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.

In a unanimous decision, the Court of Appeals upheld the Second Department’s decision in Hunters For Deer v Town of Smithtown that the Town may not regulate discharge setbacks for bow and arrow in a manner inconsistent with State law.  In that decision, the Second Department held that long bows could not be defined as firearms and that the State’s hunting laws preempt local ordinances when it comes to the regulation of bows.

As previously discussed here, the lawsuit dealt with state bow hunting regulations that were in conflict with certain discharge regulations enacted by the Town of Smithtown in 2014.

In a terse decision, the Court of Appeals skirted preemption arguments raised below and at oral argument by narrowing the issue, stating “the only question properly before us…is whether Town Law 130(27) authorizes defendant Town of Smithtown to regulate the discharge of ‘bows’ pursuant to its authority to regulate the discharge of ‘firearms’ under that statute.”

Applying principles of statutory construction, the Court found that “while the term ‘firearm’ is undefined in the Town Law, construing it in accordance with its ‘usual and commonly understood meaning’, the term ‘firearm’ does not encompass a ‘bow,’  and we are unpersuaded that the Legislature intended otherwise when it used the term in the Town Law.”

However, in a footnote raising procedural issues, the Court declined to determine whether a municipality has the authority to regulate the discharge of bows under municipal home rule or whether the State’s hunting law preempts such regulations.  The Court went on to state, in the footnote, that Smithtown effectively conceded that the Town Code provision was invalid.

Accordingly, Town Law § 130 (27) does not authorize Smithtown to regulate the discharge of bows as firearms.  Moreover, the Court’s affirmation of the Second Department’s decision suggests that municipalities statewide cannot enforce hunting regulations more restrictive than the State’s.

 

Before adjudication, a court must determine whether a plaintiff has standing. Standing means that the party has a right to access the courts for a particular dispute. A petitioner bears the burden to show an actual injury and that the violated statute was meant to prevent this type of injury. In land use matters specifically, a petitioner “must show that it would suffer direct harm, injury that is in some way different from the public at large” (Thiele v. Town of Southampton Zoning Board of Appeals, internal citations and quotes omitted).

In Thiele, individual petitioners, as well as the Long Island Pine Barrens Society, Inc. and other environmental groups, challenged the Town of Southampton Zoning Board of Appeals’ determination that a private golf course was a permitted accessory use to a proposed residential development. The DLV Quogue respondents want to develop a residential subdivision and a private, 18-hole golf course, and maintain and operate other buildings and structures. In an opinion from November 4, 2021, the Suffolk County Supreme Court held that all of the petitioners lacked standing because they did not show any injuries that were individualized. When considering injury implied by distance to the project site, the court explained that close proximity may be an important consideration, but is never enough on its own. Further, the relevant distance must be measured from the structure or development at issue, not just from property line to property line. Here, the distance of the petitioners’ properties did not help their case. Although there is no specific standard for distance, the closest petitioners had over 700 feet of a forested buffer zone separating their residences from the golf course, and the court did not consider that proximate.

When discussing the requirement that an individual petitioner has an “actual and specific injury that is different in kind of degree from that alleged to be suffered by the general public, and that is not too speculative,” the court specified that groundwater pollution on its own does not suffice. The court cited a 1995 case from the Appellate Division, Second Department, Long Island Pine Barrens Society v. Planning Board of the Town of Brookhaven, which held that “generalized allegations that project will have adverse impact on underlying aquifer” were not enough to establish standing (internal citation omitted). Therefore, the court in Thiele had to follow and expand on the long-standing proposition that a Long Island resident cannot challenge a project to protect the sole source aquifer that spans most of the island unless there is a more particularized accusation. For example, the court in Thiele mentioned that there was no evidence that any of the petitioners have a private or on-site well, implying that if there could be a showing that such a well would be polluted, that could be enough of an individualized injury to establish standing. By extension, this means that there is no general standing to keep Pine Barrens areas undeveloped, even though the sandy soil means that the underlying aquifer is susceptible to pollution. Here, the court also stated that there was no sufficient evidence of harm to the aquifer, and that there was no evidence that the individual petitioners would be “prevented from using or enjoying the Pine Barrens.” Therefore, petitioners should show these kinds of injuries to meet the standing requirements.

Regarding standing for the environmental organizations, the court distinguished cases where petitioners were successful. Unlike in Thiele, in Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning & Policy Commission, an Appellate Division, Second Department case from 2016, petitioners sought to protect a portion of the Pine Barrens that was in the “core preservation area.” Additionally, this area was within the “zone of interests sought to be protected by the Pine Barrens Act of 1993,” so organizational standing was granted (internal citation omitted). In order for organizations to have standing, the most important consideration is that at least one member would have standing to sue. Further, the interest an organization asserts must be relevant to its purpose. Last, neither the claim nor the relief sought must require the involvement of individual members. Therefore, though the Long Island Pine Barrens Society was also a petitioner in Thiele, whether the area is in the “core preservation area” makes the difference because of the protection afforded by the Pine Barrens Act.

When performing governmental functions, municipal agencies are immune from tort liability for negligence unless it is shown that there was a “special relationship” between the plaintiff and the agency at the time the claim accrued. The special relationship doctrine can arise in any number of situations involving a municipal actor, especially claims for personal injury. Interestingly, the doctrine was recently at the center of two dog-bite cases decided by the Second Department, both of which were dismissed upon the Court’s finding that no special relationship with the plaintiff existed.

In E. v Incorporated Village of Westbury (Docket No. 2019-11668, Dec. 8, 2021), the infant plaintiff and his father sued the Village after the plaintiff was attacked by two unleashed dogs. The plaintiffs claimed that the Village failed to enforce its own laws against the keeping of dangerous animals, despite prior notice of the dogs’ dangerous propensities, and further, that the Village had an affirmative duty to protect the infant plaintiff from harm.

In Zozarro v Town of Hempstead (Docket No. 2019-08229, Dec. 15, 2021), the plaintiff sued for personal injuries after he was bitten by a dog he had hoped to adopt at the Town animal shelter. He claimed, among other things, that the Town was strictly liable as the shelter’s operator.

In both cases, the Supreme Court, Nassau County dismissed the actions on summary judgment. On both appeals, the Second Department affirmed.

The Court’s decision in E. summarizes the special relationship doctrine well. There, the Court wrote:

When a negligence claim is asserted against a municipality, the first issue for a court to decided is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. Whereas a municipal entity engaged in a proprietary function will be subject to liability under ordinary principles of tort law, a municipal entity acting in a discretionary governmental capacity is immune from liability absent a special duty owed to the plaintiff. A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises. By contrast, a government entity will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers (E. pp. 1-2) (internal citations and quotes omitted).

Writing in its decision in Zozzaro, the Court further explained that “[a] special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Zozzaro, p. 2) (internal citations and quotes omitted).

Applying the doctrine in Zozzaro, the Court found that the Town was engaged in a discretionary governmental function when operating its animal shelter pursuant to State mandate, and further, that it did not create any one of the three scenarios triggering a special relationship with the plaintiff. Accordingly, the Town was immune from liability for the plaintiff’s injuries.

In E., the Court affirmed summary judgment in the Village’s favor upon its finding that the plaintiffs failed to demonstrate whether the Village was engaged in a proprietary function, or whether the Village owed the infant plaintiff a special duty. While it seems logical that a municipality’s enforcement of its laws would inherently be treated as a governmental function triggering the need for a special relationship with the plaintiff, the Court did not expressly reach that finding in E.

The Second Department’s decisions in E. and Zozzaro can be accessed by the following links: E v Westbury and Zozzaro v Hempstead.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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