In Matter of County of Monroe, 72 NY2d 338 (1988), the New York Court of Appeals addressed the applicability of local zoning laws to actions undertaken by a government entity operating within a geographic area subject to another government entity’s zoning powers. The controversy in Monroe involved the expansion of a county-owned and operated airport located within the corporate boundaries of the City of Rochester. The Monroe Court established that governmental immunity from local zoning is determined based upon a “balancing of public interests” that requires the consideration of nine factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” 72 NY2d at 343 (citations omitted).

Continue Reading Under Monroe Doctrine, Government Immunity from Local Zoning May Extend to Private Projects

The initial phase of New York City Local Law 18, also known as the Short-Term Rental Registration Law, went into effect in New York City on Tuesday, September 5th, 2023.  Enforcement of Local Law 18 is expected to significantly reduce the number of illegal, short-term rental listings – i.e. listings for less than thirty (30) consecutive days – available in New York City, especially on major online booking platforms such as Airbnb and VRBO. 

Under the New York City Multiple Dwelling Law, it is illegal to rent out your apartment and/or home for less than 30 consecutive days, except in very limited circumstances.  For a short-term rental to be legal under the Multiple Dwelling Law, (i) no more than two (2) paying guests may be hosted at a single time, (ii) the host must maintain primary occupancy and reside in the dwelling unit during the stay, and (iii) the paying guests must have access to all parts of the listing, what is referred to as a “common household.” 

Continue Reading Goodbye to Airbnb in NYC?

On July 28, 2023, in response to three separate fires at Battery Energy Storage System (“BESS”) locations in New York, Governor Kathy Hochul announced the creation of an inter-agency fire safety working group.  The Fire Safety Working Group, to be comprised of the Division of Homeland Security and Emergency Services Office of Fire Prevention and Control, New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation, Department of Public Service, and the Department of State.

Continue Reading Fires at New York Battery Energy Storage System Facilities Ignite State Response

On April 4, 2023, the Town of Riverhead joined the growing list of Long Island municipalities to have adopted special zoning regulations for Battery Storage Energy Systems (or BESS) projects. The law, which was filed with the State and took effect on April 15, 2023, is codified in Chapter 301, Article LIID of the Town Code, appropriately titled “Battery Energy Storage Systems.” A copy of the adopted regulations is available by clicking the following link: Riverhead Bess

Continue Reading Riverhead Gives the Green Light to New BESS Zoning Regulations

Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval.  In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot.

Continue Reading “Grandfathering” By Issuance of Building Permits

The New York Climate Leadership and Community Protection Act (“CLCPA”) established ambitious targets to transform New York’s energy generation and efficiency. The CLCPA was signed into law in 2019 with goals to achieve 100% zero-emission electric generation by 2040 and greenhouse gas emission reduction to 85% below 1990 levels by 2050, among others.  The clean energy investments contemplated by the CLCPA include $35 billion in large-scale renewable and transmission projects, $6.8 billion to reduce building emissions, $1.8 billion for solar and more than $1 billion for clean transportation initiatives. 

Continue Reading Green for Green: New York’s Climate Justice Working Group Identifies Qualified Disadvantaged Communities for Clean Energy and Energy Efficiency Investments

Following in the footsteps of the towns of Huntington, Babylon and East Hampton, the Town of Oyster Bay voted on March 7, 2023, to create a Bureau of Administrative Adjudication pursuant to Article 14-BB of the General Municipal Law (“GML”).  The bureau is an administrative tribunal that will process quality of life violations of the Town Code.  Under the GML, administrative tribunals can adjudicate “all code and ordinance violations regarding conditions which constitute a threat or danger to the public health, safety or welfare.”

Continue Reading Oyster Bay to provide for administrative adjudication of zoning and other code violations

Last month, the State’s highest court, the Court of Appeals, upheld the Appellate Division’s decision annulling the New York State Department of Environmental Conservation (DEC) issuance of permits to Sand Land Corporation (“Sandland”) for renewal and expansion of sand mining operations at a 50-acre site in Southampton, New York and remanded the matter back to the DEC. The site, owned by Sandland, is a pre-existing sand mining site.

Continue Reading NYSDEC Mining Law Appears Further Undermined by the Court of Appeals

            The Phase I Environmental Site Assessment (“ESA”) is the quintessential environmental diligence tool for transactions involving real property.  A Phase I ESA includes a site inspection and review of current and past uses and ownership, among other things, to evaluate actual and potential environmental conditions.  If performed in accordance with the All Appropriate Inquiry Rule (“AAI Rule”), a Phase I ESA serves as the initial step to establish affirmative defenses to potential liability imposed by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

As outlined earlier in our prior post, ASTM Adopts New Phase I ESA Standard – Impact to Environmental Diligence and CERCLA Affirmative Defenses | Long Island Land Use and Zoning (lilanduseandzoning.com), ASTM updated and adopted a new Phase I ESA standard in late 2021.  Despite the adoption by ASTM, the legal diligence standard to satisfy the AAI Rule and the threshold criteria to qualify for affirmative defenses under CERCLA remained the historic ASTM E1527-13 standard.

After undergoing multiple rounds of public comment, the United States Environmental Protection Agency (“EPA”) issued a final rule on December 15, 2022 to adopt the ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” (“New Phase I ESA Standard”).  EPA’s final rule confirmed the New Phase I ESA Standard was consistent with the statutory requirements to satisfy the AAI Rule, and thereby the baseline requirement to avail prospective purchasers of the innocent landowner, contiguous property owner and bona fide prospective purchaser defenses to CERLCA.  The New Phase I ESA Standard became effective on February 13, 2023.

In addition to authorizing the New Phase I ESA Standard, EPA’s final rule put a sunset on the historic ASTM E1527-13.  According to the final rule, reference to the historic ASTM E1527-13 as compliant will be removed from the AAI Rule one year following publication of the EPA final rule, or December 15, 2023.  However, the reference provision that will be added to the AAI Rule, reflecting the sunset, states that the historic ASTM E1527-13 shall remain valid, “until February 13, 2024…”   While the discrepancy in the period of applicability for the historic ASTM E1527-13 is something to be aware of when evaluating compliance with the AAI Rule, the New Phase I Standard represents best practices, and prospective purchasers should strongly consider employing the new standard, despite the lingering applicability of the historic standard.

The New Phase I Standard is more rigorous than the historic ASTM E1527-13 standard, broadening the scope of particular investigation and analysis. As highlighted in our earlier post, the new Phase I Standard modifies the scope of historical reviews for adjoining properties, expands title search standards, revises definitions for Recognized Environmental Conditions (“RECs”), Controlled RECs and Historic RECs, and provides for evaluation of emerging compounds like PFOA/PFAS, among several other procedural reporting and definitional clarifications. 

Requesting a Phase I ESA has become a routine pre-acquisition diligence item.  There is risk in relying on a non-compliant Phase I ESA, misinterpreting findings and conclusions, or failing to take appropriate action upon notice of an environmental condition. Knowledgeable environmental counsel can assist in navigating these issues and defining options to achieve specified outcomes.

It’s time to turn the page and close the chapter on the expiring ASTM E1527-13 as the recognized ESA standard.  Long live ASTM E1527-21!

The Huntington Town Board is currently seeking input from residents, businesses and others for a new plan for the redevelopment of the Melville Employment Center (“MEC”).  The new plan will build upon a prior plan that was adopted by the Town Board in 2016.  That plan – known as the Melville Employment Center Plan (“MECP”) – was adopted to help the area remain competitive as a major employment hub and enhance the town’s tax base.  It also sought to advance the goals and objectives of the town’s overall comprehensive plan by proposing a mix of land uses, including housing, offices, retail and restaurant uses.  According to Supervisor Ed Smyth, the area needs to be reimagined in light of the post-pandemic changes in business and employment practices that have left many buildings vacant.

After several measures proposed by the MECP were shot down by the Town Board in December 2021, the Board recently scheduled several “listening sessions” to solicit input from those who would be most impacted by redevelopment in the study area.  The study area includes the Route 110 corridor, which runs north-south through the hamlet of Melville, and is generally bounded by Pinelawn Road to the east, Walt Whitman Road to the west and the Huntington-Babylon town boundary to the south. It also includes parcels fronting on the South Service Road and those accessed by Spagnoli Road.

Vacancies in office uses in the Melville area rose sharply during the pandemic, and with the continuation of remote and hybrid work schedules, vacancy rates are not expected to improve in the near future.  According to a Cushman & Wakefield report that analyzed economic and commercial real estate activity on Long Island in the fourth quarter of 2022, office vacancies in Western Suffolk County continue to rise and currently stand at 17.2%. 

The Town Board encouraged residents, civic groups, organizations and agencies that may be impacted by future redevelopment in the MEC to attend a listening session to share their thoughts and opinions.  Sessions were held on December 8, 2022 and January 26, 2023, and additional sessions may be scheduled in the future.

According to the Town’s website, information about the sessions can be obtained from Supervisor Smyth’s office by calling (631) 351-3030.