Standing is a threshold issue in challenges to administrative decisions.  Prior blog posts have dealt with standing in cases involving challenges to local land use and zoning decisions.  If standing is not established, the party seeking to overturn the administrative decision will see its proceeding dismissed without any consideration of the merits.  Whether a party has standing is quite fact-sensitive but there are certain overarching principals that should be remembered.  Most notably, a petitioner must show in its pleadings that it suffered a harm that is different from the harm suffered by the general public, that the harm is within the zone of interest sought to be protected by the applicable statute, and that the alleged harm is not speculative.

Late last month, the Appellate Division, Third Department, issued two companion decisions that caught our “standing” attention. While the cases involve a challenge to a loophole in the Election Law for limited liability companies, referred to as the LLC Loophole, the matters were resolved on the basis of the lack standing of the petitioners.  In these cases, petitioners raised interesting arguments that they thought would support their standing to challenge an administrative decision, but the Court found them unpersuasive.  The Court’s evaluation of the standing claims may be helpful to those seeking to establish or to defeat standing in the land use and zoning matters.

The Facts     

According to the decisions,  Brennan Center For Justice v. NYS Board of Elections (Docket 524905) and Brennan Center For Justice v. NYS Board of Elections (Docket 524950), petitioners were the Brennan Center For Justice at NYU Law School (the “Brennan Center”), a self-described “not-for-profit, non-partisan public policy and law institute that focuses on issues of democracy and justice” and six individual petitioners who were current or former legislators or candidates for legislative office. Respondent, the New York State Board of Elections, (“Board of Elections”), was described in the decisions as “a bi-partisan agency governed by four appointed commissioners and vested with the statutory authority to issue instructions, rules and regulations pertaining to campaign financing practices, among other things.”

New York State’s Election Law contains provisions that limit campaign contributions for various types of donors.  When limited liability companies were authorized in New York in 1994, the Legislature did not amend the Election Law to address campaign limits for this type of entity. In 1996, the Board of Elections issued an opinion that treated limited liability companies as individuals for purposes of campaign contribution limits. This allowed limited liability companies to donate larger amounts to campaigns than corporations or partnerships could donate. While there were efforts legislatively to close the LLC Loophole, none were successful.

In April 2015, one of the commissioners of the Board of Elections sought to close the LLC Loophole by making a motion to direct the board’s counsel to rescind the 1996 opinion and provide guidance on limits that should apply to contributions by limited liability companies. The motion failed, whereupon the Petitioners sought review in a hybrid Article 78 proceeding and declaratory judgment action (“Hybrid Proceeding”). The Supreme Court dismissed the Hybrid Proceeding, which the Appellate Division affirmed in one of the companion decisions.

In April 2016, one of the commissioners made a new motion seeking approval of a draft opinion that would rescind the 1996 opinion and replace it with an opinion that treated limited liability companies in the same manner as partnerships and corporations with respect to campaign contribution limits. This motion also failed. Petitioners commenced another Hybrid Proceeding seeking to invalidate what the Board of Elections did in April 2016 and to replace the 1996 opinion with the 2016 draft opinion. The Supreme Court dismissed the second action, and the Appellate Division affirmed in the second companion decision.

The Appellate Division Decisions

In both cases, the Appellate Division found that the individual petitioners lacked standing. The appellate court found that their claims of harm – that the LLC Loophole “hampers their electoral campaigns by placing them at a competitive disadvantage against opponents who receive large contributions,” “damages their ability to represent their constituents,” harms the voters by “limiting their choices among candidates and hiding the identity of donors,” and “would cause them to suffer disadvantages in future elections” did not confer standing. The court found all these claims to be neither different nor distinct from those of the public at large and were also conjectural.

Similarly, the appellate court found that the Brennan Center lacked standing. The Brennan Center claimed the LLC Loophole “harms its staff contributors and volunteers by limiting their candidate choices and unduly influencing their political representatives.” The appellate court found that this alleged harm was no different than the harm suffered by the general public and did not support standing. The appellate court also rejected the Brennan Center’s claim that it was injured by having to advocate for the closure of the LLC Loophole, which required it to expend resources. The majority also noted that petitioners could not establish standing by claiming that the LLC Loophole caused disparities in campaign contributions, wryly noting that the “[o]ur political system does not mandate equal funding for all candidates.”

The Appellate Division also found that the courts were not the appropriate place to fix the LLC Loophole. Rather, it “resolved around policy choices and value determinations constitutionally committed to the legislative and executive branches.”

Moral Of The Story

As to the applicability of these decisions to Land Use and Zoning – the bottom line is never forget “standing.”  It is a fundamental element that must be established by petitioners and a fundamental defense that should be considered and raised, if applicable, by respondents, in challenges to governmental actions. As noted in the decisions and in the introductory paragraphs, above, petitioners must show “that they have suffered an injury-in-fact and that the injury is within the zone of interest protected by the statute at issue.” Otherwise they will be found to lack standing and will be unable to challenge a determination on the merits.

In 2012, the New York State Department of Environmental Conservation (NYSDEC) proposed sweeping changes to its State Environmental Quality Review Act (SEQRA) regulations. These proposed changes were not adopted. Rather, five years later, in February 2017, the NYSDEC issued proposed amendments to the SEQRA regulations and a draft generic environmental impact statement, (GEIS), in which it set forth its rationale and objectives for the proposed amendments. We wrote about this development in an April 3, 2017 blog post.

The NYSDEC did not enact the 2017 proposed regulations. Instead, more than one year later, on April 4, 2018, the NYSDEC released revised proposed amendments to the SEQRA regulations and a revised draft GEIS, in which it addressed approximately 250 comments it received in 2017. At the same time, the NYSDEC released proposed revisions to Part 1 of the Short Environmental Assessment (EAS) Form and to Parts 1 and 2 of the Full EAS Form. The 2018 revised proposed amendments made refinements to the existing regulations, in particular to Type II actions. A Type II action does not require SEQRA review. The NYSDEC is accepting comments through May 4, 2018 on these revised proposed amendments.

Here’s a brief summary of the 2018 revised proposed amendments to the SEQRA regulations.

The existing SEQRA regulations note that each agency can adopt its own list of Type II actions and is not bound by a list of Type II actions adopted by another agency. [6 NYCRR § 617.5(b)] The revised proposed amendment to that provision will add a clarifying sentence that explains that an action that is “identified as a Type II action in an agency’s procedures” does not require it to “be treated as a Type II action by any other involved agency not identifying it as a Type II action in its procedures.”

Other proposed changes will indicate that the following are not subject to SEQRA review.

  • “retrofit of an existing structure and its appurtenant areas to incorporate green infrastructure”
  • “installation of telecommunication cables in existing highway or utility rights of way utilizing trenchless burial or aerial placement on existing poles”
  • “installation of solar arrays where such installation involves 25 acres or less of physical alterations” on closed sanitary landfills, certain brownfield sites that have received certificates of completion (COCs), or certain inactive hazardous waste sites that have received full liability releases or COCs

Another change will indicate that the installation of solar arrays on an existing structure is not subject to SEQRA review if the structure is not listed on the Register of Historic Places, is not located in a listed historical district, or has not been determined by the Commissioner of Parks, Recreation and Historic Preservation to be eligible for such listings.

Another proposed change will indicate that the reuse of a residential or commercial structure, or of a mixed use residential/commercial structure, where the use is a permitted use or is permitted by special use permit and does not meet or exceed criteria contained in 6 NYCRR § 617.4, is not subject to SEQRA review. In addition, a recommendation of a county or regional planning board pursuant to General Municipal Law §§ 239-m or 239-n, an agency’s acquisition of or dedication of 25 acres or less as parkland, or the sale of real property by public auction, is not subject to SEQRA review. And, the construction and operation of an anaerobic digester, under certain conditions, will also be added to actions that are not subject to SEQRA review.

The revised proposed amendments also contain some refinements to the DEIS process. Of particular interest to Long Islanders is a proposed insert to 6 NYCRR § 617.9. The insert will apply to proposed actions that are in or involve resources of Nassau or Suffolk Counties. Such DEIS will have to include “measures to avoid or reduce an action’s environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.”

One other proposed insert, to 6 NYCRR § 617.12, will be of concern to municipal agencies. That insert requires the lead agency to publish or cause to be published on a publicly available and free website the draft and final scopes and the draft and final environmental impact statements. These documents must remain on the website for at least one year after the later of (1) all permits having been issued, or (2) the action being funded or undertaken.

Stay tuned to see when, or if, the NYSDEC finally enacts the proposed changes to the SEQRA regulations.

With all the talk about a border wall between the United States and Mexico, we were amused to come across a proposed law that is pending in both the Assembly and Senate of the New York State Legislature to establish a Nassau County and Queens County border task force to review jurisdiction and boundary disputes. The Senate version (S4412) and the Assembly version (A6223) are identical.

The proposed law provides for a seven-member task force, with members being appointed by the governor on the recommendations of the temporary president of the senate, the speaker of the assembly, the minority leader of the senate, the minority leader of the assembly, the Nassau County executive, the Queens County borough president and the superintendent of the state police. The members of the task force will serve without compensation. The task force would have the power to conduct public hearings, issue subpoenas for witnesses and documents, and recommend legislation. The task force is supposed to issue a report of its findings and make recommendations by January 1, 2019.

You may be thinking – is this task force necessary? Haven’t heard of any border disputes between Queens and Nassau counties, other than the residents of Queens reminding anyone within hearing distance that they are part of New York City and not part of Long Island? Well, we found a few mentioned in news reports.

On December 20, 2010, CBS News reported on the “Snow Removal Border War Between Queens, Nassau.” Seems the residents of Floral Park were luxuriating in snow-plowed streets while across the street in Little Neck, merely 50 feet away, Queens residents were still snowed-in. Another article, from December 16, 2005 in the New York Times entitled “The Defining Line”, reported on the 15½ mile border between the two counties, from Little Neck Bay on the north shore, to Rockaway on the south shore. The article mentioned one homeowner whose house was located in both counties. He had a Douglaston Manor, Queens mailing address, got his mail from the Little Neck, Queens post office, but part of his home was located in Great Neck. He voted in Nassau and considered himself a Long Islander.

So next time you find yourself driving along the Cross Island Parkway near Belmont Race Track, watch for the roads signs that inform you that you are in Queens, then Nassau, and back in Queens in a matter of a few seconds. You have entered, and left, the Nassau – Queens border wars.

Several Long Island municipalities have local laws that peg the issuance of certain building permits to a requirement that contractors and subcontractors be participants in a “qualified apprenticeship program” that is registered and approved by the New York State Department of Labor. While these provisions are often entitled “safe and code compliant construction” and may be perceived as fostering apprenticeship programs for building construction trades, many contractors on Long Island disagree.

They see these provisions as having nothing to do with safety or compliance. They point out that many of these codes do not require that apprentices work on the project or that the selected contractor even employ such apprentices. Rather, all that is required is that the contractor have a collective bargaining agreement with a union that has a qualified apprenticeship program. They contend that these code provisions are aimed at ensuring that contractors affiliated with certain unions get the jobs by prohibiting non-unionized contractors or unionized contractors with affiliated unions that do not meet the qualified apprenticeship program requirement from getting building permits. And they further argue that these provisions add significant costs to the price of construction.

A recent decision by a federal judge may be changing that. But first, a sampling of codes provisions on Long Island that require qualified apprenticeship programs for building permits.

Town of Huntington

Section 87-55.1 of the Huntington Town Code provides that prior to the issuance of “building permits for the construction of commercial buildings of at least one hundred thousand (100,000) square feet,” applicants must “demonstrate that any general contractor, contractor or subcontractor for such project, must have apprenticeship agreements appropriate for the type and scope of work to be performed, which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Brookhaven

Section 16-3.1 of the Brookhaven Town Code requires that prior to the issuance of  “foundation permits and building permits for the construction of a building located in commercial and industrial zoning districts where the square footage of the footprint is 100,000 square feet or greater” and prior to the issuance of building permits for “an addition to an existing building located in commercial and industrial zoning districts when such addition is 100,000 square feet or greater,” that the applicant “demonstrate that any general contractor, contractor or subcontractor for such project participates in an approved apprenticeship training program(s) appropriate for the type and scope of work to be performed, that has been registered with, and approved by, the New York State Department of Labor in accordance with Article 23 of the New York Labor Law.”

Under Brookhaven’s code provision, unless an existing building has a certificate of occupancy or its equivalent, the square footage of the existing building is included in the calculation of the 100,000 square foot threshold.

Town of North Hempstead

Section 24-68 of the North Hempstead Town Code provides the following. “Every contractor or subcontractor who is a party to, or working under, a construction contract with the Town shall be a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and shall have in place apprenticeship agreements that specifically identify or pertain to the trade(s) and/or job title(s) called for within the construction contract.”

Section 2-9.1 of the North Hempstead Code requires that prior to issuance of a building permit for a “large commercial project,” the applicant must demonstrate that “any general contractor, contractor or subcontractor for such project is a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and has apprenticeship agreements, which are specifically identified as pertaining to the trade(s) and/or job title(s) called for by such project.”

A “large commercial project” is defined as “[t]he erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion of a commercial building or structure where such erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion involves an area of 100,000 square feet or more of floor area. The threshold of 100,000 square feet may be met either in a single building or a collection of buildings located on the same property.”

City of Long Beach

Section 7-48 of the City of Long Beach Code of Ordinances covers apprenticeship requirements. It provides that “as a condition precedent for, the issuance of all building permits…for construction of buildings of at least 100,000 square feet…any contractor or subcontractor, who is a party to, or working under, a construction contract, [must] be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements…which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Oyster Bay

Section 93-16.3 of the Town of Oyster Bay Town Code requires that any contractor or subcontractor who is performing construction on any “structures used for purposes other than private one- or two-family residences, and shall include, without limitation, buildings used for offices, retail or wholesale stores, warehouses, schools, and public buildings” shall “be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements, as evidenced by valid D.O.L. certificates of completion which are specifically identified as pertaining to the trade(s) and/or job title(s) necessary for said construction project.”

Sections 93-16.1 and 93-16.2 apply this provision to buildings of 100,000 square feet or more, and have other refinements to that 100,000 square foot threshold.

 Legal Challenge to Oyster Bay Provision

A legal challenge to Oyster Bay’s provisions is pending in the federal court in Central Islip. That case is entitled Hartcorn Plumbing and Heating, Inc. v Town of Oyster Bay.  Plaintiffs contend that Oyster Bay’s code is unconstitutional as it applies not just to contracts that the Town is a party to or funds, but also applies to wholly private contracts.

On February 7, 2018, Judge Hurley issued a preliminary injunction, enjoining the Town of Oyster Bay from enforcing Town Code 93-16.3, with respect to any contract that the Town of Oyster Bay is not a “direct or indirect party.” As a result, at least for now, projects that do not involve the Town of Oyster Bay as a party to the contract or are not funded by the town can get building permits without demonstrating that their contractors participate in “qualified apprenticeship programs.” Whether that ruling is ultimately upheld as the case proceeds is unknown, but it may result in other municipalities reexamining their code provisions voluntarily or as a result of similar court challenges.

At its December 5, 2017 meeting, the Town Board of the Town of Southold (“Town Board”) was hit with a tidal wave of opposition to changes the Board was considering to the Town’s Zoning Code with respect to wineries. The proposed changes would have modified §280-13A(4) and §280-13C(10) of the Town Zoning Code. After a five-hour public hearing, the Town Board unanimously withdrew the proposal.

Opponents of the proposal used social media to get the word out about the public hearing, and Town Hall was packed with these folks on the hearing date. Perhaps the Town Board should have taken a cue from that and used social media, including the Town’s website, to explain in advance why they were proposing these changes, who would be affected, and encouraging residents who supported the proposal to attend the public hearing.

The proposed changes were aimed at five zoning districts; namely the Agricultural-Conservation District, Residential Low-Density District R-80, Residential Low-Density District R-120, Residential Low-Density District R-200, and Residential Low-Density District R-400. These proposed changes were not applicable to other zoning districts where wineries are also permitted, such as the Limited Business District.

The existing provisions of §280-13A set forth the permitted uses in these five zoning districts. Subsection 4 applies to wineries and lists the standards applicable to that use in these districts. These include: (a) the winery must “be a place or premises on which wine made from primarily Long Island grapes is produced and sold;” (b) the winery must “be on a parcel on which at least 10 acres are devoted to vineyard or other agricultural purposes, and which is owned by the winery owner;” (c) the winery structures are required to “be set back a minimum of 100 feet from a major road;” and (d) the winery needs to have site plan approval.

The proposed changes to §280-13A would have required: (a) that the wine be “produced, processed and sold” at the winery, which wine had to be made from grapes “of which at least 80% are grown on the premises or other land owned by the winery owner;” (b) the winery must be on a parcel where a minimum of “10 acres are devoted to the growing of wine grapes” and which is owned by the winery owner;” and (c) the 10 acres devoted to growing grapes are in addition to land on which structures are located. No changes to the set back and site plan approval provisions were proposed.

The existing provisions of §280-13C set forth the accessory uses. Subsection 10 applies to wineries. That subsection states that a winery “may have an accessory gift shop on the premises which may sell items accessory to wine, such as corkscrews, wine glasses, decanters, items for the storage and display of wine, books on winemaking and the region and nonspecific items bearing the insignia of the winery.” The subsection also states that a winery “may not have a commercial kitchen as an accessory use but may have a noncommercial kitchen facility for private use by the employees.”

The proposed changes to §280-13C(10) changed the “accessory gift shop” to a “retail gift shop” with the same limitation on the type of merchandise that could be offered. In addition, the proposed changes required that the wine be made on the parcel and permitted 20% of the wine sold at a winery to be from other Long Island wineries. No change was made to the kitchen limitations.

The packed house of opponents described the proposal as “anti-farming” or “overly restrictive.” Farmers who grow grapes for sale to wineries they do not own claimed that the proposal would put them out of business. Some opponents stated that the proposal would be the death-knell to new wineries, which would be unable to make any money while their vines matured over several growing seasons. Others were concerned that natural disasters could wipe out a portion of their crops, and that if they bought grapes elsewhere to replace their damaged crops, they would be in violation of the proposed changes.

The Town Supervisor indicated that the Town Board would go back to the drawing board and reconsider the proposal. Whether the Town Board can come up with a proposal that will not be met with similar opposition is uncertain.

On December 12, 2017, the New York State Court of Appeals issued a joint decision on the appeal of two Article 78 proceedings challenging the same proposed development. The two appeals, Friends of P.S. 163 v Jewish Home Lifecare and New York State Department of Health and Wright v New York State Department of Health, sought to annul a decision of the New York State Department of Health (NYSDOH), approving the construction of a 414-bed residential facility for elderly and disabled individuals on the Upper West Side of Manhattan.  The NYSDOH was designated as the lead agency under the State Environmental Quality Review Act (“SEQRA”).   One set of petitioners were the parents of children attending a public elementary school located next door to the facility’s proposed location. The other set of petitioners were tenants living in apartment buildings that surround the facility’s proposed location.

Petitioners complained that the NYSDOH’s SEQRA review was procedurally and substantively flawed and did not adequately address the risks of exposure to hazardous materials, in particular, lead-contaminated soil and airborne lead, as well as exposure to construction noise. In affirming the Appellate Division, which had reversed the decision of the Supreme Court, the Court of Appeals dismissed both challenges and upheld the NYSDOH’s decision.

The Court of Appeals went through an extensive analysis of what the NYSDOH did prior to issuing its SEQRA Findings Statement. This included: (1) a Phase I environmental site assessment that did not identify any recognized environmental conditions; (2) a Phase II environmental site assessment that included 38 soil samples taken from areas within the footprint of the proposed facility and nearby locations outside the footprint and also included groundwater samples; (3) scoping for the draft environmental impact statement (DEIS); (4) preparation of the DEIS; (5) two public hearings on the DEIS; (6) preparation and filing of the final environmental impact statement (FEIS); and (7) preparation and adoption of the SEQRA Findings Statement.

The Court of Appeals noted that the sampling detected levels of lead in the soil that were typical of sites containing urban fill and were below the restricted residential soil cleanup objectives used by the New York State Department of Environmental Conservation. In addition, the NYSDOH determined that certain mitigative measures would be required to handle, monitor and contain the lead-contaminated soil during construction. As to potential levels of airborne lead dust, the NYSDOH determined that using certain monitoring and mitigation measures during construction would ensure that concentrations of airborne lead dust would not exceed the national ambient air quality standards. As to noise, the NYSDOH conducted modeling to assess potential impacts and assess abatement techniques to control noise. It also relied upon New York City’s Environmental Quality Review Technical Manual to minimize the exceedance of certain decibel limits during construction.

Some of the mitigation measures imposed by the NYSDOH in its SEQRA Findings Statement for the lead-contaminated soil included: (1) extensive construction health and safety plans; (2) a remedial action plan; (3) requiring tarps on trucks; (4) requiring wetting soil during excavation and loading onto the trucks; (5) requiring proper off-site disposal of the soil; (6) vehicle inspections; (7) real-time monitoring of dust levels; and (8) requiring soil vapor barriers for the cellar and sidewalls of the new facility.  The noise-related impacts would be controlled by: (1) ten-foot sound barriers, which would be increased to sixteen feet for classrooms closest to the construction; (2) interior acoustic windows in classrooms facing the construction site; (3) window air conditioning units for certain classrooms; and (4) prohibiting noisy construction activities during the school’s annual testing periods.

In their Article 78 proceedings, petitioners contended that the NYSDOH used flawed assessment methodologies, relied upon outdated standards, failed to adequately mitigate environmental damage of the proposed construction, and failed to adequately consider alternative mitigation measures. In particular, petitioners asserted that the developer should have been required to install central air conditioning in the school and tent the excavation.

Petitioners initially prevailed, getting the Supreme Court to annul and vacate the NYSDOH approval. That was a short-lived victory, as the Appellate Division reversed and dismissed the two proceedings, finding that the trial court has inappropriately substituted its judgment for the expertize of the NYSDOH. The Appellate Division granted leave to appeal and the Court of Appeals affirmed the appellate court.

The Court of Appeals noted that the court’s role in reviewing the lead agency’s decision under SEQRA is limited to determining whether the decision was made in accordance with lawful procedure, and whether substantively the decision was affected by an error of law, was arbitrary and capricious or an abuse of discretion. The Court of Appeals further noted that a reviewing court is not supposed to weigh the desirability of the action or choose among the alternatives.   Rather, it is limited to determining whether the agency took a “hard look” at relevant areas of environmental concern and made a “reasoned elaboration” for the grounds of its decision. Using those standards, the Court of Appeals found that the NYSDOH had relied upon the appropriate standards, had carefully considered the potential environmental harm and acted within its authority in choosing among the alternatives, further noting the wide latitude given to agencies in conducting SEQRA reviews.

Thirteen federal agencies released a report in November 2017 in which they conclude that humans are the primary cause of climate change. The report, entitled Climate Science Special Report, is of particular concern to Long Islanders, many of whom live by, work near, or enjoy the coast. Another report, issued at the end of November 2017 by the Regional Plan Association (RPA) entitled Fourth Regional Plan – Making the Region Work For All of Us, also addresses climate change and provides a path for the tri-states to collectively address the impacts of climate change.

According to the RPA, there are 167 local governments and over 3,700 miles of tidal coastline in the tri-state region. The RPA suggests that the region’s response to climate change is hampered by four limiting impediments. First, the RPA notes that there is no plan or budget for regional coastal adaptation projects. Second, the RPA notes that most of the region’s local governments lack the staff and resources to address climate change. Third, the RPA notes that although coastal flooding is a regional problem, planning does not occur on a regional level. Rather, it is done on a local basis, resulting in a hodgepodge of conflicting rules, policies and guidelines. Fourth, the RPA notes that the three states have inconsistent coastal zone management programs.

In New York, the New York State Department of State (NYSDOS) administers New York’s coastal zone management program. According to the RPA, New Jersey’s coastal zone management program primarily relies on federal funding. The RPA notes that Connecticut’s coastal zone management program primarily involves the issuance and approval of permits. While these programs are all different, according to the RPA, they share one similar trait. They each have limited power to regulate land use.

The RPA notes that the New York and Connecticut coastal zone management programs address only certain aspects of climate change. For example, the NYSDOS and the New York State Department of Environmental Conservation developed model local laws that consider risk from sea level rise, storm surge, and flooding and developed guidance on how coastal areas can use natural resources and processes to deal with those problems. Connecticut requires that planners and developers consider the potential impact of sea level rise, coastal flooding, and erosion patterns on coastal development.

The RPA recommends that New York, New Jersey, and Connecticut create a “regional coastal commission” as a way to address climate change on a regional basis. The RPA envisions the function of this regional coastal commission as follows: (1) producing a regional coastal adaptation plan that is not limited by state or local boundaries; (2) developing science-based standards for coastal development; and (3) coordinating collaborative cross-border projects. The RPA suggests that this can be accomplished through adaptation trust funds that are initially funded by surcharges on insurance policy premiums.

The RPA recommends several “best practices” for the regional coastal commission, primarily to keep it free from political influence. These best practices include structuring the commission according to specialization and subject areas. The RPA also suggests using a “neutral facilitator” to help members work through their differences. The RPA also suggests that the commission have an independent advisory science committee and a central data repository. The RPA further suggests that the trust funds be invested in a “diversified funding portfolio” as a means to becoming financially sustaining, rather than relying upon government funding.

The RPA notes there are role models for successful regional commissions, including the San Francisco Bay Conservation and Development Commission, the Louisiana Coastal Protection and Restoration Authority, the Bay Area Regional Collaborative, the Interstate Environmental Commission in New York, New Jersey, and Connecticut, and the multi-state Chesapeake Bay Program.

It remains to be seen whether these three states will agree to establish a regional coastal commission, which would require them to cede certain powers to this commission for the purpose of adapting their coastlines for climate change.

A recent decision by the Appellate Division decided that a village zoning code was inapplicable to a water district. As a result, the water district was able to proceed with replacement of one of its massive elevated water storage tanks and the village was powerless to use its zoning powers to either stop the construction or impose restrictions on the structure.

The case, Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 57 NY3d 154 [2d Dep’t 2017], involved a special district located within the Town of North Hempstead. The special district, the Manhasset-Lakeville Water District, supplies potable water to consumers located within the district’s boundaries. The water district uses its elevated water storage tanks to store water and maintain water pressure. One of the district’s storage tanks is on property owned by the water district that is located within the boundaries of the Village of Munsey Park (“Village”).

The elevated water storage tank in question was built in 1929. The water district determined it was in need of replacement in 2014. The water district developed a plan to replace the 1929 storage tank and held two public hearings about its proposal. Village officials participated in these public hearings. The district revised the plan after the public hearings, partly to accommodate concerns of the Village and Village residents elicited at the hearings.

The finalized plan called for the replacement of the 1929 storage tank with a new tank that would hold 250,000 gallons more than the 1929 tank. In addition, an antennae was proposed to be installed on the new tank to facilitate wireless communication between the district facilities, its employees, and volunteer firemen. The water district determined that the proposed construction plan was immune from the Village zoning code, based upon the principles enumerated in Matter of County of Monroe (City of Rochester), 533 NY 2d 702 [1988].

The Village sued. It sought a declaratory judgment and permanent injunction to prevent the demolition of the 1929 tank and construction of the replacement tank, claiming that the 30 foot height restriction contained in the Village zoning code would be violated by this structure. The trial court ruled in favor of the water district, a finding that was affirmed by the Second Department.

The appellate court discussed the City of Monroe case, in which the Court of Appeals dealt with the applicability of a local zoning code where two governmental entities are in conflict over a proposed project. The Court of Appeals set forth a balancing test in that case to determine if there is immunity from the local zoning code for the other governmental entity. These factors include: (1) the nature and scope of the governmental entity seeking immunity from the local zoning code, (2) the type of zoning restriction involved, (3) the extent of the public interest served by the local zoning code, (4) the effect that the local zoning code would have on the other governmental entity, and (5) the impact on local interests.

Using this balancing test, the Second Department determined that the water district was immune from the Village zoning code. The court further noted that the Village failed to set forth any basis for the Village’s contention that the Village had the exclusive right to evaluate the factors and make this immunity determination.

One other note. The water district  also determined that the project was a Type II action under the State Environmental Quality Review Act (“SEQRA”) and, thus, not subject to review under SEQRA. This finding was upheld by the trial and appellate courts. The Second Department explained that since the project involved the “replacement, rehabilitation or reconstruction of a structure or facility, in kind,” it was a Type II action under 6 NYCRR § 617.5[c][2], even though it was going to hold 250,000 more gallons than the 1929 tank.

Because of the essential service at issue in this case, the provision of a safe and reliable source of potable water, it is understandable why the courts would favor the water district over a height restriction in a local zoning code.  If the project involved something less vital, the result may have been different.

Last month, the Appellate Division, Second Department, issued two interesting opinions concerning parking. One involved a parking variance and the other involved a restrictive covenant.

Here are the details!

No Parking

In Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 N.Y. Slip Op. 006643 [2d Dept September 27, 2017], a restaurant leased property at 340 Sunrise Highway. It was going to demolish an existing structure and replace it with a 5,400 square foot restaurant. The Village Zoning Code required 54 off-street parking spaces for the proposed restaurant. It had none.

The same landlord owned the adjoining property, 330 Sunrise Highway. The restaurant tenant proposed a merger of the two lots in order to take advantage of an exception in the Village Zoning Code that essentially allowed a municipal lot to substitute for the off-street parking for “interior restaurants that abut municipal parking fields.” The 330 Sunrise Highway parcel abutted a municipal parking lot, 340 Sunrise Highway did not.

A building permit was issued for the restaurant based on the merger representation. Just as the construction was nearing completion, the Building Department learned the merger of the two parcels never occurred. The Building Department refused to issue a certificate of occupancy until the restaurant obtained a parking variance. The restaurant entered into a license agreement that gave it access to 40 exclusive parking spaces next door from 4 PM to 12:30 AM weekdays. The parking variance was granted by the zoning board but the board imposed restrictions on the restaurant’s operating hours, tying them to the hours in the license agreement. It also required mandatory valet parking. The restaurant was unhappy with these restrictions and sued.

Although the restaurant prevailed at the trial level, it lost at the appellate court, which found that limiting the hours of operations to coincide with its access to the 40 parking spaces was proper. The restriction was aimed at protecting surrounding businesses and the expected increase in traffic congestion and parking problems.

Parking

In Fleetwood Chateau Owners Corp., v Fleetwood Garage Corp., 2017 NY Slip Op. 06431 [2d Dept September 13, 2017], the owner of an apartment building sued a commercial parking garage located on an adjoining parcel to enforce a restrictive covenant contained in a 1924 deed. That restrictive covenant prohibited the construction of nonresidential structures including garages unless the garages were for the exclusive use of occupants of any building built on the property.

In 1929, an apartment building was built on one part of the property. In 1931, a private parking garage was built on another part of the property. The entire site was sold at least twice after that. When the entire site was sold in 1988, the deed failed to mention the 1924 restrictive covenant.

The next purchaser subdivided the property. In 1990, the apartment building portion of the property was sold to Fleetwood Chateau Owners Corp. In 1991, the parking garage portion of the property was sold to Fleetwood Garage Corp. which intended to use it as a commercial parking garage.  Neither of these deeds referenced the 1924 restrictive covenant. Neither Fleetwood entity was a party to the 1924 deed nor mentioned in it as a beneficiary.

The Court noted that restrictive covenants, which place restraints on servient properties in favor of dominant parcels, are strictly construed against parties seeking to enforce them as they encumber the use of real property. The Court further noted that since it was not a party to the 1924 deed and was not mentioned in the deed as a beneficiary, Fleetwood Chateau Owners Corp. had to demonstrate the existence of a common plan or scheme of building development in order to enforce the restrictive covenant.

The Court found that there was no common development plan created for the owners of the subdivided lots.   The Court found no evidence that in 1924, when the land was sold as one parcel, that there was any obligation to subdivide the site. As a result, the Court found that “the covenant cannot be said to have benefitted any part of the land burdened by it.” The Court reasoned that the common grantor to the Fleetwood entities had owned the entire site and was free to do whatever it chose with the property except as against the 1924 grantee who had placed the restriction in the 1924 deed or those that “stood in his shoes.” As the Fleetwood entities solely derived their interest from the 1990/1991 grantee, and their deeds did not contain any restrictive covenant, “the original covenant is not enforceable as between” them. As a result, Fleetwood Chateau Owners Corp. had no standing to enforce the covenant and the parking garage was able to continue operating.

My partner, Anthony Guardino, recently posted a three-part series about land use fees on this blog. This post concerns a decision by the Appellate Division upholding a $776,307 “Park Fee” imposed by the Village of Westhampton Beach in connection with the development of a 6.59 acre tract of land.

Westhampton Beach Associates, LLC v Incorporated Village of Westhampton Beach, 151 AD3d 793 [2d Dept 2017] involves a 39-unit condominium development. The Village Planning Board approved the site plan in 2008 on the condition that the developer pay a recreation or park fee (“Park Fee”) to be set by the Village Board of Trustees pursuant to Village Law § 7-725-a(6) and § 197-63(Q)(2) of the Village Code. The Park Fee was imposed because the reserved area required by the Village Code could not be located within the site plan. The Village determined that 63,684 square feet of reserved area was otherwise required based on the site plan.

The Village Code contains a formula to calculate the Park Fee based on the fair market value of the land at the time of the application, the total area shown on the site plan in square feet, 2,178 square feet of reserved area per dwelling unit and the number of dwelling units.   Using the formula, in 2011, the Village calculated the Park Fee to be $776,307.

The developer sold the parcel to a third-party in 2012 before the developer paid the Park Fee. The deal included a provision that the purchase price was reduced by the amount of the Park Fee that the purchaser would pay to the Village. It also provided that if any portion of the Park Fee was waived by the Village or was disallowed for any reason, the buyer would pay that amount to the developer. Two years later, the developer sued the Village, contending that the Park Fee was unconstitutionally vague, as a way to recoup that money from the purchaser.

The Appellate Division first discussed two defenses raised by the Village – standing and statute of limitations. The Court ruled in favor of the developer on these impediments. The Court held that even though the developer sold the parcel before it paid the Park Fee, it still had standing to challenge the constitutionality of the Park Fee. The Court reasoned that the Park Fee was applied to the parcel at the time the developer owned the site and the subsequent sale and price reduction was an actual harm to the developer.   The Court then determined that the claim was not time-barred, as it was not subject to the four-mouth statute of limitations for Article 78 proceedings, since that type of proceeding could not be used to challenge the constitutionality of a Village code provision. Rather, it was governed by the six-year statute of limitations.

Unfortunately for the developer, the Court then ruled against the developer on the merits, finding that the Village Code provision was not constitutionally vague. Thus, the developer is unable to recoup the amount of the reduction in the purchase price attributable to the Park Fee, and the Village is able to continue imposing this significant fee on other applicants.