On October 17, 2018, the Supreme Court, Appellate Division, Second Department (“Second Department”) issued two (2) companion decisions arising out of three different attempts by Petitioners, Kleinknechts (“Petitioners”)  to construct a dock at their waterfront property.  Each of the attempts resulted in a Supreme Court litigation.  As we blog about these cases today, no dock has been constructed despite a directive in 2013 that a permit be issued upon submission of the proper application!

In the first matter, the Second Department upheld a decision of the Village of Lloyd Harbor’s Zoning Board of Appeals (“ZBA”) denying certain variances requested by Petitioners to construct a dock along their waterfront property finding that the ZBA properly applied the five-factor test set forth in Village Law 7-712-b(3).  Further,  Petitioners’ expert testified that he had prepared an alternative completely code compliant plan.  Since a code compliant dock plan provided a reasonable alternative for Petitioners to explore, the Second Department upheld the trial court’s dismissal of the underlying Article 78 proceeding stating that the “need” for the variances was self-created.  In light of the ZBA’s proper application of Village Law, the ZBA’s denial was not arbitrary or capricious.  See, Kleinknecht v. Brogan, 2018 WL 5020285 (Oct. 17, 2018)

In the second matter, and following denial of the above-mentioned variance application, the Appellate Division vacated a 2013 directive to the Building Inspector requiring the Building Inspector to issue a building permit to Petitioners for the alternative code compliant dock permit application.  The Second Department stated “[m]andamus . . . is an extraordinary remedy that, by definition, is available only in limited circumstances.”  “A party seeking mandamus must show a ‘clear legal right’ to [the] relief [requested]'”  Here, no clear legal right existed.  See, Kleinknecht v. Siino, 2018 WL 5020282 (2018).

Prior to 2013, Petitioners’ property was subject to an open space easement precluding construction of a dock at the property.  Petitioners commenced an action seeking to have the open space easement extinguished.  The trial court issued a judgment holding that the open space easement was no longer necessary and directed that the Building Inspector issue a building permit to Petitioners upon submission of the “required” application.  The Village did not appeal the judgment.

As such, upon submission of a code compliant building permit application (as noted above an application for variances was denied and upheld), Petitioners sought an approved building permit.  Although the Second Department held that the Building Inspector had no basis to deny issuing the permit based on the existence of the open space easement, the Second Department did vacate the 2013 trial court directive to issue a permit upon submission of the “required” application stating that the Village Code requires every Village building permit application be referred to the “Site and Building Permit Review Board” (“Review Board”).  Finding that the trial court’s directive to the Building Inspector bypassed a necessary referral step to the Review Board, the Second Department ordered the Building Inspector to refer Petitioners’ application to the Review Board.   The Second Department did not then direct the Building Inspector to issue a building permit to Petitioners if the Review Board approves that application..

Instead, the Second Department decision states “[t]he Building Inspector may issue a building permit only upon approval by the” Review Board.  As a litigation and land use attorney,  it has become painfully apparent that courts do not always weigh the import of the language used when crafting relief for the parties.   Maybe it is of little consequence that the Second Department said that the Building Inspector “may” approve the building permit if approved by the Review Board.  However, it would  provide the Petitioners, and their attorney(s), greater comfort and certainty if the chosen words were “must” approve the building permit, instead of “may” approve the building permit.

 

The generally accepted practice in towns and villages throughout New York is that public and private schools need not comply with the zoning rules applicable to other property owners.  However, the Appellate Division, Third Department, recently issued a decision, in Ravena-Coeymans-Selkirk Central School District v Town of Bethlehem, that clarified that zoning laws do apply to schools, except in very specific circumstances.

The case arose when the Ravena-Coeymans-Selkirk Central School District asked the Town of Bethlehem whether any local law prohibited it from replacing an existing traditional sign at one of its elementary schools with an electronic message board sign. Although the Town responded that electronic signs were expressly prohibited under its zoning laws, the District nevertheless applied for a permit to install the sign.  After the sign permit was denied, the District proceeded to install the sign claiming that, as a public school, it was not subject to the Town’s zoning requirements.

The District also appealed the Town’s sign permit denial by seeking a variance from the Town’s zoning board of appeals (“ZBA”). After the ZBA denied the District’s application for a variance, the District filed a hybrid CPLR Article 78 proceeding and declaratory judgment action seeking, among other things, a declaration that it was immune from the Town’s zoning law.

The Albany County Supreme Court rejected the District’s immunity argument, dismissed the petition, and directed that the District remove the electronic sign. The District appealed.

The Third Department affirmed, concluding that although schools enjoyed some immunity from zoning regulations, that immunity was “not so broad and absolute” as the District contended.  The Court explained that, the legislature has charged the New York State Education Department and local boards of education with the management and control of educational affairs and public schools, and some courts have interpreted this mandate as the State reserving unto itself the control over and the authority to regulate all school matters. The Court went on to say, however, that some of these courts had misinterpreted prior decisions to extend a full exemption from zoning ordinances where it was not warranted.”

According to the Court in Bethlehem, reliance on cases granting schools immunity from all zoning regulations was misplaced, given the Court of Appeals decision in Cornell University v Bagnardi. In Bagnardi, the Court noted that, historically, schools have enjoyed “special treatment with respect to residential zoning ordinances” because “schools, public, parochial and private, by their very nature, singularly serve the public’s welfare and morals.  The Court, however, also noted that there were “many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals [and, i]n those instances, the institution may be properly denied.”  To clarify its prior rulings, the Court in Bagnardi held that the presumed beneficial effects of schools and churches “may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like,” because the “inherent beneficial effects … must be weighed against their potential for harming the community.”

The Third Department ultimately concluded that the District was not immune from and, therefore, was subject to the Town’s zoning ordinances.  Next, it addressed whether the ZBA had properly denied the District’s application for a variance. With respect to the BZA determination, the Court found that the ZBA had provided “rational reasons” for its determination, including a concern for traffic safety due to the sign’s brightness and potential to be more distracting and hazardous to passing motorists than an ordinary sign.

The Bethlehem decision makes clear that despite the special treatment afforded schools by the law, they are not entitled to a full exemption from zoning rules, and local governments are not powerless to apply their zoning laws to educational institutions.

A use variance is arguably one of the most difficult zoning approvals to obtain and is rarely granted.  Petitioners in 54 Marion Ave., LLC v. City of Saratoga Springs, 2018 N.Y. Slip Op. 04611, 162 A.D.3d 1341 (3d Dep’t 2018),  commenced a hybrid proceeding/action to challenge and annul a determination of the Zoning Board of Appeals (“ZBA“) of City of Saratoga Spring (“City”) to deny  a use variance application to allow commercial use of residential property and for Section 1983 damages based upon the theory of regulatory taking. The Respondents moved to dismiss and the Supreme Court, Saratoga County (“Motion Court“), granted the motion. Petitioners appealed and the Appellate Division, Third Department (“Appeals Court“), reversed in part and affirmed in part, and found hardship which was not self-created.

Petitioner 54 Marion Avenue, LLC (“Owner“) owns a vacant parcel of real property situated in the City’s Urban Residential-2 District, where single-family residences are permitted as of right, where other uses are allowed with a special use permit and site plan review and where commercial uses are generally prohibited. Petitioner Maple Shade Corners, LLC (“Purchaser“) contracted to purchase the subject parcel contingent upon obtaining a use variance to allow a dental practice to operate thereon. An application was made to the ZBA for a use variance to allow the dental practice in Urban Residential-2 and the ZBA denied the application because the alleged hardship was not unique and was self-created. Petitioners brought this litigation to annul the ZBA’s decision denying the use variance and to seek damages for regulatory taking. Respondents moved to dismiss based upon Petitioners’ failure to state a cause of action, which the Motion Court granted.

In order to qualify for a use variance, an applicant must meet the very difficult task of demonstrating the following four elements: (i) it cannot realize a reasonable return if the property is used for a permitted purpose; (ii) the hardship results from unique characteristics of the property; (iii) the proposed use will not alter the essential character of the neighborhood; and (iv) the hardship has not been self-created. The ZBA found that the Petitioner met the first and third elements, but failed to meet the second and fourth elements – that the hardship was unique and was not self-created. On appeal, the Appeals Court reversed the Motion Court as to the hardship issues.

In its review of the ZBA’s determination, the Appeals Court noted that the subject property lies next to the intersection of a major thoroughfare and a side street. Petitioners substantiated their claim that this location imposes a unique financial hardship because of the commercial development and increasing traffic along the thoroughfare (occurring over the prior 30 years) with statements from prior owners and real estate professionals.  These statements recounted previous failed attempts to sell the subject parcel for permitted residential use and opined its location rendered it unmarketable for residential use, among other things. In light of this proof, the Appeals Court found that the need for a use variance was not self-created because it only arose after the property was acquired and due to the gradual shift in the character of the area, which rendered the residential use requirement onerous and obsolete. Moreover, the Appeals Court noted that even the ZBA agreed the location of the parcel on the corner might impact its value; the ZBA’s ultimate conclusion that the financial hardship was not unique was contrary to that observation. On a motion to dismiss, Courts must accept the allegations presented as true and, based upon the foregoing, the Appeals Court held that Petitioners set forth a viable challenge to the ZBA’s denial and reversed the Motion Court.

With respect to the regulatory taking claim, the Appellate Division affirmed dismissal. In order for a taking claim to be ripe, a claimant must demonstrate that it has received a final decision regarding the application of the challenged regulations to the subject property from the governing entity and that it has sought compensation through the appropriate state procedures. Although the ZBA’s denial of the use variance satisfied the final decision prong, the Appeals Court found that there is no indication the Petitioners sought compensation under State law.

In Real Estate Bd. of New York, Inc. v. City of New York, Petitioner-Plaintiff Real Estate Board of New York, Inc. (“REBNY”) commenced a hybrid article 78 proceeding and plenary action against the City of New York (“City”) challenging the City’s adoption of Local Law No. 50 of 2015 (“Local Law”), which placed a moratorium on the conversion of hotel rooms to residential units.

REBNY’s article 78 claims sought to annul the Local Law and permanently enjoin the City from enacting similar legislation unless it complied with the City Charter’s Uniform Land Use Review Process (“ULURP”) and the State Environmental Quality Review Act (“SEQRA”). REBNY’s plenary claims sought compensation for taking and for due process and equal protection violations under the State and Federal constitutions.

The City moved to dismiss REBNY’s claims based on standing, among other things. The Supreme Court, New York County (“Motion Court“), granted the City’s motion and dismissed all of REBNY’s claims for lack of standing.  On appeal, the Appellate Division, First Department (“Appeals Court“) effectively reversed the Motion Court’s decision.  The Appeals Court held that REBNY had standing to bring its article 78 claims, except under SEQRA.  The Appeals Court also held that REBNY had standing to assert its plenary causes of action, but held that REBNY abandoned its claims under 42 U.S.C. 1983 because REBNY did not address them on appeal.

The City enacted the Local Law in June 2015 to allow for the study of the effect of the conversion of hotel rooms from transient guest spaces to full-time residential units on the City’s economy. Its legislative findings asserted that large hotels are essential to vacation and business travelers, important generators of well-paying jobs and anchors for surrounding economic activity. The findings also expressed concern that the conversions are occurring quickly and may be irreversible. In addition, the legislative intent noted the current market conditions, the profitability of conversions and the City’s developers’ rush to convert.

The Local Law placed a two-year moratorium (extended to four years, i.e. June 2019) on the conversion of Manhattan hotel rooms to residential units. More specifically, the Local Law applied to hotels with at least 150 units and prohibited the conversion of more than 20% of hotel rooms. The Local Law provided an exemption for conversions begun in the two years preceding its effective date and allowed owners to seek a waiver from the City’s Board of Standards and Appeals (“BSA”), which waiver was not as-of-right.

REBNY, a non-profit corporation comprised of 17,000 members (property owners, developers, lenders, managers, architects, designers, appraisers, attorneys and brokers), asserted that 175 hotels, including 29 REBNY members, were affected by the Local Law. REBNY argued that by restricting the rights of affected hotels, the Local Law reduced the value of the properties, among other things.

The City moved to dismiss on the basis that REBNY lacked organizational standing.  To have organizational standing to challenge the enactment of the Local Law, REBNY must satisfy three elements : (i) one or more of its members must have standing; (ii) the interest it asserts must be germane to its purpose; and, (iii) neither the claim asserted nor the relief sought requires the individual members’ participation (ensuring the organization is the proper petitioner/plaintiff). Standing requires injury-in-fact which falls within the zone of interests and which is different in kind or degree from the public at-large.

The Appeals Court ultimately held that REBNY sufficed the injury requirement. Owners of property subject to new zoning restrictions are presumptively affected by the change. REBNY member hotels were negatively affected by the Local Law, including but not limited to, the diminution of property value and the costs associated with applying for a waiver. These negative effects satisfied the injury-in-fact requirement.

One of the bases cited for this finding was the Local Law’s own legislative intent, which noted that the Local Law would not be necessary if conversions were not so profitable. Thus, with respect to first part of the three-prong test for organizational standing, the Appeals Court held one or more member’s sustained sufficient injury-in-fact within the zone of interests and different in kind from the public at-large.

However, REBNY satisfied the second and third prongs for organizational standing on only some its claims.  Pertinently, with respect to the article 78 claims, the Appeals Court held REBNY had standing for all claims, except under SEQRA. REBNY focuses on the economic and political health of the real estate industry. The Court rejected REBNY’s argument that it sought to protect its member’s environmental interests in air quality and traffic. REBNY’s only “environmental” focus is on the economic environment.  Economic interests – alone – are insufficient to confer SEQRA’s zone of interests. While economic interests are germane to REBNY’s purpose to the extent it is a real estate industry advocacy group, environmental interests are not.  Therefore, REBNY is only a proper petitioner for the non-SEQRA claims.

Notably, the sole dissenting Judge opined, among other things, that REBNY did not have standing for any claim. The dissent argued that REBNY’s allegations of potential future economic harm were amorphous and did not suffice an injury-in-fact. REBNY’s members have neither attempted to convert nor sought exemption by waiver form the BSA. REBNY did not provide competent proof, e.g. appraisals, evaluations, etc. Additionally, the waiver application fee is de minimis and does not constitute an injury.

A recent decision from the Nassau County Supreme Court, Healy v. Town of Hempstead Board of Appeals, overturned a municipal determination that granted special zoning exceptions and variances to a Greek Orthodox Church located in Merrick, New York. The church wanted to construct a two-story cultural center and related parking next to the church. It applied to the Town of Hempstead Board of Appeals (“Board of Appeals”) for the special exceptions and variances.

Residents in the area opposed the application, claiming the construction would adversely affect the environment. After the Board of Appeals granted the application, the residents sued, claiming that: (1) the hearing was defective; (2) the negative declaration issued under the State Environmental Quality Review Act (“SEQRA”) was arbitrary, capricious, an abuse of discretion and affected by an error of law; (3) the Board of Appeals gave excessive deference to the Religious Land Use and Institutional Persons Act; and (4) one member of the Board of Appeals had a conflict of interest.

The Court rejected all of the asserted grounds for reversal except the SEQRA review.  The Court found no defect in the Board of Appeals hearing. It noted that a zoning board of appeals can conduct informal hearings, is not required to use the rules of evidence at such hearings, and is not required to swear in witnesses or cross-examine them. The hearing that was conducted lasted 12 hours, included 16 witnesses in support of the church’s application and 24 witnesses in opposition, and expert testimony.

As to the supposed conflict of interest, one member of the Board of Appeals was the sister-in-law of an attorney who used to represent the church and the managing partner of that lawyer’s law firm was currently the campaign manager for the board member’s estranged husband. The Court rejected that ground, noting that the residents failed to demonstrate that the board member had any pecuniary or material interest in the outcome of the application and she did not cast the deciding vote as the decision was unanimous.

Unfortunately for the church and the Board of Appeals, the Court found the SEQRA review to be woefully inadequate. The Board of Appeals completed a Short Environmental Assessment Form, which identified two concerns – the proposed application would result in a change in the use and intensity of the land and would change the character or quality of the existing neighborhood. The Board of Appeals declared the application an unlisted action under SEQRA. The Board of Appeals adopted a one paragraph resolution declaring that the cultural center would not have a significant effect on the environment. The resolution did not contain any rationale, explanation or articulation of the basis for the SEQRA determination. The Court found this did not meet SEQRA’s “hard look” or “reasoned elaboration” requirements. The Court also ruled that the zoning determination cannot be used as the rationale for the SEQRA determination. As a result, the Court vacated the Board of Appeals decision.

 

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

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

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

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

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

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

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

The Breakers Motel has been a fixture in Montauk since the 1950’s. Situated at 769 Old Montauk Highway, Montauk New York, the motel has 26 units, a pool and restaurant and is located across the street from the ocean.

In 2015 a building permit was issued by the Town of East Hampton Building Department approving renovations to the existing restaurant inside the motel, including an updated dining area, adding a bar, improving the kitchen facilities and more. The neighboring property owner, a revocable trust, unsuccessfully appealed the Building Department’s determination to issue the April 27, 2015 building permit to the Town of East Hampton Zoning Board of Appeals.

In an Article 78 petition and plenary action entitled Jane H. Concannon Revocable Trust v. The Building Department of the Town of East Hampton, Town of East Hampton Zoning Board of Appels, and Breakers Motel, Inc., Index No. 4297/2016, dated February 5, 2018, the revocable trust (“Petitioner”) appealed the Zoning Board of Appeal’s determination to the Supreme Court.

At the Zoning Board of Appeals, Petitioner argued that because a restaurant had not operated on site since the 1970’s, an application for a special permit under the current Town Code was required before the building permit for renovations could have been issued. The Breakers Motel argued that the restaurant has always been a permitted use and was in place prior to the current Town Code provisions requiring special permits.

Breakers submitted that the restaurant fixtures had never been removed from the site, and a prior Certificate of Occupancy issued in 2005 and Site Plan approval issued in 2010 both referenced and approved the restaurant. All parties conceded that the restaurant was never pre-existing nonconforming and was, in fact, always permitted.

Prior to 1984, the subject property was zoned Multiple Residence District (“MD”), which permitted a restaurant as accessory to a motel. After 1984, the zoning was amended to Resort District (“RS”), which permitted restaurants pursuant to a special permit. The Zoning Board of Appeals denied petitioner’s appeal and declined to consider the merits of petitioner’s appeal, finding that the appeal was untimely pursuant to the 60 day statute of limitations set forth in NYS Town Law §267-a and East Hampton Town Code §255-8-35(A).

Petitioner brought the above referenced proceeding by order to show cause seeking a judgment annulling the Zoning Board of Appeals decision, revoking the building permit and imposing a permanent injunction enjoining further renovations to the restaurant without a special permit.

The Court held that a special permit was not required for the restaurant use, since the use had been in place prior to the 1984 adoption of the RS Zoning District. The Court stated,

“Simply stated, the concept of “use” in the context of zoning regulations is not the equivalent of “in use” or “used” as is made clear in the following definitions in the East Hampton Town Code sections 255-1-14(G) and (H)…” The Court further found that the East Hampton Town definitions of use were consistent with “what is generally accepted in New York zoning law,” stating,

“USE: The specific purpose for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained. The term “permitted use,” or its equivalent, shall not be deemed to include any nonconforming use. USE: The purposes for which a structure or premises, or part thereof is occupied, designed, arranged or intended,” citing, Salkin, N.Y. Zoning Law and Prac., 3d Edition §38:05, Sample definition.

The Court relied upon the fact that the restaurant configuration on site was never changed; and the kitchen fixtures and equipment had remained in place since the 1970’s, stating, “the area in question was designed, arranged and intended to be a restaurant; i.e., the use continued even though it was not “used” as a restaurant.”

The Court went on to distinguish the special permit restaurant use from pre-existing nonconforming uses that can be abandoned after time since the special permit use was not rendered illegal after the zone change to RS. Relying on Town Code §255-5-25, which states in relevant part that “special permit uses which either lawfully exist on the effective date of this article…shall, in all respects, constitute lawful and conforming uses under this chapter,” the Court held that the Breakers Motel restaurant use was legal, even under the new RS zoning, and did not require a special permit to be maintained or altered.

The Court denied the request for the permanent injunction and dismissed the proceeding. Petitioner submitted a Notice of Appeal to the Appellate Division, Second Department, while patrons of the Breakers Motel enjoyed the newly renovated restaurant and bar.

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

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

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

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

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

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

 

 

Given the complex zoning regulations that govern development of vacant land, in recent years, it has become uniquely challenging to develop smaller tracts of vacant land that do not conform to the current zoning code.  Further, the doctrines of merger and single and separate add to the complications.  Unless a buyer is absolutely certain that the land for purchase is single and separate from an adjoining parcel and has not merged by common ownership with an adjoining parcel, the results can be less than desirable.

In a recent case, Harn Food LLC v DeChance, the Second Department upheld the Town of Brookhaven’s Board of Zoning Appeals (“BZA”) decision denying a request to construct two houses on what was contended to be two single and separate vacant undersized parcels joined only at the rear property line and each fronting on it’s own adjacent parallel road.  Lots configured in this manner are also referred to as through lots.

In upholding the BZA’s decision, the Court rejected petitioner’s argument that the two tax lots were single and separate because they shared only a rear lot line thereby allowing one house to be constructed on each lot.  Instead, the Court adopted the BZA’s position that since 1948, the two lots were held in common ownership.  The significance of holding or purchasing adjoining vacant lots in common ownership cannot be minimized.  Under most zoning codes and as interpreted by many courts, holding vacant lots, that are undersized or non-conforming to the minimum zoning requirements, creates a merger of the parcels and defeats any argument that the lots were held in single and separate status.

In this case, even though the two tax lots at issue were not side by side lots, but instead, they were back to back lots, the Court determined that the common ownership since 1948 rendered the lots merged.  Additionally, in weighing the five-factor test set forth in Town Law 267-b(3)(b), the Court relied on a prior denial in 2007 by the BZA of an identical application in the immediate area, together with evidence at the hearing that the proposal set forth did “not conform to the surrounding development pattern, in that only 5 lots (12%) of the 42 improved lots in the area conform to the lot area requested in the application, and only 7 lots (17%) conform to the lot frontage.”

The Court further noted that the buyer was charged with knowledge of the zoning code when the property was purchased.  Given that the vacant land is still suitable to construct one dwelling, the Court determined that a feasible alternative existed and that the petitioner was not so aggrieved.

This case is just one more reminder that land use attorneys and real estate attorneys must work together to insure that properties are purchased in uncommon ownership unless otherwise discussed and affirmatively agreed to be held in common ownership.  Further, vacant land should never be purchased absent a single and separate search with confirmation from the relevant municipality that the vacant land in question meets the test for single and separate and that no merger with adjoining parcel ever occurred.

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

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

.