The New York State Department of Environmental Conservation (NYSDEC) is proposing significant revisions to its State Environmental Quality Review Act (SEQR) Handbook to conform with recently-adopted amendments to the SEQR regulations. These amended regulations became effective in January 2019. The proposed changes to the SEQR Handbook are available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/dseqrhandbook.pdf.

One of the primary targets of the amended SEQR regulations concerns Type II actions. Type II actions are those that have been determined not to have a significant adverse environmental impact and do not require review under SEQR. The proposed changes to the SEQR Handbook add quite a number of actions to the list of Type II actions to conform to the amended regulations. For example, a project calling for the replacement, rehabilitation, or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, typically is considered a Type II action. Now, such a project for the purpose of meeting energy codes also is a Type II action.

The proposed SEQR Handbook adds the following as Type II actions:

  • Retrofitting an existing structure and its appurtenant areas to incorporate green infrastructure;
  • Installing telecommunication cables in existing highway or utility rights of way using trenchless burial or aerial placement on existing poles;
  • Installing solar energy arrays where such installation involves 25 acres or less of physical alteration on sites such as closed landfills and brownfield sites;
  • Installing solar energy arrays on an existing structure as long as the structure is not a specified historical place;
  • A government agency’s acquisition and dedication of 25 acres or less of land for parkland, or dedication of land for parkland that was previously acquired, or an agency’s acquisition of a conservation easement;
  • Sale and conveyance of real property by public auction pursuant to Article 11 of the Real Property Tax Law, i.e., when a municipality or state agency acquires land through foreclosure or other means where the land reverts to the agency due to a failure of the owner to remain current on property taxes; and
  • Construction and operation of an anaerobic digester (which utilizes the naturally occurring process of anaerobic digestion) within currently disturbed areas at an operating publicly owned landfill, provided the digester meets certain specific conditions.

The proposed SEQR Handbook also focuses on Type I actions, which are actions that are considered more likely to have significant adverse environmental impacts and must be reviewed further under SEQR. The proposed SEQR Handbook contains a number of changes to the list of Type I actions to be consistent with the amended regulations. For example, the threshold for triggering a Type I SEQR inquiry for actions involving the construction of new residential units has been lowered. Previously, that threshold for a city, town, or village having a population of less than 150,000 was 250 units to be connected to existing community or public water or sewer systems. The amended regulations lower that to 200 units. Similarly, the threshold has been lowered for a city, town, or village having a population of greater than 150,000 persons but less than one million. It previously had to involve 1,000 units; that has been changed to 500 units. The proposed changes to the SEQR Handbook take into account these lower thresholds.

There is another notable change regarding Type I actions in the proposed SEQR Handbook, which is based on the amended regulations. Before January 1, 2019, a lead agency could waive the requirement of filing an environmental assessment form for a Type I action. The amended regulations eliminated the ability of a lead agency to waive that requirement.  This arises from the fact that the scoping has been made mandatory by the amended regulations. Scoping is a process that develops a written document that outlines the topics and analyses of potential environmental impacts of an action that will be addressed in a draft environmental impact statement. Scoping narrows the issues and ensures that the draft environmental impact statement will be a concise, accurate, and complete document that is adequate for public review. The process for scoping is set out in 6 NYCRR § 617.8. The proposed changes to the SEQR Handbook make scoping mandatory for every draft environmental impact statement (except that mandatory scoping does not apply to supplemental environmental impact statements).

The deadline for public comments on the proposed SEQR Handbook expired on February 1, 2019 and the expectation is that the SEQR Handbook changes will be finalized soon.

The Town of North Hempstead decided to ban recreational marijuana even before it becomes legal in New York. At its January 8, 2019 meeting, the Town Board unanimously adopted Local Law 1-2019, amending the Town zoning code, to prohibit the retail sale, distribution or offer of consumption of marijuana in all use districts.

The local law provides that no building, structure or premises approved or used as a medical marijuana dispensary may be used as a marijuana retail store. The local law also provides that no other building, structure or premises within any use district may be used for the sale, distribution or offer for consumption of marijuana or marijuana products in a retail setting or environment for non-medical use.

In a press release following the adoption of the local law, Town Supervisor Judi Bosworth noted that the Town Board members “certainly understand and support the need for medical marijuana dispensaries and their place in alleviating pain and discomfort in patients, we feel that this law prohibiting the sale of recreational marijuana addresses the concerns brought to us by many residents.”

This is not the first time the Town of North Hempstead used its zoning power to enact a local law controlling marijuana within its borders. In December 2018, the Town Board unanimously approved Local Law 12-2018, which restricts the location of medical marijuana dispensaries. Such facilities are prohibited from being located within 1,000 feet of a school, park, child care center or house of worship. These dispensaries also cannot be located within 500 feet of a Town residential district. The local law limits the number of dispensaries in the Town to two.

We shall see if other municipalities decide to use zoning to ban or control marijuana use within their borders. Stayed tuned for more developments.

The Appellate Division, Second Department, issued a decision on October 10, 2018, which rejected a town’s attempt to saddle an applicant with over $17,000 in consulting fees supposedly incurred by the town in reviewing special use permit and area variance applications for an antenna tower to be used by an amateur radio (a/k/a ham radio) hobbyist. The installation of the tower was expected to cost less than $1,000.

In Matter of Landstein v. Town of LaGrange, Myles Landstein, the owner of residential property located in the Town of LaGrange (“Town”) in Dutchess County, sought the special use permit and area variance to install a 100-foot antenna tower on his property for his personal use in connection with his ham radio station. The Town Code limits towers to 35 feet in height.

Mr. Landstein had already obtained a license for his ham radio station from the Federal Communications Commission (“FCC”). After receiving the FCC license, Mr. Landstein applied to the Town and paid the $250 filing fee. Although the applications clearly indicated that all costs incurred by the Town for the review of the applications were the sole responsibility of the applicant, Mr. Landstein added a comment to the application requesting that he be advised in advance of the review cost amount.

The applicant indicated that the 100-foot tower, which would be 18-inches by 18-inches in dimension, was needed to operate the ham radio station effectively and would be barely visible above the tree line. Town residents objected, contending the tower would be an eyesore and interfere with cellular and internet service.

The applications were discussed at 14 separate public meetings over the course of 2 years. The applicant even agreed to decrease the height of the tower to 70 feet. However, he would not agree to pay the ever-increasing legal fees that the Town sought to recover from him, which at one point exceeded $17,000. Mr. Landstein’s attorney wrote to the Town complaining that the fees were excessive in light of tower’s modest installation cost and violated an FCC regulation. Thereafter, the Town Board passed a resolution indicating that it would review and audit its consultant costs to determine if they were “reasonable and necessary.”

The audit revealed that the town attorney’s charges were not solely attributed to the specific area variance application before the Town Zoning Board of Appeals (“ZBA”) but were more generic. They included charges for: (1) attendance at the ZBA hearings, (2) travel time, (3) telephone calls with ZBA members, (4) internal conferences at the town attorney’s law firm, (5) drafting the ZBA agendas, (6) reviewing the applicant’s files, and (7) legal research. Upon completion of the audit, the Town Board passed a resolution reducing the legal fees from more than $17,000 to $5,874. The resolution also required the applicant to maintain a $1,000 minimum balance in an escrow fund for future costs incurred with the applications, which would need to be replenished as the balance fell below that amount. The resolution indicated that the applications would not be further reviewed absent the payment of the fees and the establishment of the escrow fund.

The applicant sued. The trial court denied the Article 78 proceeding, but the applicant prevailed at the Appellant Division. The appellate court found that the Town’s fee provision exceeded state statutory authority. The Appellate Division noted that such fees needed to be “reasonable and necessary.” The Court found that the definition of “reasonable” in the Town Code was appropriate as it required a reasonable relationship to customary charges of similar consultants in the region in connection with similar land use applications. The Town Code definition of “necessary,” however, was rejected by the Appellate Division as it was way too broad, and was out of step with established precedent. The Town Code defined necessary consulting fees as those required “to assist in the protection or promotion of the health, safety or welfare of the Town or its residents; to assist in the protection of public or private property or the environment from potential damage…to assure or assist in compliance with laws, regulations, standards or codes which govern land use and development; to assure or assist in the orderly development and sound planning of a land use or development;…or to promote such other interests that the Town may specify as relevant.” The Appellate Division found the “to assist” language particularly troubling. The Court was equally troubled by the actions of the Town, first insisting that it be paid in excess of $17,000 in legal consulting fees, and its later reduction to $5,874, which was achieved by the Town merely striking entries from the invoices, without regard to their content or connection to the applications. The Appellate Division noted that the Town imposed liability without making any attempt to determine if similar charges were imposed by other municipalities for similar applications.

The Appellate Division also took aim at the escrow fund with its minimum $1,000 balance. The Court found this perpetual replenishment fund to be an impermissible effort to avoid having the Town’s taxpayers shoulder their share of the cost of governmental functioning.

Municipalities would be wise to examine their own codes to make sure that they seek reimbursement of costs that are reasonable and necessary in light of the specific project at issue, and not use that provision to dissuade or discourage land use applicants or as a means of underwriting the cost of government.

A recent decision from the Nassau County Supreme Court, Healy v. Town of Hempstead Board of Appeals, overturned a municipal determination that granted special zoning exceptions and variances to a Greek Orthodox Church located in Merrick, New York. The church wanted to construct a two-story cultural center and related parking next to the church. It applied to the Town of Hempstead Board of Appeals (“Board of Appeals”) for the special exceptions and variances.

Residents in the area opposed the application, claiming the construction would adversely affect the environment. After the Board of Appeals granted the application, the residents sued, claiming that: (1) the hearing was defective; (2) the negative declaration issued under the State Environmental Quality Review Act (“SEQRA”) was arbitrary, capricious, an abuse of discretion and affected by an error of law; (3) the Board of Appeals gave excessive deference to the Religious Land Use and Institutional Persons Act; and (4) one member of the Board of Appeals had a conflict of interest.

The Court rejected all of the asserted grounds for reversal except the SEQRA review.  The Court found no defect in the Board of Appeals hearing. It noted that a zoning board of appeals can conduct informal hearings, is not required to use the rules of evidence at such hearings, and is not required to swear in witnesses or cross-examine them. The hearing that was conducted lasted 12 hours, included 16 witnesses in support of the church’s application and 24 witnesses in opposition, and expert testimony.

As to the supposed conflict of interest, one member of the Board of Appeals was the sister-in-law of an attorney who used to represent the church and the managing partner of that lawyer’s law firm was currently the campaign manager for the board member’s estranged husband. The Court rejected that ground, noting that the residents failed to demonstrate that the board member had any pecuniary or material interest in the outcome of the application and she did not cast the deciding vote as the decision was unanimous.

Unfortunately for the church and the Board of Appeals, the Court found the SEQRA review to be woefully inadequate. The Board of Appeals completed a Short Environmental Assessment Form, which identified two concerns – the proposed application would result in a change in the use and intensity of the land and would change the character or quality of the existing neighborhood. The Board of Appeals declared the application an unlisted action under SEQRA. The Board of Appeals adopted a one paragraph resolution declaring that the cultural center would not have a significant effect on the environment. The resolution did not contain any rationale, explanation or articulation of the basis for the SEQRA determination. The Court found this did not meet SEQRA’s “hard look” or “reasoned elaboration” requirements. The Court also ruled that the zoning determination cannot be used as the rationale for the SEQRA determination. As a result, the Court vacated the Board of Appeals decision.

 

 

Last week, we reported on a $10 million award issued by the State to help revitalize downtown Hicksville. Well, the Governor is at it again. On August 8th, Governor Cuomo announced the winners of the third round of the Downtown Revitalization Initiative; and Central Islip is the big winner on Long Island.

The State’s Downtown Revitalization Initiative, started in 2016, is touted as being “a comprehensive approach to boosting local economies by transforming communities into vibrant neighborhoods where the next generation of New Yorkers will want to live, work, and raise a family.”   The ten Regional Economic Councils each get to select one downtown from its region “that is ripe for revitalization and has the potential to become a magnet for redevelopment, business, job creation, greater economic and housing diversity, and opportunity.” The selection is made from communities that submit applications to the applicable Regional Economic Council. The criteria for selection “includes: physical environment, past investment, future potential, recent or impending job growth, support for the local vision, and readiness.” The Village of Westbury was Long Island’s first round winner. Hicksville was its second round winner.

The Downtown Revitalization Initiative process is described in great detail in the State’s April 2018 Downtown Revitalization Initiative Guidebook.  The revitalization effort starts with a Local Planning Committee.  This committee, composed of local stakeholders, oversees the development of the strategic plan for the redevelopment.  The State provides this committee with support and technical assistance from a team of planners and consultants. The process also includes public engagement initiatives “to enable residents, public and private agencies, community organizations, local businesses, and institutions of learning to work towards a shared vision for a more vibrant downtown.”

So what is Central Islip’s proposed vision for a more vibrant downtown? According to the Central Islip Application submitted to the Long Island Regional Economic Council, the vision for Central Islip’s downtown includes:

    • Transit oriented development aimed at encouraging transit use and other forms of green transportation. This priority will center around the former Central Islip Train Station on Carleton Avenue.
    • Purchasing blighted and underused properties for use as parking facilities to increase downtown parking and facilitate redevelopment.
    • Rezoning and lot consolidation to encourage downtown redevelopment and growth, eliminating uses that are not compatible with a downtown, such as vehicle repair shops, and consolidating substandard lots to make them usable and encourage appropriate development.
    • Redeveloping the former Central Islip train station property, which would include transforming a brownfield site into a parking lot for an adjacent vacant piece of property owned by the Town’s Community Development Agency.
    • Expanding the Central Islip LIRR Train Station parking lot by adding 100 new parking spaces.
    • Acquiring and constructing cross access easements between Town parking facilities and adjacent properties to create shared parking to assist with traffic flow and mitigate traffic hazards along Carleton Avenue.
    • Redeveloping the former Central Islip Fire House into a mixed-used building or community center.
    • Implementing the Town’s Complete Streets Policy throughout the downtown to enhance affordable transportation, driving commerce in downtown, calming traffic and enhancing the general health and welfare of the residents of the Central Islip community.
    • Constructing Traffic Roundabouts and other safety mitigation techniques.

This expansive and impressive vision will take time to achieve, and the $10 million award is only a fraction of the investment that will be needed to achieve it. Hopefully, the Town of Islip is able to convert its vision into a thriving downtown for the Central Islip community. Stay tuned.

On July 3rd, Governor Cuomo announced that the state was giving the Town of Oyster Bay a $10 million Downtown Revitalization Initiative award that will help underwrite four transformative projects in downtown Hicksville. These projects are aimed at increasing transportation access, improving walkability, and attracting new housing opportunities. Here’s what is planned with the Revitalization Initiative money.

The Hicksville Station Access Improvements. These improvements will create a new entry drive for the Hicksville LIRR station lobby. This project will create and upgrade turning lanes, reconfigure medians, and install and upgrade traffic signals. The famous eagle statue will be relocated to a place of prominence in the median. It is expected to spiffy up the appearance of the area, improve station access for cars and pedestrians, relieve congestion along Route 106 and Newbridge Road and lengthen the rider drop-off area, which will include a new protective canopy. About $3.6 million of the award will be used for this project.

The Public Space at New Station Plaza. There will be new open public space north of the Hicksville LIRR station lobby. The plaza will allow for intermodal transfers, enhance pedestrian experience and provide much needed green space for residents. A new commercial corridor on West Barclay Street will be linked to the open space. Wider sidewalks that will improve pedestrian circulation will also be constructed. About $2.5 million of the award will be used for this project.

The Public Space at Festival Plaza. A new pedestrian passageway will be created along with public open space north of the LIRR Station to establish a safe and engaging walkway from the Hicksville LIRR station lobby to Jerusalem Avenue and nearby parking lots. Seasonal and temporary activities for commuters and residents will be available in the open space. About $2.5 million of the $10 million award will pay for this project.

New Housing & Retail at Hicksville Station. Underutilized property adjacent to the Hicksville LIRR station on Nelson Avenue will be redeveloped for mixed uses, including 3 buildings with 180 mixed-income residential units, and below grade parking. Street-level retail and restaurants along with a public plaza and green space will also be part of this project. About $1 million of the award will be used for this project.

Of course, $10 million will not be enough to complete these four transformative projects. So, where is the rest of the money expected to come from?  The Hicksville Downtown Revitalization Plan, developed by the Hicksville Planning Committee, appears to have the answer to this question. Some of the funding will come from the public sector aimed at expanding the open spaces. Private sector funding will come from developers aimed at the housing, retail, commercial and parking aspects of the projects.  In addition, the MTA is spending over $130 million to upgrade the Hicksville LIRR Station.  Big changes are coming to downtown Hicksville.

More information on the new downtown Hicksville is available on the Town of Oyster Bay website at http://oysterbaytown.com/hicksville-downtown-revitalization-initiative/

In April 2006, the Town of Huntington adopted a local law (Local Law 14-2006) that added § 198-27(A)(22) to its Zoning Code. That local law allows apartments on the top floors of some mixed-used buildings in its C6 General Business District, where the ground floor is occupied by a permitted commercial use. While the code provides certain restrictions on these upstairs apartments, such as no upper floor can exceed the footprint of the ground floor and the mixed used building must meet all height, area and bulk requirements, these limitations are not enough for some residents. They contend that the zoning allows too many apartments to be piled on top of a commercial establishment, resulting in over-development, traffic, pollution, loss of open space and other adverse impacts.

At the May 1, 2018 Huntington Town Board meeting, a petition signed by almost 1000 residents was presented to the board, demanding that the board hold a public hearing to revoke or significantly limit the number of apartments. Some of the proponents of this change noted at the meeting that Huntington “was becoming Queens” as a result of the 2006 local law. Several of the speakers pointedly reminded the Supervisor of statements he made during his campaign, to preserve the suburban nature of the Town. This grass-roots effort to change the zoning code may be having an impact on the Town Board.

The Supervisor reportedly asked the town’s planning department to review the C6 zoning provision in an effort to strike a balance between encouraging business development while at the same time preserving the quaint nature of the town. Once the planning department completes its review and issues its recommendation, the Town Board will then decide whether to hold a public hearing to change the zoning code. Stay tuned.

For many decades, Long Islanders have been hearing about proposals to span over or under Long Island Sound. The most recent pronouncement for a cross-sound tunnel or bridge came from Governor Cuomo in his 2016 state-of-state address. This was followed by a report released by the New York State Department of Transportation (NYSDOT) in December 2017 (LI Sound Report) which examined the feasibility and regional benefits of a Long Island Sound crossing. More on this proposal later in this post. But first, a review of prior proposals.

Prior Proposals

According to the 2017 LI Sound Report, the first cross-sound proposal originated in the 1930s. That proposal involved an eighteen-mile bridge going from Orient Point to either Groton, CT or Watch Hill, RI. It faded from consideration upon the death of the senator championing the bridge and the start of World War II.

In the 1950s, another proposal involved two bridges, one from Oyster Bay to Rye/Port Chester and the other from Orient Point to Watch Hill, RI. Governor Harriman put the kibosh on this proposal due to its cost and low traffic predictions. (Clearly, not the most accurate traffic study ever done!)

During the 1960s, several proposals were floated, including one that would have extended the Long Island Expressway 30 miles from Riverhead to Orient Point and constructed two bridges from Orient Point going to New London, CT and Naptree Point, RI. Neither bridge was built and the LIE still terminates in Riverhead. In the mid-1960s, uber-road builder, Robert Moses, proposed constructing a 6.1 mile bridge from Oyster Bay to Port Chester, with a price tag of about $100 million. Although initially supported by Governor Rockefeller, the proposal ran into difficulties with then-new environmental impact study requirements. In 1968, a proposal to build two bridges, one between Oyster Bay and Rye and the other between Port Jefferson and Bridgeport, was considered. While the bridges were believed to be economically feasible, and would reduce the enormous increase in east-west traffic, this proposal also did not move forward.

The 1972 Long Island Sound Crossing project, which included realignments of the Long Island Expressway in Syosset and Route 95 in Rye, ran into local opposition and Governor Rockefeller stepped in and killed the project. In 1979, another proposal considered five different locations for a cross-sound bridge. The expected cost was $1.4 billion. The proposal ran out of gas when one study determined that a ferry would be better than a bridge to cross the Sound.

In 2008, the Polimeni/Long Island Cross Sound Link Tunnel proposal called for the construction of a 16-mile, three-tube, six-lane tunnel. Estimated to cost about $10-$13 billion, it ultimately failed due to waning state support and the economic recession.

The Latest Proposal

This leads us to the most recent proposal. While the 2017 LI Sound Report  looked at several options, it ended up recommending that five possible alignments should be further evaluated. These include two options for a western alignment, from Oyster Bay to Rye/Port Chester, for a bridge only or bridge/tunnel combination, and three options for a central alignment, from Kings Park to Bridgeport or Devon, for bridge only and two different bridge and tunnel connections. The 2017 LI Sound Report also looked at a third alignment, called the eastern alignment, from Wading River to New Haven or Branford, but was rejected as not meeting the project’s goals. These goals include decreasing travel time, decreasing congestion, improving air quality, expanding labor markets, improving evacuation off of Long Island and improving freight movement.

The 2017 LI Sound Report looked at engineering considerations of what would be one of the largest projects of its type in the world. Essentially – can this project be built? The study also evaluated environmental considerations, including impacts to wetland, waterbodies, groundwater, ecology, natural resources, critical environmental areas, farmland, air quality climate change, noise, asbestos and hazardous wastes. The study also looked at capital and financial considerations, including the estimated cost to build the project ($55 billion), the demand for the crossing and possible tolls that would be charged for its use.

The release of the 2017 LI Sound Report in December 2017 was followed up in January 2018 by a Request for Expressions of Interest issued by the NYSDOT (RFEI). The RFEI requested input for all aspects of the proposal, with the ultimate goal of issuing a Request for Proposal to build the project in the future. It is reported that six major developers responded to the RFEI.

The Reaction To The Proposal

Business groups such as the Long Island Association and the Long Island Builders Institute noted that the project deserved serious consideration and could help alleviate Long Island’s massive traffic issues. Not unexpectedly, local politicians and residents from Bayville, Syosset, Ashaorken, Brookville, Lattingtown, Sea Cliff, Lloyd Harbor, Oyster Bay, Upper Brookville and other local communities voiced strenuous objections to this project. Among other issues, the residents and politicians claim that the tunnel’s ventilation/exhaust and emergency access systems would adversely impact air quality, would increase traffic congestion in their neighborhoods, would contaminate the groundwater and cause other environmental catastrophes. Community meetings are being held across Long Island by the opponents of the project. The next one is scheduled for June 14th in Syosset.

Next Steps

While the project will undergo multiple years of further study before being built, and is proposed by a Governor who has been instrumental in replacing aging infrastructure with new state-of-the-art structures that others said would never be built (e.g., the Tappen Zee Bridge), it will be interesting to see if the Long Island Sound Crossing Project gets built or becomes another proposal that is DOA on the drawing board.

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.