in recognition of the changes in modern farm operations. The changes are also consistent with the expanded definitions of agriculture found in New York State’s Agriculture and Markets Law.

The new law broadens the scope of agricultural practices by adding several definitions, including those for agriculture, agricultural production, agricultural processing, farm operations, farmhouses, processed agricultural product and on-farm operation direct marketing.  These changes expand agricultural practices beyond the growing of crops and raising of livestock and will allow farmers to process their crops and other agricultural products onsite and market them for sale, much like vineyards that make wine on their properties. Such processed agricultural products include jams, jellies, cheeses, potato chips, jerkies, meats, fowl, fish, breads and baked goods, beer, wine and distilled alcoholic and non-alcoholic beverages.

Farmers will also be allowed to sell their processed agricultural products directly to consumers from within buildings constructed on the farm for the purpose of marketing their products.  The law even allows non-farmers to sell home grown fruits, vegetables or plants to the general public from a “roadside stand,” which is defined as a display area that is less than 100 square feet in size located on the same parcel where the products are grown.

According to Chris Baiz, the chairman of the Southold Agricultural Advisory Committee and a fourth-generation farmer, the high cost of land requires farmers to achieve greater cash flows in order to operate successfully.  These new changes should help local farmers realize more income from their lands by allowing them to process and market value-added products from within their operations.

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.

Tall Grass solar media pic
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.

office spaceOn February 20, 2017, our colleagues blogged about Ader v. Guzman, 135 AD3d 668 [2d Dept. 2016] and a guidance letter subsequently issued by the NYS Department of State (NYSDOS). At issue was the responsibility of a real estate broker to have a working knowledge of the property being marketed, including land use and zoning restrictions. The Court held that a broker has no duty to investigate whether there is a valid rental permit for the residential rental property. The NYSDOS, which licenses real estate brokers and salespersons in New York, reached a different conclusion, noting that the failure of a broker to have a working knowledge of the site could violate the broker’s obligations under the Real Property Law §§ 441 and 441-c.

On Wednesday, March 29, 2017, we presented a program to the Commercial Industrial Broker Society of Long Island (CIBS) about Land Use and Environmental Pitfalls for Real Estate Agents and Brokers that dealt with the Ader/NYSDOS issue. We also discussed NYS’s Tenant Notification Law and other potential environmental and land use traps that could adversely impact realtors.  Please click here for a copy of our power point presentation.  We hope you enjoy it!

hempDEREGULATING INDUSTRIAL HEMP

Plans to expand New York’s Industrial Hemp Agricultural Pilot Program were recently announced by Governor Andrew Cuomo at one of his State of the State addresses. The program, which commenced in 2016, was authorized pursuant to the federal government’s passage of its 2014 Farm Bill, which specifically allows universities and state departments of agriculture to grow or cultivate industrial hemp if:

“(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the state in which such institution of higher education or state department of agriculture is located and such research occurs.”

The law also requires that the grow sites be certified by—and registered with—their state.

HEMP NO LONGER A CONTROLLED SUBSTANCE SO LONG AS IT CONTAINS LESS THAN 0.3 THC

In 2015, a bipartisan group of U.S. senators introduced the Industrial Hemp Farming Act of 2015 that would allow American farmers to produce and cultivate industrial hemp. The bill would remove hemp from the controlled substances list as long as it contained no more than 0.3 percent THC.

The U.S. Department of Agriculture, in consultation with the U.S. Drug Enforcement Agency (DEA) and the U.S. Food and Drug Administration, released a Statement of Principles on Industrial Hemp in the Federal Register on Aug 12, 2016, to inform the public on the applicable activities related to hemp in the 2014 Farm Bill.

Under the pilot program, New York caps the number of sites permitted to farm hemp to ten locations throughout the state. The current research projects are being conducted under the auspices of SUNY Morrisville College and Cornell University’s College of Agriculture and Life Sciences. Governor Cuomo’s proposed amendments will lift the cap and expand the program to private farmers in an effort to “position New York at the forefront of a growing agricultural sector.” In 2015, it is estimated that the industrial hemp industry generated some $573 million in sales in the U.S. alone. Governor Cuomo believes that it could soon be a billion dollar industry; and New York’s Southern Tier, because of its climate and soil, is uniquely suited to be a leader in the industry.

Only time will tell if the industrial hemp industry flourishes as hoped for by the Governor or it goes up in smoke.

pinwheel-wind-power-enerie-environmental-technology

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.

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.

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.

Complete Streets refers to roadway design aimed at ensuring safe and convenient access for all users, whether on foot, on a bicycle, in vehicles, or using other transit modes. Long Island Complete StreetsHere on Long Island, roadway design has primarily focused on one mode of transportation – the automobile. But that is changing. Now, roadways are looked at as more than merely motor parkways. They are viewed as economic drivers, health promoters, and environmental enhancers. All it takes is a little planning and the desire to make positive changes that benefit all segments of the community.

The New York State Complete Streets Act

New York State officially got into the Complete Streets game in August 2011, when the Governor signed into law the Complete Streets Act (CSA). This statute requires state, county, and local agencies to consider safety, access, convenience and mobility in transportation projects that are state and federally funded.  The CSA includes Complete Streets design features that allow the roadways to be shared. These features make sense and run the gamut from installing appropriate road signage, constructing crosswalks with pedestrian control signals, constructing bicycle lanes and bus pull outs and implementing traffic calming measures.

In response to the CSA, the New York State Department of Transportation (NYSDOT) developed a series of policies and guidance for Complete Streets. These include:

  • a bicycle/pedestrian policy aimed at increasing these modes of transportation in a safe manner and to promote transit-oriented development
  • a traffic calming policy aimed at reducing the negative impacts of motor vehicle use, alter driver behavior and improve conditions for walkers and bicyclists
  • a highway design manual that contains technical design guidance based upon federally-approved design practices
  • a regional NYSDOT bicycle/pedestrian coordinator to help communities promote programs to increase walking and cycling

Suffolk County’s Complete Streets Policy

In 2012, Suffolk County established a Complete Streets policy. This policy recognizes that walking and bicycling are important modes of transportation and recreation and promote health, fitness, and economic development. The policy requires the Suffolk County Department of Public Works to evaluate the feasibility of Complete Streets design features at the planning stages of projects.

Town of Babylon’s Sustainable Complete Streets Policy

In July 2010, Babylon adopted its Sustainable Complete Streets Policy. This policy takes into consideration motor vehicle drivers, public transportation vehicles, pedestrians and bicyclists of all ages and abilities in the design, construction and retrofitting of the Town’s roadways. The Town commissioned the development of a Master Plan for Sustainable Complete Streets, which will include best practices, such as median islands, narrower travel lanes, secure bike facilities, tree covers, streetscaping and lighting. It also calls for intermodal transit facilities that allow easy transfer between the modalities.

Village of Great Neck Plaza

In February 2012, Great Neck Plaza adopted its Complete Streets Policy Guide. Its stated purpose is to take “a well-balanced approach to transportation planning” and optimize “transportation accessibility and choices.” The Village’s policy seeks to address the needs of motorists, pedestrians, bicyclists, children, disabled persons, elderly citizens, movers of commercial gods and users of public transportation in the planning, construction and retrofitting of streets, bridges and other aspects of the transportation network.   It sets forth specific design elements to be considered for its main roads, including:

  • specified lane widths
  • specified parking lanes
  • ADA-compliant sidewalks
  • landscaped medians
  • improved signage
  • textured crosswalks
  • bus shelters
  • porous pavement
  • bioswales
  • pedestrian-scale lighting
  • bicycle racks
  • parking meters
  • benches

Complete Streets policies are popping up across Long Island and promote safe and efficient roadway design. These policies will play a larger role in the governmental approval process in the future.

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

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

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

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

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

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

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

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

 

yellow-garbage-bagsA Suffolk Supreme Court Justice has upheld Southold Town’s “yellow bag” law which requires residents to place refuse in Town issued yellow garbage bags.   Proceeds from the sale of the yellow bags are used to operate a transfer station located in Cutchogue.

In March 2012, Go-Green Sanitation, a garbage carter, was hauled into Justice Court by the Town for operating without the proper permit and for failing to comply with the yellow bag law. The Town also obtained a short-lived restraining order from Suffolk County Supreme Court prohibiting the private carter from collecting trash from its residents not contained in the required yellow bags.

In response to the Town’s claims,  and without opposition from the Town, in July 2012, Go-Green removed the state court action to federal court alleging five counterclaims, including: (1) that the Town violated its due process rights by effectively barring it from conducting business in the Town; (2) that Go-Green did not dispose of its trash at the Cutchogue transfer station, as such, it should not be subject to the yellow bag fees and (3) the yellow bag fees constituted  an illegal user fee or tax and as a result thereof,  Go-Green sought to add an additional Southold Town resident defendant in an effort to establish a taxpayer claim against the Town.

On June 12, 2015, in a well-reasoned fifteen (15) page opinion, Eastern District Court Judge Arthur Spatt,  declined to exercise federal jurisdiction over Go-Green’s  counterclaims holding (1) that Go-Green failed to plead and/or establish a federal claim and (2) although Go-Green alleged that it envisioned filing an amended pleading to assert a proper party and proper taxpayer claim;  the Court noted that the pleading before the court, did not, in fact, contain a proper party or a properly pled taxpayer claim.   As such, the federal court lacked subject matter jurisdiction and the matter was remanded back to State Supreme Court for a final determination.

On remand, in a recent July 2016 decision,  Supreme Court Justice Paul Baisley, Jr., found that the Town’s controversial law bears a reasonable relation to the public good as it was enacted to promote recycling.   Judge Baisley further found that the Town did not exceed its authority because the yellow bag law is not an illegal tax.  So, for now, and perhaps until a properly pled taxpayer action is asserted, residents and carers alike should refer to the Town of Southold’s website to determine what their respective yellow bags fees will be.