Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality.

Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the other district without needing to apply for a change  of zone.  Problems for applicants and practitioners arise when the proposed use on the property is prohibited on the other side of the  zoning boundary line.  Under those circumstances, applicants may face hostile boards or opponents claiming that because such use is prohibited in one of the districts, it requires a use variance.  As a use variance can often be an insurmountable hurdle, practitioners must carefully craft a record to support the proposed use for a split zoned parcel.

Recently, in  the City of Saratoga Springs, a neighboring restaurant owner sued to block a proposed pet kennel, claiming it required a use variance because kennels were prohibited in one of the two zones that split the property.  In other words, the restaurant owner was claiming that the prohibited tail was wagging the permitted dog.  Unfortunately, the restaurant owner was barking up the wrong tree, and in June of 2018, the Appellate Division affirmed the City of Saratoga Springs Zoning Board of Appeals (ZBA) determination that a use variance was not required for the proposed kennel project and granted the necessary area variances See, Wen Mei Lu v. City of Saratoga Springs—N.Y.S.33D —(3d Dept 2018).

In Wen Mei Lu, Pet Lodges Inc. submitted an application to the City’s Building Inspector in 2016, seeking approval of the proposed construction of a pet boarding facility.  The 6,000-square-foot kennel facility was planned for a 1.6 acre parcel of land that was split zoned Rural Residence and Tourist Related Business (TRB).  The smaller rear portion of the property, zoned Rural Residential, allows for animal kennels, but the TRB zone that comprises the larger portion of the property fronting on State Route 9, prohibits the use.

The application was denied by the City’s Building Department on the ground that the project required area variances for certain setback issues.  Pet Lodges Inc. then applied to the ZBA for area variance relief.  At the hearing, the restaurant owner’s attorney submitted letters and testimony claiming, among other things, that the kennel required a use variance, because it was a prohibited use in the TRB zone, and was fundamentally inconsistent with the permitted uses such as service establishments, eating and drinking establishments and bed and breakfasts.

The Appellate Division, in finding that the ZBA rationally determined a use variance was not required, noted that although kennels are prohibited in the TRB zone, under the City’s zoning ordinance, where a zoning district boundary line divides a lot or land, the district requirements on either side of the boundary may be construed, at the property owner’s option, as extending 100 feet into the remaining portions of the property.  Here, the applicant chose to extend the Rural Residential district where kennels are permitted into the TRB commercial zone where kennels are prohibited.

Finding that such an extension of a zoning boundary did not require a use variance, the Court went on to hold that the ZBA’s determination to grant the necessary area variances had a rational basis in the record.  The Court also determined that while a small portion of the facility’s parking area and driveway will lie within the TRB district, the ZBA rationally found that such accessory uses were not prohibited under the zoning ordinance.   The Court noted that ZBAs are “invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law.”

Given the potential complexities associated with split zoned properties, this decision provides some clarity as to what the courts and zoning boards are considering when faced with split zoned lots.

 

 

 

A few days ago, the Town Supervisor of the Town of Southampton and the Town Trustee President sent a letter to the State Comptroller and State Park Commissioner requesting an opinion as to whether Town Trustee property, known as Hayground Cove or the Rose Hill Drive Boat Ramp, a small waterfront area with a boat launch, is parkland.  If so, it would be regulated by New  York State’s strict interpretation of the public trust doctrine.

At issue is a private homeowner’s 15-year lease with the Trustees, which would  allow the neighboring waterfront estate exclusive use to portions of the Trustees property to construct a private driveway in exchange for maintaining the Town’s existing boat ramp.  Without state legislative approval, such exclusivity could be as thorny as a rose thicket and may run afoul of New York’s public trust doctrine.

The Public Trust Doctrine & Parkland Alienation

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses.  See,  Matter of Avella v City of New York, 29 NY3d 425 [2017].  New York’s public trust doctrine is based on English common law that has evolved over centuries.  In sum and substance, the public trust doctrine provides that certain land should, by use or by the purpose of its conveyance, be available for the use and enjoyment of the public.  Only the State Legislature has the power to alienate parkland. See, New York State Office of Parks, Recreation and Historic Preservation Handbook on the Alienation and Conversion of Municipal Parkland

Under New York State’s public trust doctrine, land can become parkland either by a formal dedication through express provisions (i.e. restrictions in a deed or a legislative enactment), or by implied dedication manifested by acts such as continued use as a park. Id.  Implied dedication of parkland occurs by actions or declarations by a local government that are unmistakable in their purpose and character as to intend to dedicate land for use as parkland. Examples include a municipality publicly announcing its intention to purchase the land specifically for use as a park and long continued and accepted use of land as a park can also constitute dedication through implication. Id.

Parkland alienation occurs when a municipality wishes to convey, sell, or lease municipal parkland or discontinue its use as a park no matter what  the size.  In order to legally convey parkland to a third party, or to use parkland for another purpose, a municipality must receive prior authorization from the New York State Legislature and be approved by the Governor.

In alienation cases, leases are carefully examined to determine the extent to which exclusivity is granted and a public benefit is served.  See, Lake George Steamboat Co. v. Blais, 30 NY 2d 48 [1972] (exclusive lease of a park’s marina space to a private sightseeing company was found to be parkland alienation).

The Hayground Cove-Rose Hill Road Boat Ramp

According to the Town of Southampton’s website, the Rose Hill Boat Ramp is a public boat ramp for town residents. The surrounding Town-owned land appears to be operated as a park in connection with that boat launch, which use has gone on for decades.  Under the lease agreement with the Trustees, in return for taking on the maintenance of the public boat ramp, the homeowner was able to move a line of trees from the middle of his property to the middle of the Trustees’ property, expanding the private lot’s circular driveway.  The tree-moving work has already been completed.

Conclusion

While it is laudable that the Trustees are attempting to maintain a town boat launch at no cost to town residents, which arguably could be a plausible public purpose, is that sufficient in light of the long history of New York courts prohibiting parkland alienation for non-park uses absent specific authorizing legislation?   We await a determination of the State Comptroller and Park Commissioner to see if the homeowner’s lease with the Town is valid. Either way, that decision could have a profound impact on similar agreements.  Stay tuned.

 

 

 

 

Long Island’s ever-evolving agricultural industry won a major battle in the Appellate Division this month when the court overturned Supreme Court Justice Whelan’s decision, which invalidated two local laws of the Suffolk County Legislature.   See, Long Island Pine Barrens Society, Inc. v. Suffolk County Legislature, 2018 NY Slip Op. 01598 (March 14, 2018).

The Appellate Division voted 3-1 to overturn the decision, holding that 2010 and 2013 local law amendments to Suffolk County’s farmland preservation program allowing for new structures and uses on preserved farmland did not waste public property or violate the public trust doctrine.

Enacted in 1974 as one of the nation’s first, Suffolk County’s farmland preservation program is designed primarily to protect lands for agricultural production through the purchase of potential development rights (PDR).  Once the PDRs are sold, development or use of agricultural lands is restricted.

There have been several amendments to Suffolk County’s PDR law allowing, among other things, an expansion of the definitions of “agricultural production” and operation of a “farm stand“.   The 2010 and 2013 local law amendments expanded Suffolk’s farmland preservation program to allow certain structures, uses and special events on preserved farmland.

Plaintiff claimed that the 2010 and 2013 local laws illegally empowered the County to “give back” the previously purchased PDR rights to the landowner, therefore breaching the public trust doctrine.  The basic premise of plaintiff’s claims and the lower court’s decision was that these amendments, by permitting additional uses and development of “preserved” farmland, allowed an “alienation” of development rights by the County. See, Long  Island Pine Barrens Society, Inc. v. Suffolk County, 54 Misc3d 851 [2016].

In general terms, the purchase of development rights is seen by many as the complete sterilization of property so that nothing else can be done.  A simple example would be the sale of development rights to protect a wooded or environmentally sensitive land.  Once the rights are sold, the land should remain undeveloped in perpetuity.

Agricultural preservation through the  County’s PDR program is different since it contemplates active uses of “preserved” farmland for agricultural production such as commercial horse boarding, “U-Pick” operations, corn mazes, hay rides, wineries and alternate energy systems.  Farming, in this sense, is not static, so neither is the land that supports possible active uses.

As the Appellate Division pointed out, the County’s PDR program is consistent with New York’s Agriculture and Market’s Law Section 301  definition of “land used in agricultural production”.   Moreover, the legislative history and case law associated with New York’s Agriculture and Markets law supports the for-profit and active use of the agricultural property for farm operations.  This includes the right and flexibility of the owners to build new structures and try new uses on their land.

Here, the County’s amendments, upheld by the Second Department, recognize the farmer’s need to respond to changes in agriculture.  Long Island’s farmers require not just barns and equipment storage, but also other structures and uses that help to ensure Long Island’s long-term farming survival.  Given the implications here, plaintiffs may appeal this decision to the Court of Appeals.

In 2014, the New York State Legislature enacted a significant amendment to the Environmental Conservation Law (ECL) reducing setbacks required to discharge a long bow in the lawful act of hunting from 500 feet to 150 feet from occupied buildings and public places.  ECL11-0931(2).  This created a ripple effect in many Long Island municipalities that previously codified the State’s regulation of 500-feet.  For example, the Town of Smithtown still maintains a local law requiring a 500-foot setback, which now conflicts with the State’s 2014 150-foot setback requirement.

The question now becomes whether New York’s preemption doctrine prevents municipalities from maintaining local laws conflicting with State law.  In this case, can the Town of Smithtown maintain its 500-foot setback for the discharge of a long bow as opposed to the State’s 150-foot setback?

Some would say that the State occupies the field of hunting, because it declared title to the wildlife in its sovereign capacity for the benefit of all the people (ECL 11-0105). Consequently, hunting the State’s wildlife is regulated by the New York State Department of Environmental Conservation (NYSDEC) ECL Title 7.

However, the State also provided municipalities broad latitude to regulate themselves through the Municipal Home Rule Law (MHR).  MHR confers on local governments the authority to adopt laws for, among other things, the protection of health, safety and welfare, to the extent they are not inconsistent with either the State Constitution or any other State law. MHR 10(1)(ii).

In DJI Restaurant v City of New York , the Court of Appeals explained the two ways State law preempts local laws as follows: (1) where an express conflict exists between State and local law (conflict preemption) and (2) where the State has evidenced its intent to occupy the field (field preemption).

Field preemption exists when a local law regulating the same subject matter is deemed inconsistent with the State law.  In this situation, the local law must yield, because it thwarts the State’s overriding policy for State-wide uniformity. See, Matter of Chwick v. Mulvey, (state law regarding firearm licenses preempted a Nassau County ordinance against “deceptively colored” handguns where comprehensive regulations by the State demonstrate the Legislature’s intent to occupy the field”).

Presently, New York has not expressly preempted the regulation of hunting; and there does not appear to be any case directly on point for conflict preemption.  However, the State’s intent to “occupy the field” of hunting appears evidenced by comprehensive ECL statutes, the framework of NYSDEC regulations and strict licensing requirements. See, ECL Title 11.

Moreover,  given the purpose and scope of the State’s legislative scheme, including the need for statewide uniformity, the State need not expressly state that it is preempting local municipalities in the area of hunting. See generally, Albany Area Blders v. Town of Guiderland,  However, in the case of Smithtown, it appears the State may have to take a more explicit position or risk the balkanization of hunting regulations on Long Island and possibly other parts of the State.  This seems particularly counterintuitive when dealing with the State’s wildlife.

New York’s Freedom of Information Law (“FOIL”) mandates that agencies make all “records” available for public inspection and copying, subject to certain  exemptions. See, Public Officers Law.   The presumption under FOIL is that the public has a right to access “records” maintained by an any agency, because “the Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy” See, Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, [2005].

With an eye towards this public policy, the Second Department, in Fanizzi v. Planning Bd. of Patterson, 146 AD 3d 98 [2d Dept 2016], recently held that even an informal submission only temporarily possessed by an agency and later withdrawn by the applicant is subject to FOIL, if the records were sought during the time when they were kept by that agency.

In Fanizzi, the developer left draft architectural renderings in the possession of a town planner for a little over a week.  The planner discussed the renderings at the meeting of the Planning Board that took place a week later.  During that time, a civic leader who had been monitoring the proposed development, attempted to review this material, but was denied by the Town, because the developer had not formally submitted the renderings.  Not surprisingly, the civic leader commenced an Article 78 to compel the release of these draft plans.

In granting the Town and developer’s motions to dismiss, the lower court reasoned that architectural renderings informally submitted by the developer were not agency “records” within the public’s purview of FOIL.  Reversing the lower court, the  Appellate Division found these renderings were in fact kept and held by an agency and therefore, “records” subject to review pursuant to FOIL.  The court held that the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates.  The fact that the developer did not formally submit the renderings as part of an application for approval of an amended site plan was irrelevant.  As the court stated: “to hold otherwise would allow agencies to frustrate the purpose of FOIL by discarding records when they receive FOIL requests.”

Practice  Tip Commentary:  Once an applicant’s documents are submitted to an agency, even drafts, they are immediately subject to public scrutiny under FOIL.

Now more than ever, climate resiliency along our coastlines is an important aspect of long range municipal planning.   Back in 1981, the New York State Legislature enacted the Waterfront Revitalization of Coastal Areas and Inland Waterways Act, N.Y. Exec. Law § 910. (the “NYS Coastal and Waterways Act”).

Coastal communities and communities on designated inland waterways are eligible to participate in the Local Waterfront Revitalization Program. Coastal communities are communities on the Long Island Sound, the Atlantic Ocean, New York Harbor and the waters around New York City, the Hudson River, the Great Lakes, Niagara River or the St. Lawrence River; eligible communities on designated inland waterways include communities located on an inland waterbody, such as a major lake, river or the State Canal, or other inland waterway designated by Article 42 of the Executive Law.

Among other things, the NYS Coastal and Waterways Act encourages local governments to participate in the State’s coastal management efforts by submitting local waterfront revitalization programs (“LWRPs”) to the Secretary of the DOS for approval. See N.Y. Exec. Law § 915(1).  Under the Act, any local government, which has any portion of its jurisdiction contiguous to the state’s coastal waters or inland waterways may submit an LWRP to the Secretary of State.  See, NYS Guidebook.  If an LWRP is approved by the Secretary , state agency actions in that municipality must also “be consistent to the maximum extent practicable with the local program.” Id. at § 915(8).

Unfortunately, the Act is silent regarding the relationship between the LWRP and local comprehensive land use plans and zoning.   However, to ensure that local development and waterfront revitalization plans are appropriately integrated into the local land use planning and zoning regulatory framework, many municipalities have incorporated their approved LWRPs into zoning regulations.  As a result, the LWRP policy document may serve as a legal foundation for zoning changes in part, due to their incorporation into the comprehensive plan.  By doing so, municipalities are able to effectively provide implementation mechanisms that support the principles and goals delineated in the waterfront plan through the use of their zoning powers.  See generally, Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y.2d 96, (1999), 

The Department of State’s Division of Local Government provides training assistance to municipalities relating to zoning procedures in addition to other practical legal and technical advise.   See, www.dos.state.ny.us/lgss.

 

unanimous-cartoon

Generally, when a majority of the members of a zoning board of appeals (ZBA) either votes in favor of or against an action, the board is considered to have acted.  What if a ZBA is unable to take any kind of majority action, ending up with a tie vote?  The result hinges on the dual jurisdictions many ZBAs enjoy.

All ZBAs are directly given appellate jurisdiction by state law; however, where a local law or ordinance grants a ZBA additional powers, the additional powers are referred to as “original jurisdiction.”  Examples of a ZBA’s original jurisdiction include the power to grant special use permits.

In Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86 [2001], the Court of Appels  determined the effect of repeated tie votes by the Town of Huntington ZBA for variances.  The court held that “when a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial.”

This conclusion led the Legislature, in 2002,  to codify an amendment to Town Law § 267-a that added a new subsection entitled “Voting requirements.”  In particular, Town Law 267-a(13)(b) states:

“Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied….” (emphasis added).

So, what happens when a ZBA casts a tie vote in an application for a special use permit?  Nothing, according to the Third Department’s recent decision in Matter of Alper Restaurant Inc. v. Town of Copake Zoning Board  Of Appeals, 2017 NY Slip Op 02871 [3d Dept 2017].  In Alper, the Court affirmed the Supreme Court’s decision that a 2-2 vote issued for a special use permit was a non-action, because there was no majority vote; and the ZBA was exerting its original jurisdiction over the applicant’s special use permit.  This enabled the ZBA to vote again on the same matter and grant it with a 3-2 vote.

Thus, an appeal or variance is considered to be denied by statute if a tie vote is cast when considering a variance. This is not so when the same board is voting on a special use permit.  A tie vote in connection with a special permit results in a non-action.  This begs the question of whether ZBA’s voting multiple times on special use permits is the desired result?

childrightslogoenSometimes called a “case of the race,” the common law doctrine of vested rights is “one of the most troublesome areas of land use regulation.”  Exeter Building Corp v Town of Newburgh, 114 AD3d 774 [2d Dept 2014].

In New York, the “vested rights” doctrine is equitable in nature and implicated when a property owner or developer seeks to continue the use of property in a way that was permissible before an  enactment or amendment of zoning regulations no longer permits it.   Town of Orangetown v. Magee, 88 NY2d 41 [1996].

Generally, an owner of real property can acquire common-law vested rights to develop property in accordance with the prior zoning regulations when (1) in reliance on a legally issued permit, the landowner (2) effects substantial changes and incurs substantial expenses to further the development and (3) the landowner’s actions relying on the valid permit(s) are so substantial that the municipal action results in serious loss rendering the improvements essentially valueless.  Id.  As a result, the “race” becomes whether the developer gets the project completed or at least substantially completed to satisfy the Magee test before the municipality get its zoning code in place.

Recently, in Exeter Building Corp v. Town of Newburgh, the Court of Appeals affirmed a determination by the Appellate Division holding that the developer had not vested a plan to build 136 townhouse units, because it could not have reasonably relied on valid permits when warned repeatedly of a rezoning by the Planning Board.  In Exeter, the Court of Appeals refined the reliance test in Magee, holding that is was not “reasonablefor the developer  to rely on a conditional  site  plan approval placing emphasis on the Town Planning Board’s repeated warnings of the proposed rezoning.

Now, not only must developers listen for the starting gun in a vested rights case, but they must also consider the reasonableness of a municipality’s warning. Such an additional qualifier seems to give the government a head start.

For a detailed discussion of vested rights and the underlying Appellate Division case, see one of our earlier blog posts, Appellate Court Rules on Common-Law Vested Rights.

 

Kadir van Lohuizen / NOOR for New York Times Climate change / sea-level rise in Fiji The shoreline of Vunidoloa is heavily eroded due to the rising waters. Vunidoloa is situated on the Natewa Bay on Viti Levu, Fiji's main island. Vunidoloa has 140 inhabitants and frequently floods due to the rising waters. The situ ation became so precarious that the government decided to relocate the village. Unfortunately the site was poorly designed and is eroding before anyone moved there.

Asharoken, N.Y. January 10, 2017 — Swayed by public opinion, the Incorporated Village of Asharoken (“Asharoken”) opted out of a federal beach nourishment plan implemented by the Army Corp of Engineers (“ACOE”) in order to prevent the general public from accessing the Villages’ private beaches.

Asharoken is a narrow isthmus connecting the Village of Northport on the ‘mainland’ of Long Island with the hamlet of Eatons Neck, which is part of an unincorporated area located in the Town of Huntington. Asharoken is bordered by Huntington Bay, Northport Bay, and Eatons Neck. The eastern coast of Asharoken fronts along the Long Island Sound.

Asharoken Avenue, the village’s main road, is the only land evacuation route for village residents and about 1,400 non-village residents of Eatons Neck.  Without this land bridge, Eaton’s Neck and Asharoken would both be cut off from the mainland.

Asharoken experiences moderate to severe beach erosion on the areas fronting the Long Island Sound. This erosion is caused by storm-induced waves and wave run-up from hurricanes and nor’easters. The village has experienced damages from multiple storm events, most recently Hurricane Sandy in October 2012.

In spite of the known safety risks of their precarious evacuation route, the Asharoken Board of Trustees passed a resolution last Tuesday, effectively opposing a $20 million dune restoration project because of the federal government’s mandate for public access to the beaches when taxpayer dollars are utilized. In order to receive funds for the beach nourishment project, Asharoken would be required to add five public walkways to access the beach and five public parking areas at half-mile intervals along the project’s 2.4-mile stretch along Asharoken Avenue.

Despite a history of rising sea levels, the Asharoken Trustees capitulated to resident outcry over the potential loss of their private beach rights rather than balance their decision on the public health, safety and welfare of the Village and Town residents.

Only time will tell if this game of Russian roulette ends well.

aid157119-728px-Install-Posts-in-the-Water-for-a-Dock-or-Pier-Step-1  In New York, as a general rule, the touchstone of riparian rights has been the ownership of land touching a navigable waterway. See Bromberg v. Morton 64 AD2d 684 [2d Dept 1978].  As a result, unless expressly reserved by deed, if a waterfront lot is partitioned, any resulting lot that no longer physically touches the water  becomes non-waterfront property and loses its riparian rights.  Durham v. Ingrassia, 105 Misc2d 191 [Sup Ct., Nassau County 1980].

However, there is a developing line of case law in the Second and Third Departments holding that an easement that provides access to a navigable waterway provides the beneficiary of the easement with the riparian right to construct a dock equal to that of the actual waterfront owner.  See Briggs v. Donna, 176 AD2d 1105 [3d Dept 1991].

In Briggs v. Donna, the Third Department held that although there is no language in any of the plaintiffs’ deeds expressly granting a right to construct a dock, the plaintiffs’ dock at the foot of an easement was a “reasonable use” of the easement and incidental to plaintiffs’ access rights under the easement.  In short, the easement holder, a non-waterfront landowner, possessed the same riparian rights as the actual waterfront landowner to build a dock to navigable water.

Relying on this reasoning, the Second Department, in Monohan v. Hampton Point, 264 AD2d 764 [2d Dept 1999], reinforced the position that riparian rights extend from an easement to access navigable water.  In that case, the court held that, as a matter of law, the easement to access the water was sufficient to create the riparian right of wharfing out, and the subject dock located at the end of an easement leading to a navigational portion of the waterway was a reasonable and incidental use of the easement.  See also, Hush v. Taylor 84 AD3d 1532 [3d Dept 2011] Installation of a dock at the end of an easement of this type “is a reasonable use incidental to the purpose of the easement” and is, therefore, permissible).

Under the right circumstances, Courts have reasoned that the existence of an easement to the water’s edge would have been “without purpose” if it did not provide for the construction of a dock or pier to provide access to the waterway.

As a result, this line of case law seems to remove the need for landowners to actually own waterfront land in order to exert their riparian right of access by a dock or pier. Instead, an easement running to the shoreline includes the right to construct a pier or dock to obtain access to navigable water.