The Breakers Motel has been a fixture in Montauk since the 1950’s. Situated at 769 Old Montauk Highway, Montauk New York, the motel has 26 units, a pool and restaurant and is located across the street from the ocean.

In 2015 a building permit was issued by the Town of East Hampton Building Department approving renovations to the existing restaurant inside the motel, including an updated dining area, adding a bar, improving the kitchen facilities and more. The neighboring property owner, a revocable trust, unsuccessfully appealed the Building Department’s determination to issue the April 27, 2015 building permit to the Town of East Hampton Zoning Board of Appeals.

In an Article 78 petition and plenary action entitled Jane H. Concannon Revocable Trust v. The Building Department of the Town of East Hampton, Town of East Hampton Zoning Board of Appels, and Breakers Motel, Inc., Index No. 4297/2016, dated February 5, 2018, the revocable trust (“Petitioner”) appealed the Zoning Board of Appeal’s determination to the Supreme Court.

At the Zoning Board of Appeals, Petitioner argued that because a restaurant had not operated on site since the 1970’s, an application for a special permit under the current Town Code was required before the building permit for renovations could have been issued. The Breakers Motel argued that the restaurant has always been a permitted use and was in place prior to the current Town Code provisions requiring special permits.

Breakers submitted that the restaurant fixtures had never been removed from the site, and a prior Certificate of Occupancy issued in 2005 and Site Plan approval issued in 2010 both referenced and approved the restaurant. All parties conceded that the restaurant was never pre-existing nonconforming and was, in fact, always permitted.

Prior to 1984, the subject property was zoned Multiple Residence District (“MD”), which permitted a restaurant as accessory to a motel. After 1984, the zoning was amended to Resort District (“RS”), which permitted restaurants pursuant to a special permit. The Zoning Board of Appeals denied petitioner’s appeal and declined to consider the merits of petitioner’s appeal, finding that the appeal was untimely pursuant to the 60 day statute of limitations set forth in NYS Town Law §267-a and East Hampton Town Code §255-8-35(A).

Petitioner brought the above referenced proceeding by order to show cause seeking a judgment annulling the Zoning Board of Appeals decision, revoking the building permit and imposing a permanent injunction enjoining further renovations to the restaurant without a special permit.

The Court held that a special permit was not required for the restaurant use, since the use had been in place prior to the 1984 adoption of the RS Zoning District. The Court stated,

“Simply stated, the concept of “use” in the context of zoning regulations is not the equivalent of “in use” or “used” as is made clear in the following definitions in the East Hampton Town Code sections 255-1-14(G) and (H)…” The Court further found that the East Hampton Town definitions of use were consistent with “what is generally accepted in New York zoning law,” stating,

“USE: The specific purpose for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained. The term “permitted use,” or its equivalent, shall not be deemed to include any nonconforming use. USE: The purposes for which a structure or premises, or part thereof is occupied, designed, arranged or intended,” citing, Salkin, N.Y. Zoning Law and Prac., 3d Edition §38:05, Sample definition.

The Court relied upon the fact that the restaurant configuration on site was never changed; and the kitchen fixtures and equipment had remained in place since the 1970’s, stating, “the area in question was designed, arranged and intended to be a restaurant; i.e., the use continued even though it was not “used” as a restaurant.”

The Court went on to distinguish the special permit restaurant use from pre-existing nonconforming uses that can be abandoned after time since the special permit use was not rendered illegal after the zone change to RS. Relying on Town Code §255-5-25, which states in relevant part that “special permit uses which either lawfully exist on the effective date of this article…shall, in all respects, constitute lawful and conforming uses under this chapter,” the Court held that the Breakers Motel restaurant use was legal, even under the new RS zoning, and did not require a special permit to be maintained or altered.

The Court denied the request for the permanent injunction and dismissed the proceeding. Petitioner submitted a Notice of Appeal to the Appellate Division, Second Department, while patrons of the Breakers Motel enjoyed the newly renovated restaurant and bar.

Given the complex zoning regulations that govern development of vacant land, in recent years, it has become uniquely challenging to develop smaller tracts of vacant land that do not conform to the current zoning code.  Further, the doctrines of merger and single and separate add to the complications.  Unless a buyer is absolutely certain that the land for purchase is single and separate from an adjoining parcel and has not merged by common ownership with an adjoining parcel, the results can be less than desirable.

In a recent case, Harn Food LLC v DeChance, the Second Department upheld the Town of Brookhaven’s Board of Zoning Appeals (“BZA”) decision denying a request to construct two houses on what was contended to be two single and separate vacant undersized parcels joined only at the rear property line and each fronting on it’s own adjacent parallel road.  Lots configured in this manner are also referred to as through lots.

In upholding the BZA’s decision, the Court rejected petitioner’s argument that the two tax lots were single and separate because they shared only a rear lot line thereby allowing one house to be constructed on each lot.  Instead, the Court adopted the BZA’s position that since 1948, the two lots were held in common ownership.  The significance of holding or purchasing adjoining vacant lots in common ownership cannot be minimized.  Under most zoning codes and as interpreted by many courts, holding vacant lots, that are undersized or non-conforming to the minimum zoning requirements, creates a merger of the parcels and defeats any argument that the lots were held in single and separate status.

In this case, even though the two tax lots at issue were not side by side lots, but instead, they were back to back lots, the Court determined that the common ownership since 1948 rendered the lots merged.  Additionally, in weighing the five-factor test set forth in Town Law 267-b(3)(b), the Court relied on a prior denial in 2007 by the BZA of an identical application in the immediate area, together with evidence at the hearing that the proposal set forth did “not conform to the surrounding development pattern, in that only 5 lots (12%) of the 42 improved lots in the area conform to the lot area requested in the application, and only 7 lots (17%) conform to the lot frontage.”

The Court further noted that the buyer was charged with knowledge of the zoning code when the property was purchased.  Given that the vacant land is still suitable to construct one dwelling, the Court determined that a feasible alternative existed and that the petitioner was not so aggrieved.

This case is just one more reminder that land use attorneys and real estate attorneys must work together to insure that properties are purchased in uncommon ownership unless otherwise discussed and affirmatively agreed to be held in common ownership.  Further, vacant land should never be purchased absent a single and separate search with confirmation from the relevant municipality that the vacant land in question meets the test for single and separate and that no merger with adjoining parcel ever occurred.

 

 

 

 

 

 

 

 

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.