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.

On July 7, 2017, Judge William G. Ford issued a decision in the case Matter of 7-Eleven, Inc. v. Town of Babylon, Supreme Court, Suffolk County, 2017 NY Slip Op 31467(U) , in which the Town was excoriated for its mishandling of a site plan approval and building permit application. Although the applicant prevailed in court, it took five years to get there, during which the site remained vacant and unproductive. Here’s how it unfolded.

The Facts

In July 2012, 7-Eleven applied for a building permit and certificate of occupancy for a site in Wyandanch. The property contained a defunct automobile repair shop, garage and canopies for an abandoned gasoline service station. 7-Eleven proposed to tear down this eyesore and improve it with a 24-hour 7-Eleven store, a use it contended was as-of-right. The Town, however, had other ideas. The Town’s Building Division initially provided comments in July 2012, which were followed by comments from other Town divisions, including traffic safety, engineering, the fire marshal, environmental control, highways and planning that were issued from July to October 2012.

The Town’s Traffic Division issued comments in October 2012 in which it objected to the project on the grounds that there was insufficient on-site customer truck parking, an inadequate truck loading zone, and inadequate setbacks for trash enclosure and mechanical equipment, which it claimed were too close to residential dwellings. It also raised concerns about an existing 7-Eleven, located within ½ mile of the project. It had issues about ingress and egress that it believed would cause increased traffic and parking on nearby residential streets.

7-Eleven responded to these various comments in February 2013, when it submitted architectural drawings and a revised site plan as well as comments prepared by its expert engineering consultant. This submittal addressed the issues raised by the Town Traffic Division. 7-Eleven included three customer truck parking spaces and a dedicated delivery truck loading zone. 7-Eleven proposed to limit all deliveries to box trucks and modified the trash enclosure and loading zone to decrease noise and lessen visual impacts.

The Town responded with further comments which were provided to 7-Eleven in December 2013.   In particular, the Town’s Traffic Division objected to the revised site plan.

The Town Planning Board then held a public hearing at which further revisions to the site plan were requested. These revisions concerned traffic flow and several covenants and restrictions that would (1) prohibit tractor trailer truck deliveries, (2) limit delivery hours, (3) prohibit truck parking on residential streets, (4) limit hours of operation, and (5) require a security protocol. 7-Eleven agreed to all the covenants and restrictions except it would not agree to limit the hours of operation. The public hearing was left open for the receipt of a traffic study. That study determined that vehicle traffic would be relegated to the major thoroughfare (Straight Path) and would not have a major impact on pedestrian or bus stop safety.

The general public also weighed in on the proposal, via written comments, petitions and letters, objecting to the project.  These opponents were concerned with increased traffic and crime and decreased residential property values and public safety. The operator of the other 7-Eleven, located ½ mile away, also submitted comments, which the court noted “would later loom large” in the Town’s subsequent handling of the application. This operator contended that siting the store so close to his existing store would oversaturate the market and lead to increased competition. He also noted that his donation of surplus food to local charities would decrease and also questioned enforcement of the tractor trailer prohibition.

Although 7-Eleven objected, the public record was held open. During this extended comment period, the Town’s Traffic Division raised concerns about truck parking and traffic. It announced in February 2014 that it would not take any further action to review the application unless and until 7-Eleven undertook further site plan revisions to address its concerns.

In response, 7-Eleven made additional revisions to its site plan. These were shared with the Traffic Division in April 2014 and formally filed with the Town in May 2014. Among other things, 7-Eleven confirmed its commitment to limit deliveries to box trucks, and modified its customer parking and loading zone. It also closed off access from certain streets and proposed to install fencing that would reduce vehicle headlights shining into residential areas. It relocated the trash enclosure and mechanical equipment further away from residential neighbors and eliminated a pedestrian walkway near a residential street.

In July 2014, the Town Traffic Division issued another memo, this time finding fault with the dedicated customer truck parking stall.

7-Eleven filed its final site plan in May 2015.   It also filed engineered drawings,traffic and planning studies, and an appraisal, all dated in April 2015. 7-Eleven also filed an affidavit from its senior regional director and requested that the hearing be finally closed. The affidavit rebutted the comments of the operator of the other 7-Eleven.   It also submitted an affidavit from its engineer in which it contended that its proposed use was superior to seven other similarly-situated commercial uses approved by the Town in the preceding two years.

In September 2015, the Planning Board held a meeting and adjourned the applications. Thereafter, in February 2016, additional comments were issued by the Town’s Traffic Division in which it noted its agreement with the operator of the other 7-Eleven and rejected the opinion of 7-Eleven’s regional director about truck traffic, parking and impacts on the adjacent residential neighborhood. But that was not the end of the Town’s Traffic Division’s comments. Two months later, in April 2016, the Town’s Traffic Division issued a memo to the effect that the proposed covenants and restrictions were insufficient. As a result, the Town requested that 7-Eleven submit yet another revised site plan.

At this point, 7-Eleven had had it; and in June 2016, it sent a demand letter to the Town calling for an up or down determination on its application. In August 2016, the Planning Board denied the application. The rationale given for the denial was the safety of the residential neighborhoods that abutted the site on two sides, the adverse impact on traffic and parking, and public safety concerns.

Not surprisingly, 7-Eleven sued.

The Lawsuit

The Town claimed its decision should be upheld by the Court on the grounds it was rational and based on substantial evidence. The Town also contended its decision was not final, contending that 7-Eleven’s lawsuit was not ripe because it failed to apply to the Zoning Board of Appeals for variance relief. The Court didn’t buy these arguments.

The Court first discussed the ripeness issue. It noted that a land use and zoning matter is final when the “development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” but that an applicant “will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile.” Thus, resort to a zoning board of appeals is unnecessary if it “lacks discretion to grant variances or dug in its heels and made clear that all such applications will be denied.” The Court noted that 7-Eleven sought site plan review and a building permit to demolish existing structures and to construct a new building. Neither was granted by the Town, essentially stymying the project. Moreover, since the application was as-of-right, and the setbacks the Town claimed were applicable did not apply to this corner lot, there is no variance that it needed from the Town Zoning Board of Appeals.

The Court then took aim at the Town’s discretion argument. In rejecting it, the Court noted that the Town gave into public pressure about traffic, crime and property values plummeting. The Court found that the Town improperly ignored the concessions made by 7-Eleven to ameliorate the supposed impacts. It also focused on the multiple revisions and the lack of evidence in the record supporting the Town’s decision.

Conclusion

7-Eleven has the financial wherewithal to see a project through, despite the years it takes to get it approved on Long Island. Other applicants may not have the ability to withstand such an extended and expensive proposition to open a business, redevelop a blighted site and revitalize a neighborhood.

According to the American Planning Association, a “floating zone” is a zoning district that “delineates conditions” rather than the more traditional use classifications that are typically found on zoning maps. While a floating zone is contained in a zoning code, it is only added to the zoning map after a project seeking that designation is approved. Thus, it “floats” in the zoning code until it is used for a particular project.

floating

Lindenhurst’s Downtown Redevelopment District Floating Zone

The Village of Lindenhurst Board of Trustees approved a new local law at its June 6, 2017 meeting that creates a Downtown Redevelopment District Floating Zone. The purpose of this Floating Zone is to use Smart Growth principles to encourage development of the downtown area. The Village Trustees believe this new zone will foster mixed-use redevelopment, including pleasant and attractive residential developments within walking distance of the Lindenhurst Long Island Rail Road station and the central business district.

The Process

The local law contains a two-step process for changing a site to the Floating Zone designation. First, a conceptual development plan and reclassification of specific parcels will need to be approved by the Board of Trustees. The second step will entail an approval of a detailed site development plan, and subdivision plat, if applicable, by the Board of Trustees.

The change of zone application to a Floating Zone needs to include a statement describing the nature of the project and how it advances the purpose of the Floating Zone. It also needs to describe adjoining and surrounding properties, the availability of community facilities and utilities, and anticipated traffic generation. The applicant also has to discuss open spaces proposed for the development.

The conceptual development plan needs to be drawn to scale and indicate the approximate location and conceptual design of all buildings, parking areas and access drives. It also needs to show the neighboring streets and properties and include the names of the owners of property located within 200 feet of the site. A traffic study can be requested by the Board of Trustees.

The local law provides that if the Board of Trustees entertains an application to change zoning to the Floating Zone, it will hold a public hearing. The local law also provides that if the Board of Trustees decides not to entertain such an application, it can do so with or without a public hearing and with or without SEQRA review.

The Criteria 

The local law provides criteria for the Board of Trustees to consider for Floating Zone applications. These include: (1) the location of the proposed development and its proximity to the railroad station and central business district; (2) minimum site size, dimensions and topography; (3) ownership of the parcels; (4) permitted uses; (5) height of structures, which is limited to 53 feet; (6) maximum density, which is limited to 37 units per acre; (7) maximum occupancy for residential units, which is set at two for studio units and the number of bedrooms plus two for all other units; (8) minimum floor area of any residential unit, which is set at 580 square feet; (9) minimum building setbacks, which are set at  ten feet for front and rear yards, side yard setbacks are ten feet for one side yard and twenty feet total for side yards; (10) parking minimums for retail and office use is one space per 250 square feet; multi-family residential use is based on the types of units – studios require 1.15 parking spots per unit, one-bedroom units require 1.30 spots per unit, two-bedroom units require 1.75 spots per unit and three or more bedroom units require 2.0 spots per unit; (11) basements and cellars are not allowed to be used for living, sleeping or habitable space; and (12) each building must have security and fire alarms.

It will be interesting to see if this new zoning classification helps Lindenhurst revitalize its downtown.

 

The Town of Babylon’s plan to revitalize the Route 110 corridor in East Farmingdale, NY keeps moving forward. The Town began targeting this area for transformation in 2005. It now looks like the Town may be closer than ever to achieving its goal of redeveloping 100 acres surrounding the intersection of Route 110 and Conklin Street.redevelopment shutterstock_601952789

The targeted area poses challenges to redevelopment. There are height constraints and a runway protection zone associated with Republic Airport. The Route 110-Conklin Street intersection is user unfriendly and unsafe. The automobile-oriented nature of the area, including large parking lots, limited sidewalks, and widely disbursed buildings, is not conducive to pedestrian and bicycle users. In addition, past industrial uses may have left a legacy of contamination.

East Farmingdale Design Charrette

Residents, business owners and other interested parties participated in a multi-day meeting in January and February 2017 with a design team hired by the Town to flesh out ideas and concepts of what the community wants to see in this redevelopment effort. In April 2017, the results of this meeting, referred to as a design charrette, were presented by the design team in a report entitled East Farmingdale Design Charrette.

The lynchpin of the design hinges on re-opening and upgrading the East Farmingdale Long Island Rail Road station, which has been shuttered for almost 30 years. The MTA earmarked $5 million from its capital budget toward this effort. This closed station is adjacent to properties that were part of Republic Airport and are currently owned by the state. The plan calls for these parcels to be the core of a transit-oriented development location. The plan also includes a bus rapid transit  stop that Suffolk County is planning for the Route 110-Conklin Street intersection.

Redevelopment Wish List

The charrette participants came up with a wish list of big ideas. These include walkways, pedestrian crossings, bicycle lanes, and mixed use retail and residential with pocket parks. The residential components would include single family homes, apartments and affordable housing. Other ideas coming out of the charrette were a museum, transit hub, and green space. The design team commented on the desire of many participants for a village-like feel, rather than an urban city vibe, for the redevelopment. The design team also noted that community gathering spaces and cultural facilities are currently missing from the targeted area and should be included in the redevelopment.

The design team drafted a Form-Based Code that will help guide future development. The code, while still a first draft, provides physical details such as height restrictions, distances between buildings, landscape specifications and open space requirements.

Check out the Town of Babylon’s website for more information about this project.

seqraThe New York State Department of Environmental Conservation (“NYSDEC”) proposed significant changes to the State Environmental Quality Review Act (“SEQRA”) regulations almost 5 years ago. The NYSDEC recently indicated that these proposed regulations finally will be enacted this year. The proposed regulations will streamline the SEQRA process. This post discusses changes to Type II actions under the proposed regulations.

Type II Projects

Type II actions do not require SEQRA review. The proposed regulations will add over a dozen different specific actions to this category. Some of the more interesting additions to Type II actions include:

  • In cities, towns, or villages with adopted zoning laws or ordinances, reuse of a commercial or residential structure not requiring a change in zoning or a use variance, unless it meets or exceeds certain specified thresholds.
  • In cities, towns, and villages with adopted subdivision regulations, a “minor” subdivision that does not involve construction of new roads, water, or sewer infrastructure and is not part of a larger tract subdivided within the previous 12 months.
  • A recommendation of a county or regional planning board issued pursuant to General Municipal Law §§ 239-m or 239-n.
  • Replacement, rehabilitation, or reconstruction of a structure or facility on the same site, including upgrading buildings to meet energy codes or to incorporate green building infrastructure techniques, within certain specified thresholds.
  • Installation of up to five megawatts of solar energy arrays on certain existing structures, including landfills, brownfield cleanup sites, and residential and commercial parking facilities.
  • Installation of cellular antennas or repeaters on certain existing structures.
  • Installation of fiber-optic or other broadband cable technology in existing highway or utility rights-of-way.
  • Specified brownfields clean-up agreements.
  • Acquisition, sale, lease, annexation, or transfer of any ownership of land to undertake any activity on the new list of Type II actions.
  • Disposition by a municipal or state agency of land, by auction, where there is no discretion on its part on the outcome, such as when a municipality or a state agency acquires land through foreclosure and is required to dispose of the site through a public auction to the highest qualified bidder.      

Conclusion

The NYSDEC is accepting comments on the proposed regulations until May 19, 2017 and intends to enact them in the Fall.

Two recent New York cases brought to mind the well-known poem about trees. No, not the one written by Joyce Kilmer. The other one, written by Ogden Nash. Who can ever forget those immortal words. “I think that I shall never see a billboard lovely as a tree.” Yes, the cases involve billboards and zoning.

But first some history.evil-trees

Sky Signs

One of the first reported cases on municipal regulation of outdoor advertising, People v Wineburgh Advertising Company, 19 NY 126 [1909], involved the regulation of “sky signs” by the City of New York. That regulation limited rooftop signs on private property to 9 feet above the front wall or cornice and prohibited taller signs no matter how securely the signs were affixed to the building. Wineburgh Advertising sought to install a sign on the roof of the 10-story office building located at 27 East 22nd  Street in Manhattan. The bottom of the proposed sign was to be 5 feet 6 inches above the roof and soar to 20 feet 6 inches above the roof. It was to be set back 40 to 50 feet from the building line. The City refused to approve the sign on the grounds it was a safety hazard and the legal challenge ensued.

In rejecting the City’s decision and finding it arbitrary and unlawful, the New York Court of Appeals noted that no such height restriction applied to other roof-top structures, such as tanks, towers, chimneys, flagpoles, balustrades, finials or ornamental finishes. The Court determined that the City’s objection to the sky sign was not a safety issue, but rather sought to control the advertising that would be placed on the sign. The building was allowed to install its sky sign.

Now for the two new cases.

Colossal Murals

In Matter of Skyhigh Murals – Colossal Media, Inc. v Board of Standards and Appeals of the City of New York, 2017 NY Slip Op 30088(U) [Supreme Court, NY County, January 13, 2017], a 900 square foot hand painted advertising sign was proposed to be located on the side of a building in Williamsburg, Brooklyn. The building is located within a M1-1 manufacturing zoning district. Directly across the street, in a MX-8 Special Mixed Use zoning district, is a residential building. The sign would face this residential building.

First the Department of Buildings, and then the Board of Standards and Appeals (BSA), rejected the application on the grounds the sign violated the City’s Zoning Resolution as it would adjoin a residential zoning district. The Court rejected the argument and castigated the BSA for having “muffed such a simple and obvious statutory interpretation.”    According to the BSA, the building was located in “co-designated” residential and mixed use zones. The Court explained that the Zoning Resolution superimposed the MX-8 zoning district on paired M1 and Residential Districts. Thus, it did not matter that the residential building was located in the residential part of the paired districts. It was located in the MX-8 zoning district. The Court permitted the installation of the sign.

Billboards     

The second case comes from upstate and concerns billboards along an interstate highway. In Matter of Expressview Development Inc. v Town of Gates Zoning Board of Appeals, __ AD3d __2017,2017 Slip Op 00874 [4th Dept. 2017], the zoning provision in question prohibited commercial advertising signs that were not located on the site of the business being advertised. The site in question abutted an interstate highway. It was composed of 6 contiguous vacant parcels that combined into an oddly-shaped site. The site had been acquired back in the mid-1980s and had been approved as an industrial park in 1982. The owner never developed the park and it remained vacant. The site had been on the market for years with little interest.

In 2009, Expressview Development made an offer to purchase the site contingent upon it being able to construct billboards that would be visible from the interstate highway. The prospective purchaser applied for use and area variances to construct the billboards, which were denied by the Zoning Board of Appeals. The board determined that the billboards violated the zoning code restriction as they would be used for advertising of commercial enterprises not operating at the site. The board also found that the proposed billboards would adversely affect the character of the neighborhood and would result in billboard overload as there were already more than enough signs on that stretch of highway.

The Appellate Division agreed with the Zoning Board of Appeals. Wholly unsympathetic to the owner, (the Court referred to the owner as a “careless land buyer”), the Court rejected the property owner’s hardship claim. The Court also noted that the “off-premises” zoning restriction applicable to commercial advertising did not violate free speech rights.

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