The orientation of a tennis court in a north/south direction is a benefit to competitive players interested in fair tennis play. Even the Appellate Division, Second Department, agrees.

To avoid the impact of sun glare, a Town of Southampton property owner sought several variances to construct a tennis court in a north/south direction. One of the variances requested a 17-foot setback from the street where 90 feet is required.  (Southampton Town Code, Section 330-11.)   This variance would allow the tennis court to be situated in a north/south direction and thus avoid the impact of sun glare that would occur if situated in an east/west direction.

StockSnap_8ODE0WIMD9A neighboring property owner, located across the street, appeared at the public hearing and opposed the requested variances.  In reaching its 2014 determination to grant the variance application, the Southampton Board of Zoning Appeals found that the proposed tennis court was located 158 feet away from the opposing neighbor’s house and therefore would not create a detriment to the property owner or the surrounding neighborhood.

The Board also relied upon no less than eight (8) mitigating factors, including:

  • Proposed landscape screening;
  • Sinking the court into the ground by four feet, thereby mitigating potential noise impacts;
  • The alternative of constructing a 9,000 square foot house was far more impactful;
  • The goal of distancing the court from the immediately contiguous neighbors was more important than any perceived impact to the opposing neighbor located across the street.

Unhappy with the Zoning Board’s determination, the opposing neighbor commenced an Article 78 proceeding in addition to seeking a TRO and preliminary injunctive relief.  After considering the arguments, by Decision and Order dated May 19, 2014, the trial court (J. Garguilo) upheld the Zoning Board’s decision, while at the same time vacating the TRO and denying petitioner’s request for preliminary injunctive relief.   Petitioner’s attempt to appeal the denial of injunctive relief was dismissed by the Appellate Division as the Second Department held that “appeal from the intermediate order in this proceeding must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment dated November 10, 2014.”  Id.

By further decision of even date, the Appellate Division upheld the Zoning Board determination, finding not only  “there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community . . . [but also] the Zoning Board rationally concluded that the benefit sought by [the applicant}, namely, to maximize its use of the proposed tennis court, could not be achieved by the alternative site proposed by the petitioner.”  Id.

The Appellate Division made the above determinations despite the fact that it found that the variances requested by the property owner were substantial in nature and that the difficulty was self-created. This decision is important to those seeking to uphold a favorable variance grant in the wake of neighboring opposition because this decision demonstrates that focusing on the absence of, or minimal, undesirable change in a neighborhood and detriment to the health, safety, and welfare of a community can trump substantial variance requests, including those that are self-created in nature.

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

FACTS

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

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

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

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

DECISION

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

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

CONCLUSION

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

shutterstock_527190727In an effort to generate revenue without raising taxes, many municipalities on Long Island, and elsewhere in New York State, are turning to the use of various forms of land development fees to meet their fiscal challenges. In many cases, these fees can be legally and morally justified, such as when they offset the actual administrative costs of processing a land use application, or when a municipality must incur costs to provide additional public infrastructure and services to accommodate a new development. However, in their zeal to raise revenue, some local governments have ignored statutory and judicial authority that establish a narrow framework for collecting and using these fees, which may leave them exposed to a legal challenge.

In this post, which will be presented in multiple segments, we will highlight the various ways that local governments are using impact, administrative review and recording fees as a revenue-generating measure. We will review the propriety of these fees and discuss the potential impact that these fees can have on development, which is typically a good barometer of a community’s economic prosperity.  We will also discuss who ultimately pays these fees that translate into higher housing and other costs.

Local Impact Fees

Impact fees are one-time payments required by local governments in connection with new developments for the purpose of defraying some of the cost of constructing or improving the public infrastructure needed to serve them. Where authorized, such fees are used to shift the financial burden for additional capital improvements and services from taxpayers to private developers who are the beneficiaries of those improvements and services.

To be valid, there must be a “rational nexus” between the impact fee imposed and the infrastructure needs created by the new development. To satisfy the nexus test, the development must create a need for the new infrastructure; and the fee amount must be based on the extent to which the development benefits from the infrastructure. In other words, an impact fee cannot exceed the pro rata or proportionate share of the anticipated costs of providing the new development with the necessary infrastructure.

Roughly half the states have enacted enabling legislation authorizing the imposition of impact fees. New York, however, is not among them. In fact, a number of decisions by New York Courts cast serious doubt on whether municipalities can enact local impact fee legislation pursuant to home rule powers, or otherwise impose such fees on developers.

In the only impact fee case to reach New York’s highest court, the Court of Appeals in 1989 invalidated the Town of Guilderland’s attempt to fund roadway and other transportation improvements under its Transportation Impact Fee Law (“TIFL”) in Albany Area Builder’s Association v. Town of Guilderland . While the Court did not actually rule on the validity of local impact fees, it concluded that the TIFL was impliedly preempted by the State Legislature’s uniform scheme to regulate highway funding set forth in the Town Law and Highway Law. This decision precludes the use of local impact fees to cover costs associated with roads, sewer, water hook-ups and other infrastructure for which State law already provides a comprehensive regulatory scheme for the financing of these improvements.

Notwithstanding the legal precedents, there are local governments on Long Island that continue to impose what amount to significant, but questionable, impact fees on developers. One such fee is the Town of Brookhaven’s Land Use Intensification Mitigation Fee.  The stated purpose is to mitigate any land use intensification associated with the approval of a change of zoning classification from a more restrictive to a less restrictive use through the acquisition of open space. Depending on the existing and proposed zoning classifications and the size of the site, the law has the potential for imposing significant fees on developers and other landowners within the Town.

While the stated goals of this fee law are undoubtedly laudable, the absence of specific enabling legislation authorizing this fee makes Brookhaven’s law susceptible to legal challenge. A Court could find that the fees charged are not commensurate with the potential demand for additional open space created by the less restrictive zoning and, therefore, fails the “rational nexus” test. A Court may also find that the Town Law provisions authorizing a municipality to require that a parkland be set aside, or impose a fee in lieu of parkland, in connection with site plan and subdivision applications impliedly preempts the Town’s fee law. Of course, it is also possible that a Court could uphold this fee, and Brookhaven’s law may become a model for future local impact fees in New York State.

To date, these fees have not been challenged by developers, who instead are simply paying the fees and capitalize them into the land value. However, depending on the nature of the development, these fees are being passed along by developers to new owners and renters of residential, commercial, industrial, office and retail space, and also to consumers who must ultimately pay more for retail goods and services. While these fees make it easier for a municipality to balance its budget, this short-term benefit pales in comparison to the significant negative impact that these fees can have by driving up the cost of living on Long Island and frustrating the market’s ability to deliver much-needed affordable housing.

In the next segment of this post, we will look at administrative review fees, which are another revenue-generating device used by local governments related to the processing of land use applications that are being assessed on developers, often without regard to the legal limitations on such fees.

At its January 10, 2017 meeting, the Town Board of the Town of Huntington held a public hearing to discuss its proposed ban on short-term rentals.  Several residents testified at the public hearing in opposition to the ban, explaining why short-term rentals are important to the Town.  A few residents explained that these short-term rentals helped them pay their bills and promoted tourism. Other residents explained that they would be homeless without access to short-term rentals as they allow these residents to remain in the area while house-hunting.  Other residents questioned the basis for the ban, asking the Town for evidence of “quality of life” issues allegedly raised by short-term rentals.  The Town reserved decision on the proposal.  Stay tuned for further developments.

Last April, my colleague Anthony Guardino blogged about the Town of Southold’s local law banning “transient rental properties”, which Southold defined as dwellings that are rented out for less than fourteen nights at a time.   Now the Town of Huntington, New York is considering enacting a similar local law.

Huntington’s Proposed Ban

house for rent shutterstock_84704473The Town of Huntington proposes to ban short-term rentals a/k/a “transient rental property” of less than 30 days. The proposal also would prohibit the issuance of rental permits to transient rental properties.    If you are interested in commenting on this proposal, you should attend the public hearing, which is scheduled for Tuesday evening, January 10, 2017 at 7:00 p.m. in Town Hall, located at 100 Main Street in Huntington.

According to the sponsors of the proposal, council members Mark Cuthbertson and Tracey Edwards, complaints have been received over the past year from neighbors of residences who rent out rooms on a short-term basis, raising quality of life issues. The rooms are often advertised on Airbnb, Home Away and VRBO websites. Town rental permits typically are not obtained for these units, meaning they are not certified as meeting Town Code requirements. The Town permits bed-and-breakfast facilities, (referred to as Bed-and-Breakfast Homestays in the Town Code), but these facilities require approval from the Town Board to lawfully operate.

Town of Islip’s Short-Term Rental Law

The Town of Islip enacted a local law on December 15, 2015 concerning transient rental property.  Under the Islip Town Code, a dwelling unit is presumed to be transient rental property if it is advertised on short-term rental websites and is offered for less than fourteen nights. Interestingly, and not surprisingly, the definition excludes dwelling units located on Fire Island. (Islip Town Code § 68-649).  Islip requires a rental occupancy permit to lawfully rent out a dwelling unit and prohibits a rental occupancy permit being granted to transient rental property. (Islip Town Code § 68-650).

Village of Great Neck Estates Short-Term Rental Law

The Village of Great Neck Estates enacted a local law on October 10, 2016 that prohibits transient dwelling units in all zoning districts unless a transient dwelling unit permit is obtained from the Village.  Such permits only can be issued twice a year for any particular dwelling unit, must specify the proposed occupant on the application and are not transferrable to other occupants. (Village of Great Neck Estates Code § 230-22).  A transient dwelling unit covers a rental that lasts less than eight consecutive days, and a unit that is advertised on short-term rental websites is presumed to be a transient dwelling unit.

Stay tuned for an update after Tuesday’s public hearing.

IMG_0713At its November 17, 2016 meeting, the East Hampton Town Board (Town Board) unanimously adopted a local law that temporarily suspends the authority of the East Hampton Town Planning Board to grant certain site plan and subdivision approvals for properties located on or adjacent to Montauk Highway in Wainscott. The moratorium applies to non-residential Central Business or Commercial Industrial zoning districts or properties in residential zoning districts used for non-residential uses. The moratorium lasts for one year.

Purpose of Moratorium

The purpose of the moratorium is to allow the Town to complete its Wainscott Hamlet Study and to implement recommendations from that study. The Wainscott Hamlet Study will evaluate future commercial needs of the community in accordance with the goals set forth in the Town’s 2005 Comprehensive Plan.

According to the local law, Wainscott, as the entry point into the Town, experiences extremely high traffic volumes. In particular, traffic jams along Montauk Highway are causing impacts to residential neighborhoods, as motorists seek alternate routes through the area. The Town claims that development of commercial property along Montauk Highway in Wainscott will exacerbate the traffic logjams and increase risks to pedestrians.

The Town anticipates that the study will recommend the creation of a walkable hamlet center, rather than the current sprawl of commercial sites along Montauk Highway. The Town is concerned that without the moratorium, any traffic mitigation and pedestrian safety recommendations arising from the study will not be implementable if development continues unabated in the interim.

Exemptions

The local law contains exemptions. If a site plan or subdivision application has undergone a public hearing and has been approved prior to the effective date of the moratorium, the project can proceed.  In addition, the local law contains an undue hardship exemption. In order to qualify for the undue hardship exemption, the applicant has to demonstrate to the Town Board that (1) the failure to grant the exemption will cause the applicant undue hardship that is substantially greater than the harm to the general public by granting the exemption, (2) the proposal will not have adverse effects on the Town’s goals, and (3) the proposal is in harmony with the existing character of the Town.

It will be interesting to see what recommendations emanate from the study and which ones the Town ultimately implements.

Oklahoma-City-Vacant-House-BuyerThe Towns of Babylon and Hempstead have recently enacted legislation designed to combat the blight associated with “zombie” homes and other vacant and abandoned properties. Both laws create a registry and require the payment of fees to offset the costs associated with monitoring and inspecting properties that are required to register.

Town of Babylon

The Town of Babylon’s law, known as the “Mortgage-in-Default Registry” law, requires banks and other lenders to register with the Town within ten days after a home mortgage goes into default. The law, which is based on similar legislation enacted in Jacksonville, Florida, sets forth certain maintenance and security requirements for the property and requires lenders to inspect the property monthly while it is in default. Lenders are obligated to report each time a mortgage changes hands, and the new lender must register with the Town as well.

Under the new legislation, lenders are required to pay an annual registration fee of $200 per property to a company hired by the Town to manage the registry. Failure to register and pay the fee or to comply with the new law’s property maintenance and security requirements will subject first-time violators to a fine of $250 to $1,000 and up to 15 days in jail.

Town of Hempstead

The Town of Hempstead’s new registry law, known as the “Maintenance of Vacant Buildings” law, goes beyond the measure adopted in Babylon in that it applies to all vacant residential and commercial properties, regardless of whether they are in default or in the foreclosure process. The Town’s new law requires landlords to register with the Town within 30 days of a building becoming vacant, pay an annual fee to cover the Town’s administrative costs to maintain the registry, and monitor and inspect properties.

Hempstead’s annual fees start at $500 and increase each year by $500 until a maximum annual fee of $3,000 is reached. The registry fees are in addition to the $25,000-$35,000 deposit that lenders of properties in foreclosure must post under the Town’s anti-zombie legislation adopted in May.

Landlords are also required to submit a plan to either demolish the building, keep the property secured and properly maintained, or detail how the structure will be rehabilitated within a year.

According to Town Supervisor Anthony Santino, the new measure is not intended to be punitive, but rather is designed to create a financial incentive for landlords to get their vacant buildings occupied and back to productive use as soon as possible.

The measures adopted in Babylon and Hempstead are the latest attempts by Long Island municipalities to tackle the problems associated with vacant and abandoned properties. These laws come on the heels of New York State’s anti-zombie property legislation known as the Abandoned Property Neighborhood Relief Act of 2016 that was signed into law by Governor Andrew Cuomo in June, which, among other things, created a statewide registry of abandoned properties.

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.

 

beeWhen people think of beekeeping on Long Island, they think of vast open space and the farms and apiaries they travel past out east where a jar of local honey can be picked up on the side of the road during the summer season. What most people are not aware of is that, not only are there hundreds of beekeepers caring for several hundred honeybee hives all across Long Island, but also, many municipalities across Long Island have land use controls in place to regulate beekeeping.

Backyard beekeepers, or novice beekeepers as we are sometimes called, have become vital in Long Island’s efforts to reestablish lost colonies of bees and offset the natural decrease in pollination by wild bees over the last few years. Keeping bees dramatically improves pollination, and the honey you can harvest is not the only reward. Today, the value of keeping bees goes well beyond the obvious. Without bees, Long Island would not be able to grow apples, pumpkins, strawberries, tomatoes, onions, carrots and eggplant, just to name a few.

Although mostly permitted in Suffolk County, in recent years, the practice of beekeeping has become more and more popular in Nassau County. Despite being expressly prohibited in Glen Cove, Long Beach, North Hempstead and Oyster Bay, the Town of Hempstead, where most of the County’s population resides, and which serves as a model for many of its incorporated villages, permits beekeeping via special exception from its Board of Appeals.

It is the hope of many backyard beekeepers that with increased education for our local officials, and greater awareness by those non-beekeepers, that favorable  beekeeper land use regulations can be implemented across all Long Island Towns, Cities and Villages.

If you do get the go ahead from your local municipality, the Long Island Beekeeper’s Club, which was created in 1949, and today boasts more than sixty members with ten master beekeepers, is a great place to get started. It provides meetings and classes educating beekeepers on what, where and how to become a successful beekeeper.  The Club’s website provides membership information and a schedule of upcoming meetings and classes.

Honeybees are amazing, gentle creatures. They nurture the beauty and fertility of the earth with their gift of pollination.  For Long Island, the good news this season is that our honeybees are making a comeback, a comeback my husband and I are very proud to be a part of.

JeanMarie Killeen is a paralegal in the Land Use & Municipal practice group at Farrell Fritz.

In our July 18th post, we discussed the North Shore Helicopter Route and its fast-approaching expiration date.  In that post, we noted that the Federal Aviation Administration (the “FAA”) had not yet decided what to do about the route and told you we would keep you apprised of future developments.  Here’s that update.  In the Monday, July 25, 2016, edition of the Federal Register, the FAA announced a final rule that extends the North Shore Helicopter Route for four more years.  The new expiration date is August 6, 2020.

th3MRVYBS8In the Federal Register notice, the FAA notes that the original purpose of the route was to ameliorate noise from helicopters operating over Long Island.  When it originally adopted the rule in 2012, the FAA gave the rule a two-year duration to obtain data on pilot compliance and whether the route improved the noise situation.  The FAA extended the rule in 2014 for another two years to allow it more time to consider whether to make the rule permanent.  Since the 2014 extension, the FAA has undertaken a variety of helicopter research initiatives that will allow it to model helicopter noise and identify noise-abatement procedures.  These research projects are on-going and some aspects of the research are not expected to be completed until 2017.

The FAA will need time to consider the results of the research projects and thereafter determine the appropriate action to take.  As a result, the FAA determined that extending the North Shore Helicopter Route rule for another four years is the best way to “avoid disruption of the current operating environment.”

So for at least the next four years, helicopters will continue to fly over Long Island Sound, about a mile off-shore, before they cross over land at Riverhead, Southold, and Shelter Island to head south to the Hamptons.