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For the New York State Department of Environmental Conservation (“NYSDEC” or “Department”), discretion has been the better part of valor when considering enforcement of certain provisions of the Revised Part 360 Solid Waste Regulation Series (“Regulations”). 

In September 2017, NYSDEC announced a comprehensive overhaul of the then existing regulations governing Solid Waste Management Facilities.  The Regulations became effective on November 4, 2017, and were the first changes to solid waste management regulation in New York in almost 25 years. The Regulations made far-reaching changes, including extending regulatory coverage to previously exempt or unregulated facilities, and imposing strict rules and regulations for beneficial use determinations, construction and demolition debris, transportation of waste, and sampling for fill and other material intended for reuse, among other requirements.

According to NYSDEC the revised Regulations were derived from:

Experience in regulating those facilities has demonstrated that many areas of the regulations would benefit from revision, clarification, or modification to allow for new, technically appropriate alternatives to the design and operation criteria for solid waste management facilities found in the existing regulations, and to streamline the regulatory process.

Application of the Regulations triggered a number of practical, compliance-related issues for the regulated community. 

To date, the Department has still not fully implemented the Regulations.  NYSDEC has taken a measured approach to enforcement of certain unanticipated effects in application of the Regulations.  The Department continues to provide time for the regulated community to adjust and bring their facilities into compliance and has issued multiple enforcement discretion letters outlining certain provisions and/or circumstances in which the Department acknowledges compliance hurdles and the benefits of partial compliance in contrast to penalizing non-compliance.

The most recent enforcement discretion letters were released on March 16, 2022 and April 27, 2022 respectively, and confirm that NYSDEC will utilize enforcement discretion until May 3, 2023 or until an amendment to the current rule is promulgated for certain waste categories and processes contained in 6 NYCRR Part 360, Part 361, Part 362, Part 364 and Part 365.  While the letters signal compromise and an effort to instill a balance of enforcement for the benefit of the environment, the letters do warn that except for the specific provisions identified for discretion, all other provisions of the Part 360 Series remain in effect and will be enforced.

What follows is a brief summary of the specific circumstances and provisions that the Department has authorized enforcement discretion and or clarified the compliance obligation in the respective discretion letters.

The March 16, 2022 discretion letter identifies requirements across multiple solid waste management activities and provides discretion:

  • To address backlogs of material and larger stockpiles of recyclables at Recyclable Handling and Recovery Facilities (“RHRFs”), DEC will, upon request, waive the 15 percent residue threshold in 6 NYCRR §361-1.3(a)(1) and (2) for registered RHRFs on a case-by-case basis.  In addition, with DEC approval, enforcement discretion shall be applied to storage of unprocessed or processed non-putrescible recyclables at locations owned or under control of an owner or operator of a solid waste management facility.
  • To encourage metal recycling, DEC will utilize enforcement discretion to exclude metal extracted from a municipal waste combustion facility (“MWC”) after combustion, from the calculation of the MWC’s throughput capacity.
  • To address a discrepancy between the regulatory requirements imposed on 10-day permit exempt transfer facilities and hazardous and solid waste transporters in which certain permitting restrictions on permit exempt transfer facilities (6 NYCRR Part 360) were more stringent than those for hazardous waste transporters (6 NYCRR Part 373).  NYSDEC is using enforcement discretion to waive the requirements of 6 NYCRR §360.14 provided the management of solid wastes by the transporters is consistent with 6 NYCRR §372.3(a)(6) and §372.3(a)(7)(iii).
  • To resolve the inadvertent removal of an exemption that imposed two conflicting sets of requirements on transporters of used oil when storing solid wastes at 10-day transfer facilities. NYSDEC will use enforcement discretion by waiving the requirement of 6 NYCRR §360.14 provided the transporter complies with the applicable provisions of 6 NYCRR §374-2.5 and §374-2.10.
  • To address concerns raised by municipalities that permitting and landfill liner requirements imposed on registered land clearing debris landfills would cause their Municipal Solid Waste (“MSW”) landfills to be inundated with land clearing debris, significantly reducing available air space.  The Department is using enforcement discretion to allow such previously registered facilities to accept tree debris, concrete, asphalt pavement, brick, rock and soil that meets the definition of General Fill or the requirements of 6 NYCRR §360.12(c)(1)(ii).
  • To respond to concerns raised by the agricultural community, NYSDEC is using enforcement discretion related to 6 NYCRR Subpart 361-6 allowing for the use of waste tires to secure tarps and other cover in accordance with the pre-determined beneficial use found at 6 NYCRR §360.12(c)(2)(iv) or BUD 1137-0-00 dated December 4, 2014 which permits the use of waste tires to anchor plastic film or other cover material for corn, hay or other agricultural feeds if certain conditions are met.
  • To address concerns raised by small generators of regulated medical waste (“RMW”) (dental offices, etc.).  NYSDEC will exercise enforcement discretion with respect to 6 NYCRR § 365-1.2(b)(7) and (8) related to the storage of RMW at such facilities.
  • To clarify certain permitting obligations imposed on facilities handling RMW that are registered with the Federal Select Agent Program (“FSAP”) or utilize biosafety protocols evaluated as part of FSAP Approval.  NYSDEC will use its enforcement discretion and will not require a permit for a facility that holds a FSAP registration or utilizes biosafety protocols approved as part of a FSAP at another laboratory at the same institutional campus; however, such facilities must register with NYSDEC in accordance with 6 NYCRR §365-2.3(b) and all wastes must be inactivated on-site and disposed of as RMW at a permitted RMW treatment facility.

The April 27, 2022 discretion letter provides enforcement discretion and clarification related to Construction and Demolition Debris and Fill Material.  Specifically, the April 27, 2022 letter provides:

  • The Department shall use enforcement discretion related to 6 NYCRR §360.12(c)(3)(viii), (ix), and (x) which provisions identify pre-determined beneficial uses (“BUDs”) to deal with reuse of recognizable, uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock.  The Department will allow materials destined for and/or stored at these facilities, under the control of the generator or the person responsible for the generation, but prior to processing or reuse, to be managed as commercial product or raw materials. Similar discretion shall be issued to transporters of such material.
  • Department discretion as to the use of recycled aggregate from bricks, concrete pavement and/or asphalt pavement when used in or under asphalt pavement, or other paved surfaces, if separated from other waste prior to processing and subsequently processed and stored in a sperate area as a discrete material stream.
  • A stay of enforcement of sampling requirements contained in 6 NYCRR §361-5.4(e) which requires facilities to sample any fill material or residue leaving the facility for reuse.
  • Clarification as the definition of the term “similar material” that qualifies as Fill Material as that term is defined in 6 NYCRR §360.13.
  • Clarifies the handling and transporting requirements of mixed loads, indicating that facilities holding registration as a Solid Waste Management Facility, issued prior to November 4, 2017, may accept mixed loads of asphalt, asphalt millings, concrete, concrete products (including those embedded with reinforcement), masonry products, brick, rock and soil provided the facility’s registration allows for process of the component materials in the mixed load.  A special note indicated that de minimis amounts of wood present in a mixed load does not cause the material to be considered an unauthorized mixed load, or to be unrecognizable or contaminated.
  • Exception for use of recognizable, uncontaminated concrete products, asphalt pavement, brick and rock from construction and demolition activities may be used for grade adjustments if certain criteria are met.  The exception is not applicable in Nassau or Suffolk Counties or in the New York city Watershed.

According to a report published by the World Economic Forum, e-commerce sales ratios nearly tripled globally between 2014 and 2019.  In 2020, the COVID pandemic was a catalyst that accelerated this already rising trend by requiring traditional brick-and-mortar businesses to quickly shift to e-commerce.  As more and more consumers turn to e-commerce for their shopping needs, there is an expectation that the items purchased will arrive quickly.  The demand for faster deliveries has created the concept of last-mile delivery, which is the process of getting a purchased item from the warehouse shelf to the customer’s doorstep.

While drones, robots and autonomous cars are likely to play a role in the future of e-commerce deliveries, most e-commerce companies today rely on a fleet of transportation vehicles for last-mile delivery fulfillment.  Last-mile warehouses that rely on over-the-road deliveries generally require a greater number of parking spaces, not only for the delivery drivers and other employees of the facility, but also for the delivery vehicles that are stored on site. This has caused some municipalities to amend their zoning ordinances with respect to the number of on-site parking spaces required for warehouse and distribution facilities.

Until recently, the Town of Oyster Bay required that “warehouse, distribution and storage” uses provide one parking space for each employee, plus one space per commercial vehicle kept on the lot, but not less than one space per 1,000 sq. ft. of gross floor area.  However, following the Town’s approval of a 204,000 square foot Amazon warehouse delivery station with 1,603 parking spaces on the former Cerro Wire site in Syosset, the Town amended its parking regulations.

On June 14, 2022, the Oyster Bay Town Board voted to adopt Local Law No. 6 of 2022, which, among other things, revised the off-street parking and loading requirements for certain land uses, including warehouse, distribution and storage facilities.  The new parking requirement requires one parking space per employee, but no less than one parking space per 500 square feet of gross floor area, whichever is greater.  This new standard effectively doubles the number of parking spaces required for all new warehouses and distribution centers within the Town.

Critics of the new parking regulations argue that they penalize traditional warehouse and distribution uses that do not operate in the same way as last-mile warehouses and, therefore, do not need the same number of parking spaces in order to operate.  This point was made to the Oyster Bay Town Board at a May 11, 2022 public hearing by my Farrell Fritz colleague and fellow blogger, Philip Butler, who said:

“There is a difference between something like an e-commerce or last-mile warehouse and what I’ll refer to as traditional warehouse and storage uses.  This [proposed law] is a rising tide that is going to raise all ships, and that becomes problematic for traditional uses that do not operate at the same volume as an Amazon or last-mile warehouse.”

While there is certainly a rational basis for the new Oyster Bay parking regulations, the one-size-fits-all approach is problematic because not all warehouse and distribution facilities operate in the same way as an e-commerce warehouse of last-mile distribution facilities.  For traditional warehouse and distribution facilities that do not require a large number of parking spaces for their operations, compliance with the new parking regulations unjustifiably restricts the size of buildings.  This limits their functionality and may cause companies to operate elsewhere, which negatively impacts revenue to the Town and other local taxing jurisdictions.  Constructing and paving a parking lot that is larger than is actually needed, and installing the drainage infrastructure necessary to capture the storm water runoff from the lot’s additional impervious surfaces also increases construction costs.  Last, but not least, where additional parking is not actually needed, there is an environmental cost because areas that could be set aside for open space or additional landscaping must now be paved.

A better approach to addressing the parking challenges associated with the growing number of e-commerce warehouses and last-mile distribution uses is one similar to that used by the Institute of Transportation Engineers (ITE), which recognizes that there are different types of warehouses, and associates a different trip generation number with each.  Instead of lumping all types of warehouse uses together for purposes of calculating the number of parking spaces needed, municipalities should amend their codes to recognize the variety and intensity of operations of the different types of warehouse uses and assign a different parking requirement to each.  This will better ensure that each use will provide the number of parking spaces commensurate with the nature of its operations and no more pavement or other impervious surfaces than is necessary.

Zoning codes are constantly evolving in response to perceived or real threats of overdevelopment.  Generally, a municipality may in the reasonable exercise of its police power, amend its zoning code to be more restrictive in the bulk area requirements required for development of a parcel.  Known as a “merger provision” when a landowner purchases an adjacent substandard parcel of land, the lots merge with the existing property by operation of the local zoning ordinance.

The “single and separate” doctrine, however, may provide exemptions from subsequent more restrictive zoning ordinances.  Sometimes referred to as “checker boarding,” a landowner who owns property “single and separate” from another adjacent parcel may be able to preserve a developable lot despite a zoning code amendment prohibiting such development. But this is only if the municipality wants to extend such an exemption.

As stated by the Court of Appeals in Matter of Khan v Zoning Board of Appeals of Vil. of Irvington. 87 NY2d 344[1996], “there is no need for a common-law rule to protect landowners who possess parcels in ‘single and separate’ ownership situations,” and the Court of Appeals has declined to adopt such a rule.  The Court concluded that since the landowner’s property rights are protected by the availability of area variances, there is no need to overrule the municipality’s legislative zoning authority by creating a common-law right that automatically vests property owners with an exemption from area variances.

As a result, a municipality may provide this relief to exempt the owners of substandard parcels by creating a zoning exemption for properties that are held in single and separate ownership.  These exemptions are part of most zoning codes and serve an important purpose.  As  stated by the Court of Appeals in DeTroia v Schweitzer, 87 NY 2d 338 [1996], the purpose of a single and separate ownership exemption clause to a zoning code is to protect long-term property owners from amendments that render their previously conforming property useless, and thus preventing the more restrictive zoning ordinance from having a possible unconstitutional confiscatory effect.

Case law also clearly holds that commonly owned parcels will merge and not be considered “single and separate” for zoning purposes if: (1) they were used in conjunction with each other and (2) materially enhance the value and utility of each other.  Matter of Barretto v Zoning Board of Appeals of Inc. Vil. Bayville, 1234 AD2d 692 [2 Dept 1986].

This is why savvy property owners keep properties in separate ownership.

 

Last week, in The Seaview at Amagansett, Ltd. v. Town of East Hampton Justice Paul J. Baisely, Jr. found the Town of East Hampton and several of its officials in civil and criminal contempt of the Appellate Division, Second Department’s 2021 decision that restricted access to a 4,000-foot long area of oceanfront property commonly known as “Truck Beach”  in Napeague, New York.  The court did not consolidate fourteen actions relating to criminal trespass summons by local fishermen in connection with a staged protest.

The dispute in this litigation arises out of ownership and use of an area of private beach that was traditionally used by local baymen to fish when this area of waterfront was sparsely populated.  More specifically, the case deals with disputed area of beach landward of the mean high-water mark of the Atlantic Ocean that was conveyed in 1882 by the Town Trustees to Arthur W. Benson (the “Benson Deed”) and hinges on a reservation of rights in the deed.  This deed contains an easement “reserved to the inhabitants of the Town of East Hampton the right to land fish boats and netts to spread the nets on the adjacent sand and care for the fish and materials as has been customary heretofore on the South Shore of the Town lying westerly of these conveyed premises.”

By the mid 2000’s Truck Beach was used less for fishing and more for local day trippers to the frustration of the summer homeowners along this area of contested beach front.  In 2009, the waterfront homeowners began a contentious legal battle to quiet title on Truck Beach once and for all.

In February 2021, the Second Department found that the disputed beach area was held by the waterfront homeowners association (HOA) in fee simple absolute and did not confer upon the Town any regulatory power to issue permits allowing members of the public to operate and park vehicles on any portion of the beach owned by HOA.  The decision went further and enjoined the Town from issuing permits to allow driving on Truck Beach.

Between February and September 2021, the Town issued 4,016 resident beach driving permits and 111 nonresidential permits for Truck Beach and did not inform any of the permits holders that driving on Truck Beach was prohibited.  On May 28, 2021, the Town installed signs permitting vehicle access to Truck Beach but limited it to “fishing and fishing-related purposes.”

In April 2021, the HOA moved for an order holding the Town in civil contempt for violating the appellate court decision. On January 26, 27 and February 10, 2022 a contempt hearing was conducted in Suffolk Supreme, before Justice Baisely.

As a result of the hearing, the court held that limiting vehicular access to “fishing and fishing-related purposes” was inconsistent with the plain language of the Appellate Division decision.  Justice Baisely found the Town in civil and criminal contempt for demonstrating an “appallingly studied indifference and deliberate disobedience of the lawful and unequivocal order of this court and the Appellate Division” and order the Town to pay the HOA $239,000.00 and directed the Town Clerk to revoke all permits issued by the Town since February 3, 2021.

The Town of East Hampton has appealed the decision to the Appellate Division.

 

When New York Governor Kathy Hochul executed the 2022-2023 State Budget, it included a 10-year extension to the State’s Brownfield Cleanup Program (“BCP” or “Program).  The State’s voluntary, incentive-laced, BCP was set to expire on December 31, 2022.  The Program’s extension generally reinforces the State’s commitment to incentivize the remediation and re-use of environmentally-compromised and economically-blighted property.

Applicants can now be accepted into the BCP through December 31, 2032 and be eligible to receive tax-credit benefits if a Certificate of Completion (“COC”), confirming the remedial action objectives for the BCP site have been achieved, is issued on or before December 31, 2036.

In addition to extending the BCP, the Budget included a number of amendments that serve to extend and/or expand and increase the availability of BCP tax credits.  Specifically, the amendments include:

  • A 2-year extension to claim site preparation credits and/or on-site groundwater remediation credits for sites that received a COC between July 1, 2015 and June 24, 2021. The timeframe for claiming the credits was previously 5 tax years from the issuance of a COC, the Budget amends the timeframe to 7 tax years.
  • An extension to the timeframe for sites that received a COC between March 20, 2010 and December 31, 2015 to claim qualified tangible property tax credits (improvement/development costs) to 180 months (15 years) from the issuance of a COC.  Previously, the claims were available for a period of 10 years, with an additional 2-year allowance if it was determined the requirements for the credit would have been met, if not for COVID restrictions.
  • The addition of a 5% increase in available qualified tangible property credits for sites developed as renewable energy facilities or for sites developed in a “disadvantaged community” within a Brownfield Opportunity Area. Qualified tangible property credits can range from 10% to 24% of development costs (subject to certain credit amount caps) based on a number of qualifying factors, including the level of cleanup, and if the project is located within an Environmental Zone or Brownfield Opportunity Area.
  • Expansion of eligibility for qualified tangible property credits to sites located in New York City for renewable energy facilities and sites characterized as a “disadvantaged community” located within a Brownfield Opportunity Area. Prior to the amendment, qualified tangible property credits in NYC were only available to sites that demonstrated (a) at least half of the site is located in an Environmental Zone, (b) the property is upside down or underutilized, or (c) the project is an Affordable Housing Project.
  • Inclusion of stadiums, baseball parks, basketball courts and other athletic facilities and equipment, including sports field turf, lighting and access and entry ways, among other improvements, as qualified tangible property for sites cleaned up to a Track 1 remediation standard beginning in tax year 2022.

In contrast to the expansion and extensions to obtain BCP incentives, the amendments also potentially curtail eligibility of certain benefits for Affordable Housing projects and incorporate a pay-to-play component for projects admitted into the BCP:

  • The amendments modified the definition of Affordable Housing Project to include language authorizing Department of Environmental Conservation (“DEC”), after consultation with the Division of Housing and Community Renewal, to exclude specific benefits.
  • The amendments introduce a non-refundable program fee of $50,000 payable upon admittance into the BCP. The fee is waivable upon a showing of financial hardship.  The fee does not qualify for any of the BCP tax credits.  The amendments require the DEC to establish regulations defining a financial hardship.  The amendments establish the preliminary criteria  for evaluating financial hardship as (a) considering whether an applicant has waived its tax-credit benefit rights, (b) determining if the project is located in a disadvantaged community or if the site is being developed as an Affordable Housing Project, and (c) reveiwing the assets and income of the applicant.

 The amendments achieve the goal of extending the BCP and expanding and/or extending the incentives associated with the BCP.  However, imposing flat, non-refundable fees on all applicants would seemingly curb lower-margin projects, smaller projects and projects located in less dense population areas.

For more information regarding the BCP, please contact Jesse Hiney (631.367.0718).

 

As part of the 2022 adopted State Budget, the New York State Legislature amended the Open Meetings Law (Public Officers Law § 100, et seq.) to authorize public bodies to conduct meetings using videoconference technology through June 30, 2024.  Videoconferencing was commonly used by public bodies during the pandemic because the public was prohibited from attending government meetings in person.  The new law allows for the continued use of videoconferencing when conducting public meetings, but this authorization is subject to much stricter requirements.

For purposes of the Open Meetings Law, a “meeting” is the official convening of a public body for the purpose of discussing public business.  Whenever a quorum of a public body gathers for the purpose of conducting public business, the Open Meetings Law requires that the meeting be noticed and the public allowed to attend and observe the meeting in person, except for a portion of the meeting that is in executive session.  Section 103(c) of the Public Officers Law previously authorized a public body to use videoconferencing to conduct its meetings, but only if the public was permitted to attend, listen and observe the meeting at any remote location where videoconferencing was used.

New Requirements for the Use of Videoconferencing

As of April 9, 2022, public bodies wishing to conduct meetings by videoconference must comply with the new requirements set forth in Public Officers Law § 103-a.  A public body may use videoconferencing provided that the public can attend, listen, and observe the meeting in at least one physical location at which a member participates and a quorum of the members are present in either the same physical location or in multiple locations where the public is permitted to attend.  In addition, the following criteria must be met:

  • The local government must adopt a local law, or an individual public body must adopt a resolution, following a public hearing authorizing the use of videoconferencing for itself and its committees and subcommittees, or specifying that each committee or subcommittee can make its own determination.
  • The public body must adopt written procedures governing member and public attendance consistent with Public Officers Law § 103-a and post those procedures on the public body’s website.
  • Members of the public body must be physically present at one of the meeting locations where the public can attend in person unless the member is unable to be physically present due to extraordinary circumstances, as set forth in the public body’s adopted meeting procedures, such as disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member’s physical attendance at such meeting. Members of a public body do not have a right to attend meetings remotely, but may participate remotely by videoconference only at the discretion of the public body.
  • The public body must ensure that members of the public body can be heard, seen, and identified while the meeting is being conducted, except in the case of executive sessions.
  • The minutes of meetings involving videoconferencing must include which, if any, members participated remotely and must be made available to the public.
  • The public notice for the meeting must inform the public that videoconferencing will be used, where they can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location(s) where members of the public body will be participating in the meeting and where the public can attend the meeting in person.
  • The public body must record each meeting that uses videoconferencing and such recordings must be posted or linked to the public body’s website within five business days of the meeting, kept for a minimum of five years thereafter, and recordings must be transcribed upon request.
  • The public body must provide the opportunity for members of the public to view the meeting by video. At meetings where public comment and participation is authorized, members of the public must be able to participate in the proceedings by videoconference in real time and with the same opportunities for participation and testimony as in-person participation and testimony.
  • A public body electing to utilize videoconferencing to conduct its meeting must maintain an official website.

Where public meetings are broadcast or use videoconferencing, the technology used must permit access by members of the public with disabilities in a manner consistent with the Americans with Disabilities Act.

Local Discretion During Emergencies

The new law includes an emergency exception to the in-person requirement associated with videoconference meetings if the Governor has declared a state of emergency or the local chief executive has declared a local state of emergency.  However, notwithstanding a State or local emergency declaration, the decision to waive the in-person meeting requirement is left to the discretion of the local public body after assessing whether the circumstances would affect or impair its ability to hold an in-person meeting.

Transition Period and Expiration

The legislation includes a 60-day transition period ending on June 8, 2022, during which a public body may continue to conduct meetings using the remote meeting procedure that was authorized during the pandemic by Executive Order 202.1 and Chapter 1 of the Laws of 2022.  The law contains a sunset provision stating that the new regulations will expire and be deemed repealed on July 1, 2024.  Prior to that date, the law requires that the Committee on Open Government issue a report to the Governor, the leaders of the Senate and Assembly and others, concerning the application and implementation of the law and any further recommendations governing the use of videoconferencing for public meetings.

 

While the use of videoconferencing to conduct public hearings is authorized by the Open Meetings Law, the rules for doing so are stricter than those put in place during the pandemic.  Accordingly, local governments and public bodies should consult with their municipal attorneys prior to allowing its members to participate in meetings remotely.  If you have questions about the new law, please contact Anthony S. Guardino (631.367.0716) or any member of the firm’s Land Use and Municipal practice group.

When requesting deviation from setback minimums or minimum lot size requirements, a developer must request an area variance. Even if the lots are zoned residential and the developer only wants to build a single-family residence, there is no guarantee that a Zoning Board of Appeals will allow deviations and grant an area variance, as in Matter of Stelling v. Gaudioso, 2022 NY Slip Op 02409, 2022 WL 1097243 (2d Dep’t 2022).

In Stelling, the petitioner wanted to subdivide the property into two separate lots. The first step in this process is to complete a minor subdivision application, which was submitted to the Village of Lake Grove Planning Board. However, the subject property requires a minimum lot size of 20,000 square feet, but the petitioner sought one lot to be only 6,000 square feet and the other to be 10,000 square feet. Therefore, the petitioner had to apply to the Lake Grove Zoning Board of Appeals (“ZBA”) for area variances. The ZBA denied the petitioner’s applications, and the petitioner commenced an article 78 proceeding to set aside the ZBA’s determination, which the Suffolk County Supreme Court in turn denied.

In affirming the Suffolk County Supreme Court’s decision, the Appellate Division, Second Department, held that the ZBA’s decision was rational. The court explained that when deciding whether to grant an area variance, “a zoning board of appeals is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community” Stelling p. 3, citing Matter of deBordenave v. Village of Tuxedo Park Bd. of Zoning Appeals, 92 N.Y.S.3d 132 (2d Dep’t 2019). In considering the benefits and drawbacks of an area variance, the code of the Village of Lake Grove specifies factors to consider:

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created” (Village Law § 7-712-b[3][b]).

Though these factors must be considered by a local zoning board, courts will not disturb a determination unless an “action taken by the board was illegal, arbitrary, or an abuse of discretion” because zoning boards have wide discretion in deciding variance applications. Stelling, p. 3-4 (internal citations omitted). Further, a determination only must have some “objective factual basis” to be considered rational and not arbitrary and capricious. Stelling, p. 4.

In Stelling, the court held that the relevant factors were considered by the ZBA, and so the ZBA’s decision to deny the petitioner’s applications was rational and not arbitrary or capricious. The petitioner’s variances were substantial—specifically, the lot areas would have been 50% and 70% smaller than the zoning requirements. Further, the court found that there were feasible alternatives for the petitioner because one house could be constructed on the property instead of two.

The factors in balancing the interests of the community and applicant do not specifically put a limit on the size of an area variance that could be granted; the benefits and drawbacks to the community as a whole will be considered, as well as the feasibility of alternatives along with all of the aforementioned factors. However, it is helpful for developers to consider that the Stelling court considered lots 50% and 70% smaller than was allowed in the zoning code to be substantial.

The “Special Use Permit” is a zoning term and process used by a municipality to encourage, but still regulate, land use in a zoning district by making it subject to a special review and criteria detailed in the zoning ordinance.  See, Town Law Section 274-b, Village Law Section 7-725-b and City Law Section 27-b.

The “Special Use Permit” also known as “special permit,” “special exception” and “conditional use permit” is defined as:

“authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with and will not adversely affect the neighborhood if such requirements are met.” Town Law 274-b.

A special use permit gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right. Retail Prop. Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 NY2d 190 [2002].  The significance of this distinction is important.  As the Court of Appeals held, there is fundamental difference between a variance and a special exception permit. See, North Shore Steak House, Inc. v Board of Appeals of the Inc. Village of Thomaston, 30 NY2d 238 [1972].  The Courts have repeatedly held that the inclusion of the permitted use in the ordinance as a special use permit is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.”  Id. 

Although not an entitlement, uses permitted by special permit are generally considered “as-of-right” uses that are subject to a public hearing and conditions for approval. New York courts have also held that because the use is already “permitted,” an applicant requesting a special use permit “need only demonstrate compliance with any legislatively imposed conditions on an otherwise permitted use,” and is only subject to “conditions attached to the use to minimize its impact on the surrounding area” Id.

Importantly, the decision to grant or deny a special use permit must be based on the evidence in the record, and a proposed special use permit cannot be denied based solely on generalized community opposition.  See, Twin County Recycling Corp. v Yevolli, 90 NY2d 1000 [1997].  The decision to deny a special use permit must not only be supported by substantial evidence, but also evidence must be shown that the proposed special use permit would have negative impacts that exceed the impacts associated and anticipated with the use permitted “as-of-right” in the zoning district such as increased traffic for a commercial use.  See, QuickCheck Copr. v Town of Islip 166 AD3d 982 [2d Dept. 2018] (Special permits were required to use the subject property as a convenience market, a minor restaurant, and a gasoline service station.  There was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted.  The alleged increase in traffic volume was an improper ground for the denial of the special permit.  Second Department annulled the Town Board’s determination, and remitted the matter to the Town Board for the issuance of the requested special use permit).

However, requests for special permits are not guaranteed if the applicant cannot, through the imposition of reasonable conditions, meet the special use permit requirements of the local ordinance. See, Tandem Holding Corp. v Bd. of Zoning Appeals of Town of Hempstead, 43 NY2d 801 [1977].

Although special use permits are viewed to be supportive of existing land use in certain zoning districts, it is critical for land use practitioners to develop a strong record that complies with the specific requirements for use(s) permitted by special use permits.

 

When it comes to pre-acquisition environmental due diligence, a properly prepared Phase I ESA is the ounce of prevention that is worth a pound of cure.  Phase I Environmental Site Assessments (“Phase I ESA”) are a routine due diligence requirement of any commercial transaction involving real estate.  A Phase I ESA generally consists of four main components, including a site reconnaissance, interviews with those familiar with the property, review of site-related historic documentation and environmental databases for the subject property and surrounding areas, and preparation of a written report documenting conclusions, and any recommendations for additional investigation.  The primary functions of performing a Phase I ESA are to (1) identify Recognized Environmental Conditions (“RECs”) in the form of a release, likely release or material threat of a future release of hazardous materials or petroleum products at a subject property, and (2) to establish the “innocent purchaser” and other affirmative defenses to environmental liability imposed by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

Understanding the findings and conclusions of the Phase I ESA are necessary to manage and allocate environmental risk imposed by CERCLA.  In the simplest terms, CERCLA liability is harsh.  CERCLA liability is strict (without regard to fault), joint and several (liability for all cleanup costs, even if other parties also contributed to a release) and retroactive (liable for releases prior to enactment of CERCLA).  A purchaser can become liable for a CERCLA cleanup upon acquisition of a property contaminated by hazardous materials.

Late last year, ASTM adopted a new version of the Standard Practice of Environmental Site Assessment: Phase I Environmental Site Assessment Process – ASTM E1527-21 – modifying the standard by which a Phase I ESA is prepared.

The new standard was developed to replace the ASTM E1527-13 standard adopted in 2013 and subsequently codified in CERCLA as satisfying the All Appropriate Inquiry Rule (“AAI Rule”), a prerequisite to establishing certain affirmative defenses to environmental liability under CERCLA, including the contiguous landowner and bonafide prospective purchaser defenses.

Despite ASTM’s adoption of the E1527-21 standard, the E1527-13 Phase I remains the current benchmark to satisfy the AAI rule.  However, EPA is expected to issue a rulemaking to confirm that E1527-21 will also satisfy the AAI rule later this year, before ultimately phasing out the E1527-13 standard.

The update is noteworthy as it modifies the scope of historical reviews for adjoining properties, expands title search standards, revises the definitions of RECs, Controlled RECs and Historic RECs, and addresses emerging compounds like PFOA/PFAS, among several other procedural reporting and definitional clarifications.

Requesting a Phase I ESA prepared in accordance with the applicable ASTM standard should be a check-the-box item on your pre-acquisition diligence list.  However, there are significant legal consequences to adopting a non-compliant Phase I ESA or failing to understand the findings and conclusions.

On January 13, 2022, the Brookhaven Town Board voted unanimously to adopt new legislation that creates the Greater Bellport Overlay District.  The law aims to foster redevelopment in the hamlet of Bellport and encourages the creation of more affordable housing in the area.  The new legislation creates four distinct overlay sub-districts that are designed to implement the Greater Bellport Land Use Plan that was completed in 2014.

According to the law’s legislative intent, the overlay district seeks to revitalize the areas within the sub-districts by encouraging and promoting redevelopment patterns that are civic-oriented, pedestrian-friendly, economically vibrant, environmentally sustainable, and that evoke a unique sense of place.  It is also intended to be a planning tool that will foster the creation of a linear park or esplanade adjacent to the Long Island Railroad tracks, as recommended in the Greater Bellport Land Use Plan.

The four overlay sub-districts are the Bellport Hamlet Center Overlay, the Greater Bellport Opportunity Overlay, the Hagerman Hamlet Center Overlay, and the Bellport Esplanade and Greenway Overlay.

The Bellport Hamlet Center Overlay sub-district is located between Montauk Highway and Atlantic Avenue, south of the Boys and Girls Club, and allows for multi-family residential developments.  This sub-district has a residential base density of 7 units per acre, but offers density bonuses for developments providing extra sanitary capacity, 100% affordable units, construction of a service or use identified as being underserved within the community, use of high-quality, fire-resistant structural materials, green energy technologies and housing for those with special needs.  The maximum residential density in this sub-district is 25 units per acre.

The Greater Bellport Opportunity Overlay sub-district is located north of Montauk Highway.  The regulations in this sub-district aim to bring a greater variety of housing options to Bellport, where single-family residential structures currently dominate.  As recommended by the Greater Bellport Land Use Plan, the sub-district allows for 2, 3 and 4-unit multi-family structures with a special permit from the Planning Board.  This sub-district has a residential base density of 2 units per acre, but allows for density bonuses for developments providing 100% affordability, the dedication of parcels within the Bellport Esplanade and Greenway Overlay sub-district, use of quality, fire-resistant materials and green energy technologies, and housing for those with special needs.  The maximum residential density in this sub-district is 8 units per acre.

Hagerman Hamlet Center Overlay sub-district covers a stretch of Montauk Highway that is home to many automotive-related businesses.  As recommended by the Greater Bellport Land Use Plan, this area is currently zoned J-6 Main Street Business District, which permits first-floor commercial, second-floor office or residential use and third-floor residential use.  This new sub-district now authorizes the Town Board to permit residential uses on the first, second and third floors of a building, provided that at least fifty percent of the first-floor frontage along Montauk Highway is devoted to commercial uses.  Developers in this area may increase the 5 units per acre residential base density by providing the same benefits that allow for increased density in the Bellport Hamlet Center Overlay and Greater Bellport Opportunity Overlay sub-districts, up to a maximum residential density of 20 units per acre.

The Bellport Esplanade and Greenway Overlay sub-district includes a blighted area located between Montauk Highway and the Long Island Railroad tracks.  The lots in this area are small and narrow and were developed without the benefit of landscaping and adequate parking.  This sub-district incentivizes the creation of the esplanade by providing opportunities to increase the residential base density of developments within the Greater Bellport Opportunity Overlay and Hagerman Hamlet Center Overlay sub-districts by dedication of parcels needed to create this future recreational amenity for the residents of Greater Bellport.

All developments located with the Greater Bellport Overlay District are subject to a number of general design regulations.

The maximum permitted height is 50 feet within the Bellport Hamlet Center and Hagerman Hamlet Center Overlays sub-districts, and 2½ stories and 35 feet within the Greater Bellport Opportunity Overlay sub-district.  No more than 30 percent of the residential units can exceed 1,200 square feet, and a minimum of 30 percent of the residential units shall be no larger than 800 square feet.  No residential unit may be less than 400 square feet.

All development proposals must provide civic space and recreational areas, such as squares, private plazas, greens, and public parks, intermixed throughout the development for social activity, recreation, and visual enjoyment.  At least one civic space location must be devoted to the creation of a focal point that advances the arts or the historic or cultural significance of the community.  Bike paths must be provided along roadways that connect the development to the street, and pedestrian walkways must connect all buildings to sidewalks in public streets.

The new legislation is part of the Town’s long-term strategy for revitalizing the Bellport community by removing commercial blight, encouraging new affordable housing projects and providing a new recreational amenity for the residents of Greater Bellport.