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.

In 2009, Scenic Development, LLC (“Scenic”) sought a zone change for the property formerly known as the “Patrick Farm” located in the Town of Ramapo to permit the development of multi-family housing. In three determinations adopted January 25, 2010, the Town Board resolved to (i) approve a findings statement pursuant to the State Environmental Quality Review Act (“SEQRA”) for the proposed zone change, (ii) amend the Comprehensive Plan to allow for the zone change, and (iii) approve the zone change. The Town’s determinations have led to a series of cases challenging these decisions, with three recent decisions discussed below.

Scenic purchased the property in 2001.  The underlying zoning of the property was R-80 when Scenic purchased the property and was subsequently changed to R-40, or one house per 40,000 square feet, when the Town adopted its 2004 Comprehensive Plan. In 2009, when it sought the zone change, Scenic proposed to build 479 housing units on 197 acres of the former farm along the Route 202/306 corridor outside Pomona. Therefore, the zone change would have dramatically increased the density permitted on the property.

Although the project still has not come to fruition, with some additional environmental review as discussed below, the project may still be viable.

Youngewirth v. Town Board of Ramapo

In Matter of Youngewirth v. Town of Ramapo Town Board et al., decided November 8, 2017, the Appellate Division, Second Department reversed the Supreme Court’s, May 8, 2013 determination which denied the petition and dismissed the proceeding. The appellate court annulled the determinations of the Town Board and remitted the matter back to the Town Board for further proceedings consistent with the decision. Specifically, the Court found that the Town Board did not take the requisite “hard look” pursuant to SEQRA because of its (i) failure to review the environmental impact of the proposed development in close proximity to the existing Columbia Natural Gas Pipeline, (ii) failure to consider the combined impact of the development and pipeline on the environment, (iii) failure to list Columbia Gas as an “interested agency” pursuant to SEQRA, and (iv) failure to make a “reasoned elaboration” for the basis of its determination regarding this issue by not mentioning the potential impacts in its FEIS or findings statement.

The Court, however, sided with the Town on petitioner’s claim that the zone change was in conflict with the Comprehensive Plan and found that petitioner failed to establish a clear conflict with the Comprehensive Plan. The Court also found that petitioner failed to establish that the zone change constituted impermissible spot zoning. The Court further noted that requiring a certain number of affordable housing units was consistent with the Comprehensive Plan and was a reasonable condition related to and incidental to the property. However, because the Court found that the approval for the findings statement pursuant to SEQRA was required prior to amending the Comprehensive Plan or granting the proposed zone change, the annulment of the resolution approving the SEQRA findings statement required the annulment of the determinations regarding the Comprehensive Plan and proposed zone change.   Ultimately, the Court remitted the matter back to the Town Board for preparation of a Supplemental Environmental Impact Statement (“SEIS”) to consider the issues related to the gas pipeline.

Shapiro v. Ramapo Planning Board

In the related case of Matter of Shapiro v. Planning Board of Town of Ramapo et al., decided November 8, 2017, the Appellate Division, Second Department likewise annulled the Supreme Court’s determinations and remitted the matter back to the Planning Board for further review consistent with its decision.  The Planning Board approved Scenic’s three separate applications for final subdivision and site plan approval of three housing projects as part of Scenic’s proposed development of the property.  Here, petitioner alleged that a SEIS was required in connection with the SEQRA review conducted for the proposed development because the applicant, Scenic, failed to obtain a jurisdictional determination from the United States Army Corps of Engineers (“ACOE”) validating the delineation of wetlands on the property. The Court outlined that a lead agency’s determination whether to require an SEIS is discretionary. Specifically, SEQRA in section 6 NYCRR 617.9(a)(7(ii) provides, “the lead agency may require a supplemental EIS limited to the specific adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from (a) changes proposed for the project, (b) newly discovered information, or (c) a change in circumstances related to the project”. Here, petitioners alleged that the Planning Board failed to consider newly discovered information having received a letter indicating that the ACOE reviewed the development plans but not the wetlands delineation. The applicant was required to obtain the ACOE’s jurisdictional wetlands delineation and the Planning Board was required to rely on the ACOE’s federal wetland delineation since wetlands were excluded in part from the yield calculations related to the proposed development. Thus the Court found that the Planning Board failed to take the requisite hard look pursuant to SEQRA and remitted the matter back to the Board for the preparation of an SEIS regarding the presence of wetlands on the property.

Village of Pomona v. Town of Ramapo

The neighboring Village of Pomona also sued the Town Board and Planning Board of Ramapo in two separate actions in which the Supreme Court denied the petitions and dismissed the proceedings. On November 8, 2017, The Appellate Division, Second Department reversed these determinations related to the Scenic proposal as well in Village of Pomona v. Town of Ramapo et al. Here, although the Court found that the Town of Ramapo adequately considered the effect of the proposed development on community character and complied with General Municipal Law §239-m(3) by providing a point-by-point response to the Village’s comments on the application, the Court determined that the lower court should have granted the Village’s petition based on the reasons stated in the Youngewirth decision referenced above.

In all, there have been approximately ten challenges over the years related to the Town of Ramapo’s approvals of Scenic’s proposed development. Although the local land preservation groups claim the recent court decisions as a total win, the Appellate Division made significant findings in support of the Town of Ramapo’s review and reversed the Supreme Court’s determinations on very specific grounds, which, if addressed correctly by the Town, could result in the multi-family development being built.



As outlined in our prior blog by Anthony S. Guardino, posted on March 20, 2017 entitled, “East Hampton Considers New Laws Mandating Nitrogen-Reducing Sanitary Systems and Offering Rebates to Replace Existing Systems”, similar to the Towns of East Hampton and Brookhaven,  the Town of Southampton adopted a local law on July 25, 2017 requiring advanced nitrogen-reducing sanitary systems starting September 1, 2017.

The Town will require an Innovative and Alternative On-Site Wastewater Treatment System (“I/A OWTS”) for (i) all new residential construction; (ii) any substantial septic upgrades required by the Suffolk County Department of Health Services; and (iii) any increase of 25% or more in the floor area of a building for those projects located in the “High Priority Area” as defined by the Community Preservation Water Quality Improvement Plan Project (“CP WQIPP”). In addition, an I/A OWTS shall be required for any new septic system or a substantial septic system upgrade required by the Conservation Board or Environment Division pursuant to Town Code Chapter 325, Wetlands.

The I/A OWTS is defined in the Town Code as “an onsite decentralized wastewater treatment system that, at a minimum, is designed to result in total nitrogen in treated effluent of 19 mg/l or less, as approved by the Suffolk County Department of Health Services.”

Southampton is also offering a rebate program through its Community Preservation Fund for systems within the Medium and High Priority Areas of the CP WQIPP with the following qualifying limits: (i) if you earn less than $300,000 /year, up to 100% of the cost to a maximum of $15,000 is available and (ii) if you earn between $300,001 – $500,000/year, up to 50% of the cost to a maximum of $15,000 is available.

Prior to implementing the updated septic requirements, the Town of Southampton studied the need for such systems and drafted the Community Preservation Water Quality Preservation Plan Project. The CP WQIPP thoroughly identifies and reviews the need for the required sanitary upgrades, finds consistency with the Town’s Comprehensive Plan and outlines how the Town characterized the high and medium priority properties that are now required to comply with the law.

Specifically, the CP WQIPP states:“The WQIPP presented herein is designed to complement the 2015 Town of Southampton CPF Project Plan, by markedly advancing efforts to foster aquatic habitat and watershed restoration, promote flushing in our bays and tidal systems, abate non-point source pollution and runoff, reduce sewage discharges and nitrogen inputs, and reverse or stem other activities threatening our coastal resources and drinking water aquifers.”

The Town of Southampton has preliminarily mapped priority areas for the purpose of this plan, based on the following criteria:

  •  Locations with no public water (well water);
  • Older communities, where many of the homes are likely to have cesspools instead of septic systems;
  • Homes that are built on small lots (less than half-acre);
  • Sites that have shallow depths to groundwater (e.g. less than 10 feet);
  • Sites that may be temporarily under threat of flooding or storm surge (FEMA Flood zones, SLOSH7 zones);
  • Soils that may be too porous or too impermeable for proper treatment of wastewater;
  • Areas where groundwater reaches surface water bodies relatively quickly;
  •  Nearby water bodies listed as TMDL impaired or the site of restoration efforts.

Parcels in each hamlet that meet one or more of these criteria are delineated on the maps as high or medium priority as follows:

High Priority: A combination of the parameters described above (SLOSH, FEMA, TMDL, Size, etc.) and 0-2 year groundwater to surface water travel times.

Medium Priority: 0-10 year groundwater to surface water travel times excluding the areas in the High Priority above.

The CP WQIPP also includes maps of the entire Town delineating the High Priority Areas (all waterfront/coastal properties in the Town) and Medium Priority Areas. Although these low nitrogen systems require ongoing monitoring and maintenance, the Southampton law does not require ongoing inspections by the Town.  The Town of Southampton has set up a helpful website where property owners can look up their specific property to determine if they are located in a High or Medium Priority area.  Notably, the Town of East Hampton adopted its local law requiring nitrogen-reducing sanitary systems on August 8, 2017, however, the portion of the law requiring the new, nitrogen-reducing sanitary system does not take effect until January 1, 2018.


Petitioners, residents and nearby occupants (“Petitioners”), commenced a hybrid Article 78 proceeding and declaratory judgment action against the Planning Board of the Village of Tuckahoe (“Board”) and others in Murphy v. Planning Board of Tuckahoe (Sup. Ct. Westchester County 2017), to annul a negative declaration issued by the Board. The Board initially issued a conditional negative declaration (“CND“) for a project to construct a hotel, restaurant and parking lot (“Project”) at a former marble quarry and dump site (“Site”). Petitioners filed suit after the Board amended its CND to a negative declaration.

The Site had been a quarry from the late 1800s until the 1930s, after which private entities and municipalities used the Site for dumping. In 2014, the project’s developer, Bilwin Development Affiliates, LLC (“Developer”), conducted environmental testing which revealed concentrations of volatile organic compounds, semi-volatile organic compounds and inorganic compounds at the Site. The Developer applied for admission into the New York State Brownfield Cleanup Program (“BCP”), which the New York State Department of Environmental Conservation (“DEC”) accepted. During plan preparation for the BCP, the Developer submitted an application to the Board for site plan approval for the Project; and the Board declared itself lead agency for SEQRA review.

In July 2015, after its review, the Board issued a draft conditional negative declaration (“CND”) with time for notice and comment. The Board ultimately adopted the CND in September 2015, categorizing the Project as an unlisted action with the condition that the Developer meet all DEC and Department of Health requirements.

Before and after issuance of the CND, the Developer – in conjunction with the DEC and the Board – performed additional Site investigations and prepared plans for remediation and containment. The final plans for the Project included remediation specifications for the contaminated soil, a community air monitoring plan and construction of a hotel and parking lot as a Site cap. The DEC determined that the remediation plan would eliminate or mitigate all significant threats to public health and the environment presented by contamination.

In October 2016, after a number of public meetings and comments, the Board amended the CND to a negative declaration based upon the DEC’s determination, the remediation plans and other documents in the record. This amendment occurred over a year after the issuance of the draft CND (July 2015). Petitioners sued to annul this decision claiming, among other things, that: (1) SEQRA regulations do not allow the amendment or rescission of a CND unless the lead agency later determines a positive declaration is appropriate; and, (2) the lead agency failed to take a “hard look” at evaluating the environmental impact of the methods to be used in removing contaminated soil and monitoring contaminants. Petitioners also challenged the issuance of the CND.

First, although SEQRA regulations require rescission of a negative declaration or CND if new substantive information or changes cause the lead agency to determine a significant adverse environmental impact may result, the regulations do not prohibit amendments to a CND that remove conditions. 6 NYCRR § 617.7(d)(2), (f)(1). Moreover, SEQRA regulations permit a lead agency, at its discretion, to amend a negative declaration (a CND is a type of negative declaration) at any time prior to the decision to approve an action. 6 NYCRR § 617.7(e). Therefore, the Board was allowed to amend or rescind the CND.

Second, with respect to excavating the contaminants, Petitioners argued that the proposed methods to remediate and monitor were unsafe. Notably, Petitioners did not argue that the proposed methods would have an adverse environmental impact. Petitioners cited their experts’ methods and opinions, which the Board already reviewed during the comment period. The Court held that, at best, Petitioners merely indicated a disagreement between Petitioners’ experts and the Board as to the preferred methods to remediate and monitor – which is not grounds to overturn the Board’s decision to issue the negative declaration.

Lastly, the Court held that Petitioners’ challenge to the underlying CND was untimely. The draft CND was published on July 21, 2015, the period of limitations began to run thirty (30) days later on August 20, 2015, and expired four (4) months later on December 20, 2015. Petitioners could not attack the underlying CND eleven (11) months past the period of limitations by virtue of seeking to annul a later amendment to that CND.

Based upon the foregoing, and other reasons, the Court dismissed these challenges.

In Miranda Holdings v. Town Board of Town of Orchard Park, ____ N.Y.S. 3d, ____, 2017 WL 2884633 (4th Dept. July 7, 2017), Petitioner, Miranda, proposed a commercial structure that included a restaurant with a drive-through window. The Town Board was not happy.  Not only did the Board improperly declare the proposed restaurant with a drive-through as a Type I action under SEQRA, but also it required a full-blown EIS.  Further,  the Town enacted a local law specifically declaring that, going forward, all restaurants with a drive-through would be categorized as Type I actions.

Although the Appellate Division upheld the trial court’s determination that that law does not allow the Town to reclassify actions in a manner that is contrary to the DEC classification, the Court, without any real explanation, remitted the matter back to the Town for further findings consistent with its opinion.

In Miranda’s favor, the Appellate Division upheld the trial court’s decision to invalidate the local law, which reclassified all restaurants with a drive-through as Type I actions wholly inconsistent with the DEC’s Type II designation.

The Town’s Actions

At first, the Town determined that the project was an Unlisted action under the State Environmental Quality Review Act (“SEQRA”) and SEQRA Regulations. See, 6 NYCRR Part 617. The Town issued a “positive declaration” requiring that Miranda prepare an Environmental Impact Statement (“EIS”). A full-blown EIS is difficult, time consuming and expensive. Unsurprisingly, Miranda claimed that the proposed project was a Type II action under the regulations and, therefore, was exempt from all environmental review and from preparing an EIS. In response, the Town passed a resolution making a drive-through restaurant project a Type I action, so that it was presumed to require an EIS. Miranda sued, arguing that the Town (1) was out of bounds, (2) was not allowed to make the project a Type I action because by its nature, it is a Type II action and (3) could not require that Miranda prepare an EIS.

What a mess! The Court’s decision does not add a lot of clarity.

The Trial Court Decision and SEQRA

Like ancient Gaul, all SEQRA actions are divided into three parts – Type I, Type II and Unlisted. A Type I action “carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS. Type II actions are just the opposite – they are exempt from environmental review under SEQRA and thus not only is an EIS not required, but no review is technically required. “Unlisted” actions are everything that is neither Type I nor Type II, thus allowing latitude in what additional review is necessary.

Most Type I and Type II projects are defined in the NY Dept. of Environmental Conservation (“DEC”) Regulations. For example, all permits and variances regarding single-family homes are Type II actions. However, municipalities may also adopt their own lists of Type I and Type II actions, so long as they do not conflict with the DEC’s lists. In particular, a municipality “may not designate as Type I any action identified as a Type II” in the DEC Regulations.

One of the actions identified as a Type II under the DEC Regulations is a commercial facility (or extension) of up to 4,000 sq. ft., which otherwise meets zoning, such as use restrictions, setbacks or height limits. When the Town initially determined that the proposed drive-through restaurant was “Unlisted,” the developer argued that this 4000-sq. ft. commercial facility provision made the project a defacto Type II action exempt from SEQRA. The Town’s reaction in passing the local law was to make all drive-through facilities into Type I actions – spurring the developer’s lawsuit, claiming that the Town could not convert a Type II action into a Type I action.

The trial court decided in Miranda’s favor, holding that because a drive-through facility was a Type II action under SEQRA, the Town could not automatically make it a Type I action.

The Court acknowledged that the Regulations do not specifically list drive-through facilities as Type II actions. However, the SEQRA Handbook published by the DEC does mention fast food facilities as being within the contemplation of the 4,000 sq. ft. Type II and also gives as an example of a Type II, the expansion of a commercial restaurant where the project is less than 4,000 sq. ft. The Court also noted that the Final Generic Environmental Impact Study prepared by DEC in connection with the 1995 adoption of proposed amendments to the Regulations – including the 4,000 sq. ft. commercial project as a Type II – directly referenced a “drive-through window” as part of the commercial expansion that would be exempted if the 4,000 sq. ft. limitation were met. Therefore, the Court concluded that the DEC “contemplated restaurants with drive-through windows as Type II actions.”

The Appellate Division Determination

However – and here is the mystery – the Appellate Division held that the Supreme Court should not have found that the proposed restaurant was a “4,000 sq. ft.” Type II – without “a revised review” by the Town. What is there to review?

The Appellate Division may have had some empathy with the Town’s concerns and afforded it the opportunity to look more closely at the proposed project. More fundamentally, the “4,000 sq. ft.” Type II is very broad and can easily include projects that pose potential for significant impacts, like traffic and air quality. Despite the fact that the DEC determined that projects of this limited size “do not rise to the level of significance envisioned by [SEQRA] as requiring an EIS,” perhaps other aspects of the proposed development needed further review by the Town.

What the Appellate Division did unequivocally declare is that a municipality cannot reclassify a project from a Type II to a Type I, as this is prohibited under SEQRA.  Invalidation of the local law was upheld.

The bottom line lesson is that municipalities should address planning and zoning concerns for their ordinary development through zoning and planning; not by a short cut in trying to stretch environmental review beyond the DEC regulations specific to each project.


shutterstock_637510813On April 25, 2017, the Southold Town Board adopted Local Law No. 5 of 2017, which amends the Town’s Zoning Code as it relates to agricultural uses. Specifically, the local law amends and adds certain definitions to the Code in recognition of the changes in modern farm operations. The changes are also consistent with the expanded definitions of agriculture found in New York State’s Agriculture and Markets Law.

The new law broadens the scope of agricultural practices by adding several definitions, including those for agriculture, agricultural production, agricultural processing, farm operations, farmhouses, processed agricultural product and on-farm operation direct marketing.  These changes expand agricultural practices beyond the growing of crops and raising of livestock and will allow farmers to process their crops and other agricultural products onsite and market them for sale, much like vineyards that make wine on their properties. Such processed agricultural products include jams, jellies, cheeses, potato chips, jerkies, meats, fowl, fish, breads and baked goods, beer, wine and distilled alcoholic and non-alcoholic beverages.

Farmers will also be allowed to sell their processed agricultural products directly to consumers from within buildings constructed on the farm for the purpose of marketing their products.  The law even allows non-farmers to sell home grown fruits, vegetables or plants to the general public from a “roadside stand,” which is defined as a display area that is less than 100 square feet in size located on the same parcel where the products are grown.

According to Chris Baiz, the chairman of the Southold Agricultural Advisory Committee and a fourth-generation farmer, the high cost of land requires farmers to achieve greater cash flows in order to operate successfully.  These new changes should help local farmers realize more income from their lands by allowing them to process and market value-added products from within their operations.

This month, U.S.-based energy giant Invenergy expects to break ground on New York’s second largest solar farm project at the former Tallgrass golf course in Shoreham.  A leader in wind and solar development, energy storage and natural gas operations, Invenergy will add the Shoreham Solar Commons to its portfolio.

Tall Grass solar media pic
The Long Island Power Authority approved the solar array in 2016 and, in early 2017, the New York State Comptroller and Attorney General green-lit the project.  Last month, Invenergy finalized its acquisition of the Tallgrass property.  Invenergy awaits the Town of Brookhaven’s issuance of the building permit for the project.

The 150-acre array will generate 24.9 megawatts (50,000 megawatt hours per year) – enough to power approximately 4,500 homes – under a 20-year power-purchase agreement with LIPA.  Notably, the 24.9 megawatts comes in just under the 25 megawatt threshold that would have triggered a more extensive review process under New York’s Power Act of 2011 that was signed into law by Governor Cuomo on August 4, 2011 (codified in Article 10 of the New York Public Service Law).

Unlike many other solar farms proposed on Long Island and elsewhere, Shoreham Solar Commons will not require clearcutting trees.  Tallgrass was fittingly a “links style” golf course, a more traditional style course hosting open spaces, high grass and bunkers rather than trees and brush.  In addition, Invenergy has pledged to plant 2,000 evergreen trees to buffer the array.

Invenergy will employ upwards of 100 people during construction over the next year, but there are no plans for full-time jobs after the array is built.  The Commons will pay approximately $670,000 per year to its local taxing districts – almost ten times more than the taxes paid by Tallgrass.  The tax figure will increase prospectively.