“Operation Pay Dirt” was a joint investigation by the Suffolk County District Attorney’s Office, the New York State Department of Environmental Conservation (NYSDEC), and the Suffolk County Police Department. It investigated illegal dumping on Long Island.  Illegal dumping is of particular concern on Long Island because contaminants in dumped material can leach into the ground and adversely impact our sole source aquifer.

The joint investigation led to the appointment of a special grand jury.  The grand jury indicted 30 individuals and 9 corporations  for illegally disposing of solid waste at 24 locations on Long Island.  All 39 defendants pleaded guilty. One of the individual defendants, referred to as the “dirt broker,” was sentenced to two to four years in state prison.

Also, the  Suffolk County Special Grand Jury Report on Environmental Crimes was issued on August 2, 2019. In it, the grand jury explained the illegal dumping scheme and recommended new laws specifically aimed at punishing these environmental crimes.

The grand jury report highlighted the following:

  • Solid waste is often associated with “industrial, municipal, commercial, institutional, mining, or agricultural operations or from residential activities” and can include hazardous and acutely hazardous materials.
  • Construction and demolition debris (C&D), a type of solid waste, is often generated during residential, commercial and industrial construction, demolition, and renovation projects.
  • Each day, thousands of cubic yards of C&D and other solid waste material are transported across the metropolitan New York region to facilities that are authorized to accept this material.
  • Proper disposal of this material can be expensive – disposal fees for hazardous and acutely hazardous waste can exceed $1,000 per truckload (about 30 to 40 cubic yards).

The grand jury report explained the role of “dirt brokers” who steer C&D material, which can contain hazardous and acutely hazardous substances, to transfer stations and recycling facilities that are willing to skirt the rules in order to increase their profits.  These unscrupulous facilities do not dispose of the material as required by law.  Rather, they dilute the material by mixing it with dirt and work with the dirt brokers to get rid of the mixture, falsely claiming it is clean fill usable anywhere that general use fill can be used. Falsified manifests and dump tickets are used as part of the scheme.

The grand jury report noted that many home and business owners, as well as at least one school, were duped into accepting this material as clean or general use fill, but which actually contained C&D and hazardous and acutely hazardous material.

The grand jury indicated that the current Penal Law and Environmental Conservation Law (ECL) were  inadequate to address the severity of the harm being done.  It recommended several legislative and administrative actions to address the issue. These include:

  • Forming an “Environmental Crimes Team” within district attorney offices to investigate and prosecute environmental crimes.
  • Implementing new protocols to document the handling of solid waste and other material from the point of pickup to the point of final destination.
  • Creating an alert system that would notify the NYSDEC of any site “that receives greater than a threshold number of truckloads of material within a 30-day period.” This would allow for rapid inspections of suspicious sites.
  • Amending the New York State Penal Law to add specific environmental crimes to deter illegal dumping.

After the grand jury report was issued, New York State Senator Todd Kaminsky (D-9th) introduced a bill that would create multiple new environmental crimes to address illegal dumping.  As of this writing, the bill, S6758, is currently in the Senate Codes Committee.

The proposed bill would amend the Penal Law to add crimes for illegal disposal. These range from criminal disposal in the fourth degree (class A misdemeanor) (disposal of solid waste); criminal disposal in the third degree (class E felony) (disposal of 10 cubic yards or more or 20,000 pounds or more of solid waste); criminal disposal in the second degree (class D felony) (disposal of 70 cubic yards or more or 140,000 pounds or more of solid waste); criminal disposal in the first degree (class C felony) (disposal of hazardous waste or reckless disposal of acutely hazardous waste); and aggravated criminal disposal (class B felony) (disposal of acutely hazardous waste).  The proposed bill includes enhanced penalties where the conduct resulted in  contamination of groundwater.

The proposed bill would create the crime of scheme to defraud by disposal of solid waste (class E felony). This requires a defendant to engage in a “systematic ongoing course of conduct with intent to defraud more than one person by disposing of solid waste . . . on such person’s property under false or fraudulent pretenses, representations, or promises, and, so damages the property of one or more of such persons.”

The proposed bill would create the crimes of criminal possession of solid waste in the second degree (class A misdemeanor); criminal possession of solid waste in the first degree (class D felony); criminal acceptance of solid waste or C&D (class A misdemeanor); criminal acceptance of a hazardous substance (class D felony); and criminal acceptance of an acutely hazardous substance (class C felony).

The proposed bill would add a new provision to the ECL that would require documentation of the movement of this material from the point of receipt to its point of final disposition. The proposed bill would criminalize making or causing a false waste tracking document or a false entry in a solid waste tracking document.

If the proposed bill is enacted, perhaps illegal dumping will be deterred in light of the significant increase in jail time and penalties proposed for these activities.

 

In SEQRA litigation, there is an oft-quoted proposition that the Lead Agency may not abdicate or defer its responsibilities under SEQRA to another agency. See Riverkeeper, Inc. v. Planning Bd. of Town of Se., 9 N.Y.3d 219, 234 (2007). To satisfy SEQRA’s requirements, the Lead Agency must conduct an independent study of the relevant areas of environmental concern and take the requisite hard look at them. Id. Consequently, there are times when a Lead Agency reaches a different conclusion on a matter of environmental concern than another agency opining on the same project. This very issue was raised before the Fourth Department in Matter of Davis v. Zoning Board of Appeals of City of Buffalo (App. Div. 4th Dept., Docket No. 18-01597).

In Matter of Davis, a company made applications to the City of Buffalo Planning Board and Zoning Board of Appeals for approvals to construct a new mixed-use building in a residential neighborhood. The project called for the demolition of 14 existing structures located within a district listed on the National Register of Historic Places. The Planning Board served as Lead Agency.

After the project was approved, the petitioners commenced an Article 78 proceeding seeking to annual the Planning Board’s and Zoning Board’s decisions. Among their claims, the petitioners alleged that the Planning Board, as the Lead Agency, failed to take the requisite hard look at the project’s impacts on the historic resources within the district. The Appellate Division disagreed.

As part of the environmental review on the project, the Planning Board contacted the New York State Office of Parks, Recreation and Historic Preservation (SHPO) as an interested agency. SHPO returned a letter indicating its belief that the project would “significantly and negatively alter the character of the surrounding historic districts.” The Planning Board rejected this finding, ultimately reached the opposite conclusion, and issued a negative declaration for the project. The trial court and Appellate Division upheld this decision. The appellate court wrote:

The Planning Board prepared a final environmental impact statement and addressed the concerns raised by SHPO, but ultimately disagreed with that agency and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. The record reflects that the Planning Board conducted a lengthy and detailed review of the project, including its evaluation of the potential impacts to historic resources, and its written findings demonstrate that it provided a reasoned elaboration for its determination. Its determination must be upheld inasmuch as it is not arbitrary, capricious, or unsupported by substantial evidence.

Memorandum and Order, Nov. 8, 2019, at *3 (citations omitted).

The actions of the Lead Agency Planning Board in Matter of Davis stand in stark contrast to those of the Planning Board in Peterson v. Planning Bd. Of the City of Poughkeepsie, 163 A.D.3d 577 (2d Dept. 2018), a similar case that reached a different result. In Peterson, a developer sought approvals from the local Planning Board to build a condominium on real estate adjacent to a historic district. The Planning Board issued a negative declaration for the project, prompting legal challenge by a local historic neighborhood association.

On appeal, the Second Department reversed the trial court’s order dismissing the association’s petition. The Appellate Division ruled that the Planning Board failed to take the requisite hard look at the environmental issues associated with the project because, in reaching its determination that the project would not adversely affect the character of the adjacent historic district, the Planning Board relied exclusively on a letter it received from SHPO in which that agency summarily concluded that the project would not negatively affect the district. Thus, the Planning Board failed in its charge to conduct an independent investigation into that area of environmental concern. Moreover, the Court opined that the letter was conclusory and failed to satisfy the reasoned elaboration required under SEQRA.

The Fourth Department’s decision in Matter of Davis reminds us that although Lead Agencies are encouraged to consider the opinions of other agencies, they are not bound by them. Indeed, as the Peterson decision suggests, independent consideration and review is the better practice and provides greater assurance to the Lead Agency that it its satisfying SEQRA’s mandate.

A copy of the Court’s Memorandum and Order can be found on the Fourth Department’s website at https://www.nycourts.gov/courts/ad4/. If you have any questions or comments, please feel free to contact the author at pbutler@farrellfritz.com.

In Town of Brookhaven v Golemi, 2019 NY Slip Op 51477(U) [Sup Ct, Suffolk County 2019], the Town of Brookhaven (“Brookhaven”) successfully sought and obtained injunctive relief to remove a structure that violated Brookhaven’s Town Code (“Code”). This case reminds landowners to be responsive to local governments in their enforcement of zoning ordinance. It is also a simple and helpful illustration of how municipalities can pursue a violator through to a remedy – even Court sanctioned self-help.

The defendant is a Brooklyn resident who owns the subject premises, which are located in Mastic Beach, New York, and zoned within the “A-Residence-1” District. In February 2018, a complaint was filed with the Brookhaven Law Department stating that the premises were occupied by a storage trailer – without a valid building permit. The following month, a Brookhaven town investigator issued an appearance ticket to the defendant by “nail and mail” service. The ticket charged the defendant with violating Town Code Section 85-197(A) and required his appearance before the Suffolk County Sixth District Court. (Photographs filed by the Town show the  “trailer” looks like a shipping container.)

After failing to appear at his first scheduled appearance, the defendant appeared on the adjourn date and pleaded guilty to the charge. The District Court fined the defendant $500, and sentenced him to a conditional discharge requiring either (i) an application for the necessary permit or (ii) removal of the trailer, within 30 days.

Three months later, in September 2018, the defendant had neither applied for the permit nor removed the trailer. In November 2018, the District Court issued a Declaration of Delinquency and Notice of Appearance, ordering the defendant to appear because he violated the conditions of discharge. The District Court also warned the defendant that his failure to appear may result in the issuance of a bench warrant for his arrest. The defendant failed to appear and the District Court issued the bench warrant.

In May 2019, Brookhaven commenced an action in the Supreme Court, Suffolk County, based upon the same facts and issues, and applied for an order (i) declaring the defendant breached the terms of conditional discharge, (ii) ordering defendant remove the trailer, (iii) granting Brookhaven authority to enter upon the defendant’s premises to remove the trailer – if necessary, (iv) if removal is necessary, charging the costs to the defendant and adding them to the subsequent assessment, and (v) ordering the defendant to maintain the premises in conformance with the Town Code. The defendant failed to oppose Brookhaven’s application, and the Supreme Court granted its motion.

N.Y. Town Law Section 268(2) authorizes towns to provide for enforcement of their local zoning ordinance, e.g. by commencing an action to prevent, restrain, correct or abate the unlawful construction of a building in violation of the local zoning ordinance. Removal is an appropriate method by which a town may abate such violations. Brookhaven has also enacted Town Code Section 85-157, authorizing it to commence actions or proceedings to prevent, restrain, correct or abate violations. Here, Brookhaven brought this action – within its powers – to remedy the defendant’s violation of Town Code Section 85-197(A), and met its burden of proof. The defendant did not oppose the application, and he did not refute the fact that the premises were in violation of the Town Code or that removing the offending storage trailer was not a remedy available to Brookhaven.

The Supreme Court issued an order granting Brookhaven’s application, ordering removal of the storage trailer, granting Brookhaven the authority to enter onto the defendant’s premises to remove the trailer, mandating that – if removal is necessary – costs incurred by Brookhaven shall be paid by the defendant added to the subsequent assessment, and requiring the defendant to maintain the premises in conformance with the Town Code. (The Court did not decide the issue of whether the defendant failed to comply with the conditions of discharge because such a finding was unnecessary.)

Virtually all municipal ordinance violations are charged, arraigned, cured and/or disposed without resorting to measures such as these, where the government obtains the power to enter onto a private citizen’s land and extract an improvement. This case, however, reminds landowners that municipalities can – and will – enforce their local zoning ordinance to the fullest extent.

BANG!  Yaphank, New York.  In November 2019, after years of protracted ligation, Hunter Sports Shooting Grounds, Inc., (“HSSG”) the operator of the Suffolk County Skeet, Trap & Sporting Clays Range (“Range”), was dealt another blow by the Supreme Court, Suffolk County in Hunter Sports Shooting Grounds, Inc. v Foley.

Acquired by Suffolk County (“County”), in 1963 , the Range is a recreational trap, skeet and sporting clays facility located in the Town of  Brookhaven (“Town”), and operated by various licensees of the County since 1982.  In 1962, there were no homes constructed in the area of the Range, as depicted in aerial photographs. Another aerial photograph taken in 1984 shows three residences.  A 1994 photograph depicts eleven homes in the area of the facility. Today, the Range vicinity remains largely uninhabited, as shown in this Google maps satellite view.

In 1987, the Town enacted a noise ordinance which, among other things, authorized the imposition of fines upon entities that emit sound in excess of 65 decibels.  In 2006, HSSG began operating the trap and skeet shooting range.  In November and December 2006, the Town commenced a series of proceedings in the Sixth District Court, Suffolk County, alleging that HSSG was in violation of the Town’s noise ordinance.  In 2007, HSSG commenced this action against the Town seeking, among other things, a  judgment declaring that the Town’s actions in enforcing the noise ordinance against it were unconstitutional, and that the noise ordinance was unlawfully and improperly applied to HSSG.

In somewhat of a “shotgun” approach, HSSG’s causes of action alleged: (i) the Range is a preexisting, nonconforming use pre-dating the Town’s enactment of its noise ordinance and, therefore, is exempt; (ii) implementation of the noise ordinance is an unlawful exercise of police power denying a reasonable rate of return and destroying the property’s economic value, thus constituting a confiscatory taking; (iii) enactment and enforcement of the Town’s noise ordinance constitutes an administrative taking of a vested property interest, and the summonses are without force or effect; (iv) the “public interest immunity” bars application of the Town’s noise ordinance because it conflicts with the County’s noise ordinance; and (v) Municipal Home Rule and the Legislature’s delegation to manage parks to counties dictate that the County’s noise ordinance supersedes and controls, rendering the Town ordinance unconstitutional and inapplicable to the Range.

As to the Municipal Home Rule/delegation argument, the County acknowledged its control of the park’s facilities came from the state’s delegation, and it exercised that control by enacting an ordinance exempting shooting facilities from its own noise ordinance. Thus, the County in effect attempted, by its noise exemption ordinance, to insulate itself from the effects of the Town’s noise ordinance under the umbrella of this general management delegation from the state.

The Court held that the concept of a prior, non-conforming use is relevant only if there is a zoning regulation prohibiting such use. Thus, in order to find that HSSG possessed a vested, non-conforming use protected by the Fourteenth Amendment, the Court must find that the Town’s noise ordinance is a zoning ordinance. If, on the other hand, the municipal ordinance is merely a valid exercise of the Town’s police power to protect the health, safety and welfare of the residents, HSSG’s operation of the Range cannot serve as a basis for establishing a constitutionally protected property interest.  The Court determined that the noise ordinance was not a zoning regulation but rather a legitimate exercise of the Town’s police power in the form of a noise ordinance.  As a result, the Court found that even though the Range was a long-term, pre-existing, non-conforming “grandfathered” use, that cannot be used to shield HSSG or the County from the Town’s enforcement of its noise ordinance.

In general, when there is a clash between local governmental use regulations, this conflict may be resolved with a “balancing of public interests” analytic approach, often referred to as the “Monroe Doctrine”.   (See, Matter of County of Monroe [City of Rochester], 72 NY2d 338,  [1988].  Using the Monroe Doctrine here, the Court was not “inspired by this record” to afford HSSG or the County an exemption from the Town’s noise ordinance. The Court determined that a recreational trap and skeet shooting range is neither the type nor magnitude of general use or benefit comparable to a regional airport as discussed in Monroe, tipping the scales in favor of the Town’s noise ordinance.

Regarding the denial of reasonable return and administrative taking claims, the Court rejected these claims too, because HSSG did not assert a traditional takings claim for compensation; rather, it sought only to be exempt from the Town’s noise ordinance. The Court also noted the Range cannot be developed because it is parkland and also a repository of significant lead contamination, so it has no value of which to be deprived.

Throughout its decision, the Court also discussed the issue of HSSG  operating the Range as licensee after the Town’s noise ordinance had been in effect for 20 years.  The Court stated that statutes or ordinances in effect at the time title of property is taken by a subsequent owner deprives that owner of an opportunity to avail itself of the takings analysis in Penn Central Trans. Co. v. New York City, 438 U.S. 104 [1978] because it is not a taking; it is an existing condition which impacts upon the value of the property prior to its purchase.  The Court’s line of reasoning seems to ignore the United States Supreme Court’s Palazzolo v Rhode Island, 533 U.S. 606 [2001] decision, which held that a person’s purchase of property already affected by adverse regulations does not bar a challenge of those regulations.  Regardless, the Court here held that HSSG’s attempt to argue one prong of Penn Central’s three-part test (i.e. economic impact) fails to suffice a claim for taking. The Court also held that since HSSG is only the licensee of the Range, it had no real property rights of which to be deprived.

As the gun smoke clears from this 42-page decision, HSSG is facing a difficult decision of whether to pursue an appeal, figure out a way to comply with the Town’s noise ordinance, or close its operations at the park.

On December 5, 2019, the Village of Westbury Board of Trustees adopted legislation creating the Maple Union Transit-Oriented Development District (or “Maple Union TOD”). The sweeping new law eliminates the Village’s industrial zoning districts along the Long Island Railroad corridor and replaces them with seven mixed-use subdistricts serving as the foundation for a new downtown area consisting of medium-density residential buildings, ground-floor retail and commercial uses, and significant community and cultural amenities and open space. With some subdistricts allowing buildings as tall as five stories—and perhaps even taller—the Maple Union TOD opens the door to exciting and transformative development opportunities in the heart of Nassau County.

Following its receipt of a State Downtown Revitalization Initiative grant in 2016, the Village established a local planning committee and commissioned a multiyear study into ways to revitalize the Village’s downtown areas. It was through that process that the Village developed its plan to transform the Village’s underutilized industrial districts into an expansion of the Village’s downtown by turning the area into “Long Island’s model transit-oriented, diverse, walkable, arts-centric downtown.” (See § 248-47[E]).

The new legislation focuses on rezoning the “Maple Union Triangle,” 53 acres of (formerly) industrially-zoned sites bounded by Post Avenue, Maple Avenue, School Street and Union Avenue in the Village of Westbury. (See attached graphic: Cultural Sensitivity Map). Six of the seven newly-formed subdistricts (MU-R2 through MU-R7) allow multistoried development that can be solely residential or can include ground-level retail and/or commercial uses; the amendment lists more than 30 permitted retail/commercial uses. (See §§ 248-351—357). Restaurants are also permitted at street-level within those subdistricts with a Special Permit from the Village Board of Trustees. The uses in subdistrict MU-R1 are restricted to lower density attached housing and townhomes, and houses of worship (See § 248-350), all of which are also permitted in subdistricts MU-R2 through MU-R7.

Another key aspect of the new legislation is its incentive zoning provisions, which are found at Section 248-359. Within the Maple Union TOD, the base height restriction for all new development is three stories (or 40 feet). (See Maple Union District Schedule of Regulations). However, for projects in subdistricts MU-R4 through MU-R7, the Board of Trustees may grant height bonuses in exchange for a broad range of public benefits that may be donated to the Village. The list of eligible public benefits includes affordable workforce housing (in excess of the minimum State requirement), age-restricted housing units, veteran preferential housing units, off-street public parking, open space and park improvements, streetscape improvements, and several others. (See § 248-359[B]).

The most generous height bonuses are available in the MU-R4, R5 and R6 subdistricts, where the Board of Trustees can approve building heights of up to five stories (or 65 feet). (See Schedule of Regulations). However, the bonuses could exceed even those thresholds. The legislation explicitly states that “[t]he Board of Trustees expressly reserves to itself the right to grant bonuses exceeding those set forth in the Schedule of Regulations, if it deems such appropriate.” (See § 248-359[C]). It is therefore conceivable that, for the right project and for the rights public benefit, the Board of Trustees could grant even greater height bonuses.

Some ancillary, but equally significant aspects of the new legislation are the changes it makes in the Village’s existing business districts on Post Avenue and the privatization of waste collection and disposal for all new development within the Maple Union TOD. In the Business Districts B-1, B-2 and B-4, all new buildings must be set back from their front property line 12 to 20 feet to accommodate new, expanded sidewalks built by the property owner and to the Village’s specifications. (See §§ 248-126-a, 136-a, 152-a). Within the Maple Union TOD, the owners/operators of new developments are required to secure and maintain private garbage and recyclables collection agreements and must record a covenant memorializing, in perpetuity, the private sanitation and recycling obligations for the property. (See § 248-362).

Finally, it is important to note that all new development within the Maple Union TOD is subject to the new zoning and approval procedures set forth under the new legislation. (See § 248-360). The old industrial zoning was expressly discontinued. (See Ch. 248, Art. XXIII, XXIV). Any industrial uses lawfully existing prior to the enactment of the new legislation are now (presumably) preexisting non-conforming uses subject to the Village’s law on non-conforming uses. (See § 238-232).

Copies of the new legislation and Schedule of Regulations can be found on the Village website www.villageofwestbury.org (click “Zoning Code for the Maple-Union Transit Oriented Development (MU TOD).”

In Akeson v Inc. Vil. of Asharoken, 2019 NY Slip Op 32756(U), Index No. 57/2018 (Sup Ct, Suffolk County 2019), the Supreme Court dismissed a petition challenging the Incorporated Village of Asharoken’s (“Asharoken”) decisions to deny permits for the construction of seasonal and removable docks at two residential properties along Northport Bay. The two properties lie situated within the “Ida Smith Property,” which runs lengthwise approximately three-quarters of one mile along a crescent beach (“Ida Smith”). The facts of this case are particularly unique because the underwater land is physically within Asharoken’s boundaries, and its direct land regulations clash with private property owners’ riparian rights.[1]

A. Regulation of Underwater Land

Typically, the State of New York retains jurisdiction over navigable waters. The Navigation Law, however, provides an express carve-out for Nassau and Suffolk Counties. This carve-out recognizes colonial land grants vested Long Island’s underwater land to townships, which regulate the tidewaters bordering on and lying within their boundaries. While the Navigation Law authorizes villages to regulate vessels operated upon or anchored within bordering waters, villages are powerless to regulate the underwater land without express Legislation. Here, though, the underwater land is physically located within Asharoken – giving it traditional regulatory power.

B. Asharoken’s Village Code

The Asharoken Village Code (“Village Code”) specifically regulates docks within Ida Smith. The Village Code created an Environmental Review Board (“ERB”) to review applications for the construction or alteration of docks within Ida Smith, and to recommend approval or disapproval to the Asharoken Board of Trustees. Significantly, the ERB may recommend approval only when it determines that the proposed dock will provide none of the adverse consequence regarding the environment, pollution, swimming, navigation, aesthetics or generally, as specifically set forth in the Village Code. In addition, docks are subject to various enumerated conditions and rules.

C. The Petitioners’ Dock Proposals and Asharoken’s Denials

The petitioners, who are effectively neighbors with only two homes between them, respectively sought to construct removable docks extending over the beach and foreshore and into Northport Bay. The proposed docks would extend 130 feet seaward, parallel to one another and separated by 300 feet. Prior to filing their dock applications with Asharoken, the petitioners sought approval from the New York State Department of Environmental Conservation (“NYSDEC”), the New York State Department of State (“NYSDOS”) and the United States Army Corps of Engineers (“USACE”). The NYSDEC reviewed the applications because Northport Bay’s shoreline is a tidal wetland, and it classified the dock proposals as Type II actions under the State Environmental Quality Review Act and issued permits. The NYSDOS reviewed the applications because Northport Bay is a Significant Coastal Fish and Wildlife Habitat, which requires consistency with New York’s Coastal Management Programs, and determined that the proposals met the criteria. The USACE reviewed the applications because a dock cannot be built in navigable water outside of a harbor without approval from the federal government, and issued permits.

Therafter, on September 25, 2015, the petitioners filed their dock applications with Asharoken. The ERB held seven public hearings over the course of the next two years, during which it received reports and testimony in favor of and against the applications from various environmental, ecology and land use experts. The petitioners revised their dock proposals in response to objections and comments at the hearings. After the fifth hearing in October 2016, the ERB recommended that the Asharoken Board of Trustees hire an independent environmental consultant to shed light on the conflicting expert opinions. Asharoken’s consultant submitted its final report in July 2017. On September 25, 2017, the ERB voted 3-2 to recommend disapproving the applications.

On October 30, 2017, the ERB issued identical written decisions, one for each application, setting forth its findings vis-à-vis the Village Code’s environmental consequences. The ERB found that the petitioners failed to demonstrate that the docks would not provide any of the adverse consequences. Among other things, the ERB concluded that the petitioners failed to show that the docks would not: significantly impede tidal flow; result in accretion of sand and seaweed; result in increased pollution from boats running or idling; and, interfere with the navigation of sailboats tacking to and from the beach, as well as rowboats, canoes and small boats along the shore. The ERB also found that the length of the docks would be an obstacle to lateral swimming, and that the location of the docks in the center of the beach would significantly impact the unobstructed vista of Northport Bay.

On November 30, 2017, the petitioners submitted additional revisions in response to Asharoken’s consultant’s report. Despite this, on December 5, 2017, the Asharoken Board of Trustees voted to adopt the ERB’s findings and disapproved the applications (“Dock Denials”). The petitioners commenced this Article 78 proceeding to challenge the Dock Denials on the grounds that the Asharoken Board of Trustees’ findings were arbitrary and capricious, an abuse of discretion and affected by an error of law because these determinations disregarded the petitioners’ riparian rights.

D. The Article 78 Challenge and Decision

Article 78 judicial review of municipal agency decision is limited. Because the Asharoken Board of Trustees made the Dock Denials after informal public hearings, the Court noted its role is only to determine whether the Dock Denials are affected by an error of law, or are arbitrary and capricious or an abuse of discretion, or irrational. If the Dock Denials have a rational basis, i.e. “a reasonable fulcrum of support in the record,” then the Court cannot substitute its judgment for that of the Asharoken Board of Trustees.

In discussing the contents of the record in detail, the Court held that the ERB had discretion to choose to credit some experts over others, and that the ERB’s and the Asharoken Board of Trustees decisions to rely upon particular expert opinions and testimony does not render the Dock Denials arbitrary, capricious or lacking in rational basis.

More importantly, the Court rejected the petitioners’ argument that the Dock Denials deprive them of their riparian rights. The Court recognized riparian rights include reasonable, safe and convenient access to navigable water, including the right to build a pier or wharf out. These rights, however, are not unfettered and must yield to the legitimate exercise of municipal police powers, i.e. the protection of the rights of the public. The Court held that the Asharoken Board of Trustees and the ERB appropriately applied the Village Code to protect the rights and interests of the public.

The Court relied upon a Village Code provision expressly noting alternative access to navigable water: “various means already exist for owners to access their boats, including private rowboats, membership in various nearby yacht clubs, public mooring facilities in Northport, Centerport and Huntington Harbors, commercial marine supply companies providing launch service and moorings and the Village of Northport dock.” Based upon this provision, the Court concluded the Dock Denials did not deny the petitioners’ riparian rights of access to the navigable waters of Northport Bay, but merely limited their modes of access to the other, existing means. The petitioners have appealed.

It is worth noting that the alternative means of access cited in the Village Code are not directly related or attached to the upland (e.g. petitioners’ riparian properties). Instead, these means require riparian landowners to access navigable water without utilizing their own waterfronts.

-END NOTE(S) BELOW-

[1] By definition, “littoral” rights concern the coast or shore of an ocean, sea or lake, whereas “riparian” rights concern rivers, lakes and streams. For convenience, and as is the colloquial custom, the use of the term “riparian rights” here encompasses all waters rights as appropriate in the context.

 

This blog post is about walls and fences (but probably not the ones you may be thinking about). The walls of concern to this blog post are located in the Town of Geneva, in a part of the state known as the Finger Lakes region. The three walls were constructed on lakefront property owned by Stephen Fox and consisted of a breakwall, septic system retaining wall, and a north side retaining wall.

The Town Code Enforcement Officer issued a notice of violation to Mr. Fox, finding that the walls were fences, as defined under the Town of Geneva Code, their construction violated that Code and the violation needed to be remedied. The Town Zoning Board of Appeals (ZBA) affirmed the finding of the Town Code Enforcement Officer.

Mr. Fox then commenced a hybrid action, under Article 78 of the CPLR and 42 USC § 1983, 1985 and 1987, seeking to annul the ZBA decision. The trial court dismissed the Article 78 claim and also denied Mr. Fox’s subsequent motion for leave to renew. The matter then went to the Appellate Division, Fourth Department.

In a decision, issued October 4, 2019, entitled Matter of Fox v Town of Geneva Zoning Board of Appeals, the appellate court reversed the trial court and annulled the ZBA’s determination, finding it lacked a rational basis and was not supported by substantial evidence. First, the Court reviewed the standards applicable to judicial review of an administrative decision. It noted that although local zoning boards have wide discretion and generally are entitled to great deference, that does not apply to questions of pure legal interpretation. It also noted that a determination by a local board “that ‘runs counter to the clear wording of a [code] provision’ is given little weight.”

Then, the Court honed in on the facts of the case. It looked at the definition of “fence” in the Town of Geneva Code that was applicable at the relevant time. It defined a fence as “[a]ny structure, regardless of composition, . . . that is erected or maintained for the purpose of enclosing a piece of land or dividing a piece of land into distinct portions.” The Court found this language to be clear and unambiguous, and rejected the ZBA’s interpretation, ruling that none of the three types of walls fit into this definition. The Court found that the breakwall was erected to maintain the shoreline of the property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. None of these structures were constructed to enclose or divide a piece of land.  Thus, none were fences under the Town of Geneva Code.

Town of Southampton GIS

The Supreme Court, Suffolk County recently upheld a determination of the Southampton Town Zoning Board of Appeals (“ZBA”) perhaps ending a lengthy and controversial review of the development of a day camp on residentially zoned property with frontage on Little Fresh Pond. The subject property is located at 665 Major’s Path in North Sea, Southampton, on a 16.8 acre parcel, in the R-20 Zoning District. The property was improved with a pre-existing nonconforming tennis club/tennis camp and the owners sought to use the property as a day camp.

In March of 2012, the ZBA issued a determination in response to the neighbors appealing a Building Inspector Determination. The ZBA found that the proposed renovations and expansion of the operations on the property from a “tennis club/tennis camp” to a “day camp” represented a change from one nonconforming use to another since the uses “were not compatible or interchangeable, pursuant to the Standard Industrial Code.” The ZBA further found that the property owner must seek a variance from the ZBA under Southampton Town Code §330-167(B)(3) for its proposed “day camp” use. That determination went unchallenged.

After this initial 2012 determination, the property owner sought an interpretation from the Building Inspector (who then referred the matter to the ZBA) as to whether adding a pool and sports court to the site represented an expansion of the pre-existing nonconforming use requiring a variance. In December of 2012, the ZBA issued a determination that the replacement of a tennis court with a swimming pool and sports court did not constitute an impermissible expansion of a nonconforming use or a change of use requiring a variance. Rather, the ZBA found that adding the pool and sports court were “customary and incidental” to the pre-existing nonconforming tennis club and/or tennis camp use of the property. The neighbors brought an Article 78 Proceeding and made a motion to the Supreme Court, Suffolk County for a temporary restraining order/preliminary injunction seeking to stay the construction of the swimming pool. By decision entitled, Little Fresh Pond Association et al. v. Town of Southampton Zoning Board of Appeals et al., Index No. 02258/13, dated April 10, 2013, the Court denied the motion for the TRO/Preliminary Injunction. Specifically, the Court found that “there is no meaningful irreparable harm discernable from the construction and putative use of the pool” and that petitioners’ arguments were speculative. This case was reported as disposed on 2/24/14 without a final determination referenced or available on “e-courts”.

Thereafter, the property owner applied to the ZBA for a change in nonconforming use. Specifically, the property owners sought to change from a tennis club/camp to a day camp for children pursuant to Town Code §330-167(B)(3) which states:

In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in § 330-166B and C and to the provisions which follow.

(3) To grant a certificate of occupancy for a change in a nonconforming use, provided that:

(a) 

The Board of Appeals shall have made a determination that such change will be beneficial to the general neighborhood.

(b) 

Such change is made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.

In March of 2019, the ZBA granted the variance determining that the change from the tennis club/tennis camp use to a tennis club and/or day camp was beneficial to the general neighborhood. The neighboring property owners and a not-for-profit organized to protect Little Fresh Pond brought the Article 78 Proceeding entitled The Little Fresh Pond Association et al. v. Zoning Board of Appeals of the Town of Southampton and Southampton Day Camp Realty, LLC, Index No. 1910/2019, dated October 10, 2019 challenging the ZBA determination. The petitioners argued that the ZBA exceeded its authority under Town Code §330-167(B)(3) by adding a second, new non-conforming use of the property, namely the day camp use, that required a use variance under New York State Town Law §267-b(2). Petitioners stated that the day camp was a “separate, incompatible and non-interchangeable use from the tennis club and accessory tennis camp.”

The Court found that the ZBA fully considered the standard of review for the application, including the “extent, nature and location of activities” to be conducted on the property in its March, 2012 determination. The Court noted that the ZBA could have required an application for a use variance but declined to do so. The Court held there was an “insufficient basis presented for the Court to find that the Town exceeded its authority in making its determination” and refused to consider that the approved change in nonconforming use was actually an authorization of two separate uses. Moreover, the Court concluded that the ZBA did not err as a matter of law in applying Southampton Town Code §330-167(B)(3) and that its decision was neither arbitrary nor capricious. Ultimately, the petition was denied.

 

 

In Matter of Weissmann, 2019 NY Slip Op 06170 (2d Dep’t 2019), the Special Prosecutor for the Village of Spring Valley Justice Court received a two-year suspension from the practice of law for helping select defendants favorably dispose of parking tickets at the direction of a Village Trustee. This cautionary case serves as a poignant reminder for private practitioners who cross the threshold into public service in their local municipalities.

Mr. Weissmann was appointed as Special Prosecutor for the Village’s Justice Court to prosecute traffic tickets and zoning violations. While serving in this capacity, and at the behest of a Village Trustee, counsel submitted false documentation to the Village Justice to justify favorable plea dispositions. The Trustee attended plea negotiations sessions, met with the defendants and, on occasion, directed the Special Prosecutor as to how to dispose of the charges.

Specifically, in November 2016, a defendant, charged twice with illegally parking in a handicapped parking spot, met with the Trustee. The Trustee instructed the Special Prosecutor to “remember [the defendant].” Later, during plea negotiations, the Special Prosecutor advised the defendant to pretend she possessed a handicapped placard, and that the placard had fallen inside of her vehicle – despite counsel knowing full-well that the defendant had no such placard. In support of the Special Prosecutor’s application to dismiss the parking tickets,  counsel filed a traffic infraction plea agreement with the Justice Court, wherein he falsely stated the defendant had a disability placard that had  fallen to the floor of her car.

A misdemeanor complaint was filed against the Special Prosecutor charging him with “unauthorized exercise of [his] official functions.” In June 2018, the Special Prosecutor pleaded guilty to “official misconduct” in violation of N.Y. Penal Law Section 195.00(1). In September 2018, the Village Justice Court sentenced counsel to two years’ probation, among other things. The Ninth Judicial District Grievance Committee moved to suspend counsel from the practice of law based upon its determination that the attorney had been convicted of a “serious crime” pursuant to N.Y. Judiciary Law Section 90(4)(d); the Special Prosecutor cross-moved, arguing his conviction did not constitute a serious crime, and seeking to vacate the suspension in exchange for a lesser punishment. The Appellate Division, Second Department, recently granted the Committee’s motion.

Section 90(4)(d) of the Judiciary Law defines “serious crime” as “any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime.”

Section 195.00(1) of the Penal Law defines “official misconduct” as follows: “[a] public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.” Official misconduct is a class A misdemeanor.

The Second Department held that the Special Prosecutor’s official misconduct is a serious crime: “a public servant who commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized, necessarily engages in deceitful conduct. . . . [T]he element of deceit, one of the enumerated statutory elements, is present and, accordingly, ‘official misconduct’ is a ‘serious crime’ as defined by [the] Judiciary Law.”

With respect to the measure of discipline, the Special Prosecutor requested a censure or a six-month suspension, given certain mitigating factors, including his remorse, his acceptance of full responsibility, and his disciplinary record (which only contained one letter of caution). The Second Department rejected this request, stating that it “cannot overlook the fact that the crime committed here epitomizes the kind of corruption at the heart of the judicial system that undermines the public’s trust in the courts and their delivery of fair and evenhanded justice.” Counsel, serving as Special Prosecutor, fabricated evidence to secure dismissal – knowing this behavior was wrong and improper. Under the totality of the circumstances,  a two year suspension is warranted. Notably, although counsel is prohibited from practicing law, he must comply with all applicable continuing legal education requirements and surrender his secure pass, among other things.

A recent Second Department decision, Matter of Reddock v New York State Dept. of Envtl. Conservation, highlights a unique procedural quirk involving Article 78 proceedings where the challenge is based upon “substantial evidence”.

The petitioners in Reddock own a 2.07-acre parcel of property in the Town of Smithtown adjacent to the Nissequogue River (the “Property”) and within the Nissequogue Recreational River Corridor (the “Corridor”), as defined in New York Environmental Conservation Law Section 15-2714(3)(ee), part of the Wild, Scenic and Recreational Rivers System Act (the “WSRRSA”).  The Property is improved with a single-family dwelling and a detached accessory structure.  Pursuant to the implementing regulations of the WSRRSA, lots located within the Corridor must be a minimum of two acres in size (see 6 NYCRR 666.13 [C] [2] [b], note [iii]).  The petitioners sought to subdivide the Property into two separate lots of one acre and 1.07 acres.  Their proposal involved the removal of the accessory structure and the construction of a new dwelling on the slightly larger lot.

The petitioners applied to the New York State Department of Environmental Conservation (the “DEC”) for a permit and area variance to allow them to subdivide the Property in accordance with their proposed plans.  However, after an evidentiary hearing before an Administrative Law Judge, the DEC denied their application in its entirety “because, inter alia, the proposed subdivision would increase area density and pollution into the river . . . .”

Thereafter, the petitioners commenced an Article 78 proceeding appealing that denial, arguing that it “did not have a basis in substantial evidence, or was otherwise arbitrary and capricious,” because the DEC failed to properly consider all of the relevant factors necessary for an area variance.

CPLR § 7803(4) permits courts to review whether an administrative “determination made as a result of a hearing held, and at which evidence was taken, . . . [is] supported by substantial evidence” (CPLR § 7803 [4]).  However, when an Article 78 proceeding challenges a determination based upon substantial evidence, the court must first address other objections in law that could terminate the proceeding, and if there are none, it must transfer the case to the Appellate Division to decide the issue of substantial evidence (see CPLR § 7804 [g]).

That is precisely what occurred in Reddock. When the petitioners raised the issue of substantial evidence, the DEC promptly requested transfer to the Appellate Division for disposition on that issue.  Here, because there were no other objections which could terminate the proceeding, the court did just that.

In the Appellate Division, the Second Department’s inquiry into substantial evidence turned on whether there was “‘relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ (Matter of Mangels v Zucker, 168 AD3d 1060, 1061 . . . .)”.  In so deciding, the Second Department concluded that the DEC’s denial of the petitioners’ application was supported by substantial evidence and that, in rendering its determination, the DEC “was entitled to consider the precedential effect that granting a variance to the petitioners would have on future applications for [non-compliant] subdivisions.”

In addition to the interesting facts and substantive issues that this case offers, it also serves as an important reminder to litigators to be aware of unique procedural rules that may apply to certain proceedings.