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  The comment period for the draft guidance values runs until November 5, 2021.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:
Continue Reading Public Comment Period Open for NYSDEC Proposed Guidance Levels for PFOA, PFOS and 1,4-Dioxane in Ground and Surface Water

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
Continue Reading Property Owner’s Request for Court-Determined Just Compensation Backfires

Last year, the New York County Supreme Court heard an Article 78 challenge by Preserve Our Brooklyn Neighborhoods (“POBN”), a civic organization dedicated to maintaining the unique character and historical significance of the Fort Greene area of Brooklyn, New York.  This lawsuit, which I discussed in a previous post, turned on whether a resolution passed by the New
Continue Reading First Department Affirms Dismissal of Constitutional Challenge to Zoning Resolution

In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.

Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”).  For several
Continue Reading Landowner’s Intent to Mine Property Sufficient to Establish Nonconforming Use

Last week, the New York Supreme Court, Suffolk County, denied an application for a preliminary injunction to enjoin the completion, maintenance and operation of two sixty-foot tall electronic billboard-monuments (“Project”) on opposite sides of State Route 27 a.k.a. Sunrise Highway, which Project is owned by the Shinnecock Indian Nation (“Nation”).

A.  The Project and the State’s Action

In or
Continue Reading Court Denies Preliminary Injunction to Enjoin Shinnecock Nation’s Project along Sunrise Highway

A recent Second Department decision, Matter of Village of Kiryas Joel v County of Orange, et al., addresses the intriguing justiciability doctrine of ripeness, as applied to judicial review of municipal administrative action.

In 2007, Orange County (the “County”) acquired property known as Camp LaGuardia from the New York City Economic Development Corporation.  Originally, the County’s plan was to
Continue Reading Second Department Reverses Dismissal of Article 78 Proceeding on Ripeness Grounds

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

The petitioners in Reddock own a 2.07-acre parcel of property in the Town of Smithtown adjacent to the Nissequogue River (the “Property”) and within the Nissequogue
Continue Reading Unique Procedural Rule Requires Transfer of Article 78 Proceeding to Appellate Division

A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.

Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in
Continue Reading Dog Training Business is Not a “Customary Home Occupation” According to Upstate NY Town


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


Continue Reading Andros Patent Studied in Dispute Over Oyster Bay Boundary: This Clam Is Your Clam, This Clam Is My Clam