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.

 

 

A recent decision by the Appellate Division decided that a village zoning code was inapplicable to a water district. As a result, the water district was able to proceed with replacement of one of its massive elevated water storage tanks and the village was powerless to use its zoning powers to either stop the construction or impose restrictions on the structure.

The case, Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 57 NY3d 154 [2d Dep’t 2017], involved a special district located within the Town of North Hempstead. The special district, the Manhasset-Lakeville Water District, supplies potable water to consumers located within the district’s boundaries. The water district uses its elevated water storage tanks to store water and maintain water pressure. One of the district’s storage tanks is on property owned by the water district that is located within the boundaries of the Village of Munsey Park (“Village”).

The elevated water storage tank in question was built in 1929. The water district determined it was in need of replacement in 2014. The water district developed a plan to replace the 1929 storage tank and held two public hearings about its proposal. Village officials participated in these public hearings. The district revised the plan after the public hearings, partly to accommodate concerns of the Village and Village residents elicited at the hearings.

The finalized plan called for the replacement of the 1929 storage tank with a new tank that would hold 250,000 gallons more than the 1929 tank. In addition, an antennae was proposed to be installed on the new tank to facilitate wireless communication between the district facilities, its employees, and volunteer firemen. The water district determined that the proposed construction plan was immune from the Village zoning code, based upon the principles enumerated in Matter of County of Monroe (City of Rochester), 533 NY 2d 702 [1988].

The Village sued. It sought a declaratory judgment and permanent injunction to prevent the demolition of the 1929 tank and construction of the replacement tank, claiming that the 30 foot height restriction contained in the Village zoning code would be violated by this structure. The trial court ruled in favor of the water district, a finding that was affirmed by the Second Department.

The appellate court discussed the City of Monroe case, in which the Court of Appeals dealt with the applicability of a local zoning code where two governmental entities are in conflict over a proposed project. The Court of Appeals set forth a balancing test in that case to determine if there is immunity from the local zoning code for the other governmental entity. These factors include: (1) the nature and scope of the governmental entity seeking immunity from the local zoning code, (2) the type of zoning restriction involved, (3) the extent of the public interest served by the local zoning code, (4) the effect that the local zoning code would have on the other governmental entity, and (5) the impact on local interests.

Using this balancing test, the Second Department determined that the water district was immune from the Village zoning code. The court further noted that the Village failed to set forth any basis for the Village’s contention that the Village had the exclusive right to evaluate the factors and make this immunity determination.

One other note. The water district  also determined that the project was a Type II action under the State Environmental Quality Review Act (“SEQRA”) and, thus, not subject to review under SEQRA. This finding was upheld by the trial and appellate courts. The Second Department explained that since the project involved the “replacement, rehabilitation or reconstruction of a structure or facility, in kind,” it was a Type II action under 6 NYCRR § 617.5[c][2], even though it was going to hold 250,000 more gallons than the 1929 tank.

Because of the essential service at issue in this case, the provision of a safe and reliable source of potable water, it is understandable why the courts would favor the water district over a height restriction in a local zoning code.  If the project involved something less vital, the result may have been different.

Week to week we blog about recent developments in the land use arena, which typically arise in the civil context.  This week, we thought a recent “criminal” case decided by the Supreme Court, Appellate Term, Second Department, was not only particularly interesting, but also, the topic of illegal rental permits is one that many land use practitioners grapple with multiple times during their legal careers.

On October 26, 2017, the Appellate Term decided People v Makrides, 2017 NY Slip Op 51442 (U).  In Makrides, the Village Code Enforcement Officer alleged that on August 20, 2014, he visited property located on Beach Street.  The door was answered by an individual who identified himself as a renter and of no relation to the owner, Marie Makrides, with Beach Street Properties.   Based on a further review of rental permit records, and the lack thereof, the Code Enforcement Officer issued an Information alleging that Makrides was in violation of Village Code Section 205-4, failure to obtain a rental occupancy permit.

The Code Enforcement Officer visited the property again on November 5, 2014; except for the testimony of the alleged renter, the Code Enforcement Officer found the property to again be in violation of  the rental occupancy permit ordinance.

Makrides’ attorney moved to dismiss the accusatory instruments for facial insufficiency (CPL 100.15; 100.40).  Specifically, it was argued that the accusatory instruments “failed to contain facts of an evidentiary nature . . . and that they” were improperly based upon hearsay allegations. The Justice Court denied the motion.

After a non-jury trial, the Court found Makrides to be in violation of the rental permit ordinance and fined her $5,000.00 for each charge.  Makrides appealed.

The Appellate Term reversed both convictions, finding that facial insufficiency is a nonwaivable jurisdictional prerequisite to a criminal prosecution (CPL 100.40).  Finding that the statement made by the renter to be hearsay, and not supported by a deposition, it was an error for the Justice Court to rely on said testimony.  The testimony of the renter is clearly an out of court statement introduced in court for the truth of the matter at hand, to wit; classic hearsay testimony.

Consequently, the Appellate Term held that without said hearsay testimony, the Informations alleging that the defendant failed to obtain a rental occupancy permit –  without saying why it was necessary for her to obtain one – failed to contain “factual allegations . . .  through nonhearsay allegations . . . of the offense charged and defendant’s commission thereof.”

Abiding by principles of judicial restraint, the Court declined to make a further finding that the Port Jefferson Village Rental Permit Ordinance was unconstitutional.  It did, however, require the Village to remit, if paid, the combined $10,000.00 fine to the defendant.

In the Village of Bayville, New York (“Village”), a landowner wished to enclose and protect private property (“Lot 18”) , including the roadway thereon, against trespassers and traffic.  The landowner sought to erect crash gates on both sides of its property and across the roadway to prevent public access.  The road upon Lot 18 forms a part of Shore Road (connecting the public part of the roadway north of Lot 18 with Godfrey Avenue farther to the south).  Notably, Lot 18 abuts Mill Neck Creek and preventing traffic and access across the portion of Shore Road located upon Lot 18 may provide unfettered access to the water.

In the summer of 2013, the landowner made applications to the building inspector for a fence permit to construct two twelve-foot wide crash gates across Shore Road at the north and south sides of Lot 18.  The building inspector denied the applications and the landowner appealed to the Zoning Board of Appeals (“Board”).  The Board denied the landowner’s appeal and the landowner commenced a hybrid Article 78 proceeding/action in the Supreme Court against the building inspector and the Board.

In addition to seeking a reversal of the denials and demanding issuance of the building permit for the fences, the landowner sought damages for inverse condemnation.  The landowner argued that the Village had exercised a taking by allowing public access through the private property and upon the private roadway (especially because the building inspector and the Board denied the landowner’s rights to prevent such access).

The trial court issued an initial decision of June 2014, inter alia,  (i) denying the landowner’s petition to reverse the denials and (ii) granting the building inspector’s and the Board’s motions to dismiss, including for failure to state a cause of action for inverse condemnation.  Afterwards, however, the trial court granted the landowner’s application for leave to reargue.  Upon reargument, the trial court’s later decision of December 2014, as clarified by its order of March 2015, affirmed its initial decision – except it denied the motion to dismiss the landowner’s claim for inverse condemnation.  The building inspector and the Board appealed the March 2015 clarification order.

Last month, the Appellate Division, Second Department, affirmed the trial court’s March 2015 clarification order.  The appeals court noted that “[t]he cause of action [for inverse condemnation] should not have been dismissed since [sic], inter alia, it stated a cause of action to recover for damages . . . .”  Accordingly, the landowner can pursue its cause of action for inverse condemnation against the Village where public access upon and across private property is sanctioned by denial of the ability to enclose and protect it.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.

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.

 

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

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

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

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

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

 

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.

 

In People Theatres of N.Y. Inc. v. City of New York, 2017 N.Y. Slip Op. 04385, various owners of adult businesses (“Plaintiffs”) brought separate actions against the City of New York (“City”) based upon First Amendment challenges seeking relief against zoning ordinances that bar adult establishments from operating in, among other areas, all residential districts and most commercial and manufacturing districts (“Ordinance“). The cases were consolidated; and after the trial court’s initial determination, the cases experienced a complex procedural history, having been appealed to the Court of Appeals twice over the course of fifteen (15) years.  A comprehensive discussion of this case and its lengthy history can be found in this extended blog post.

Here, the Ordinance at issue sought to combat negative secondary impacts relating to sexually focused businesses, which impacts were  demonstrated in a 1994 study conducted by the City.  Whether and how the Ordinance applied to particular adult businesses was the impetus for prior litigation in 1995.  In 1998, the City created the so-called 60/40 rule.  Under this rule, any commercial establishment with at least 40% of its customer-accessible floor/cellar area or stock-in-trade used for adult purposes qualified as an “adult establishment” covered by the Ordinance.  Plaintiffs modified their businesses to comply with the 60/40 rule.   The City, however, believed that while many operators were achieving “technical compliance” with the rule, their compliance was a sham. According to the City, the businesses still primarily focused on sexually explicit activities or materials; and their non-explicit materials were an afterthought that did not generate sales.  To shore up enforcement, the City amended the Ordinance in 2001 to effectively eliminate the 60/40 rule (“2001 Amendments”).

The main issue in this case was the relationship between (1) the standard that applies to First Amendment challenges in the context of ordinances affecting adult uses, and (2) the burden of proof a municipality must meet in order to sustain such ordinances. The Court held that “intermediate scrutiny” applies in this type of First Amendment adult use zoning context, which requires that an ordinance be narrowly tailored to the municipality’s justified purpose and assure reasonable alternative avenues of communication.  When applying intermediate scrutiny, a court must balance the interests at stake while assessing a municipality’s factual judgments.  The burden of proof relative to the municipality’s factual judgments is “modest” (no pun intended) and akin to substantial evidence, which is accorded more deference than that given to administrative agencies.

As such, the standard of review in this case is intermediate scrutiny, while the burden of proof is similar to substantial evidence.

The governing legal precedent is set forth in Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), wherein the Supreme Court set forth the three-part burden shifting test, which describes a municipality’s burden of proof to sustain its laws in the face of a First Amendment challenge.   First, the municipality must “fairly support” its rationale for the ordinance. Second, a challenger must cast direct doubt upon the rationale – either by (I) demonstrating the municipality’s evidence does not support the rationale, or (ii) furnishing evidence disputing the municipality’s factual findings. If the challenger cannot cast doubt, then the municipality wins. If the challenger is able to cast doubt, then the third step comes into play; and the burden shifts back to the municipality to supplement the record with evidence renewing support to justify the ordinance.

Here, after applying the Alameda three-prong test, the Court reversed the Appellate Division holding that  the lower court’s mechanical approach was improper and confused the ultimate standard of review (intermediate scrutiny) with the evidentiary burden (similar to substantial evidence) borne by the City. Because the third step of the Alameda analysis obliges a modest burden of proof akin to substantial evidence, it was an error for the lower courts to determine that the City failed to meet its burden.  In this instance, the City met its burden of showing continued focus on sexually explicit activities and materials by the Plaintiffs’ businesses – despite any 60/40 compliance. Therefore, the Appellate Division was reversed and the Ordinance was sustained.