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.

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.

th2WTV7493A recent appellate court case, Matter of Lazarus v Board of Trustees of the Village of Malverne, 31 NYS3d 207 [2d Dept 2016], involves the approval of a special use and the denial of a special exception for the same residential premises. Here are the facts of the case.

The house in question is a two-story single-family Cape Cod style home located in a Residence B district in the Village of Malverne (“Village”).  The owner and her husband live on the second floor and her adult son rents the first floor.   The owner installed a second kitchen on the second floor and constructed a deck and attached exterior staircase without any building permits.  The second-story deck and exterior staircase were initially constructed in 1981.  At the time, a special exception permit was not needed for this structure.  The deck was removed in 2007 and was rebuilt in 2010 with the exterior staircase going from ground level to an entrance on the second floor.

In 2011, the owner sought a special use permit for the existing kitchen on the second floor. She also sought a special exception permit to approve the “mother/daughter” occupancy and to maintain the second-story deck and exterior staircase.  In October 2013, after three public hearings, the Village Board of Trustees (“Village Board”) granted the mother/daughter status and the special use permit to maintain the second-floor kitchen.  However, the Village Board denied the special exception to legalize the second-story deck and exterior staircase.  The owner commenced an Article 78 proceeding against the Village, challenging the decision.

In July 2014, the trial court granted the petition and annulled the determination of the Village Board. The trial court reasoned that by approving the mother/daughter status and the special use permit for the kitchen, the Village Board should have also approved the secondary access point. Otherwise, access to the second story would encroach upon the privacy of the parents and their adult son.  The trial court also noted that the Village could impose appropriate safeguards for the second-story entrance.

The Village appealed and in July 2016, the appellate court reversed and dismissed the proceeding.   The appellate court explained that a use variance allows the property to be used in a manner that is “inconsistent with a local zoning ordinance” and a special exception allows the property to be used in a manner “that is consistent with the zoning ordinance, although not necessarily allowed as of right.”  The owner did not seek a use variance in this instance, but instead, sought a special exception.

The appellate court determined that the Village Zoning Code prohibits decks above the first floor grade of a dwelling and requires a special exception from the Village Board for any deck constructed above the first floor. But in this case, the home owner wasn’t merely asking approval for an above-grade deck.  She was asking for approval of the deck and staircase, deemed a structure by the court.  However, the Village Zoning Code does not explicitly allow for a structure under this special exception provision.  As a result, the appellate court agreed with the Village Board’s determination that the deck/staircase structure was inconsistent with the surrounding single-family neighborhood and, thus, not entitled to a special exception.  Bottom line, the owner was allowed to keep her second-story kitchen but not the second-story deck, staircase and separate entrance.

welcome_bayville_signIn a determination dated June 30, 2016, the Honorable Jerome C. Murphy, Supreme Court, Nassau County, annulled and vacated the Village of Bayville’s local laws amending its zoning code based on the Village’s failure to comply with the New York State Environmental Quality Review Act (“SEQRA”).  See Save Bayville Now, Inc., v Incorporated Village of Bayville.  The challenged local laws, adopted on June 22, 2015, authorized the occupancy of ground floor units with residential apartments in business districts, reduced the required setback from 250 feet to 50 feet for the distance that a combined business/residential use could be from a residentially-zoned parcel and defined a “residential building” as containing five units or more. Previously, residential apartments in this zoning district were only permitted on the second floor, and this type of combined business/residential use was not permitted within 250 feet of residentially-zoned property.

Petitioner, a civic association with at least two of its members residing within 100 and 150 feet of the business district, challenged the adoption of the local laws pursuant to SEQRA. The Court first explained standing in zoning cases. Relying on Matter of Sun-Brite Car Wash v Board of Zoning and Appeals of Town of N. Hempstead, 69 NY2d 406 [1987], which held that “standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules.” The Bayville Court first determined that Petitioner had the requisite standing to bring the proceeding, and then went on to determine that SEQRA had not been complied with by the Village when it enacted the local laws.

The Court noted that SEQRA requires local governments to consider environmental impacts of the adoption of local laws by identifying the environmental impacts reasonably anticipated from the proposed action, taking a “hard look” at those areas of environmental concern and providing a reasoned elaboration in connection with the basis of its determination. The civic association alleged that the Village failed to sufficiently review potential impacts from the zoning amendments including traffic and parking issues, septic issues, flooding and flood plain issues, population concentration and the impact on the value of surrounding properties. The Village adopted a negative declaration in connection with the adopted local laws and determined that it would conduct specific SEQRA review in the future upon the application of specific sites within the district. Petitioner argued that this constituted segmentation of the SEQRA process and was unlawful. Segmentation is defined as the “division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance.” 6 NYCRR Part 617.2(ag). SEQRA states the following with regard to segmentation:

Considering only a part or segment of an action is contrary to the intent of SEQRA. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related action should be identified and discussed to the fullest extent possible. 6 NYCRR Part 617.3(g)(1). Id.

The Court determined that the Village acknowledged the potential for “environmental damage” but failed to prepare an Environmental Impact Statement (“EIS”). An EIS provides “a means for agencies, project sponsors, and the public to systematically consider significant adverse environmental impacts, alternatives and mitigation.” 6 NYCRR Part 617.2(n). An EIS is required when the lead agency (in this case the Village) determines that “the action may include the potential for at least one significant adverse environmental impact.” 6 NYCRR Part 617.7(a)(1) (emphasis added). As a result, the Court found that “the Village’s deferred consideration of recognized potential environmental damage” rendered the Village’s adoption of the local laws amending the zoning ordinance “arbitrary, capricious, and not undertaken with regard to the applicable provisions of SEQRA.” The Court annulled and vacated the local laws.

Although not cited by the Court, it bears reminding that courts have long determined the threshold for requiring an EIS is low. See, H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232 [4th Dept. 1979]; Barrett v Dutchess County Legislature, 38 AD3d 651[2d Dept. 2007].) Therefore, once the Village identified “environmental damage” in connection with the proposed local laws, the preparation of an EIS was required pursuant to SEQRA.

This ruling is consistent with other recent SEQRA segmentation cases involving the adoption of local laws. In Citizens Concerned for Harlem Valley Environment v Town Board of Town of Amenia, 264 AD2d 394 [2d Dept. 1999], leave to appeal denied, 94 NY2d 759 [2000], local laws rezoning property were annulled based upon segmented SEQRA review. In that case, the appellate court determined that “the rezoning at issue was an integral part of a mining proposal that would have obvious potential environmental impacts. The Town Board was obligated to consider these environmental concerns at the time of the rezoning and it failed to do so.” See also, Scenic Hudson, Inc. v Town of Fishkill Town Bd., 258 AD2d 654 [2d Dept. 1999].

In last week’s post, we discussed the case of Congregation Rabbinical College of Tartikov, Inc., v. Village of Pomona. That case involves a contested land use application for a rabbinical college that has cost the Village of Pomona and its taxpayers in excess of $1.5 million in legal fees to defend.  This week’s post looks at the Facebook posts and text messages that were posted and sent after the litigation began, and the sanctions that were imposed by the Court against the Village for its failure to disclose them during discovery.

The Facebook Posts and Text Messages

evidenceIn May 2013, a Village Trustee posted a comment on her personal Facebook page about her disapproval of an all-male gathering of Hasidic/Orthodox Jews at a municipal facility. Their religion was not explicitly mentioned in the Facebook post.  This posting was followed by what the Court described as “an angry text message exchange” between the Village Trustee and the Mayor of the Village, which resulted in the Trustee deleting her Facebook post.

In March 2015, the Mayor posted a comment on his personal Facebook page about an article in a local newspaper. In the posting, the Mayor slammed the 2013  posting by the Trustee (who by then was no longer a Trustee), noted that her 2013 post was particularly egregious in light of the pending lawsuit, was a “total lapse in reason and judgment,” and mentioned that text messages had been exchanged between them at the time.  The Mayor also noted that he couldn’t conceive of anyone considering the former Trustee as a viable candidate if she ever ran for election again, given her “predisposition to making such blatant and inappropriate remarks.”

The Mayor’s Facebook posting was quickly followed by a discovery demand by the plaintiffs asking for all social media postings and comments, including the text message exchange. The Village Defendants responded that the Mayor did not have a copy of the 2013 Trustee Facebook post and produced only a part of the text message exchange.  The part that was produced was an eye-opener.  It had the Mayor asking the Trustee whether it was her “intention to cause damage to the village” and “is it your intent to jeopardize the target…then you are succeeding and may cause us to loose! (sic).”   The portion of the Trustee’s responsive text that was produced noted that the Trustee understood the Mayor’s anger and would review her postings and delete them “to make sure there are no more unfortunate mistakes.”   The Mayor responded that his head was about to explode, that a case in New Jersey found that an official’s comments in a non-official setting led the court to find potential prejudice and publicly commenting on an all-male gathering related to a religious entity “is not good.”

Plaintiffs alleged that the Mayor lied about the preservation of evidence when he certified interrogatory responses in July 2013, two months after the initial Facebook and text message exchange, that all relevant evidence had been preserved by the Village.

The Court Finds The Village Guilty Of Spoliation Of Evidence

In his September 2015 summary judgment decision, the Court ruled that the Village was under an obligation to preserve this evidence. The Court rejected the Village’s contention that its officials did not think the post and texts were relevant, noting that once litigation has commenced, the usual retention procedures must be suspended and a “litigation hold” must be put in place to ensure relevant documents are preserved. In finding the Village guilty of spoliation of evidence, the Court cited to that fact that the lawsuit was commenced in 2007, 6 years before the Trustee’s Facebook page posting, the posting concerned a gathering of individuals of the same religious observation as the plaintiffs, the Mayor’s strong reaction to the posting and the Trustee’s comment about her “unfortunate mistakes” to demonstrate that the Facebook post and text messages should have been preserved and were relevant to the case. The Court also determined that the destruction of this relevant evidence had been done in bad faith.

As a result, the Court ruled that severe sanctions were warranted. These include an adverse inference of the Village’s discriminatory motivation. At trial, the jury will be instructed that the Facebook post indicated discriminatory animus toward the Hasidic Jewish population. While the Village will be allowed to present evidence that the challenged laws were not adopted for discriminatory purposes, the adverse inference may be difficult to overcome. The Court also awarded attorneys fees as a sanction.  In a ruling dated May 25, 2016, the Court directed the Village to pay legal fees totaling $42,940.00 to the plaintiffs’ attorneys.

Click here to read more about the underlying issues. The matter is scheduled for trial sometime later this year.

pomonaThis blog post discusses the hotly contested litigation between the Village of Pomona (the “Village”) and the Congregation Rabbinical College of Tartikov (the “Congregation”) about a proposed rabbinical college. The case, Congregation Rabbinical College Of Tartikov, Inc., v. Village of Pomona, pending in the federal district court for the Southern District of New York, was commenced in 2007. The Village has incurred over $1.5 million in legal fees to date defending the case and that figure is likely to double by the time the case goes to trial later this year. The case involves a plethora of land use and zoning issues. We decided to write two posts on this interesting case. This week’s post will provide information about the claims asserted in the case and the decisions issued by the Court. Next week’s post will deal with sanctions issued against the Village for mishandling evidence.

The Proposed Project

The Village is a small community located in Rockland County. Its zoning code classifies the entire village as R-40, generally limiting development to single-family homes on lots that are at least 40,000 square feet in size (about 1 acre). In 2004, the Congregation purchased a large tract of property (about 100 acres) located in the Village. The Congregation intends to develop the site into a rabbinical college for its Orthodox Jewish community. The rabbinical college will train rabbinical judges. That training can take up to 15 years and includes study and prayer from 5 am to 10 pm each day. The development includes residential housing for students, faculty and their families, 10 synagogues, 4 rabbinical courtrooms and libraries. The Congregation contends that the students must live, study and pray in the same place full-time, in a Torah Community, separated from the outside world and that this requires multi-family housing be available at the site to accommodate the families of the students and faculty. There would be between 50 and 250 housing units, which will consist of apartments with 3 to 4 bedrooms, ranging in size from 1,800 to 2,000 square feet. The Congregation claims that the property is the only available parcel of land that is large enough and situated in close proximity to the religious infrastructure and population required for the rabbinical college.

The Congregation never filed any formal application with the Village for the rabbinical college. The Village initially found out about the rabbinical college when a group opposed to the development leaked a preliminary sketch to Village officials.

In 2007, the Congregation reached out to Village officials to discuss the project and to request a public hearing. In response, the Village’s Board of Trustees responded that a public hearing is premature in light of the fact that the project is illegal and requires a zone change. The Congregation responded by requesting that the Board of Trustees exercise its authority under federal law and grant an exemption as a religious institution that is not subject to local zoning. The Village rejected the exemption request. The Congregation’s response was to file the lawsuit.

The Litigation Begins in 2007

In the action, the Congregation objects to several local land use ordinances, some of which were enacted after the project was under discussion with Village officials. It also raises constitutional challenges and other claims.

The Accreditation Local Law

The Village Code allows for educational institutions as a special use. The Congregation contends that the definition of educational institution in the code prevented it from obtaining a special use permit because of an illogical accreditation requirement it can never meet and because of other building restrictions contained in the law. Under the Accreditation Local Law, an educational institution is defined as a private or religious school that conducts a full-time curriculum a minimum of five days a week for seven months a year and is accredited by the State Department of Education or similar recognized accrediting agency. This local law also contains minimum lot area, maximum development intensity, frontage, access, set back, parking and noise guidelines. The initial definition of educational institution was adopted in 2001 when a different Orthodox Jewish organization attempted to build a Yeshiva (a primary and pre-school facility) on the site and was modified in 2004, after the Congregation purchased the site.

The Dormitory Local Law

Although the Village Code allows dormitories, the code requires that they relate to an educational institution, and cannot have the separate cooking, dining and housekeeping facilities required for the rabbinical college. The definition of dormitory was amended in late 2004 to exclude single family, two-family or multi-family from its purview. In 2007, the Village limited the size of dormitory buildings to not more than 20% of the total square footage of all buildings on a lot. The Congregation contends these changes were adopted to thwart its project, which requires a large number of separate housing units for its students, faculty and their families.

The Wetlands Local Law

In 2007, the Village enacted a wetlands protection ordinance that requires a 100-foot buffer around wetlands that are 2,000 square feet or larger. The Congregation contends that this local law was specifically enacted to prevent it from developing the site since its site contains 37 acres of wetlands. The Congregation also contends that the local law contains exemptions that applied to almost every lot in the village except the Congregation’s parcel.

Other Claims

The Congregation claims that the Village’s zoning and environmental ordinances violate the equal protection clauses of the federal and state constitutions, the free speech, free exercise and free association clauses of the first amendment of the federal constitution, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal Fair Housing Act, the New York State Civil Rights Law and various other state common law claims.

2013 Ruling On The Motion To Dismiss

The Village’s initial response to the lawsuit was to file a motion to dismiss. Part of the claims were dismissed but several survived. In a decision issued in January 2013, the Court made the following rulings. It initially found that the Congregation has standing as it suffered an injury-in-fact as a result of the alleged illegal conduct of the Village; that there is a causal link between the challenged regulations and this injury; and there is a non-speculative likelihood that the injury can be remedied by the relief requested in the complaint.

The Court then evaluated the second ground asserted by the Village for dismissal – ripeness. In particular, the Village claims that the Congregation’s facial challenges to the zoning code, the equal protection clauses of the federal and state constitutions, the free speech, free exercise and free association clauses of the first amendment of the federal constitution and the federal RLUIPA are not ripe for adjudication since the Congregation had not applied for a permit. The Court rejected this challenge noting that a facial challenge is ripe as soon as the regulation is enacted (although it did dismiss one part of the free association facial challenge regarding familial association.)

In assessing the facial challenges, the Court explained these types of claims require a party to demonstrate that the mere enactment of the legislation violates its rights. The Court considered the Congregation’s assertion that the Village had a discriminatory motive behind the enactments. The timing of the enactments and questionable public comments made by government officials preceding the enactments suggested a discriminatory motive. The Court also considered the discriminatory effect of the local laws. Here, the effect is that the local laws prevent the rabbinical college from being built because of the restrictions on the type of housing that is allowed, the requirement that the college be accredited because there is no equivalent accreditation agency for a rabbinical college and the State Education Department does not accredit any college until after it is opened and operating. The Congregation also asserts that the Village adopted a series of laws over the years to prevent the development of this site and nearby sites by Jewish institutions while at the same time allowing other non-Jewish religious organizations to develop sites within the village.

The Village also claimed the Congregation’s as-applied challenges to the zoning code are not ripe because the Congregation has not formally applied to the village. The Court agreed that the Congregation’s as-applied challenges under the free speech, free exercise and free association clauses of the first amendment and the equal protection clause of the fourteenth amendment of the federal constitution, RLUIPA and state law are not ripe and dismissed them.

2015 Ruling On The Motions For Summary Judgment

The parties engaged in extensive discovery after the motion to dismiss was decided. They then filed motions for summary judgment, which the Court ruled on in September 2015. The Court granted summary judgment to the Village on the free speech and New York common law claims (meaning that those claims were dismissed); granted summary judgment to the Congregation on certain affirmative defenses asserted by the Village and granted the Congregation’s motion for sanctions. The Court determined that there are material issues of fact associated with the remaining claims that require a trial.

The jury will decide whether the prohibitions found in the laws, such as the inability to meet the accreditation requirements and the dormitory restrictions that prohibit the housing units required by the college, violate the rights of the Congregation. The jury will determine whether the multi-family housing units are necessary for the Congregation to exercise its religious beliefs, and whether the wetlands restrictions were drafted to target the 100 acre parcel. The jury will decide whether the local laws were passed with a discriminatory purpose and effect and whether the Congregation’s free association and free exercise of religion rights were violated by the Village. The jury will decide whether the rabbinical college must include the housing and other accessory structures for the Congregation to be able to exercise its religious beliefs and whether the Village’s actions placed a substantial burden on the exercise of the Congregation’s religious beliefs.

Next Steps

The case is expected to go to trial soon, but that is unlikely to be the end of the matter. The losing side is likely to appeal. And the animosity between the Village, its residents (who are footing the bill for the defense of this lawsuit) and the Congregation will continue to grow.

 

In recent months, the Village of Sag Harbor and the Village of Patchogue enacted moratoriums aimed at halting large-scale residential development, and in Patchogue’s case, including multi-family residential development.  Both Villages learned that enacting moratoriums is not only subject to referral to the Suffolk County Planning Commission (“SCPC”) pursuant to General Municipal Law § 239-m but also, moratoriums can be subject to intense scrutiny by constituents and other governmental agencies, such as the SCPC.

What is a Moratorium?

Moratoriums, a word that brings angst to landowners and developers, are used by municipalities to temporarily control development while they study and potentially adopt changes to their comprehensive plans or to their land use regulations.   Often described as a means to preserve the status quo, a moratorium can halt all development in a community or can be tailored to a specific land use or aimed at a specific zoning district.  Moratoriums can include exemptions that allow some development to continue. For example, a municipality may exempt applications that have already been approved but not yet started.

Municipalities adopt moratoriums for several reasons: (1) prevent a rush to develop; (2) prevent inefficient or impractical growth; (3) address new types of land use not currently covered by their comprehensive plans or land use laws; (4) prevent hasty decisions that could adversely impact landowners, developers or the public; and (5) prevent construction that may be inconsistent with a future land use plan. If a municipality adopts a moratorium, it should make sure it is temporary, is for a reasonable time frame, has a valid public purpose,  balances benefits and detriments of the moratorium, adheres to the procedure for adoption of local laws and ordinances, and contains a time certain when it expires.sag%20harbor%20sign[1]

Sag Harbor’s 2015 Moratorium Did Not Comply with GML § 239-m

The Village of Sag Harbor enacted an 180-day moratorium on July 14, 2015, that temporarily suspended the Village’s authority to process and/or grant approvals for building permits for certain one-family detached dwellings.  The moratorium was triggered by the recent development of one-family homes of “a size and scale that are inconsistent with the historic and rural character of the Village” and conflict with the purposes of the Zoning Code. Id.  In other words, the Trustees were concerned about the explosion of McMansions being built in the community.

The Village wanted time to consider gross floor area requirements and enacted the moratorium to preserve the status quo and avoid overburdening Village planning staff and boards.  The moratorium contained an exclusion that allowed the construction of homes that had been issued building permits before June 9, 2015.  It also allowed homes not exceeding 3,500 square feet to be constructed on lots of 20,000 square feet or less, or not exceeding 5,000 square feet on lots larger than 20,000 square feet.  It also excepted from coverage, alterations or improvements to existing one-family detached homes that did not constitute “substantial improvement.”  Id.

Although this moratorium was filed with the New York State Department of State, news reports note that constituents, unhappy with the moratorium, argued that the Village did not refer the moratorium to the SCPC for a determination of regional significance as required by GML § 239-m.  That could have been fatal to the moratorium.

Sag Harbor’s 2016 Moratorium Did Comply with GML § 239-m

On January 12, 2016, the Village of Sag Harbor enacted a local law that put in place “temporary interim building restraints on building permits for certain one family detached dwellings pending the conclusion of the Planning Update and SEQRA Process for the enactment of permanent regulations for development and redevelopment of residential dwellings.” Id. The 2016 local law states it replaces the previously-enacted July 2015 moratorium and will be in place until permanent rules are adopted.  According to news reports, this local law was referred to the SCPC and that the SCPC  determined it was not of regional significance.  The Village also filed the 2016 local law with the New York State Department of State

Like the July 2015 moratorium, the 2016 local law contains exclusions.  Any application that received an exemption under the 2015 moratorium and any application that meets the interim development standards in the 2016 local law are excluded from the restraints contained in the 2016 local law.  Whether the 2016 local law results in a construction boom of single family detached homes using the interim building restrictions or turns out to be, in effect, a moratorium, remains to be seen.

Patchogue’s 2015 Moratorium Complied with GML § 239-m But Was Met With Harsh Criticism

imageRYN72OD9Since 2008, the Village of Patchogue has been a pioneer in land-use revitalization and redevelopment.  The Mayor reports that more than 600 people have moved to the 2.2 square miles comprising the confines of the Village.  Population estimates are said to be in the range of 12,500 people.  However, along with these pioneering efforts to rebuild and revitalize the Village’s main street and to promote multi-family downtown living, the Village is experiencing parking, traffic. utilities and general health, safety and welfare obstacles.

In response to the housing explosion, in 2011, the Village enacted its first 180-day moratorium on new apartment houses, garden apartments, townhouses, residential uses and buildings over three stories in certain of its zoning districts, including all floating zones.  Id. At that time, the SCPC approved the moratorium upon condition that (1) the Village investigate whether there are less burdensome alternatives to the moratorium and (2) the production of hard evidence supporting the necessity for the moratorium.

In 2013, the Village once again requested an 180-day moratorium on change of use, an increase in the intensity of use or an increase in occupancy in the D-3 Business District to meet the parking requirements set forth in the Village Code.  The SCPC, although reluctant to grant another 180-day moratorium, approved the referral.  Id.

In 2015, for the third time, and now reaching a moratorium of 540 days, the Village requested a further 180 day moratorium to provide Patchogue with time to evaluate and consider the impact of multi-family housing on parking, traffic, health, safety and general welfare toward a “carefully considered comprehensive plan.” Id. Although the SCPC staff report recommended disapproval of the Village’s request finding that the Village had not moved forward with a plan despite the prior moratoriums; the SCPC granted Patchogue’s request following a meticulous and careful recitation by the Mayor detailing the pioneering efforts and overall success of the Village’s efforts to revitalize an otherwise stagnant downtown.

The Village of Patchogue is in many ways a trailblazer and a model for downtown revitalization and multi-family development.   However, as any trailblazer knows, growth and divergence are never easy or without criticism.  Although Patchogue followed the proper procedure in referring its moratorium request to the SCPC,  all eyes will be on the Mayor and the Village to ensure that this moratorium, will, in fact, be the last.

Conclusion

It would be wise for all municipalities to take note of the Suffolk County Planning Commission’s developing scrutiny in connection with multiple requests to extend moratoriums.  The Commission’s comments are a reminder of the importance to seriously consider the impact of land use development, of whatever kind, on the municipalities’ overall ability to (1) serve land owner’s desires to develop their property and (2) the municipalities’ ability to serve those development needs as they apply to nature and character of the community, parking, traffic and the overall health, safety and general welfare of the community.

 

 

 

thNK2XLI7YOn February 26, 2016, we published our first Drone blog post: FROM PEEPING TOMS TO PEEPING DRONES: Help, Big Brother Government is Peeping in My Backyard.  We advised that New York State is presently considering multiple bills all designed to regulate drones and drone users.  Further, Suffolk County and the Town of Huntington adopted drone legislation specifically regulating private citizens’ rights to fly drones but specifically exempted itself, the government, from flying drones.

Now, before reading further, consider Justice Brennan’s 1989 dissenting opinion in Florida v. Riley, a Fourth Amendment case upholding the use of helicopter surveillance of marijuana plants, wherein Justice Brennan stated as follows:

William_Brennan_color“Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all—and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were.”

Well, less than thirty years later, and depending on where you live in this great state of New York, this “miraculous tool” now known as a drone, may very well provide the government with the right to hover over your enclosed courtyard or patio to determine if your property, or the use of your property, is compliant with the law.

The Village of Great Neck Estates, located in Nassau County, adopted a local law banning the use of drones unless “any such system, aircraft or equipment [is] operated by or under the authority of any governmental entity.” This broad governmental exemption speaks directly to Justice Brennan’s concern about privacy and just where to draw the line between the right to privacy and the right of the government to conduct surveillance.

The Village of Laurel Hollow, also located in Nassau County, adopted a local law banning drone use by any “person, entity or agency.”  Hence, drone use by local government is specifically prohibited in Laurel Hollow.

In our Peeping Tom post, we asked whether a local government could act on a neighbor’s complaint of an illegal apartment by flying a drone over the alleged violator’s property to gather evidence of the resident’s comings and goings.   The answer may be that those who live in Great Neck Estates can be surveilled while those who live in Laurel Hollow enjoy greater privacy.

As more municipalities consider drone legislation, the inevitable collision between privacy rights, government use and technology will undoubtedly ascend.   We suggest that you take your seat, buckle up and join as we travel from Town to Village in search of the next adopted drone legislation, including legislation recently debated and discussed by the Village of Babylon, located in Suffolk County.

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Erin A. Sidaras is Counsel at Farrell Fritz, P.C.

 

The Village of Great Nreduce-your-carbon-footprint-logoeck Plaza (“the Village”) may be small in size (about a third of a square mile) but it is leading the way on climate change on Long Island. In February 2016, it became one of the first villages on Long Island to adopt a climate action plan (CAP).[1]   The CAP stems from the Village’s October 2012 Climate Smart Communities (CSCs) pledge.

 

 

 

The CAP has nine major initiatives:

  • Reduce overall Green House Gas (GHG) emissions by 20% by 2020 below the 2005 baseline community-wide emissions.
  • Reach CSC Certification of a minimum of 150 points by 2017.
  • Upgrade old florescent lighting in Village Hall offices by 2017 to energy-efficient LED lighting.
  • Install upgraded timing switches for managing usage and temperature on heating and cooling systems in Village Hall by 2017.
  • Install motion sensors where feasible to turn off electricity when Village Hall offices are not occupied.
  • Complete the Green Innovation Grant Program (GIGP) project for the Sustainable Maple Drive Parking Lot Reconstruction by the end of 2016.
  • Develop multi-year strategy and costs by 2017 for converting existing Village streetlights to LED fixtures.
  • Through the Long Island Green Homes Program, encourage a minimum of 20 percent of the Village’s single-family homes[2] by 2017 to get a free energy audit and do the upgrade work to improve the energy efficiency of homes in the Village.
  • Explore other potential future actions in the CAP and determine by the end of 2017 a time line for their implementation, as may be feasible.

The CAP is divided into four sections: (1) Introduction; (2) Municipal Facilities and Operations; (3) Community-Wide Policies and Initiatives; and (4) Climate Change, Planning and Adaptation.

Municipal Facilities and Operations

The Village has control over Village Hall (a 20,000 square foot building), two parking structures, and a small fleet of vehicles. The Village intends to make significant changes to these assets to reduce its energy usage and GHG emissions by 20% by 2020.

In 2001, the Village conducted an energy audit of its Village Hall and its two parking garages. It tracked its energy and water consumption.  It already installed lighting controls and automatic sensors in Village Hall, digital temperature controls and timers for its HVAC systems, and lockboxes over thermostats.   It modified the lighting system in its garages to reduce consumption and electric usage during peak hours.  It is continuing its lighting upgrades in Village Hall.  It instituted a policy to shut off lights, computers and other electronic equipment when not in use. It is reconstructing one of the parking garages with green technology to include porous pavement, a rain garden, LED streetlights, solar metering stations, and low-maintenance landscaping.

It intends to consider changes to the Village Code to encourage the use of more efficient building products. It is considering a policy to mandate the Village to install energy and resource efficient equipment and building techniques in its own facilities.  It is looking at installing rooftop solar panels at Village Hall and using geothermal heating and cooling systems to replace its existing HVAC systems.  It is looking to replace its current vehicles with more fuel efficient models to cut fuel costs and GHG emissions.  It is also looking at alternative fuel vehicles.

The Village is looking at its solid waste and wastewater practices. It may create an e-waste program and encourage more recycling.  It may consider composting and re-use of grey water at Village facilities.

Community-Wide Policies and Initiatives

The Village has control of the policies that impact community emissions, including zoning authority and control over land use.  The Village is considering adopting the Energy Star Certified Home Program as a requirement for all new single-family home construction.  It may join the Long Island Green Home Coalition to promote energy audits by residents.  It may establish an energy consumption calculator to benchmark energy use at new and existing homes as a mechanism to calculate and reduce the Village’s carbon footprint. It may offer refunds of LEED certification fees for certain projects as an incentive.   It may require new residential construction to incorporate stormwater management features.  It may seek to encourage multiple dwellings to implement white rooftops to reduce energy usage in the hot summer months.

The Village may use its zoning power to facilitate solar panel installations on homes. It may  mandate use of recycled paper for newsletters and other publications or help them develop their web presence to eliminate paper copies.

The Village will seek to encourage bicycling, walking and transit ridership. (The LIRR Great Neck station is located in the Village.) It is working to improve vehicle and pedestrian access to shopping areas.  It may create bicycle lanes and promote more walkable activities.

The Village already has transit-oriented development zoning. It may look at other efforts such as smart growth initiatives, mixed-use development and perhaps establish a “Green Business Incubator.”

Climate Change, Planning and Adaptation

The Village intends to integrate climate change planning into its comprehensive plans, hazard mitigation plans, emergency management plans and post-disaster recovery plans. It is going to partner with local hotels and other structures to provide stormproof shelters.  It participated in the Nassau County Hazard Mitigation Plan to reduce the impacts of storms and to increase storm resiliency.  The Village completed a Tree Management and Implementation Plan to maintain a healthy tree stock.

It will be interesting to see if other municipalities on Long Island follow Great Neck Plaza and enact CAPs.

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[1] http://www.greatneckplaza.net/PDF%20files%20and%20forms/Climate%20Action%20Plan%20-%20Draft.pdf

[2] The Village has 148 single-family homes.  It also has 90 multi-family apartment buildings, over 260 retail stores, 40 office buildings, 2 four-star hotels, a nursing home, a senior independent living facility and a senior assisted living facility.

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.