On January 4, 2022, the New York Court of Appeals heard oral argument in the case of Hunters For Deer, Inc. v Town of Smithtown, where conflicting provisions of a Town of Smithtown firearm ordinance and the Environmental Conservation Law (ECL) both vie for authority.

This appeal presents questions of preemption and statutory interpretation: whether the State Legislature, in amending the ECL to reduce the setbacks for the use of “bows and arrows” intended to preempt local municipal regulations of “firearms.”  Specifically, the question is whether the State statute ECL §§ 11-0701(2)(a) and 11-0931(4)(a)(2) preempt Chapter 160 of the Town Code of Smithtown.

Hunters For Deer, Inc. (HFD) brought this action against the Town of Smithtown in 2017, to declare invalid Town Code Chapter 160, which defines “firearm” to include “sling shots” and “a bow and arrow” and prohibits its discharge within a 500-foot setback of an occupied structure.  HFD contends that Chapter 160 is inconsistent with, and therefore is preempted by, the ECL which defines and regulates the use of a bow and arrow and recently reduced the setback to 150 feet from an occupied structure.  In 2020, after losing at the trial court level, the Second Department reversed the lower court’s decision, stating that the Town’s more restrictive setback regulations were preempted by the State’s firearm law and the ECL.

The Town was granted leave to appeal and contends that Chapter 160 is not preempted by the ECL, because certain towns in New York are specifically empowered to regulate firearms pursuant to Town Law  §130(27), when such activity may be hazardous to the general public.  The Town claims because Town Law §130(27) allows for ordinances, rules and regulations that “may be more, but not less, restrictive” than any other provisions of State law, it can increase the setback for the discharge of a bow and arrow to 500 feet, which was the prior distance set by the State before the 2014 amendment to the ECL.

Notably, the New York State Department of Environmental Conservation (DEC) has backed HFD’s position. The agency argued in its amicus brief that the State reduced its setback rule for long bows to “promote effective deer management in suburban areas” as part of a field that is comprehensively regulated by the DEC.

The questions presented before the Court were: (1) whether a long bow is not a “firearm” within the meaning of Town Law §130(27), and thus that statute does not authorize Smithtown to regulate the discharge of long bows and (2) whether a local ordinance prohibiting the discharge of a long bow within 500 feet of any dwellings is preempted by state law that comprehensively regulates hunting and expressly authorizes licensed hunting by long bow beyond the shorter discharge setback distance of 150 feet.

In 2014, the Legislature reduced the setback restriction for long bows to 150 feet.  See, L. 2014, ch. 55, pt. EE, § 8. The purpose of this change was to expand hunting opportunities in the State. The Memorandum in Support of the bill explained that the reduced setback for long bows “would maintain a safe distance for engaging in the sport while making available for hunting more lands in suburban areas, which would increase hunting opportunities, and help manage locally over abundant deer populations.”

During oral argument, Jennifer Juengst for Smithtown attempted to persuade the Court that the Town is within its rights under its home rule authority to enact ordinances that are more restrictive than the State’s. Arguing for HFD, Christian Killoran contended that the two laws clearly conflicted and called for the Court to limit the boundaries of municipal home rule, because the State had already taken into account public safety concerns when setting the 150-foot restriction and clearly “occupies the field” of hunting.

Under the doctrine of conflict preemption, where the State has shown a clear intent to “occupy the field,” a local law or regulation seeking to regulate the same subject matter is preempted and must yield to the State law if it either: (1) prohibits conduct which the State permits or (2) imposes restrictions beyond those imposed by the State law. See, Vatore v Commissioner of Consumer Affairs of the City of NY, 83 NY2d 645 [1994].

During oral argument, the panel of judges appeared split, with some judges arguing that because the State law merely sets forth the 150-foot safety restriction as a minimum, Smithtown could simply increase that setback under its police power and home rule authority.  While other judges appeared to be more convinced that there was a clear conflict between the State law and Town ordinance, with Judge Wilson stating to the Town, “you can’t call a banana a firearm can you.”

At the end of argument, Judge Garcia asked a pointed question of the Town about how much deference should the Court give to the State, which stated in its amicus brief that the ECL expressly authorized hunting in the State by long bow beyond the shorter setback distance of 150 feet, and Smithtown’s ordinance – which effectively bans hunting in nearly all of Smithtown – thus conflicts with, and is preempted by State law.

The tension between the Town’s home rule authority regarding greater setback distances versus the State’s need for safe and more effective distances for bow hunting as a tool to manage its exploding deer population appears to be on a knife’s edge.  Whether the ECL’s preemption is “to be or not to be” remains the question. See generally, Shakespeare, Hamlet, Act III, Scene I.

In April 2019, this blog discussed Committee for Environmentally Sound Development v. Amsterdam Avenue Development Associates, LLC, 2019 WL 1206357, 2019 N.Y. Slip Op. 30621(U) (Sup. Ct. New York Co., March 14, 2019), a case in which the New York County Supreme Court granted an Article 78 petition to annul a 2018 resolution by the New York City Board of Standards and Appeals (BSA).  The 2018 BSA Resolution upheld the issuance of a building permit by the New York City Department of Buildings (DOB) to Amsterdam Avenue Redevelopment Associates (Developer), for the construction of a 52-story residential tower at 200 Amsterdam Avenue based on the DOB’s historical interpretation of the New York City Zoning Resolution (Zoning Resolution).  The interpretation relied on was set forth in a 1978 Departmental Memorandum of Acting Commissioner Irving Mishkin, which provided, among other things, that “a single zoning lot may consist of one or more tax lots or parts of tax lots.”  Petitioners asserted that the BSA erred in upholding the building permit because the 39-sided zoning lot that the Developer assembled from partial tax lots is not a proper zoning lot within the meaning of Section 12-10(d) of the Zoning Resolution.  During the pendency of the litigation, the Developer commenced construction based on the challenged building permit.  In March 2019, the Supreme Court annulled the 2018 BSA Resolution and remanded the matter to the BSA with instructions to review the issuance of the building permit in accordance with the plain language of the Zoning Resolution and the Court’s decision.

Following the remand, the BSA issued a revised resolution in 2019 (2019 Revised Resolution) which, once again, upheld the DOB’s issuance of the building permit.  The BSA concluded that the Zoning Resolution allowed the Developer to include partial tax lots in its declared zoning lot based on the DOB’s long-standing interpretation of the Zoning Resolution.  In July 2019, the petitioners commenced a second Article 78 proceeding to vacate the 2019 Revised Resolution and, by this time, the Developer had already “topped out” construction at the 52nd floor.

In a decision with harsh consequences that garnered significant attention from real estate developers, as well as the attorneys who represent them, the Supreme Court annulled the 2019 Revised Resolution and ordered the DOB to revoke the building permit and compel the Developer to remove about 20 floors of the building that exceeded the bulk allowance under the Zoning Resolution.  The Developer, the DOB and the BSA all appealed.

In a significant victory for the Developer, this closely-watched legal battle recently ended with the Appellate Division, First Department, reversing the Supreme Court’s latest decision, and allowing the Developer to proceed with the completion of the tallest skyscraper on New York City’s Upper West Side.

The Appellate Division’s decision was based on a finding that the BSA, in its revised resolution, had rationally interpreted the Zoning Resolution’s undefined and technical terms and its interpretation should have been given deference.  As a justification for this deference, the Court held that “the BSA is the ultimate administrative authority charged with enforcing the Zoning Resolution” and is “comprised of experts in land use and planning, who not only possess technical knowledge of New York City’s reticulated zoning regulations and their operation in practice, but also are uniquely equipped to assess the practical implications of zoning determinations affecting the City’s eight million residents.”  The appellate ruling noted that the Zoning Resolution was “not entirely clear and unambiguous when read as a whole” and highlighted several technical terms that were not defined and, therefore, subject to interpretation.  It concluded that the BSA’s interpretation of the Zoning Resolution to allow a zoning lot to include partial tax lots was “neither irrational, unreasonable nor inconsistent with the governing statute” and that the BSA also properly considered the Developer’s reliance on the Department’s long-standing memo and the fact that certificates of occupancy had been granted for other buildings on the block that included partial tax lots.

In a particularly devastating blow to the petitioners, the appellate court also concluded that the proceeding was moot because the building was substantially complete and the petitioners failed to seek injunctive relief at every step.  In the construction context, a significant factor in evaluating a mootness claim is a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation.  Here, the Court found that while the petitioners moved for injunctive relief in April 2019, the Supreme Court denied that motion and allowed construction to continue.  Although the petitioners took an appeal from that decision, they later abandoned their appeal.  By the time this case reached the Appellate Division, the Developer had expended millions of dollars in construction costs.  After noting that the petitioners failed to pursue their appellate remedies and finding that the building was now substantially complete, the Court dismissed the proceeding as moot.

The death knell to the three-year protracted litigation sounded when the petitioners’ request for leave to appeal the Appellate Division’s decision to the Court of Appeals was denied.  While it remains to be seen whether this decision will have future ramifications for other New York City development projects, this particular residential tower is now complete with units being sold for some of the highest prices per square foot on the Upper West Side.

In Matter of Marcus v. Planning Board of the Village of Wesley Hills, et al., the respondent, Rockland Tree Expert, Inc., d/b/a Ira Wickes, Arborist (“Wickes”), sought a special use permit and site plan approval to conduct arborist and landscaping services and to operate a nursery on its property located within the Village of Wesley Hills (the “Village”), in Rockland County.  The Village Planning Board (the “Planning Board”) granted Wickes’ application in both respects, but the Planning Board’s determination subsequently faced a CPLR Article 78 challenge.  The Rockland County Supreme Court dismissed the Article 78 proceeding and upheld the Planning Board’s determination.  The petitioner appealed.

A special use permit is proper to authorize “a use of [real property] that has been found by the local legislative body to be appropriate for the zoning district and ‘in harmony with the general zoning plan and will not adversely affect the neighborhood’” (citations omitted).  An application for a special use permit should be granted where it “satisfies the criteria set forth in the zoning law.”  However, if the application fails to meet even one of the conditions of the applicable zoning ordinance, denial is appropriate.  Further, the local board hearing the application “does not have authority to waive or modify any conditions set forth in the ordinance” (citations omitted).

Here, because Wickes offered arborist services, landscape services, and operated a wholesale nursery, the Village Code required that its proposed use “have frontage on and practical access to two major roads” (Village Code § 230-26 [N] [2]).  However, in deciding the special use permit application, the Planning Board waived that requirement and “deem[ed] ‘practical access’ to a second major road unnecessary.”  The Second Department concluded that the Planning Board lacked authority to waive this requirement, and thus abused its discretion in doing so.

Additionally, the Planning Board’s site plan approval was improper because the site plan failed to “conform[] to the requirements of” the Village Zoning Law—a necessary prerequisite for approval (see Village Code § 230-45).  Specifically, “the Village Zoning Law requires that a lot in the [zoning district where Wickes’ property is located] have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment 1).”  Wickes’ site plan “had a proposed gross impervious surface ratio of .44.” [1]  The Second Department held that the Planning Board abused its discretion in approving the site plan despite its noncompliance with such requirement.

Ultimately, the Second Department reversed the lower court’s decision dismissing the Article 78 proceeding and annulled the Planning Board’s grant of the special use permit and approval of the site plan.

Takeaway:  While local administrative bodies deciding land use applications generally enjoy broad discretion, compliance with the local zoning code is still required.  A zoning board’s blatant disregard or indifference to applicable zoning requirements is often an abuse of discretion and may result in the reversal and annulment of its determination.  That was precisely the case here.

[1] The Village Code defines “impervious surface” as “[t]hose surfaces which do not absorb stormwater.  All buildings, parking areas, driveways, roads, sidewalks and any areas in concrete, asphalt or packed stone shall be considered impervious surfaces within this definition.  In addition, other areas determined by the Village Engineer to be impervious within the meaning of this definition will also be classed as impervious surfaces” (Village Code § 230-5).  The Village Code defines “impervious surface ratio” as “[t]he total amount of impervious surface on a lot divided by the lot area” (Village Code § 230-5).

The Board of Trustees in the Village of Dering Harbor, located on Shelter Island, adopted a resolution in February of 2018, granting an application of property owners, Brad Goldfarb and Alfredo Paredes, to install and maintain a “living fence”, commonly known as hedges, on their property. The Architectural Review Board likewise approved of the application for hedges.

Deering Point Associates, LLC and Timothy Hogue opposed the installation of hedges by appealing the adoption of the resolution via Article 78 Proceeding to the Supreme Court in Matter of Dering Point Associates, LLC et al., v. Incorporated Village of Dering Harbor et al., Index No. 219/18.

Hogue and Dering Point Associates opposed the planting of hedges along the east and west sides of a deeded right of way that runs through Goldfarb and Paredes land which acts as a means of access for Dering Point Associates. They claimed that if the defendants were permitted to install a hedge on “both sides of the private right-of-way….without limitation as to its height, location and setback, Associates principals, guests, invitees and employees would be unable to judge the traffic on Shore Road when proceeding through the right-of-way by automobile, bicycle, or foot until after entering the roadway.” Plaintiff also alleged that without regulation, hedge rows on the water side of Shore Road could obscure water views of the harbor and bay.

Subsequently, in April of 2018, the Village of Dering Harbor enacted legislation regulating fences and hedges within Village boundaries. Prior to the enactment, hedges, or as they were formally referred to in the Village Code, “fences … living in the form of vegetation,” were permitted subject to review and the issuance of a license by the Board of Trustees. The new legislation adopted in 2018, defined hedges (as actual plants), and provided standards for their installation, height, and maintenance. However, the legislation eliminated the Village Board review and license required for the installation of hedges (notably, the legislation continues to provide for ARB review of fences and walls).

Timothy Hogue and Dering Point Associates, LLC brought a declaratory judgment action (and an Order to Show Cause and Article 78 Proceeding) seeking an order to declare the local law invalid, claiming the local law was (1) inconsistent with the grant of authority from the police power of the State of New York, (2) not in accordance with the comprehensive plan, (3) adopted without any study by the trustees, and (4) was not adopted in good faith for a proper purpose. The Supreme Court in Timothy Hogue and Dering Point Associates LLC v. Village of Dering Harbor and Board of Trustees of the Village of Dering Harbor, Brad Goldfarb and Alfredo Paredes, Index No. 610573-2018, by decision dated May 4, 2020, granted Dering Harbor’s motion for summary judgment. After noting the standard for issuing summary judgment, the Court acknowledged the “strong presumption of validity” accorded to a zoning enactments by a municipality. The Court found the Village’s local law “rational and consistent with the basic land use policies of the Village and does not violate the comprehensive plan.” The Supreme Court dismissed the remaining hybrid proceeding as academic. Plaintiffs appealed.

The Appellate Division Second Department, by three separate but related decisions, Hogue v. Village of Dering Harbor, Index Nos.  2019-06729, 2020-014160, and Matter of Dering Point Associates, LLC v. Incorporated Village of Dering Harbor, Index No. 2019-08239, dated November 17, 2021, upheld the Supreme Court determinations on the matter in favor of the Goldfarb, Paredes and the Village of Dering Harbor. With respect to the easement rights afforded to the Plaintiffs in this case, the Court stated that “a right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” (Lewis v Young, 92 NY2d 443, 449 [internal quotation marks omitted]). Here, the complaint did not allege that the right-of-way was blocked or made impassable, and the documentary evidence demonstrated that the hedges which the defendants planted along the right-of-way did not impair passage across it.”

Moreover the Court upheld the Supreme Court’s affirmation of the local law enacted by the Village of Dering Harbor eliminating the Village Board of Trustee review of hedges, stating,

“In any event, the Village defendants demonstrated, prima facie, that the subject zoning was consistent with a comprehensive plan (see Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d 575). “The power to zone is derived from the Legislature and must be exercised in the case of towns and villages in accord with a comprehensive plan or in the case of cities in accord with a well considered plan” (Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [citations and internal quotation marks omitted]). “The party challenging a zoning enactment on the ground that it is contrary to a comprehensive plan assumes a heavy burden to counter the strong presumption of validity accorded the enactment. Where the validity of the ordinance or amendment is fairly debatable, it may not be set aside” (Taylor v Incorporated Vil. of Head of Harbor, 104 AD2d 642, 644-645 [citations omitted]). “Such a party must show that the ordinance is not justified under the police power of the state by any reasonable interpretation of the facts” (Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d at 579). Here, the Village defendants established their prima facie entitlement to judgment as a matter of law by demonstrating, inter alia, that the existence of hedges had been envisioned as part of the Village’s comprehensive plan, and that the 2018 Local Law did not conflict with such plan. In opposition, the plaintiffs failed to raise a triable issue of fact (see Udell v Haas, 21 NY2d 463, 471; Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d at 575).”

Finally, noting that the enactment of the hedge legislation had already occurred at the time the motions were made and the order and judgment rendered, the Court stated, “as a result, the living fence (hedges) at issue no longer required approval, rendering this hybrid proceeding/action, inter alia, to annul the determination granting approval academic (see C.F. v New York City Dept. of Health &Mental Hygiene, 191 AD3d 52, 61; Matter of Truscott v City of Albany Bd. of Zoning Appeals, 152 AD3d 1038, 1039). Further, the appellants failed to establish any of the exceptions to the mootness doctrine (see Quinn v 20 E. Clinton, LLC, 193AD3d 893, 895). Consequently, the Supreme Court properly dismissed the hybrid proceeding/action as academic.”

Based on the foregoing, the Appellate Division upheld all Supreme Court determinations in favor of Goldfarb, Paredes and the Village of Dering Harbor.

Last week’s election had news outlets across the State and nation talking about Long Island’s rare “red wave”.  While many are now debating what the apparent sea change means for Long Islanders, at least for the next few years, equal attention should also be paid to another important and far-reaching election result of a different color: New York’s “Green Amendment”.

Appearing as Proposal 2 on the back of the 2021 election ballot, the Environmental Rights Amendment (aka the “Green Amendment”) cleared its last procedural hurdle on Tuesday to become one of New York’s newest constitutional amendments. Adding Section 19 to the State Bill of Rights (Const., Art. I), the Amendment reads:

“Each person shall have a right to clean air and water, and a healthful environment.”

By these 15 words, access to clean air, clean water and a healthful environment has become a State civil right on the same level as the cornerstone rights of freedom of worship and speech.

While the humanitarian intent of the Amendment is apparent on its face, there is ongoing debate regarding the law’s full import. The Amendment’s supporters view it is an important tool for protecting public health and preserving the environment for future generations. Other proponents have made the case for using the Amendment as a legal mechanism to combat and actively reverse longstanding environmental injustices. Others still see opportunity in the possible infrastructure projects spurred by future enforcement of the Amendment throughout the State.

On the other side, opponents of the Amendment have argued that its language is dangerously vague and that the law will be prone to abuse through litigation and judgments funded by taxpayer dollars.

Whether you are for or against the Green Amendment, it is now the law of the State, and its effects are sure to be felt long after the next election cycle.

Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.”  That is not entirely true.  An exception to the single and separate doctrine is the doctrine of merger.  Undersized lots that share a common boundary and are owned by the same person or entity can “merge.” Merged lots, therefore, become one larger lot, preventing either of the original lots from being developed separately without a subdivision and variances.  See, Ramundo v Pleasant Valley Zoning Bd. of Appeals, 41 AD3d 855 [2d Dept 2007].

Municipalities throughout New York that have “up zoned” areas to prevent further development sometimes claim that contiguous lots have merged, because this lessens potential density on these now undersized parcels.  Developers thinking of buying a parcel comprised of undersized lots and their counsel need to understand the doctrine of single and separate ownership and the doctrine of merger and its exceptions. Often, lots which the municipalities claim have merged may or may not actually merge, and knowledge of these legal issues can sometimes preserve the lots as individual, buildable parcels or prevent unwise investments of merged lots.

For example, the Town of Huntington Code §198-116.1 entitled “Merged Lots” provides that “lots shall merged by operation of law when a nonconforming parcel of land created before January 1, 1980 and an adjacent parcel are under common ownership; or when any parcel of land is use, in whole or in part for the benefit of an adjacent parcel having common ownership.”  In comparison, the Smithtown Code §322-74 entitled “Non-Conforming Lots” preserved single and separately held lots and provides that “nonconforming lots may be used or a building or structure may be erected on such a lot for use…, upon the approval of the Board of Appeals, provided that, at all times subsequent to the effective date of any ordinance making such lots nonconforming, such lots have been separately owned in good faith and; (1) does not or did not join any lot or land in the same ownership; and (2) does not or did not adjoin any lot under the same practical or effective ownership, whether or not the incidents of title are or were the same.”

It is well established that in the absence of an express statutory provision setting forth the conditions under which adjoining parcels may be deemed to have merged, there can be no merger.  See, Meadow v. Mansi, 282 AD2d 677 [2d Dept 2001].  The Court of Appeals has confirmed that a “merger” is not effective merely because adjoining parcels come into common ownership.  See, Allen v. Adami, 39 NY2d 275 [1976].  The Court went on to hold that the municipality cannot rely on the “intent” of the single and separate property owners to determine an irrevocable merger of the lots has occurred.

In 1996, the Court of Appeals went on to clarify that “there is no common-law ‘single and separate ownership’ exemption from minimum area requirements, and that such an exemption only applied if the municipality enacted a local law or ordinance providing for such an exemption.  See, Matter of Kahn v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344[1996].  The Court held that where the municipality has not created an exemption, the property owner must obtain the necessary variances for development on a substandard lot.

In summary, the doctrines of single and separate ownership and merger have a complex history, and there are many exceptions that can cause a variety of results. Despite all this, a knowledgeable counsel must be able to navigate the applicable codes to educate the prospective purchaser or municipality, and litigate if necessary, to preserve or limit the right to develop “non-merged” lots.

 

 

On October 5, 2021, the New York State Department of Environmental Conservation (“Department” or “DEC”) released water quality guidance values for three emerging compounds, PFOA, PFOS and 1,4-Dioxane (collectively, “Emerging Compounds”).  The comment period for the draft guidance values runs until November 5, 2021.  Comments can be issued to the Department at 625 Broadway, 4th Floor, Albany, NY 12233-3500, ATTN: Michelle Tompkins or by email to AWQVinformation@dec.ny.gov.

The proposed guidance values were developed and proposed in support of the continuing efforts to protect the State’s drinking water supplies from Emerging Compounds.  As stated by the Commissioner of the New York State Department of Health (“DOH”), “New York State has adopted among the most protective drinking water quality standards and requirements for testing, notification and remediation for emerging contaminants nationwide.  Our research and efforts to safeguard drinking water will be further enhanced by the Department of Environmental Conservation’s move to regulate these compounds at their source, providing even more confidence in the water quality that reaches your tap.”

According to the Department, Emerging Compounds are ubiquitous in the environment due to their widespread use, persistence and anti-degradation properties.  PFOA and PFAS are used in fire-fighting foams and consumer products for their ability to resist heat, oil, stains, grease and water.  They are found in, among other things, water-repellent clothing, furniture, adhesives, paint and varnish, food packaging, heat-resistant non-stick cooking surfaces and insulation of electric wires. 1,4-Dioxane is largely used as a solvent stabilizer for chemical processing, but other uses include consumer cosmetics, detergents and shampoos.

DOH routinely touts its adoption of the nation’s lowest maximum contaminant level (“MCL”) for Emerging Compounds. Notably, DEC’s proposed guidance values are even more stringent than the drinking water MCLs.  The Department’s purpose in establishing even more rigorous standards is, “to protect source waters and provide an extra margin of safety to complement the drinking water MCLs by ensuring they are not exceeded, which could result in costly treatment for the regulated community.”

The proposed ground and surface water guidance values for Emerging Compounds are as follows:

  • PFOA – 6.7 parts per trillion (ppt)
  • PFOA – 2.6 ppt
  • 1,4-Dioxane – 0.35 parts per billion (ppb).

To place these standards in context, the Assistant Secretary of the Navy (Energy, Installations and Environment) webpage describes ppb as, “the equivalent of one drop of impurity in 500 barrels of water or one cent out of $10 million.”  It describes ppt as, “the equivalent of one drop of impurity in 500,000 barrels of water or traveling 6 inches in the 93-million-mile trip towards the sun.”

The regulation of Emerging Compounds as hazardous substances in 2017 and the 2020 adoption of drinking water MCL for Emerging Compounds by the DOH triggered numerous, well-publicized disputes among water providers, contaminant manufacturers and property owners.  It will be interesting to monitor the development and anticipated promulgation of even more restrictive ground and surface water quality values and how the regulated community responds.

Those interested in commenting on the proposed guidance values should be sure to issue comments to the address listed above in advance of the November 5, 2021 deadline.

In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016, Petitioner submitted an application to the City’s Zoning Board of Appeals (the “ZBA”) to subdivide the Property into two equal-size lots of 60 feet by 57 feet.  However, the City’s zoning code requires a minimum lot size of 80 feet by 57 feet for each of the two proposed parcels in Petitioner’s application.  Thus, Petitioner sought area variances to permit the lot sizes of 60’ x 57’, as proposed in the application.

At the ZBA hearing, Petitioner argued, inter alia, that its two proposed structures were consistent with most of the other homes in the neighborhood, while one larger structure on the undivided single lot was not.  However, before Petitioner’s counsel could continue offering arguments in support of the application, members of the ZBA expressed their opposition thereto, with one member even going as far as to accuse Petitioner’s counsel of negligence for not having an engineer inspect the Property.

Petitioner’s main argument centered on the fact that prior to its application, the ZBA granted variances to another property located in the same zoning district and nearly identical to Petitioner’s Property, permitting the subdivision of that property into two separate lots.  Additionally, Petitioner pointed out that more than half of the houses on the same street as its Property have frontages less than 60 feet.  Therefore, Petitioner argued that its two proposed lots with 60-foot dimensions would not change the character of the neighborhood.

After Petitioner’s counsel concluded its argument to the ZBA, members of the public were given the opportunity to be heard.  The public overwhelmingly opposed the application, arguing, inter alia, that the proposed variances would cause parking problems and diminish home values.

The ZBA ultimately denied Petitioner’s application.  Petitioner then commenced an Article 78 proceeding challenging that denial.  The Court granted the petition, annulling the ZBA’s determination and directing issuance of the variances.  The ZBA appealed to the Appellate Division, Second Department.

Although local zoning boards are afforded broad discretion in deciding land use applications, a reviewing court may set aside such determination “‘where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613).”  Further, “‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,’ and thus, ‘[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation’ (Matter of Nicolai v McLaughlin, 163 AD3d 572, 574 . . .).”

The ZBA’s determination lacked facts sufficient to justify its denial of the application.  In particular, the ZBA failed to reconcile its denial of the variances here with its grant of variances to a different applicant in a nearly identical prior application.  Additionally, the Court held that the ZBA’s findings were based on general community opposition to Petitioner’s application not corroborated by any evidence, which is an insufficient basis for denial.  Accordingly, the Second Department affirmed the lower court’s Decision and Order annulling the ZBA’s determination and directing the ZBA to issue the variances.

On September 2, 2021, Governor Kathy Hochul signed legislation (S.50001/A.40001), which includes a number of statutory protections and other emergency public health measures adopted in response to the recent increase in the transmission rates of the COVID-19 Delta variant.  One of the measures effectively suspends provisions of the Open Meetings Law and allows local government meetings that are normally held in person to be held remotely instead.  The new law essentially reinstates the same rules first imposed by Governor Andrew Cuomo’s Executive Order 202.1 issued on March 12, 2020.  That Order was extended several times until June 25, 2021, when the State of Emergency ended.

Under Part E of the new law, a public body may meet and take action without permitting in-person access to meetings.  Instead, public bodies are authorized to hold public meetings remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceedings and that such meetings are recorded and later transcribed.  Meetings can be held either over a video service such as Zoom or by phone.  The new law does not change the requirement that public bodies provide advance notice to the public that a meeting is taking place.  However, the notice for a virtual meeting must inform the public how to access the public meeting.

In a press release issued on the same day that the legislation was signed, Governor Hochul stated:

“Let’s be clear—the COVID-19 pandemic is not over, and I’ve heard from government officials across the state who are concerned about the inability of their constituents to access public meetings virtually . . . This commonsense legislation extends a privilege that not only helps New Yorkers participate safely in the political process, but also increases New Yorkers’ access to their government by allowing for more options to view public meetings. This law will continue to bolster the open and transparent style of government that we’re committed to maintaining in the Empire State.”

Unlike during the State of Emergency when in-person public meetings were prohibited by the Executive Order banning large public gatherings, the new legislation gives public bodies the option of holding meetings in-person or virtually.  However, because of the temporary nature of the law, they will only have that option until January 15, 2022, which is the date when the law is set to expire.

In May 2021, the Supreme Court ruled in Territory of Guam v. United States, 593 U.S. __ (2021), on the issue of whether a settlement resolving environmental liabilities was sufficient to establish a right of contribution for a settling-party against a non-settling responsible party pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C §9613(f)(3)(B).  The Court held that to trigger contribution rights under CERCLA 113(f)(3)(B), settlement must resolve a CERCLA-specific liability.

Guam v. US arises from a dispute regarding environmental responsibility for the Ordot Dump – described as a “280-foot mountain of trash,” that at various times was owned and operated by both the US Navy and Guam.   The Navy constructed the dump in the 1940’s and allegedly disposed of hazardous waste at the dump for several decades.  Ownership of the dump was later ceded to Guam.  Upon discovery of the environmental contamination emanating from the Dump and Guam’s non-compliance with environmental regulations, EPA sued Guam pursuant to the Clean Water Act, alleging Guam was discharging wastes to the waters of the United States.  Ultimately, a consent decree was entered between EPA and Guam in 2004, terminating the litigation (the “Consent Decree”).  As part of the Consent Decree, Guam was required to pay a civil penalty and perform certain remedial tasks. The Consent Decree documented that Guam’s compliance was in full settlement and satisfaction of the claims of the United States as alleged in the compliant; claims made under the Clean Water Act.

In 2017, Guam seeking to recover the costs of cleanup in response to the Consent Decree, sued the United States pursuant to CERCLA.  Guam forwarded two-theories; (1) cost recovery under CERCLA §107(a) — seeking recovery against a person that at the time of disposal of hazardous substances owned or operated the disposal facility, and (2) a contribution action under CERCLA §113(f)(3)(B), authorizing a party that has resolved its liability to the United States for costs associated with a response action to seek contribution from a responsible party that has not settled its liability.

The DC Circuit found that Guam’s CERCLA §107(a) claim could not proceed if Guam could assert a contribution claim pursuant to CERCLA §113(f)(3)(B).  The Circuit then held that Guam’s CERCLA §113(f)(3)(B) claim was time-barred as the 3-year statute of limitations for the contribution claim began to run with the 2004 Consent Decree.

In its arguments before the Court, Guam withdrew from its CERCLA §113(f)(3)(B) claim.  Guam argued that it never established a contribution claim because it had only resolved its liability under the Clean Water Act, and to establish a contribution claim, settlement must have been CERCLA-specific.  Therefore, Guam contended, it was free to pursue cost recovery under CERCLA §107(a).  The Court agreed, parsing the “reticulated statutory matrix of environmental duties and liabilities,” its “interlocking language and structure,” to conclude that, “CERCLA contribution requires resolution of a CERCLA-specific liability.”

From Guam’s perspective, the result was equitable, and they may now pursue recovery from one of the alleged responsible parties.  From a practice perspective, Guam v. US, helps to clarify how and when contribution rights are established.