In the Matter of 278, LLC v. Zoning Board of Appeals of the Town of East Hampton et al., dated March 21, 2018, the Appellate Division, Second Department upheld East Hampton Town Zoning Board of Appeal’s (“ZBA”) decision denying a natural resources special permit (“NRSP”) for two parallel 762 linear feet walls built without a permit by Ron Baron (hereinafter “Petitioner”) on his oceanfront property located at 278 Further Lane, East Hampton New York. Petitioner owns two additional, improved properties adjacent to 278 Further Lane, which is vacant. In September 2008, Petitioner built two parallel walls approximately four feet apart consisting of 762 linear feet along the southerly border of its property and continuing along a portion of the easterly border of 278 Further Lane. In response, in 2009 the Town of East Hampton issued citations alleging that the walls were constructed in violation of the Town Code because Petitioner failed to obtain an NRSP from the ZBA, a building permit and/or certificate of occupancy prior to constructing the walls. As part of a settlement agreement, Petitioner removed portions of the walls and submitted an application to the ZBA.

Petitioner made an application to the Chief Building Inspector in April 2010, questioning the limit of NRSP jurisdiction over the walls. By letter dated April 13, 2012, the Building Inspector determined that a “substantial portion of the wall was constructed in a location containing dune land/beach vegetation” and would require an NRSP prior to the issuance of a building permit. Petitioner appealed that determination to the ZBA, requested an NRSP and sought a variance for the accessory structures to remain on the property where there was no principal structure. The ZBA upheld the Building Inspector’s determination and found that an NRSP was required for the walls prior to the issuance of the Building Permit, denied Petitioner’s request for an NRSP, and held that since the NRSP was denied, the application for the variance for the accessory structure was rendered academic.

Petitioner commenced an Article 78 proceeding, seeking to annul the ZBA determination. The Supreme Court denied the petition and dismissed the proceeding, remanding the matter back to the ZBA for further proceedings to determine whether any variances were needed regarding the construction of the walls. Petitioner appealed; and the Appellate Division, Second Department held that the ZBA determination requiring an NRSP had a rational basis, was not arbitrary and capricious, and there was sufficient evidence in the record to support the determination. The Court stated, “petitioner failed to demonstrate that the retaining walls were erected in conformance with the conditions imposed (see Town Code §§255-4-40, 255-5-51).  Since the petitioner, which erected the retaining walls prior to obtaining any permits failed to request a lot inspection by the Town prior to construction and failed to sufficiently document preexisting conditions, the ZBA had to rely on expert testimony to ascertain the conditions in the area prior to construction Its decision to rely on the conclusions of its experts rather than the conflicting testimony of petitioner’s expert did not render its determination arbitrary, capricious, or lacking in a rational basis…” The Court overturned that portion of the Supreme Court decision, remitting the matter back to the ZBA.  The ZBA found the entire wall required an NRSP, confirming that the request for a variance for an accessory structure was academic.

Obtaining an NRSP in East Hampton Town is no small matter.   NRSP applications are regulated under four separate sections in the East Hampton Town Code:

  1. §255-1-11 “Purposes”- General Purposes for Zoning Code requires compliance with applicable sections A through M;
  2. §255-5-40 “General Standards”- General Standards for Special Permits requires compliance with sections A through M;
  3. §255-4-10 “Purposes of Article”- requires compliance with sections A through E, General Purposes for the Protection of Natural Resources; and
  4. §255-5-51 “Specific Standards”- requires compliance with sections A through K, Specific Standards and Safeguards for Natural Resources Special Permit.

Given the number of standards with which an applicant must comply to obtain this special permit, it is never surprising when an application for an NRSP is denied. It is even understandable that Petitioner constructed the walls (provided they were not greater than four feet) without permits, given an initial reading of Town Code §255-11-38 , Fences and Walls, which states, “the following regulations shall apply to all fences and walls in all districts unless otherwise indicated: A. Building permits. The erection, enlargement, alteration or removal of the following types of fences and walls shall require a building permit: (1) A fence or wall greater than four feet in height and located within the required front yard area of any lot; (2) A fence or wall over six feet in height, in any location; (3) Any fence or wall for which site plan approval is required.”  Considering the outcome of this case, however, Petitioner would have been better served making an application to the Town before constructing the walls.

 

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

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

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

Town of Huntington

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

Town of Brookhaven

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

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

Town of North Hempstead

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

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

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

City of Long Beach

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

Town of Oyster Bay

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

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

 Legal Challenge to Oyster Bay Provision

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

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