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.

Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.”  That is not entirely true.  An exception to the single and separate doctrine is the doctrine of merger.  Undersized lots that share a common boundary and are owned by the same person or entity can “merge.” Merged lots, therefore, become one larger lot, preventing either of the original lots from being developed separately without a subdivision and variances.  See, Ramundo v Pleasant Valley Zoning Bd. of Appeals, 41 AD3d 855 [2d Dept 2007].

Municipalities throughout New York that have “up zoned” areas to prevent further development sometimes claim that contiguous lots have merged, because this lessens potential density on these now undersized parcels.  Developers thinking of buying a parcel comprised of undersized lots and their counsel need to understand the doctrine of single and separate ownership and the doctrine of merger and its exceptions. Often, lots which the municipalities claim have merged may or may not actually merge, and knowledge of these legal issues can sometimes preserve the lots as individual, buildable parcels or prevent unwise investments of merged lots.

For example, the Town of Huntington Code §198-116.1 entitled “Merged Lots” provides that “lots shall merged by operation of law when a nonconforming parcel of land created before January 1, 1980 and an adjacent parcel are under common ownership; or when any parcel of land is use, in whole or in part for the benefit of an adjacent parcel having common ownership.”  In comparison, the Smithtown Code §322-74 entitled “Non-Conforming Lots” preserved single and separately held lots and provides that “nonconforming lots may be used or a building or structure may be erected on such a lot for use…, upon the approval of the Board of Appeals, provided that, at all times subsequent to the effective date of any ordinance making such lots nonconforming, such lots have been separately owned in good faith and; (1) does not or did not join any lot or land in the same ownership; and (2) does not or did not adjoin any lot under the same practical or effective ownership, whether or not the incidents of title are or were the same.”

It is well established that in the absence of an express statutory provision setting forth the conditions under which adjoining parcels may be deemed to have merged, there can be no merger.  See, Meadow v. Mansi, 282 AD2d 677 [2d Dept 2001].  The Court of Appeals has confirmed that a “merger” is not effective merely because adjoining parcels come into common ownership.  See, Allen v. Adami, 39 NY2d 275 [1976].  The Court went on to hold that the municipality cannot rely on the “intent” of the single and separate property owners to determine an irrevocable merger of the lots has occurred.

In 1996, the Court of Appeals went on to clarify that “there is no common-law ‘single and separate ownership’ exemption from minimum area requirements, and that such an exemption only applied if the municipality enacted a local law or ordinance providing for such an exemption.  See, Matter of Kahn v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344[1996].  The Court held that where the municipality has not created an exemption, the property owner must obtain the necessary variances for development on a substandard lot.

In summary, the doctrines of single and separate ownership and merger have a complex history, and there are many exceptions that can cause a variety of results. Despite all this, a knowledgeable counsel must be able to navigate the applicable codes to educate the prospective purchaser or municipality, and litigate if necessary, to preserve or limit the right to develop “non-merged” lots.



On October 5, 2021, the New York State Department of Environmental Conservation (“Department” or “DEC”) released water quality guidance values for three emerging compounds, PFOA, PFOS and 1,4-Dioxane (collectively, “Emerging Compounds”).  The comment period for the draft guidance values runs until November 5, 2021.  Comments can be issued to the Department at 625 Broadway, 4th Floor, Albany, NY 12233-3500, ATTN: Michelle Tompkins or by email to

The proposed guidance values were developed and proposed in support of the continuing efforts to protect the State’s drinking water supplies from Emerging Compounds.  As stated by the Commissioner of the New York State Department of Health (“DOH”), “New York State has adopted among the most protective drinking water quality standards and requirements for testing, notification and remediation for emerging contaminants nationwide.  Our research and efforts to safeguard drinking water will be further enhanced by the Department of Environmental Conservation’s move to regulate these compounds at their source, providing even more confidence in the water quality that reaches your tap.”

According to the Department, Emerging Compounds are ubiquitous in the environment due to their widespread use, persistence and anti-degradation properties.  PFOA and PFAS are used in fire-fighting foams and consumer products for their ability to resist heat, oil, stains, grease and water.  They are found in, among other things, water-repellent clothing, furniture, adhesives, paint and varnish, food packaging, heat-resistant non-stick cooking surfaces and insulation of electric wires. 1,4-Dioxane is largely used as a solvent stabilizer for chemical processing, but other uses include consumer cosmetics, detergents and shampoos.

DOH routinely touts its adoption of the nation’s lowest maximum contaminant level (“MCL”) for Emerging Compounds. Notably, DEC’s proposed guidance values are even more stringent than the drinking water MCLs.  The Department’s purpose in establishing even more rigorous standards is, “to protect source waters and provide an extra margin of safety to complement the drinking water MCLs by ensuring they are not exceeded, which could result in costly treatment for the regulated community.”

The proposed ground and surface water guidance values for Emerging Compounds are as follows:

  • PFOA – 6.7 parts per trillion (ppt)
  • PFOA – 2.6 ppt
  • 1,4-Dioxane – 0.35 parts per billion (ppb).

To place these standards in context, the Assistant Secretary of the Navy (Energy, Installations and Environment) webpage describes ppb as, “the equivalent of one drop of impurity in 500 barrels of water or one cent out of $10 million.”  It describes ppt as, “the equivalent of one drop of impurity in 500,000 barrels of water or traveling 6 inches in the 93-million-mile trip towards the sun.”

The regulation of Emerging Compounds as hazardous substances in 2017 and the 2020 adoption of drinking water MCL for Emerging Compounds by the DOH triggered numerous, well-publicized disputes among water providers, contaminant manufacturers and property owners.  It will be interesting to monitor the development and anticipated promulgation of even more restrictive ground and surface water quality values and how the regulated community responds.

Those interested in commenting on the proposed guidance values should be sure to issue comments to the address listed above in advance of the November 5, 2021 deadline.

In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016, Petitioner submitted an application to the City’s Zoning Board of Appeals (the “ZBA”) to subdivide the Property into two equal-size lots of 60 feet by 57 feet.  However, the City’s zoning code requires a minimum lot size of 80 feet by 57 feet for each of the two proposed parcels in Petitioner’s application.  Thus, Petitioner sought area variances to permit the lot sizes of 60’ x 57’, as proposed in the application.

At the ZBA hearing, Petitioner argued, inter alia, that its two proposed structures were consistent with most of the other homes in the neighborhood, while one larger structure on the undivided single lot was not.  However, before Petitioner’s counsel could continue offering arguments in support of the application, members of the ZBA expressed their opposition thereto, with one member even going as far as to accuse Petitioner’s counsel of negligence for not having an engineer inspect the Property.

Petitioner’s main argument centered on the fact that prior to its application, the ZBA granted variances to another property located in the same zoning district and nearly identical to Petitioner’s Property, permitting the subdivision of that property into two separate lots.  Additionally, Petitioner pointed out that more than half of the houses on the same street as its Property have frontages less than 60 feet.  Therefore, Petitioner argued that its two proposed lots with 60-foot dimensions would not change the character of the neighborhood.

After Petitioner’s counsel concluded its argument to the ZBA, members of the public were given the opportunity to be heard.  The public overwhelmingly opposed the application, arguing, inter alia, that the proposed variances would cause parking problems and diminish home values.

The ZBA ultimately denied Petitioner’s application.  Petitioner then commenced an Article 78 proceeding challenging that denial.  The Court granted the petition, annulling the ZBA’s determination and directing issuance of the variances.  The ZBA appealed to the Appellate Division, Second Department.

Although local zoning boards are afforded broad discretion in deciding land use applications, a reviewing court may set aside such determination “‘where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613).”  Further, “‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,’ and thus, ‘[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation’ (Matter of Nicolai v McLaughlin, 163 AD3d 572, 574 . . .).”

The ZBA’s determination lacked facts sufficient to justify its denial of the application.  In particular, the ZBA failed to reconcile its denial of the variances here with its grant of variances to a different applicant in a nearly identical prior application.  Additionally, the Court held that the ZBA’s findings were based on general community opposition to Petitioner’s application not corroborated by any evidence, which is an insufficient basis for denial.  Accordingly, the Second Department affirmed the lower court’s Decision and Order annulling the ZBA’s determination and directing the ZBA to issue the variances.

On September 2, 2021, Governor Kathy Hochul signed legislation (S.50001/A.40001), which includes a number of statutory protections and other emergency public health measures adopted in response to the recent increase in the transmission rates of the COVID-19 Delta variant.  One of the measures effectively suspends provisions of the Open Meetings Law and allows local government meetings that are normally held in person to be held remotely instead.  The new law essentially reinstates the same rules first imposed by Governor Andrew Cuomo’s Executive Order 202.1 issued on March 12, 2020.  That Order was extended several times until June 25, 2021, when the State of Emergency ended.

Under Part E of the new law, a public body may meet and take action without permitting in-person access to meetings.  Instead, public bodies are authorized to hold public meetings remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceedings and that such meetings are recorded and later transcribed.  Meetings can be held either over a video service such as Zoom or by phone.  The new law does not change the requirement that public bodies provide advance notice to the public that a meeting is taking place.  However, the notice for a virtual meeting must inform the public how to access the public meeting.

In a press release issued on the same day that the legislation was signed, Governor Hochul stated:

“Let’s be clear—the COVID-19 pandemic is not over, and I’ve heard from government officials across the state who are concerned about the inability of their constituents to access public meetings virtually . . . This commonsense legislation extends a privilege that not only helps New Yorkers participate safely in the political process, but also increases New Yorkers’ access to their government by allowing for more options to view public meetings. This law will continue to bolster the open and transparent style of government that we’re committed to maintaining in the Empire State.”

Unlike during the State of Emergency when in-person public meetings were prohibited by the Executive Order banning large public gatherings, the new legislation gives public bodies the option of holding meetings in-person or virtually.  However, because of the temporary nature of the law, they will only have that option until January 15, 2022, which is the date when the law is set to expire.

In May 2021, the Supreme Court ruled in Territory of Guam v. United States, 593 U.S. __ (2021), on the issue of whether a settlement resolving environmental liabilities was sufficient to establish a right of contribution for a settling-party against a non-settling responsible party pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C §9613(f)(3)(B).  The Court held that to trigger contribution rights under CERCLA 113(f)(3)(B), settlement must resolve a CERCLA-specific liability.

Guam v. US arises from a dispute regarding environmental responsibility for the Ordot Dump – described as a “280-foot mountain of trash,” that at various times was owned and operated by both the US Navy and Guam.   The Navy constructed the dump in the 1940’s and allegedly disposed of hazardous waste at the dump for several decades.  Ownership of the dump was later ceded to Guam.  Upon discovery of the environmental contamination emanating from the Dump and Guam’s non-compliance with environmental regulations, EPA sued Guam pursuant to the Clean Water Act, alleging Guam was discharging wastes to the waters of the United States.  Ultimately, a consent decree was entered between EPA and Guam in 2004, terminating the litigation (the “Consent Decree”).  As part of the Consent Decree, Guam was required to pay a civil penalty and perform certain remedial tasks. The Consent Decree documented that Guam’s compliance was in full settlement and satisfaction of the claims of the United States as alleged in the compliant; claims made under the Clean Water Act.

In 2017, Guam seeking to recover the costs of cleanup in response to the Consent Decree, sued the United States pursuant to CERCLA.  Guam forwarded two-theories; (1) cost recovery under CERCLA §107(a) — seeking recovery against a person that at the time of disposal of hazardous substances owned or operated the disposal facility, and (2) a contribution action under CERCLA §113(f)(3)(B), authorizing a party that has resolved its liability to the United States for costs associated with a response action to seek contribution from a responsible party that has not settled its liability.

The DC Circuit found that Guam’s CERCLA §107(a) claim could not proceed if Guam could assert a contribution claim pursuant to CERCLA §113(f)(3)(B).  The Circuit then held that Guam’s CERCLA §113(f)(3)(B) claim was time-barred as the 3-year statute of limitations for the contribution claim began to run with the 2004 Consent Decree.

In its arguments before the Court, Guam withdrew from its CERCLA §113(f)(3)(B) claim.  Guam argued that it never established a contribution claim because it had only resolved its liability under the Clean Water Act, and to establish a contribution claim, settlement must have been CERCLA-specific.  Therefore, Guam contended, it was free to pursue cost recovery under CERCLA §107(a).  The Court agreed, parsing the “reticulated statutory matrix of environmental duties and liabilities,” its “interlocking language and structure,” to conclude that, “CERCLA contribution requires resolution of a CERCLA-specific liability.”

From Guam’s perspective, the result was equitable, and they may now pursue recovery from one of the alleged responsible parties.  From a practice perspective, Guam v. US, helps to clarify how and when contribution rights are established.

The facts at issue in Elpa Builders, Inc. v. State of New York are relatively straightforward.  The property owner (the “Owner”) owned a 53,645-square-foot parcel of property (the “Property”) along New York State Route 347 (“Route 347”) in the Town of Smithtown.  The Property is improved with a commercial building and is subject to a long-term ground lease with Taco Bell.

In 2015, under the exercise of its constitutional eminent domain power[1], the State of New York (“NYS”) acquired two strips of land adjacent to Route 347 and its crossroad on the Property.  The taking totaled just over 3,100 square-feet of land.  Although the taking did not affect the Taco Bell restaurant on the Property, it reduced the Property’s frontage and parking space, and resulted in the removal of three large trees.

As compensation for the taking, the Owner accepted an advance payment of $302,460 from NYS.  The Claimant also signed an agreement with NYS.  The agreement provided that if the Claimant sought to have the amount of compensation determined by the Court of Claims (the “Court”), then NYS would be awarded the difference between the advance payment and the amount determined by the Court in the event that the latter was less than the former.

Approximately six months after the taking, the Claimant commenced an action in the Court of Claims which sought $2 million from NYS as just compensation for the taking.  The Court ultimately determined the appropriate amount of just compensation to be $283,920.  Thus, the Court awarded NYS $18,540, that amount representing the difference between the advance payment and the court-determined amount.  The Claimant appealed, arguing that the Court’s award to NYS violates the Claimant’s constitutional right to just compensation.

In determining the value of just compensation to be provided for a government taking of property, the Court’s objective is to put the property owner “‘in the same relative position, . . . as if the taking had not occurred’ [citations omitted].”  Generally, for a partial taking of property, the Court will try to determine the fair market value of the property as a whole, both prior to and after the taking, using the difference as its measure of damages.  The Appellate Division, Second Department concluded that the Court properly considered all evidence, did not improvidently exercise its discretion, and reached a reasonable determination concerning the Property’s value.

The Second Department also rejected Claimant’s argument that the $18,540 repayment back to NYS violates its right to just compensation.  The prior agreement between the parties and the language of Eminent Domain Procedure Law (“EDPL”) § 304(H) belies Claimant’s argument.  EDPL § 304(H) provides:

“When an advance payment to a condemnee made pursuant to this section by the condemnor exceeds the award of the court for that property, the court shall, on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate interest. . . .”

Thus, not only is NYS entitled to the $18,540 difference pursuant to the parties’ agreement, but EDPL § 304(H) itself requires it.

Accordingly, the Second Department rejected the Claimant’s arguments and affirmed the Court’s award.

Takeaway:  Property owners receiving advance payment for a government taking of land must be cognizant of the potential consequences of electing to have a court determine just compensation.  Sometimes, it may be wise to accept the advance payment and refrain from seeking court intervention.

[1] Eminent domain is the power of a governmental authority to appropriate private land for public use, provided it pays the property owner just compensation therefor.

The Town Board of the Town of Southampton adopted the Hampton Bays Downtown Overlay District (“Overlay District”) Form Based Code by Town Board resolution 2020-288 on February 25, 2020 with the support of a Supplemental Generic Environmental Impact Statement (“SGEIS”) Findings Statement.  The intent of the Overlay District was, in part, to “prepare Hampton Bays for redevelopment.  The Town is now seeking to build upon existing planning efforts in a manner that is consistent with the needs and desires of a vibrant year-round community.  This includes the encouragement of a mix of retail stores, service-related businesses, restaurants, workforce and senior housing options, along with improved transportation infrastructure, pedestrian pathways and public green spaces throughout the downtown area. The strategy to create a Hampton Bays Downtown Overlay District represents a comprehensive response to community needs and objectives defined in many planning and policy documents adopted by the Town Board…”   The Town had conducted a study in 2013 entitled the Hampton Bays Corridor Strategic Plan and Cumulative Impact of Build-Out Study (Corridor Study) and adopted a Findings Statement in connection with the Hampton Bays Generic Environmental Impact Study (“GEIS”) by Town Board Resolution 2013-1024.  In 2016, the Town conducted community meetings and an online survey to get community input for the design of the Hampton Bays Business District.  In June of 2017, the Town published a planning “pattern book” for the business district.  Drawing upon its prior environmental review, in September of 2018, the Town prepared the SGEIS which was supposed to update the GEIS adopted in connection with the Corridor Study to serve as a basis for the proposed Overlay District. As referenced above, in February 2020, the Town Board adopted a findings statement pursuant to that SGEIS and the Overlay District law.

A neighboring property owner, Gayle Lombardi (“Petitioner”) brought an Article 78 Proceeding challenging the adoption of the Overlay District in Lombardi v. Town of Southampton, Index No. 1883-2020, dated July 21, 2020.  Specifically, Petitioner alleged that the adoption violated the New York State Environmental Quality Review Act (“SEQRA”) by (i) relying on outdated and incomplete facts regarding the public water supply in the SGEIS, (ii) segmenting the environmental impact assessment of the Overlay District from the Corridor Study in preparation of the SGEIS, (iii) permitting substandard off-street parking under the Overlay District, (iv) failing to consider reasonable alternatives to the Overlay District, and (v) allowing standalone multifamily and 3.5 story buildings resulting in increased density in violation of the principals and policies in the Town Code. The Court agreed.

In its determination, the Supreme Court set forth the standard for reviewing an agency’s compliance with the substantive mandates of SEQRA stating that courts review the final EIS to “determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination.”  Specifically, the Court found that the Town Board adopted the SGEIS while a State Superfund site investigation of the contamination of certain Hampton Bays Water District water supply wells located within the Overlay District boundary was still pending. While the SGEIS noted the contaminated wells, it stated that the Town Board should continue to support efforts by the NYSDEC to remediate soil and groundwater contamination from the Superfund site.  The Court found this improper stating, “deferring resolution of the remediation is improper as it shields the remediation plan from public scrutiny.”  The Court also found that the Town Board failed to consider a ten year capital plan for the Hampton Bays Water District which raised concerns related to the public water supply and, as a result, failed to take the requisite “hard look” at this area of environmental concern.

Petitioner also claimed that the SEQRA review was improperly segmented because the build out based on the zoning permitted under the newly adopted Overlay District was significantly greater than the projected build out under the previously adopted Corridor Study.  The Court found that the Overlay District was “clearly a part of the Corridor Plan so “the SGEIS improperly segmented the assessment of the plans by not sufficiently evaluating the cumulative impacts of all phases of the plan.”  The Court found that the remaining issues raised by Petitioner were properly addressed by the Town.  Regardless, the Court granted the Article 78 Petition and annulled Town Board’s adoption of the Overlay District, SGEIS and Town Board Resolution No. 2020-288 rendering the Hampton Bays Downtown Overlay District Form Based Code null and void.