Here’s one for the history buffs! A quiet feud between the State of New York and the Town of Oyster Bay over the Town’s underwater boundary has been resolved (for now) in Murphy v. Town of Oyster Bay, — N.Y.S.3d —-, 2019 WL 1646259 (N.Y.A.D. 2 Dept.), 2019 N.Y. Slip Op. 02887.

On January 1, 2010, the Plaintiff, Brian Murphy, was harvesting shellfish in waters near the maritime border between the Long Island Sound and the waters of Oyster Bay. At the time, Mr. Murphy possessed a license from the State of New York granting him permission to harvest shellfish from marine waters of the State.

Unbeknownst to Mr. Murphy, the State and the Town of Oyster Bay have disagreed on the precise locations of the lines separating the underwater lands belonging to the Town from the portions of the Long Island Sound that are owned by the State of New York. On January 1st, Town of Oyster Bay officials discovered Mr. Murphy in the midst of his harvesting and promptly issued him a citation for shellfishing without a Town permit. Mr. Murphy received a second citation from the Town two months later.

In August, 2010, Mr. Murphy filed a declaratory judgment action seeking a judicial decree that the Town’s citations against him were invalid because he was lawfully shellfishing in the Long Island Sound. The Town and the State were both named as defendants.

In its defense, the Town evoked the 1677 patent issued by Edmond Andros, Governor General under James Duke of York, which established the general description of the boundaries of the Town of Oyster Bay (the “Andros Patent”). Citing the Andros Patent, the Town claimed title to all underwater lands south of a line drawn between Oak Neck Point in Oyster Bay and Lloyd Point on Lloyd’s Neck in Huntington. In response, the State claimed that the Town boundary lay farther to the south on a line drawn between Rocky Point in Oyster Bay and Whitewood Point on Lloyd’s Neck in Huntington. There was no dispute among the parties that Mr. Murphy was harvesting shellfish in the area between these two imaginary lines.

The Town and the State each filed motions for summary judgment based upon documentary evidence, including the Andros Patent, and governing principles of maritime and international law, and federal versus state sovereignty. The trial court (Hon. Stephen A. Bucaria, J.) ruled for the State. See Murphy v. The Town of Oyster Bay, Short Form Order, Sup. Ct. Nassau Co. Index No. 00624/12, Motion Seq. #002, 003, 004 (Jan. 12, 2016).

The lower court observed that while the Andros Patent describes the Town’s northern boundary as the Long Island Sound it never “expressly define[d] the boundary between the Sound and the Bay.” Consequently, the precise location of the Town’s northern maritime border was left unresolved. Id. at p. 3.

The lower court’s opinion touches upon several interesting concepts which deserve a full read of the written decision. For purposes of this post, the Court’s holding provides sufficient explanation. Judge Bucaria wrote:

Under New York State law, crown patents, as distinguished from Royal Colonial Charters, are to be strictly construed in favor of the sovereign, and against the patentee. Similarly, under federal law, states enjoy a presumption of title to submerged lands beneath inland navigable waters within their boundaries. Since New York State has a presumption of title to submerged lands, the burden of proof … is on the Town.

Neither the State nor the Town offers any documents contemporaneous with the Andros Patent, specifying the extent of the underwater land which Andros intended to convey. Thus, the boundary between the Sound and the Bay must be determined not by reference to principles of international law, or the Town’s history of control, but by the nature and situation of the land and the circumstances surrounding the Andros patent. … As early as Rogers v Jones, supra, in 1828, it was assumed by New York’s highest court that the boundary between Oyster Bay and Long Island Sound was around Lloyd’s Neck. Based upon the nautical charts … submitted to the court, as well as the limitations upon Andros’ authority to grant sovereign status, the State has established prima facie that the boundary between the Bay and the Sound is the line connecting Rocky Point to Whitewood Point on Lloyd’s Neck. In view of the Town’s failure to offer evidence that Andros intended another boundary line, the court must render judgment for the State.

Murphy v. The Town of Oyster Bay (Bucaria, J.), supra, at pp. 5-6 (internal citations omitted).

On appeal, the Second Department affirmed Judge Bucaria’s decision. Finding that the Andros Patent is indeed ambiguous with respect to the precise dividing line between the Sound and the Bay, the Court resorted to the extrinsic evidence presented in the record. The Court opined:

The record in this case demonstrates that the State’s proposed boundary line is the only fair interpretation of the Andros Patent. Here … the record contains no factual matter that might support a different conclusion. For example, the parties submitted no evidence showing some different historical understanding of Oyster Bay or bays more generally, or personal accounts of mariners or other witnesses that, if credited, might support the Town’s proposed headlands. The record that the parties opted to compile in this case simply does not permit more than one inference as to the appropriate boundary line. Thus … the Supreme Court appropriately resolved the dispute as a matter of law, and we agree with the court’s declaration that the boundary line between Oyster Bay and Long Island Sound is the line running east from Rocky Point in Oyster Bay to Whitewood Point on Lloyd’s Neck, and that the State owns all of the underwater lands north of that line.

Murphy v. Town of Oyster Bay, et al., 2019 WL 1646259 at *2.

The development in Murphy is an interesting one, as is the unassuming circumstances from which the litigation arose. But whether the courts’ decision will last is yet to be determined. The Town may yet seek to appeal the Appellate Division’s decision. Alternatively, it could petition the State legislature to change the location of the boundary set by the courts. The battle for the bay may not be done.

Copies of the decisions can be accessed free of charge on the Appellate Division, Second Department website, http://www.courts.state.ny.us/courts/ad2/handdowns.shtml, and the New York State Unified Court System website, https://iapps.courts.state.ny.us/webcivil/FCASSearch (Index Search: 00624/2012).

The Appellate Division, Second Department, in Chestnut Ridge Associates, LLC v 30 Sephar Lane, Inc. 169 A.D.3d 995, 2019 N.Y. Slip Op. 01388 [2d Dept 2019], modified a decision of the Supreme Court, Rockland County, which, inter alia, annulled a determination of the Village of Chestnut Ridge (“Chestnut Ridge”) Zoning Board of Appeals (“Chestnut Ridge ZBA”) and awarded costs and attorneys’ fees for violations of New York’s Open Meetings Law. The appeals court affirmed the trial court’s finding that the Chestnut Ridge ZBA’s determination should be annulled because it was without jurisdiction to consider whether a use variance is required; however, the appeals court reversed the trial court’s decision to award costs and attorneys’ fees for a violation of New York’s Open Meetings Law because an improperly noticed meeting was open to the public and the ultimate determination was adopted at a publicized, public meeting.

The facts of this case, set forth in great detail by the trial court, are quite provocative. In 2007, Steve’s Lawn, Inc. and 30 Sephar Lane Corp. (collectively, “Steve’s”) purchased the subject property (“Property”), which hosts a landscaping business. The Property is zoned within the LO (Laboratory-Office) District, the use provisions for which have been interpreted to permit landscaping businesses (i.e. landscaping storage as an accessory use to an office). Notably, more than a dozen landscaping businesses operate within this district and without municipal interference.

Directly across the street, Chestnut Ridge Associates, LLC (“Associates”) owns a largely vacant 14.6-acre parcel. Associates has been unsuccessfully seeking to develop its parcel for more than two decades, and invested $90,000,000 towards these efforts. Apparently, Associates either wanted the Property or wanted Steve’s to stop operating its landscaping business thereon because it interfered with Associate’s development plans. In early 2008, Associates pressured the Chestnut Ridge Mayor (“Mayor”) to shut down Steve’s business, and the Village Board of Trustees (“Trustees”) ordered the Code Enforcement Officer (“Officer”) to issue an appearance ticket to Steve’s for operating without site plan approval.

The Officer issued the ticket under protest, informing the Mayor and the Trustees that it was his opinion that landscaping operation is a permitted use within the LO District and upon the Property. The Officer withdrew the ticket prior to disposition. During the pendency thereof, nevertheless, Steve’s submitted an application to the Chestnut Ridge Planning Board for, among other things, construction of a storage structure. In October 2009, the Chestnut Ridge Planning Board concluded that Steve’s application might need an area variance – but it would not need a use variance for the landscaping business. Steve’s submitted an application to the Chestnut Ridge Zoning Board of Appeals (“Chestnut Ridge ZBA”) for an area variance concerning setbacks for the new structure.

After Steve’s submitted its site plan application and around the time Steve’s submitted the area variance application to the Chestnut Ridge ZBA, the Trustees enacted a local law expressly making landscaping a permitted use within the LO District. However, seemingly as a result of Associates’ input, the local law also provided it did not apply to properties that were the subject of applications filed with the Chestnut Ridge Planning Board prior to its enactment. The trial court noted that it was clear this local law applied only to the Property and “was enacted for no other reason than to benefit [Associates] at Steve’s expense.

Moreover, based upon Associates’ opposition to Steve’s area variance application, the Chestnut Ridge ZBA sought to determine whether the landscaping use is permitted. In September 2011, Steve’s counsel served a Notice of Claim upon the Chestnut Ridge ZBA in connection therewith, and requested to withdraw the area variance application. The Chestnut Ridge ZBA refused and demanded that Steve’s address the issue of their jurisdiction to consider the use issue. Steve’s neither responded nor made further appearances.

Associates, then, requested that the Chestnut Ridge ZBA interpret whether Steve’s landscaping storage is a permitted use. The Chestnut Ridge ZBA obliged, held at least one meeting not open to the public (and without entering executive session) in order to secretly discuss Associates’ request,[1] and hosted a public hearing on the issue. In January 2012, the  Chestnut Ridge ZBA issued a resolution that the local law did not apply to the Property and that Steve’s landscaping storage is not a permitted use. Thereafter, Steve’s commenced a hybrid action/proceeding to, among other things, annul the Chestnut Ridge ZBA’s determination.[2]

In Steve’s hybrid case, the trial granted Steve’s petition and annulled the Chestnut Ridge ZBA’s determination on grounds that it is jurisdictionally defective: “ZBA’s have only appellate jurisdiction . . . Here, Steve’s invoked the jurisdiction of the [Chestnut Ridge ZBA] by filing its area variance application. It then withdrew it. The [Chestnut Ridge ZBA] purported to disregard the withdrawal. Other than evidencing [their] bad faith, such refusal had no legal effect.” Moreover, neither Chestnut Ridge nor Associates cite any authority to compel Steve’s to pursue an area variance it no longer desired. When Associates filed its interpretation request, there was nothing for the Chestnut Ridge ZBA to review. Even assuming Steve’s did not withdraw its area variance application, the result would not change because Steve’s – the applicant – sought an area variance; the issue of its use was never before the Chestnut Ridge ZBA, and Associates did not seek to appeal from any pending determination regarding Steve’s use.

The trial court also annulled the Chestnut Ridge ZBA’s determination for violations of the Open Meetings Law, where the board held at least one meeting which was not open to the public and during which the board discussed Associates’ request for a use interpretation concerning Steve’s landscaping business at the Property. The trial court also noted the Chestnut Ridge ZBA’s bad faith: “[H]aving decided to put Steve’s out of business at [Associates’] behest, it is not surprising that [the Chestnut Ridge ZBA] did not want to discuss the same before the public.”

On appeal, the Appellate Division affirmed the annulment of the Chestnut Ridge ZBA’s decision, based upon its non-jurisdiction. Without a determination from the building inspector or other administrative official charged with enforcement of the zoning code, zoning boards are without jurisdiction to consider an application for an interpretation of the code. In addition, although the Appellate Division also found that the record supported a finding that the Chestnut Ridge ZBA violated the Open Meetings Law by hosting a workshop without giving notice of the meeting, Steve’s did not establish good cause to annul the Chestnut Ridge ZBA’s determination on that ground. While improperly noticed, the meeting was open to the public and the determination was adopted at a publicized public meeting and was the subject of a number of prior public meetings.

[1] There is some discrepancy about this meeting; the trial court found it was held in secret, but the appeals court found  that the meeting only improperly noticed and actually open to the public.

[2] In 2010, Associates commenced a separate action seeking a permanent injunction against Steve’s operation of its landscaping business at the Property.

In the Matter of Strandkorb, LLC v. Zoning Board of Appeals of the Town of East Hampton, dated February 11, 2019, the Supreme Court, Suffolk County, upheld the Town of East Hampton Zoning Board of Appeals determination which denied the petitioner’s request to construct a new two story residence with a garage, pool, patio decking, walkways and an upgraded septic system.

The subject property, located at 67 Shore Road in Amagansett, is across the street from properties abutting the Atlantic Ocean, and has protected dune land and beach vegetation on the western part of the site. As part of the Subdivision Map of Montauk-On-Sea Lots filed in 1955, the property is only 15,104 square feet in size, pre-exists the B Residential Zoning district in which it lies (the original house also pre-existed zoning) and is an undersized lot. Any disturbance of dune land or beach vegetation requires a Natural Resources Special Permit (“NRSP”) from the Zoning Board of Appeals. The proposed ZBA application sought to demolish the existing 2,600 square foot residence and construct a 3,075 square foot two story residence with a 589 square foot garage, 315 square foot pool and 998 square feet of patio, decking and walkways. The ZBA application sought a NRSP pursuant to Town Code §255-4-20 however, no variances from the Town’s Zoning Code were required in connection with the proposed development. Even though the ZBA noted that “it appears that the applicant has made an effort to design the project so as to minimize the disturbance in the western portion of the property which contains the beach vegetation and dune land habitat characteristics,” the ZBA ultimately denied the application. The ZBA relied upon the Planning Department’s finding that the project constituted an aggressive redevelopment of an environmentally sensitive property and found that the lot area was not “sufficient, appropriate or adequate for the proposed improvements” given that (i) the total lot coverage would increase from 22% to 35%, (ii) the proposed gross floor area of the home was 3,075 square feet where 3,110 square feet is permitted, and (iii) the building coverage would be doubled and only 5 square feet under the maximum allowed. The Board further found that the “overdevelopment of the property is not consistent with the surrounding properties, which are all substandard as to lot size and contain dune land habitat.” The Board also noted that “the surrounding properties consist of mostly soft scape, while the applicant here is proposing mainly hardscape (referring to the proposed decking, walkways and patio).” In response, applicant filed an Article 78 proceeding challenging the Zoning Board’s denial.

The court upheld the Zoning Board of Appeals determination, noting that local zoning board determinations are entitled to “great deference” and will only be set aside by a court if it is illegal, arbitrary and capricious or irrational. Petitioner argued that since the proposed development complied with the dimensions of the zoning code and minimized environmental impacts, the ZBA determination was arbitrary and capricious. However, the court noted that the ZBA found the application did not comply with the NRSP standards set forth in the Town Code. Specifically, the court noted that the proposed application would not maintain the character of the neighborhood or contribute to the orderly growth of the area concluding that the accessory structures would negatively impact the natural features on the lot. Moreover, the court referred to the zoning board’s finding that alternative designs to limit the proposed hard surfaces would lessen potential detrimental impacts to the property. Thus, the court found sufficient evidence in the Zoning Board’s record denying the application and held that the decision had a rational basis and was not arbitrary and capricious. Accordingly, the petition was denied and the Article 78 proceeding was dismissed.

 

Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets).  Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings.  This can be a particularly useful tool, when a property owner or developer is cited for zoning code violations that may shut down activities and force a timely and protracted court battle.

In fact, New York Town Law Section 267-a(6) provides a clear path for a stay to have zoning issues resolved before local zoning boards rather than in a judicial proceeding.  N.Y. Town Law Section 267-a(6) and its correlating village and city law sections provide as follows:

6. Stay upon appeal.  An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the board of appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown (emphasis added).

In People v. Bell, 183 Misc.2d 61 (Justice Ct., Village of Tuckahoe 2000), the Village building inspector issued appearance tickets returnable in the Village’s Justice Court for (1) no certificate of occupancy, (2) change of use of land without obtaining a certificate of occupancy, (3) no site plan approval, and (4) no screening of activities.  A jury trial was scheduled for September 28, 1999.  On September 27, 1999, Bell Atlantic appealed the subject matter of the appearance tickets to the Zoning Board and claimed a stay under section 7-712-a(6) of Village Law (the correlating provision of Village Law regarding stays).  The appeal by Bell Atlantic sought, among other things, to “overturn decision of the Village of Tuckahoe Building Inspector that the present use of the premises is a change of use that requires site plan approval and a certificate of occupancy for the premises.”

In Bell, the Village did not question Bell Atlantic’s ability to appeal the building department’s determination to the Board of Zoning Appeals, but challenged the stay of criminal proceedings in the Village Justice Court.  In upholding the stay, the court rejected the Village’s position as exalting form over substance.  The Court reasoned that the statute mandates a stay when the issue before the court and the Board of Zoning Appeals are the same, because the purpose of the statute is to obtain a definitive ruling from the Zoning Board of Appeals before making a judicial determination.  This avoids conflicting rulings from a judicial determination and the Board of Zoning Appeals.  The fact that the appeal did not originate with a denial of an application or notice of violation is immaterial.  Id.

Based on Bell, it appears that any action or decision of the building department, even a criminal enforcement proceeding, is automatically stayed by appealing such action to the Zoning Board of Appeals, as a matter of law.  This can be a powerful tools, when a property owner is faced with a potential court proceeding for zoning violations.  This ability to “stop the clock” may in turn provide an ability to negotiate a practical solution.

It must be noted that appeals of decision by a zoning enforcement officer cannot be neglected.  Such an appeal must be taken within sixty days after the filing of any order, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal.  See, Town Law Section 267-a(5)(b).

In Matter of Sagaponack Ventures, LLC v Bd. of Trustees of the Vil. of Sagaponack, the Second Department upheld the denial of an Article 78 proceeding seeking to vacate and annul a determination of the Board of Trustees of the Village of Sagaponack (the “Board”).  In its determination, the Board denied the site plan application submitted by Sagaponack Ventures, LLC (the “Petitioner” or “Applicant”), which sought to develop a 13,780-square foot single-family residence on the northwest corner of its 43.5-acre oceanfront property (the “Property”) located in the Village of Sagaponack (the “Village”).  Because it is located within the Village’s Agricultural Overlay District, the Property is subject to certain development guidelines set forth in the Sagaponack Village Code (the “Code”), which must be considered by the Board in rendering a determination.  Section 245-67(M) of the Code provides the following:

Agricultural Overlay District.  In considering site plan applications for all buildings or other structures that are to be situated on a lot equal to or greater than five acres and located within the Agricultural Overlay District, the Planning Board shall use the following factors to determine the most suitable location of the buildings or other structures for the current and future development of the property and the most suitable area for future farmland preservation:

(1)  Development areas shall be located on the portion of the lot where impacts on the loss of prime agricultural soils are minimized.

(2)  Development areas shall be located on the portion of the lot where impacts on views and vistas of the farmland areas from public rights-of-way are minimized.

(3)  Farmland areas shall be located on the portion of the lot to encourage continuity of farmland and farming operations on the lot and adjoining properties.

(4)  Development and farmland areas shall be located to minimize impacts on the future subdivision of the lot in accordance with open space requirements.

In its decision, the Board assessed each of those four factors.

With respect to the first factor, the Board noted that all of the 43.5 acres of the Property is comprised of “prime agricultural soils.”  However, the Board gave considerable weight to the fact that the southern portion of the Property was disturbed in 2007, when topsoil was removed and the area was filled, resulting in a change in elevation.  Furthermore, the fact that the Applicant did not permit a soil scientist to inspect the Property at the Village’s expense did not sit well with the Board.  One thing was clear to the Board—development on the portion of the Property requested by the Applicant would undoubtedly have a significant impact on the loss of prime agricultural soils, and would reduce the amount of farmable land on the Property.

With respect to the second factor, the Board found that the application as submitted would significantly impact views and vistas of the remaining farmland on the Property from public rights-of-way.  The southern portion of the Property is on the ocean, whereas the northern portion of the Property is adjacent to a public highway.  Thus, the Board found that the public’s views and vistas of the farmland would be minimized if development were to occur on the southernmost portion of the Property, rather than on the northwest corner.

The third factor was not much of a concern to the Board because no portion of the Property, nor the land adjacent to the Property, has been farmed over the past several years.

Lastly, in considering the fourth factor, the Board determined that development on the northwest corner of the Property would impact any future subdivision of the Property because the parcel would not conform to the applicable open space requirements upon the subdivision.

Based on its assessment of the four factors in Code Section 245-67(M), the Board ultimately determined that the northwest corner of the Property was not “the most suitable location” for the development of the Petitioner’s proposed single-family residence.  Despite the Petitioner’s contrary contentions, the Second Department upheld the trial court’s determination that the Board’s findings were rationally based and a valid exercise of the Board’s broad discretion.

As a final takeaway, this case emphasizes the importance of those seeking to develop their property to be aware of restrictions or unique guidelines in their local code, which may affect their development rights depending on their property’s characterization or location.

A Town of East Hampton resident can continue to operate a home-based dog-walking and pet sitting business after the East Hampton Zoning Board of Appeals voted unanimously to overturn a previous determination by the Town’s Building Inspector, who concluded that the business use was not a “home occupation” as defined in the East Hampton Town Code.

For more than a decade, Lori Marsden and her husband operated a dog-walking and pet sitting business known as Lori’s Pet Care out of their single-family residence.  Their services include pet care such as feedings and administering medication for all types of pets, as well as walking dogs. The business also offers daily dog day care and pet sitting services, and accommodates overnight stays when pet owners leave town.

In July 2017, a Town Code Enforcement Officer issued violations to Marsden for operating the business out of her house, which is located within a residential zone within the Town.  While her enforcement action was pending in the Town’s Justice Court, Marsden’s attorney sought a determination from the Building Inspector that the dog-walking and pet sitting service was a lawful home occupation business under the Town Code.

Section 255-1-20 of the East Hampton Town Code permits residents to operate businesses out of their home as long as they do not exceed 25 percent of the gross floor area or 500 square feet, whichever is less; that the business be conducted solely by those occupying the dwelling, except for one additional employee; and that there be no external evidence of the business, such as noise.

The Building Inspector determined that the use did not qualify as a home occupation pursuant to the Town Code based on her finding that the business produces external evidence of the business at times when the dogs are taken out of the residence during walks, playtime or to relieve themselves.  The Zoning Board disagreed.

In its March 19, 2019 Determination, the Zoning Board determined that Marsden’s pet sitting business met the Town Code definition of home occupation for several reasons.  Specifically, the Board found it compelling that the use does not change the character of the neighborhood and is secondary to the residential use of the property.  Moreover, the Board found that the record did not support the Building Inspector’s finding that the use created external evidence of the business operation.  Indeed, a member of the Board noted that there were no kennels outside or other evidence of the dogs.  Finally, the Board noted that the Town Code expressly excludes a “breeding kennel” from its definition of home occupation, but not a “boarding kennel.”

The Zoning Board was not persuaded by a video depicting barking dogs that was submitted by a neighbor at the January 29, 2019 pubic hearing.  Instead, it noted that it cannot be determined from the video whether the dogs barking are Marsden’s own dogs or dogs she is pet sitting for or even if they are dogs are on Marsden’s property.  After noting that Marsden has two dogs of her own, the Board concluded that there was “no evidence that the activities by dogs from the pet sitting business can be distinguished from the use of the residence by [Marsden’s] own dogs.”

The Zoning Board’s determination is a victory for Marsden, and allows her to operate Lori’s Pet Care from her home provided the requisites of Town Code § 255-1-20 are met.  However, there are some who believe that the East Hampton Town Board should update the home occupation definition specifically as it relates to dog care.  Citing the necessity for dog day care to some pet owners, Zoning Board member Tim Brenneman stated during one of the meetings that “the issue of pet care dog care is worthy of a more detailed definition that better considers the needs of the community.”

In The Committee for Environmentally Sound Development v. Amsterdam Avenue Development Associates, LLC, 2019 WL 1206357, 2019 N.Y. Slip Op. 30621(U), Index No. 153819 (Sup. Ct. New York Co., March 14, 2019), the Supreme Court, New York County, granted a petition to annul a resolution upholding the issuance of a building permit (“Permit”) for the construction of a 55-story mixed commercial-residential tower (“Project”) because the interpretation of the applicable zoning resolution had changed after forty years. The Project site is comprised of 110,794 square-feet and is located at 200 Amsterdam Avenue, New York, New York (“Property”), within a zoning block bounded by Amsterdam Avenue, West 66th Street, West End Avenue and West 70th Street (“Block”).

The Block was originally a single, large zoning lot containing the Lincoln Towers condominium buildings. In 1977, the Block was subdivided into two separate zoning lots: one zoning lot contained the Lincoln Towers (“Lincoln Lot”) and the other zoning lot would ultimately, in effect, become the Property.[1] Zoning lots and tax lots are two distinct concepts, and the distinctions and interpretations thereof under New York City’s (“City”) zoning resolution form the basis of the challenge and annulment of the Permit.

Amsterdam Avenue Redevelopment Associates, LLC (“Amsterdam”) sought to develop the Project, and the initial challenge claimed violations of the zoning resolution’s open space requirements. (We discussed the City’s Open Space law recently in a January 2019 Blog.) In May 2017, the City’s Department of Buildings (“City DOB”) concluded the Project satisfied the open space requirements, approved the proposed zoning diagram and issued the Permit (“May 2017 Approval”). The Committee for Environmentally Sound Development (“CESD”) appealed the May 2017 Approval to the City DOB’s Manhattan Borough Commissioner, who issued a notice of objections and intent to revoke the Permit. The City DOB noted it would verify the open space ratio and the proper formation of the zoning lot. In September 2017, the City DOB determined the Project complied with the zoning resolution, lifted the notice to revoke and reissued the Permit (“September 2017 Approval”).

CESD challenged the September 2017 Approval by appealing to the City’s Board of Standards and Appeals (“City BSA”), seeking an interpretation of the zoning resolution pertaining to whether the Property complies with the definition of a “zoning lot.” Specifically, CESD claimed that the Property, made up of parts of several tax lots, was not valid under the City’s zoning resolution and this noncompliance invalidates the Permit. Ultimately, in July 2018, the City BSA denied the appeal and upheld the Permit (“BSA Resolution”). CESD and the Municipal Arts Society of New York (“MASNY”) commenced an Article 78 proceeding seeking to annul the BSA Resolution, revoke the Permit and halt the Project’s construction.

CESD and MASNY argued the BSA Resolution should be annulled and the Permit invalidated because the 39-sided zoning lot comprising the Property is not a proper zoning lot within the meaning of the zoning resolution, i.e. it is comprised of several partial tax lots and, so, it is neither unsubdivided nor consists of two or more lots of record. Amsterdam argued the Permit was properly granted as per the historical interpretation of “zoning lot” under the City’s zoning resolution. In pertinent part, Amsterdam relied upon a City DOB Departmental Memorandum of Acting Commissioner Irving Minkin from 1978 (“Minkin Memorandum”), which summarizes a number of amendments to the definition of “zoning lot” at the time, and concluded that a single zoning lot may consist of one or more tax lots or parts of tax lots.

However, during the appeal before the City BSA, the City DOB’s Assistant General Counsel submitted a letter (“DOB Letter”) in which he agreed with CESD’s and MASNY’s interpretation of the definition of “zoning lot,” and admitted the Minkin Memorandum was incorrect. The DOB Letter also indicated that the City DOB began writing a departmental bulletin to clarify the proper procedures and forms required to create and verify proper formation of a zoning lot: “[i]n the context of the subject appeal, the Minkin Memo[randum’s] incorrect interpretation…came to light.” The correct interpretation does not permit a “zoning lot” to consist of parts of tax lots.

Despite this, the DOB Letter requested that the City BSA affirm the September 2017 Approval based upon the Minkin Memorandum because: (i) the Minkin Memorandum is not unreasonable (albeit incorrect); (ii) the September 2017 Approval is based upon a 40-year longstanding interpretation of the zoning resolution; and (iii) the Minkin Memorandum was not yet rescinded.

The Supreme Court granted the petition and annulled the BSA Resolution, which upheld the Permit, based upon the DOB Letter, among other things. The Court held the BSA Resolution is unreasonable because it failed to address the merits of CESD’s appeal of the Permit, i.e. interpreting a “zoning lot,” and it ignores the City DOB’s determination that the Minkin Memorandum is flawed, thus leaving the issue unresolved. Moreover, the BSA Resolution is inconsistent with the zoning resolution as interpreted by the City DOB. The City DOB stated that the Minkin Memorandum was incorrect at the time of CESD’s appeal, but the City DOB chose not to act on its draft bulletin and planned to hold the same in abeyance until the resolution of the issues herein. The City BSA’s decision to adhere to an admittedly wrong historical interpretation on the basis that it has not formally rescinded or superseded is erroneous. “[B]y publicly correcting its interpretation of [the zoning resolution] during [the appeal before the City BSA], the [City] DOB undermined the statutory basis for its issuance of the Permit in the first instance.”

The Court remanded the matter back to the City BSA  and instructed the City BSA to review the Permit in accordance with the plain language of the zoning resolution and in accordance with its decision. The ruling follows the well-settled principle that, absent narrow exceptions (e.g. bad faith), the present interpretation or effect of the law at the time of the review of a determination applies – not the interpretation or effect at the time the challenged determination was made.

[1] The Lincoln Lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lot 90; the other lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lots 10, 12 and 65 (“Other Lot”). In 2005, tax lots 1, 30, 70 and 80 became condominium lots 7501, 7505, 7502 and 7503, respectively. In 2007, tax lots 133 and 134 merged into the Other Lot. (At one point or another, tax lot 12 was reapportioned into tax lots 12 and 18). In 2012, tax lot 65 became condominium lot 7506 and merged with the Other Lot. Lastly, in 2015, tax lots 10, 12, 18 and portions of condominium lots 7501 and 7505 were subdivided out of the Other Lot. Thus, the Other Lot ultimately consists of portions of condominium lots 7501, 7505, 7502 and 7503, the entirety of condominium lot 7506 and tax lots 133 and 134, and these comprise the Property.

Over the past several years, this blog has presented several posts on the topic of standing. It is a frequent topic because it is often raised as a threshold issue in zoning and land use cases. If a challenger to an administrative decision fails to establish it has standing, the challenge will be dismissed even before the Court reaches the merits.

A decision from the Appellate Division, Second Department, issued on February 20, 2019, involved an interesting take on standing. In Matter of City of Rye v Westchester County Board of Legislators, the City of Rye (City) tried to upend a negative declaration issued by the Westchester County Board of Legislators (County) under the State Environmental Quality Review Act (SEQRA) in connection with several proposed projects at Playland Park (Park), an amusement park. The Park is owned by the County and is located entirely within the City’s boundaries.

The facts are set forth in the Trial Court Decision, Order and Judgment, issued March 20, 2017. In August 2010, the County sought proposals to reinvent the “iconic and historic Playland Park to thrive in the 21st century” through private redevelopment, “in a way that maximizes its resources and location, while reducing the financial burden to taxpayers of operating Playland Park.” In July 2013, the County entered into an agreement with Sustainable Rye Playland, Inc., to be the manager and operator of the Park.

A dispute arose between the County and the City as to which would act as lead agency for the proposed projects. The City requested that the New York State Department of Environmental Conservation (NYSDEC) determine which governmental entity should be the lead agency, but the NYSDEC never made that determination, as the agreement with Sustainable Rye Playland, Inc. was terminated and the City thereafter withdrew its lead agency dispute.

In August 2015, Standard Amusements LLC entered into an agreement with the County to operate and manage the Park and to undertake certain redevelopment projects at the Park.  In January 2016, the County Director of Planning prepared a Full Environmental Assessment Form for projects to renovate the parking, plaza and games structures at the Park. After several public meetings were held, the County, in May 2016, adopted a negative declaration resolution for the projects.

Two months later, in July 2016, the City advised the County that it objected to the County declaring itself the lead agency, and contended that the County failed to give appropriate notice of the May 2016 meeting. Later in July, the County issued a notice of the negative declaration to “Involved/Interested Agencies,” including the City. The City and the two individual petitioners sued.

As to the two individual petitioners, the trial court recited the requirements to establish standing.  A petitioner that is challenging an administrative decision has to show that it  “sustained or will sustain an injury-in-fact, which injury is within the zone of interests promoted or protected by the statutory provision under which the administrative officer has acted, and that the harm the petitioner suffered from such injury is different in some way from that suffered by the public at large” (citing the landmark case of Matter of Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991]). The trial court noted that in SEQRA cases, the injury-in-fact must be environmental in nature. The trial court also noted that when standing is raised, “perfunctory allegations of harm” are not sufficient, and petitioners “must prove that their injury is real and different from the injury most members of the public face” (citing to Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 [2009]). The trial court determined that neither individual petitioner met this burden of proof and also rejected their claims that their properties were in close proximity to the project site to raise a presumption of injury. One of the properties was within 150 feet from the boundary line of the Park site, the other was about a mile away. Neither petitioner got the presumption because, as the trial court noted, proximity is measured from the petitioner’s property to the actual site of the project at issue, and not from the nearest boundary line of the entire parcel it is located on. As to the alleged injury, complaints about being able to see the lights of the rides, or park visitors parking illegally along the streets of a petitioner’s neighborhood, already existed and were not related to, or a consequence of, the proposed projects.

Turning to the City’s standing, the trial court noted that the entire Park is located within the borders of the City, but the proximity inference  does not operate the same way for a municipal entity.  Rather, a municipal entity has to “articulate a specific municipal interest in the potential environmental impacts of the action being challenged” from the County’s alleged failure to comply with SEQRA. For example, standing has been conferred when the lead agency failed to consider the impact on a municipality’s community character in connection with the approval, or when the action is inconsistent with the surrounding density zones in adjacent villages and could lead to substantial residential development in an adjoining town or adversely affects the municipality’s water supply. The trial court concluded the City did not have standing under this theory.

The trial court then evaluated the City’s claim of standing due to its role as an “involved agency.” The trial court noted that an “involved agency” “has jurisdiction by law to fund, approve or directly undertake an action.”  The trial court noted that the City did not directly allege it was an “involved agency” in the petition. Instead, the City contended the County’s “actions have materially diminished Rye’s ability to promote, protect and improve the quality of life for its residents and to protect and, where possible, enhance the environment” or “violated Rye’s city code and undermined Rye’s efforts and plans to enhance and promote its status as a coastal city on Long Island Sound by protecting natural resources.”

The trial court applied a balancing test to determine if the County’s actions were or were not exempt from the City’s zoning code and other local laws.  The factors it used included (1) the nature and scope of the entity seeking immunity from the local laws, (2) the land use involved with the project; (3) the extent of the public interest served by the project, (4) the effect the local laws have on the project, and (5) the impact on legitimate local interests. The trial court found that balancing the public interests favored the County. It noted that the Park had been in existence for almost a century, prior to the City’s existence; the City did not identify any state law that gives it express authority to permit, approve or regulate the County’s use of the Park; and the County’s action, although exempt from City oversight, was subject to oversight, in particular via the various public hearings involved in the approval process. The trial court, therefore, concluded the City lacked standing as an “involved agency.”

The Second Department affirmed the determination of the trial court, dismissing the proceeding because the City lacked standing. First, the appellate court discussed and rejected the City’s assertion that it had standing because it was an “involved agency” under 6 NYCRR 617.2[t], because it found that the proposed development projects are immune from local zoning and land use laws.   The appellate court then discussed and rejected the City’s assertion it had standing based on its “interest in the potential environmental impacts of the development projects on the City of Rye’s community character.” The appellate court also affirmed the lack of standing of the two individual petitioners, noting that both had failed to demonstrate that they suffered an injury-in-fact that fell within the zone of interests protected by SEQRA.

So, what’s the takeaway?  When confronted with a challenge to an administrative decision, a municipality should always evaluate whether or not a petitioner has standing, regardless of whether the challenge is from a governmental entity, non-governmental entity or person.

 

E-cigarettes and vaping have received a very mixed reception in New York.  While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O.  This includes most indoor settings as well as certain outdoor, public and work places.  Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers.  See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.

At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21.  The Town of North Hempstead also recently joined that list.   See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.

Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping.  On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold.  Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018).  Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District).  One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).

Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017.  A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of a local government’s land use power.

In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”.  Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town.  The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property.  See Town of Bedford Code § 125-29.8(C)(3) (2018).

It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment.  See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018.  If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping.  The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.

At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable.  Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely.  After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause.  And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere).  We will all just have to wait and see.

 

The New York State Department of Environmental Conservation (NYSDEC) is proposing significant revisions to its State Environmental Quality Review Act (SEQR) Handbook to conform with recently-adopted amendments to the SEQR regulations. These amended regulations became effective in January 2019. The proposed changes to the SEQR Handbook are available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/dseqrhandbook.pdf.

One of the primary targets of the amended SEQR regulations concerns Type II actions. Type II actions are those that have been determined not to have a significant adverse environmental impact and do not require review under SEQR. The proposed changes to the SEQR Handbook add quite a number of actions to the list of Type II actions to conform to the amended regulations. For example, a project calling for the replacement, rehabilitation, or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, typically is considered a Type II action. Now, such a project for the purpose of meeting energy codes also is a Type II action.

The proposed SEQR Handbook adds the following as Type II actions:

  • Retrofitting an existing structure and its appurtenant areas to incorporate green infrastructure;
  • Installing telecommunication cables in existing highway or utility rights of way using trenchless burial or aerial placement on existing poles;
  • Installing solar energy arrays where such installation involves 25 acres or less of physical alteration on sites such as closed landfills and brownfield sites;
  • Installing solar energy arrays on an existing structure as long as the structure is not a specified historical place;
  • A government agency’s acquisition and dedication of 25 acres or less of land for parkland, or dedication of land for parkland that was previously acquired, or an agency’s acquisition of a conservation easement;
  • Sale and conveyance of real property by public auction pursuant to Article 11 of the Real Property Tax Law, i.e., when a municipality or state agency acquires land through foreclosure or other means where the land reverts to the agency due to a failure of the owner to remain current on property taxes; and
  • Construction and operation of an anaerobic digester (which utilizes the naturally occurring process of anaerobic digestion) within currently disturbed areas at an operating publicly owned landfill, provided the digester meets certain specific conditions.

The proposed SEQR Handbook also focuses on Type I actions, which are actions that are considered more likely to have significant adverse environmental impacts and must be reviewed further under SEQR. The proposed SEQR Handbook contains a number of changes to the list of Type I actions to be consistent with the amended regulations. For example, the threshold for triggering a Type I SEQR inquiry for actions involving the construction of new residential units has been lowered. Previously, that threshold for a city, town, or village having a population of less than 150,000 was 250 units to be connected to existing community or public water or sewer systems. The amended regulations lower that to 200 units. Similarly, the threshold has been lowered for a city, town, or village having a population of greater than 150,000 persons but less than one million. It previously had to involve 1,000 units; that has been changed to 500 units. The proposed changes to the SEQR Handbook take into account these lower thresholds.

There is another notable change regarding Type I actions in the proposed SEQR Handbook, which is based on the amended regulations. Before January 1, 2019, a lead agency could waive the requirement of filing an environmental assessment form for a Type I action. The amended regulations eliminated the ability of a lead agency to waive that requirement.  This arises from the fact that the scoping has been made mandatory by the amended regulations. Scoping is a process that develops a written document that outlines the topics and analyses of potential environmental impacts of an action that will be addressed in a draft environmental impact statement. Scoping narrows the issues and ensures that the draft environmental impact statement will be a concise, accurate, and complete document that is adequate for public review. The process for scoping is set out in 6 NYCRR § 617.8. The proposed changes to the SEQR Handbook make scoping mandatory for every draft environmental impact statement (except that mandatory scoping does not apply to supplemental environmental impact statements).

The deadline for public comments on the proposed SEQR Handbook expired on February 1, 2019 and the expectation is that the SEQR Handbook changes will be finalized soon.