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

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

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

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

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

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

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

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

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

In SEQRA parlance, a “Negative Declaration of Environmental Significance”, or “Neg. Dec.”, is a lead agency’s finding that the proposed Type I or Unlisted Action under review will not result in any significant adverse environmental impacts. An applicant whose project receives a Neg. Dec. is spared the (often) considerable time and expense of preparing an environmental impact statement (EIS) and the gauntlet of procedural steps that follow a positive declaration. However, a Neg. Dec. must be accompanied by a “reasoned elaboration” of the bases for the determination along with references to supporting documentation in the record. A Neg. Dec. which lacks a reasoned elaboration is invalid on its face, see, e.g., New York City Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003), and reviewing courts will not conduct an independent search of the record to discern the lead agency’s rationale and salvage the determination. See, e.g., Matter of Healy, 2018 N.Y. Slip Op. 28261, — N.Y.S.3d —- (Sup. Ct. Nassau Co. 2018) (wherein the court commended the lead agency on a thorough SEQRA review, but was constrained nonetheless to set aside the agency’s negative declaration because it did not contain a written reasoned elaboration).

In Vill. of Ballston Spa v. City of Saratoga Springs, 163 A.D.3d 1220, — N.Y.S.3d —- (Decided July 12, 2018), the Third Department struck a careful balance between SEQRA’s rigid “strict compliance” standard and consideration for practical mistakes that sometimes occur when a lead agency moves through the SEQRA process on a particular application. In 2017, the City of Saratoga Springs sought to condemn a stretch of land adjacent to a heavily-trafficked road for the creation of a new pedestrian/bicycle trail. The City Council, as lead agency, classified the project as a Type I Action and completed parts 1 and 2 of a full Environmental Assessment Form (EAF).

Eventually, the City Council adopted a resolution finding that the project would not result in any significant adverse environmental impacts and issued a negative declaration. It was then brought to the Council’s attention that its resolution did not include information explaining the basis for the determination. Two months later, the Council adopted a supplemental resolution reaffirming its Neg. Dec. for the project. This time, the resolution included specific information addressing each potential environmental impact identified in part 2 of the EAF and the Council’s rationale for why those issues would not result in any significant adverse environmental impacts. Opponents of the project challenged the Neg. Dec. contending that the supplemental resolution was not a permitted action under SEQRA.

On Appeal, the Appellate Division found that the City complied with SEQRA’s procedural requirements. In doing so, the Court expressly rejected the petitioners’ argument that the supplemental resolution would have been proper only under one of the enumerated situations set forth in 6 NYCRR 617.7(e) and (f) of the SEQRA regulations, which govern the amendment and rescission of negative declarations. The Court held that while 6 NYCRR 617.7(e) and (f) dictate a lead agency’s response to certain developments following the adoption of a Neg. Dec., those provisions are not exhaustive and do not preclude a lead agency from correcting a mistake in process under other circumstances.

Of particular relevance for the Court were the facts that the Council had conducted an earnest review of the relevant environmental issues; held another public meeting to discuss the contents of the supplemental resolution, and took additional procedural steps before reaffirming its negative declaration for the project. The supplemental resolution was also adopted before the Council took final action to approve the project. The Court observed that, as a practical matter, nullification of the Neg. Dec. would only have resulted in a redundant SEQRA process that would have undoubtedly reached the same conclusion. Thus, the Court ruled that the supplemental resolution was a proper means to correct the omission of the reasoned elaboration from the original Neg. Dec.

The Third Department’s decision in Ballston Spa lends itself to the proposition that a lead agency can, at times, correct the fatal defect of omitting a reasoned elaboration from a negative declaration.  This is not to say, however, that any writing presented after the adoption of a Neg. Dec. will be sufficient.  In Matter of Dawley v. Whitetail 414, LLC, 130 A.D.3d 1570, 14 N.Y.S.3d 854 (4th Dept. 2015) (cited in contrast in Ballston Spa), the Fourth Department ruled that a written attachment presented after the adoption of a negative declaration could not serve as a reasoned elaboration where the respondent town board, serving as the lead agency, never reviewed the attachment and never voted to have it included as a supplement to its negative declaration. See, also, Rochester Eastside Residents for Appropriate Dev., Inc. v. City of Rochester, 150 A.D.3d 1678, 54 N.Y.S.3d 484 (4th Dept. 2017) (also cited in Ballston Spa) holding that a document containing the purported reasoning for the lead agency’s determination, prepared subsequent to the issuance of the negative, did not fulfill the statutory mandate. It is therefore uncertain how another court might rule if presented with a similar set of facts.  Careful and thorough drafting continues to be the best hope of insulating a negative declaration from legal challenge.

If you have questions regarding SEQRA regulations or procedure, please contact me at pbutler@farrellfritz.com.

Earlier this year, the Third Department handed down a surprising upset in the eminent domain arena.  See, Matter of Adirondack Historical Association v Village of Lake Placid, 161 A.D.3d 1256 [3d Dept 2018]The Appellate Division nullified the condemnation because the Village of Lake Placid failed to consider the environmental impact of its use of eminent domain to acquire two vacant parcels of land for the purpose of constructing a parking garage.  The Village’s achilles heel was its failure to take the requisite “hard look” at traffic under the State Environmental Quality Review Act (SEQRA).

The Eminent Domain Procedure Law (“EDPL”) is New York’s comprehensive law dictating the procedures that must be followed by the state, municipalities and other entities with the power of eminent domain before any condemnation may take place.  EDPL §207 deals with a judicial challenge to the proposed condemnation after the completion  of the determination.  Within 30 days, an aggrieved party must file a petition in the Appellate Division (not the Supreme Court) where the proposed condemnation is to take place.  EDPL §207(C) further limits the scope of review to, among other things, whether the condemnor’s determination and findings were made in accordance Article 8 of the Environmental Conservation Law (“ECL” aka “SEQRA”).

Here, the acquisition of land by the Village was considered an Unlisted Action, and a short Environmental Assessment Form (“EAF”) was prepared.  As a result, the Village Board was required to review the EAF and the criteria contained in SEQRA to identify the relevant areas of environmental concern.  Pursuant to SEQRA, the Village must thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant adverse impact on the environment, and set forth its determination of significance in a written form containing a reasoned elaboration (6 NYCRR 617.7 [b] ).  Any adverse change in traffic levels, such as the case with developing a parking garage, is a potential area of environmental concern.

During both the public hearing and the written comment period, concerns regarding increased traffic congestion and other potential traffic impacts associated with the proposed condemnation were repeatedly voiced.  Yet, according to the Appellate Division, the record is devoid of any evidence that the Village Board took the requisite hard look at these potential traffic impacts.  Indeed, the only proof of the Village Board’s hard look is the conclusory statement in its resolution that “[t]here is no significant environmental impact that could not be mitigated with reasonable measures.”

In light of this, the Court held that given the Village Board’s failure to set forth a reasoned elaboration for its conclusion that the identified traffic concerns were not significant, the SEQRA findings and determinations made in connection with the condemnation of the subject property were vacated.  Accordingly, the petitioners blocked the Village from seizing the two parcels of land through eminent domain.

This decision reinforces the importance of municipalities taking the “hard look” under SEQRA when contemplating the powerful tool of eminent domain.

 

 

Following the adoption of a moratorium on development along Port Washington’s waterfront, North Hempstead Town officials have proposed new zoning regulations designed to preserve public access and prevent excess building in Port Washington’s Waterfront Business (“B-W”) District.  The Town’s B-W District encompasses approximately 10 acres adjacent to Manhasset Bay, and runs along the west side of Main Street from Sunset Park to Dolphin Green.  According to North Hempstead Town Code, Article XVIIA, the B-W District was established “to promote, enhance and encourage water-dependent uses and increase opportunities for public access along the Town’s commercial waterfront.”

At a well-attended meeting held on July 25, 2018, at the Port Washington Public Library, Supervisor Judi Bosworth, Councilwoman Dina De Giorgio and Commissioner of Planning Michael  Levine, using PowerPoint slides, presented the Town’s findings made during the moratorium and their ideas and proposals for new zoning regulations in the B-W District.

Commissioner Levine compared the unique character of Port Washington’s waterfront to vibrant waterfront communities on Long Island, such as Port Jefferson, Northport and Greenport, and also Newport, Rhode Island, all of which provided inspiration for the proposed changes.  He then identified the goals and objectives of the new zoning regulations, which include encouraging an appropriate mix of land uses, contextual building design, and the creation of more public access and open space.  The proposed regulations are intended to create a more vibrant and accessible waterfront community, while maintaining the area’s small-town character.

In order to accomplish the stated goals and objectives, the proposed regulations would place additional limits on building height and density to reduce the scale of development and require that new structures be arranged so that Manhasset Bay is both visible from the street and accessible to the public.  This would be accomplished by requiring, among other things, a minimum view corridor of at least 35 feet extending from the front property line to the water’s edge.  A public access corridor of at least 20 feet would also be required along the shoreline that would allow the Town to extend the Bay Walk south to Sunset Park.

While the proposed regulations call for a reduction in the “as of right” height limit and density, they offer incentives for increased height and density to developers who propose smaller buildings, provide additional open space, and incorporate “green” sustainable infrastructure and enhanced architectural design elements into their buildings.  For instance, the 18 dwelling units per acre baseline density for residential buildings in the B-W zone may be increased up to 36 dwelling units per acre based on a numerical scoring system that rewards developments that maximize open space and public access and are designed with desirable architectural elements.

In addition to changes to the bulk and area requirements of the zone, certain developments proposed in the B-W District would be subject to an amended review process under the new regulations.  New development on properties larger than 25,000 square feet would be subject to site plan approval by the North Hempstead Town Board, which would review the layout of the building on the site and the adequacy of landscaping, lighting and building design.  Developments which propose a residential component would also require a special use permit from the Town Board.

According to Town officials, the Town Board intends to hold a public hearing to consider the adoption of new regulations for the B-W District in the fall, prior to the expiration of the moratorium in November 2018.

Questions regarding zoning regulations in Port Washington or the Town of North Hempstead?  Please contact me at aguardino@farrellfritz.com.

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After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to:  the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

  • In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:
    • The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.
    • The addition of parking for 500 vehicles or more.
  • In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:
    • The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.
    • The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

    • The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.
  • Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

  • Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.
  • Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.
  • Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.
  • Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.
  • Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping (6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.

If you have questions regarding SEQRA regulations, please contact me at pbutler@farrellfritz.com.

See also, related SEQRA topics written by blog-colleague Charlotte A. Biblow, by clicking here & here!

 

 

 

 

 

In April of 2016 we published the blog entitled “Mining in the Hamptons: Appellate Division Affirms Town of Southampton Zoning Board of Appeals Limitations on Pre-existing Nonconforming Uses Associated with Hamptons Mining Operation.” Despite the Appellate Division’s decision regarding certain pre-existing nonconforming uses occurring on the site, Sand Land Corporation’s (“Sandland”) pre-existing mining use of the property was never at issue, until now.

In January 2018, the New York State Department of Environmental Conservation (“DEC”) issued a determination entitled “Ruling of the Chief Administrative Law Judge on Threshold Procedural Issue, January 26, 2018” essentially halting the DEC’s review of Sandland’s mining permit application until further information was submitted by the Town of Southampton. Sandland, was authorized pursuant to a Mined Land Reclamation Law (MLRL) permit issued by the DEC to mine sand and gravel from 31.5 acres of the 50 acre site to a depth of 160 feet above mean sea level, which is 60 feet below the surface elevation at 220 feet. In January of 2014, Sandland submitted an application to the DEC to expand its current permit to mine 4.9 additional acres and excavate the floor of the mine to 120 feet above mean sea level- lowering the mine floor by 40 feet. The DEC notified the applicant that a permit modification to expand the mine “beyond its previously approved life of mine boundaries” was considered a “new application”, classified as a “major project” and required a statement that mining was not prohibited at the site.

NYS Environmental Conservation Law (“ECL”) §23-2703, Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criteria having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer. Opponents of Sandlands’ application argued that because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

ECL §23-2711(3) requires that the DEC notify the Town’s “Chief Administrative Officer” for properties not previously permitted pursuant to that title and seek input regarding whether mining is permitted on site.[1] The Town responded with a letter noting the Certificate of Occupancy authorizing mining on site but noted that if the DEC was characterizing this as a new mine, that new mines are prohibited in all zoning districts.[2] The Town further noted the location of the property in the Aquifer Protection Overlay District and requested that the reclamation of the property be expedited to allow the property to be used for conforming residential purposes. However, the Town did acknowledge that “certain nonconforming uses, if they are established to pre-exist zoning, are allowed to continue and even expand under certain circumstances pursuant to Town Code §330-167B”.

Additionally, the Town Code provides for the continuance of nonconforming uses pursuant to §330-115 which states, “Any lawful use occupying any building, structure, lot or land at the time of the effective date of this chapter or any amendment thereto which does not comply after the effective date of this chapter or any amendment thereto with the use regulations of the district in which it is situated may be continued in the building or structure or upon the lot or land so occupied, except as provided in § 330-119.”[3]

The DEC held a hearing where the applicant argued that the application only sought renewal of an existing permit for a lawful preexisting nonconforming use. Ultimately, however the DEC Administrative Law Judge held that ECL § 23-2703(3) prohibits the DEC from processing mining permits for mines located in towns such as the Town of Southampton, Suffolk County, where the county, with a population of over one million people, draws its primary drinking water for a majority of its residents from a designated sole source aquifer, and the town has a local law prohibiting mining in the town. Additionally, the Administrative Law Judge found that Sandland had not established that the proposed mine expansion was authorized under the Town’s local zoning laws. The reviewing Judge adjourned the matter pending submission of proof adequate to establish that applicant’s proposed mine expansion is authorized under the Town’s local law.

As determined by the New York State Court of Appeals, a prior nonconforming use for mining is unique in that it is not limited solely to the land that was actually excavated before the enactment of a restrictive zoning law (in this case, March 27, 1983) but extends well beyond.[4] The well-known Court of Appeals case, Syracuse Aggregate, established that pre-existing mining rights extend to the boundaries of the property regardless of whether that specific area was mined prior to the change in the zoning law. In examining the nature of mining as a nonconforming use the Court stated:

“By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” [5]

In furtherance of this premise, the Court of Appeals in Buffalo Crushed Stone extended that holding to properties purchased in contemplation of mining that are separate and apart from the original mined parcel.[6] The Court stated,

“Consequently, a prior nonconforming use for quarrying cannot be limited solely to the land that was actually excavated before the zoning law, because-in this unique type of industry- landowners commonly leave portions of their land as mineral reserves to be excavated at a future time.[7]   Mine owners commonly leave portions of their land as mineral reserves to be excavated at a future time.”[8]

The question remains, then, how this administrative court essentially halted the continuation of this “unique” mining operation that pre-exists zoning via the DEC permitting process without applying or even considering this well-established line of Court of Appeals cases.  Indeed, the reviewing Administrative Law Judge did cite the Syracuse Aggregate case but only for the following premise: “A town’s authority includes not only the power to prohibit the development of new mines ( see id. at 684), but to impose reasonable restrictions limiting the expansion of and eventually extinguishing prior nonconforming mining uses within the town (See Matter of Sand Land Corp. , 137 AD3d at 1291-1292; Matter of Syracuse Aggregate Corp. v Weise , 51 NY2d 278, 287 [1980] Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison , 1 NY3d 561, 562 [2003] [Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination.]).”

However, the Judge failed to take notice of the Court of Appeals holding in Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164, 664 N.E.2d 1226 (1996), upholding a zoning law banning mining except for preexisting operations. “Towns may not directly regulate mining, but they retain the power to zone — even to zone out mining totally, as long as non-conforming uses are protected, as the Constitution mandates, to prevent a de facto taking.” See McKinney’s Practice Commentaries to NYS Environmental Conservation Law 23-2703 , Philip Weinberg (emphasis added).

Procedurally, Sandland’s mine permit expires in November of 2018. The matter was appealed administratively in a motion to reargue, a second hearing took place and we look forward to the Administrative Law Judge’s ruling.

 

[1] ECL §23-2711(3) further states,(a) The chief administrative officer may make a determination, and notify the department and applicant, in regard to: (i) appropriate setbacks from property boundaries or public thoroughfare rights-of-way, (ii) manmade or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof, (iii) the control of dust, (iv) hours of operation, and (v) whether mining is prohibited at that location. Any determination made by a local government hereunder shall be accompanied by supporting documentation justifying the particular determinations on an individual basis.

[2] Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix-Concrete Inc. v. Town of Southampton et al., 104 A.D.2d 499 (1984).

[3] Town Code § 330-119, Compulsory termination of nonconforming uses, bars, taverns and nightclubs, addresses the amortization of pre-existing nonconforming nightclubs.

[4] Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150 (1980); Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(stating “quarrying contemplates a gradual unearthing of the minerals in the land, as so excavation of portions of the land may be sufficient to manifest an intention to conduct quarrying on the property as a whole.”)

[5] Id. at 285, 434 N.Y.S.2d 150 (citations omitted).

[6] Buffalo Crushed Stone, Inc., 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(confirming the mining company had the vested pre-existing right to mine a separate parcel, “subparcel 5” which was not mined by its predecessors and separated by a road from the larger mined area.)

[7] Id. at 401.

 

[8] Id. at 396 stating, (“we hold that the long and exclusive quarrying operation of BCS and its predecessors and their preparations to use areas left as aggregate mineral reserves, consistent with the nature of quarrying, established a right of prior nonconforming usage on the disputed subparcels”).

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.

Last week we wrote about a United States Supreme Court case Murr v. Wisconsin and its impact locally. Since that post, the Petitioner, Donna Murr, contacted the author to provide us with an update to her family’s situation.

After the Supreme Court decision in June, legislation was introduced in both the Wisconsin State Senate and the Wisconsin State Assembly. This legislation – among other things – sought to prohibit a state, county, town or village agency from merging a substandard lot with another lot without the consent of the affected property owner.

We are pleased to report that the Wisconsin State Assembly and Senate both passed the legislation in early November, and on November 27, 2017 Governor Scott Walker – with Donna Murr by his side – signed the bill into law. As a result, the Murr’s lots can be developed separately. As Ms. Murr noted in her email “We spent 10 years in the courts and 4 months in the Wisconsin legislature! Crazy right?”

On another note, Aram Terchunian of First Costal Corporation contacted the author and provided a note of caution. Mr. Terchurian rightly pointed out that Tidal Wetlands – Land Use Regulations contains an automatic merger provision for substandard lots. Indeed, at 6 CRR-NY 661.6 (b) the regulation addresses lots within the wetland jurisdiction that are substandard. Under §661.6 (a)(5) the minimum lot area for lots connected to a community sewage system is 20,000 square feet, and 40,000 square feet is required for lots not connected to a community sewage system. According to the Regulations, substandard lots as defined above “in the same ownership may be treated together as one lot”.

So know that while a property might not merge because of zoning regulations, it may merge because of wetland regulations.

Thank you to both Donna and Aram for their contributions to this blog.

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.

In December 2016, Norwegian developer Statoil won a bid to lease 79,000 acres of underwater land from the federal government for wind energy development.  Statoil’s  wind energy project will be located approximately fourteen miles south of Long Beach and the Rockaways and will extend out to a distance of 30 miles.  The project, to be known as Empire Wind, contemplates erecting 80 to 100 turbines and anticipates producing up to 1,000 megawatts – enough energy to power upwards of one million homes.  Statoil anticipates commencing construction in 2021 and completing construction in 2024.

As part of New York’s plan to reach 50% renewable energy sources by 2030, the State has continued to research, test and identify off-shore areas for wind energy development.  In October 2017, New York identified more than one million acres for the development for future wind farm projects.

Empire Wind hopes to join another wind energy project currently in the planning stages, a 90-megawatt wind farm project located off Long Island’s east end.