Given the complex zoning regulations that govern development of vacant land, in recent years, it has become uniquely challenging to develop smaller tracts of vacant land that do not conform to the current zoning code.  Further, the doctrines of merger and single and separate add to the complications.  Unless a buyer is absolutely certain that the land for purchase is single and separate from an adjoining parcel and has not merged by common ownership with an adjoining parcel, the results can be less than desirable.

In a recent case, Harn Food LLC v DeChance, the Second Department upheld the Town of Brookhaven’s Board of Zoning Appeals (“BZA”) decision denying a request to construct two houses on what was contended to be two single and separate vacant undersized parcels joined only at the rear property line and each fronting on it’s own adjacent parallel road.  Lots configured in this manner are also referred to as through lots.

In upholding the BZA’s decision, the Court rejected petitioner’s argument that the two tax lots were single and separate because they shared only a rear lot line thereby allowing one house to be constructed on each lot.  Instead, the Court adopted the BZA’s position that since 1948, the two lots were held in common ownership.  The significance of holding or purchasing adjoining vacant lots in common ownership cannot be minimized.  Under most zoning codes and as interpreted by many courts, holding vacant lots, that are undersized or non-conforming to the minimum zoning requirements, creates a merger of the parcels and defeats any argument that the lots were held in single and separate status.

In this case, even though the two tax lots at issue were not side by side lots, but instead, they were back to back lots, the Court determined that the common ownership since 1948 rendered the lots merged.  Additionally, in weighing the five-factor test set forth in Town Law 267-b(3)(b), the Court relied on a prior denial in 2007 by the BZA of an identical application in the immediate area, together with evidence at the hearing that the proposal set forth did “not conform to the surrounding development pattern, in that only 5 lots (12%) of the 42 improved lots in the area conform to the lot area requested in the application, and only 7 lots (17%) conform to the lot frontage.”

The Court further noted that the buyer was charged with knowledge of the zoning code when the property was purchased.  Given that the vacant land is still suitable to construct one dwelling, the Court determined that a feasible alternative existed and that the petitioner was not so aggrieved.

This case is just one more reminder that land use attorneys and real estate attorneys must work together to insure that properties are purchased in uncommon ownership unless otherwise discussed and affirmatively agreed to be held in common ownership.  Further, vacant land should never be purchased absent a single and separate search with confirmation from the relevant municipality that the vacant land in question meets the test for single and separate and that no merger with adjoining parcel ever occurred.

 

 

 

 

 

 

 

 

Several Long Island municipalities have local laws that peg the issuance of certain building permits to a requirement that contractors and subcontractors be participants in a “qualified apprenticeship program” that is registered and approved by the New York State Department of Labor. While these provisions are often entitled “safe and code compliant construction” and may be perceived as fostering apprenticeship programs for building construction trades, many contractors on Long Island disagree.

They see these provisions as having nothing to do with safety or compliance. They point out that many of these codes do not require that apprentices work on the project or that the selected contractor even employ such apprentices. Rather, all that is required is that the contractor have a collective bargaining agreement with a union that has a qualified apprenticeship program. They contend that these code provisions are aimed at ensuring that contractors affiliated with certain unions get the jobs by prohibiting non-unionized contractors or unionized contractors with affiliated unions that do not meet the qualified apprenticeship program requirement from getting building permits. And they further argue that these provisions add significant costs to the price of construction.

A recent decision by a federal judge may be changing that. But first, a sampling of codes provisions on Long Island that require qualified apprenticeship programs for building permits.

Town of Huntington

Section 87-55.1 of the Huntington Town Code provides that prior to the issuance of “building permits for the construction of commercial buildings of at least one hundred thousand (100,000) square feet,” applicants must “demonstrate that any general contractor, contractor or subcontractor for such project, must have apprenticeship agreements appropriate for the type and scope of work to be performed, which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Brookhaven

Section 16-3.1 of the Brookhaven Town Code requires that prior to the issuance of  “foundation permits and building permits for the construction of a building located in commercial and industrial zoning districts where the square footage of the footprint is 100,000 square feet or greater” and prior to the issuance of building permits for “an addition to an existing building located in commercial and industrial zoning districts when such addition is 100,000 square feet or greater,” that the applicant “demonstrate that any general contractor, contractor or subcontractor for such project participates in an approved apprenticeship training program(s) appropriate for the type and scope of work to be performed, that has been registered with, and approved by, the New York State Department of Labor in accordance with Article 23 of the New York Labor Law.”

Under Brookhaven’s code provision, unless an existing building has a certificate of occupancy or its equivalent, the square footage of the existing building is included in the calculation of the 100,000 square foot threshold.

Town of North Hempstead

Section 24-68 of the North Hempstead Town Code provides the following. “Every contractor or subcontractor who is a party to, or working under, a construction contract with the Town shall be a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and shall have in place apprenticeship agreements that specifically identify or pertain to the trade(s) and/or job title(s) called for within the construction contract.”

Section 2-9.1 of the North Hempstead Code requires that prior to issuance of a building permit for a “large commercial project,” the applicant must demonstrate that “any general contractor, contractor or subcontractor for such project is a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and has apprenticeship agreements, which are specifically identified as pertaining to the trade(s) and/or job title(s) called for by such project.”

A “large commercial project” is defined as “[t]he erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion of a commercial building or structure where such erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion involves an area of 100,000 square feet or more of floor area. The threshold of 100,000 square feet may be met either in a single building or a collection of buildings located on the same property.”

City of Long Beach

Section 7-48 of the City of Long Beach Code of Ordinances covers apprenticeship requirements. It provides that “as a condition precedent for, the issuance of all building permits…for construction of buildings of at least 100,000 square feet…any contractor or subcontractor, who is a party to, or working under, a construction contract, [must] be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements…which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Oyster Bay

Section 93-16.3 of the Town of Oyster Bay Town Code requires that any contractor or subcontractor who is performing construction on any “structures used for purposes other than private one- or two-family residences, and shall include, without limitation, buildings used for offices, retail or wholesale stores, warehouses, schools, and public buildings” shall “be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements, as evidenced by valid D.O.L. certificates of completion which are specifically identified as pertaining to the trade(s) and/or job title(s) necessary for said construction project.”

Sections 93-16.1 and 93-16.2 apply this provision to buildings of 100,000 square feet or more, and have other refinements to that 100,000 square foot threshold.

 Legal Challenge to Oyster Bay Provision

A legal challenge to Oyster Bay’s provisions is pending in the federal court in Central Islip. That case is entitled Hartcorn Plumbing and Heating, Inc. v Town of Oyster Bay.  Plaintiffs contend that Oyster Bay’s code is unconstitutional as it applies not just to contracts that the Town is a party to or funds, but also applies to wholly private contracts.

On February 7, 2018, Judge Hurley issued a preliminary injunction, enjoining the Town of Oyster Bay from enforcing Town Code 93-16.3, with respect to any contract that the Town of Oyster Bay is not a “direct or indirect party.” As a result, at least for now, projects that do not involve the Town of Oyster Bay as a party to the contract or are not funded by the town can get building permits without demonstrating that their contractors participate in “qualified apprenticeship programs.” Whether that ruling is ultimately upheld as the case proceeds is unknown, but it may result in other municipalities reexamining their code provisions voluntarily or as a result of similar court challenges.

This month, U.S.-based energy giant Invenergy expects to break ground on New York’s second largest solar farm project at the former Tallgrass golf course in Shoreham.  A leader in wind and solar development, energy storage and natural gas operations, Invenergy will add the Shoreham Solar Commons to its portfolio.

Tall Grass solar media pic
The Long Island Power Authority approved the solar array in 2016 and, in early 2017, the New York State Comptroller and Attorney General green-lit the project.  Last month, Invenergy finalized its acquisition of the Tallgrass property.  Invenergy awaits the Town of Brookhaven’s issuance of the building permit for the project.

The 150-acre array will generate 24.9 megawatts (50,000 megawatt hours per year) – enough to power approximately 4,500 homes – under a 20-year power-purchase agreement with LIPA.  Notably, the 24.9 megawatts comes in just under the 25 megawatt threshold that would have triggered a more extensive review process under New York’s Power Act of 2011 that was signed into law by Governor Cuomo on August 4, 2011 (codified in Article 10 of the New York Public Service Law).

Unlike many other solar farms proposed on Long Island and elsewhere, Shoreham Solar Commons will not require clearcutting trees.  Tallgrass was fittingly a “links style” golf course, a more traditional style course hosting open spaces, high grass and bunkers rather than trees and brush.  In addition, Invenergy has pledged to plant 2,000 evergreen trees to buffer the array.

Invenergy will employ upwards of 100 people during construction over the next year, but there are no plans for full-time jobs after the array is built.  The Commons will pay approximately $670,000 per year to its local taxing districts – almost ten times more than the taxes paid by Tallgrass.  The tax figure will increase prospectively.

shutterstock_252155278The Town Board of the Town of East Hampton (“Town Board”) is considering progressive new legislation that will require advanced nitrogen-reducing sanitary systems for all new commercial and residential construction and major renovation projects.  This law, loosely modeled after a similar law adopted by the Town of Brookhaven for projects located within the environmentally-sensitive Carmans River watershed, imposes regulations designed to supplement those required by the Suffolk County Department of Health Services (“SCDHS”), pursuant to Article 6 of the Suffolk County Sanitary Code.  At the February 7, 2017, Town Board work session, Supervisor Larry Cantwell justified the need for the law by declaring that “we need to find a way to replace these antiquated cesspools and septic systems that are clearly a threat to the quality of life and the quality of life that we have in the town.”

Under the proposed law, a new, low-nitrogen sanitary system will be mandated in one of three circumstances.  The first is where a proposal involves new commercial or residential construction.  The second is where there is an existing sanitary system, but there is evidence that it is failing. The third circumstance involves the substantial expansion of an existing structure.  Pursuant to East Hampton Town Code § 255-1-20(A), “substantial expansion” occurs where a building addition increases its gross floor area by 50% or more or where the cost of an addition, reconstruction, rehabilitation or other improvement to a structure equals or exceeds 50% of the market value of the structure prior to making or undertaking the addition, reconstruction, rehabilitation or other improvement.

At the outset, a qualifying “Low-Nitrogen Sanitary System” will be defined as one that is approved by the SCDHS and proven to reduce nitrogen levels in wastewater to 19 milligrams or less per liter.  However, the law contemplates that as technology advances and new systems are approved by the SCDHS that reduce nitrogen levels even further, future systems will be required to reduce nitrogen levels to 10 milligrams or less per liter.  By comparison, conventional systems release about 50 milligrams per liter of nitrogen into groundwater.

Since low-nitrogen systems, by design, need ongoing monitoring and maintenance in order to function properly, the law will require that owners of these systems maintain them in accordance with the manufacturer’s recommendations.  The Town will also require inspections of these systems at least once every three years by qualified persons employed by or for the Town, or at anytime the Town’s Sanitation Inspector has reason to believe that a system is malfunctioning, has been illegally modified or expanded, or is being operated beyond its design limits.

In order to encourage the use of low-nitrogen sanitary systems, the Town Board is also considering a companion law entitled “Low-Nitrogen Sanitary System Rebate Program,” which creates a multi-tiered system of rebates to incentivize qualifying homeowners to voluntarily replace their aging cesspools and conventional septic systems with new sanitary systems that reduce nitrogen emissions.  The rebates would be paid from the Community Preservation Fund (“CPF”), a portion of which is available for water quality improvement projects.  The CPF, which is funded by a 2 percent tax on real estate transactions, is anticipated to have between $4 and $5 million available to fund the rebate program each year.

The largest rebate, covering 100% of the replacement cost of the system up to $15,000, would be offered to all homeowners in a Town Water Protection District, where shallow groundwater tables and proximity to tidal water bodies causes nitrogen in wastewater to quickly reach surface waters.  Homeowners with cesspool systems who are not located in a Water Protection District will be eligible for a 50% rebate, up to $10,000, and if their household income meets the Town’s threshold to qualify for affordable housing, the rebate increases to 75 percent.  Homeowners who are not eligible for either a cesspool or Water Protection District rebate, but wish to replace existing sanitary systems with new, advanced technology systems are eligible for rebates of 25% of the cost, up to a maximum of $5,000.  In order to qualify for the rebate program, the property owners must have an annual household income below the State’s STAR exemption threshold of $500,000.

At the conclusion of the February 7, 2017 Town Board work session meeting, Supervisor Cantwell indicated that both laws are likely to be discussed at a subsequent Town Board work session meeting prior to scheduling a public hearing on the legislation.

shutterstock_527190727In an effort to generate revenue without raising taxes, many municipalities on Long Island, and elsewhere in New York State, are turning to the use of various forms of land development fees to meet their fiscal challenges. In many cases, these fees can be legally and morally justified, such as when they offset the actual administrative costs of processing a land use application, or when a municipality must incur costs to provide additional public infrastructure and services to accommodate a new development. However, in their zeal to raise revenue, some local governments have ignored statutory and judicial authority that establish a narrow framework for collecting and using these fees, which may leave them exposed to a legal challenge.

In this post, which will be presented in multiple segments, we will highlight the various ways that local governments are using impact, administrative review and recording fees as a revenue-generating measure. We will review the propriety of these fees and discuss the potential impact that these fees can have on development, which is typically a good barometer of a community’s economic prosperity.  We will also discuss who ultimately pays these fees that translate into higher housing and other costs.

Local Impact Fees

Impact fees are one-time payments required by local governments in connection with new developments for the purpose of defraying some of the cost of constructing or improving the public infrastructure needed to serve them. Where authorized, such fees are used to shift the financial burden for additional capital improvements and services from taxpayers to private developers who are the beneficiaries of those improvements and services.

To be valid, there must be a “rational nexus” between the impact fee imposed and the infrastructure needs created by the new development. To satisfy the nexus test, the development must create a need for the new infrastructure; and the fee amount must be based on the extent to which the development benefits from the infrastructure. In other words, an impact fee cannot exceed the pro rata or proportionate share of the anticipated costs of providing the new development with the necessary infrastructure.

Roughly half the states have enacted enabling legislation authorizing the imposition of impact fees. New York, however, is not among them. In fact, a number of decisions by New York Courts cast serious doubt on whether municipalities can enact local impact fee legislation pursuant to home rule powers, or otherwise impose such fees on developers.

In the only impact fee case to reach New York’s highest court, the Court of Appeals in 1989 invalidated the Town of Guilderland’s attempt to fund roadway and other transportation improvements under its Transportation Impact Fee Law (“TIFL”) in Albany Area Builder’s Association v. Town of Guilderland . While the Court did not actually rule on the validity of local impact fees, it concluded that the TIFL was impliedly preempted by the State Legislature’s uniform scheme to regulate highway funding set forth in the Town Law and Highway Law. This decision precludes the use of local impact fees to cover costs associated with roads, sewer, water hook-ups and other infrastructure for which State law already provides a comprehensive regulatory scheme for the financing of these improvements.

Notwithstanding the legal precedents, there are local governments on Long Island that continue to impose what amount to significant, but questionable, impact fees on developers. One such fee is the Town of Brookhaven’s Land Use Intensification Mitigation Fee.  The stated purpose is to mitigate any land use intensification associated with the approval of a change of zoning classification from a more restrictive to a less restrictive use through the acquisition of open space. Depending on the existing and proposed zoning classifications and the size of the site, the law has the potential for imposing significant fees on developers and other landowners within the Town.

While the stated goals of this fee law are undoubtedly laudable, the absence of specific enabling legislation authorizing this fee makes Brookhaven’s law susceptible to legal challenge. A Court could find that the fees charged are not commensurate with the potential demand for additional open space created by the less restrictive zoning and, therefore, fails the “rational nexus” test. A Court may also find that the Town Law provisions authorizing a municipality to require that a parkland be set aside, or impose a fee in lieu of parkland, in connection with site plan and subdivision applications impliedly preempts the Town’s fee law. Of course, it is also possible that a Court could uphold this fee, and Brookhaven’s law may become a model for future local impact fees in New York State.

To date, these fees have not been challenged by developers, who instead are simply paying the fees and capitalize them into the land value. However, depending on the nature of the development, these fees are being passed along by developers to new owners and renters of residential, commercial, industrial, office and retail space, and also to consumers who must ultimately pay more for retail goods and services. While these fees make it easier for a municipality to balance its budget, this short-term benefit pales in comparison to the significant negative impact that these fees can have by driving up the cost of living on Long Island and frustrating the market’s ability to deliver much-needed affordable housing.

In the next segment of this post, we will look at administrative review fees, which are another revenue-generating device used by local governments related to the processing of land use applications that are being assessed on developers, often without regard to the legal limitations on such fees.

On May 21, 2013, the Town of Brookhaven adopted Local Law No. 26, which amends Brookhaven Town Code § 85-38 by imposing a supermajority vote of Brookhaven Town Board members in those instances where a written petition, commonly known as a “Protest Petition” is filed by town property owners opposing a change of zone application.  According to the Town, the purpose of the Amendment is to give people of the Town a stronger voice in the development of their communities.

By all appearances, this enactment caused quite a stir in the media among the land use community, developers and residents alike.  Questions quickly arose such as: What is a “Protest Petition”? Who can file a “Protest Petition” and does this signal the possible demise of successful Change of Zone applications?

The answers to these questions are discussed below, but suffice it to say, as the title of this blog post indicates – Brookhaven Town’s supermajority change of zone local law is not novel or new, nor will it likely signal the demise of change of zone applications.  The fact of the matter is that for decades, New York State Town Law § 265 has provided this identical supermajority vote when a “Protest Petition” is presented in opposition to a change of zone application.

In fact, when the Town of Brookhaven enacted Section 85-38, the Town availed itself of its powers under §10 of the Municipal Home Rule Law and §10 of the Statute of Local Governments by specifically declining to impose a supermajority vote requirement when presented with a protest petition.  Instead, the Town opted to impose a mere simple majority vote to override a protest petition.  Hence, the Town of Brookhaven just recently decided to conform to the longstanding state law set forth at Town Law § 265, which requires a supermajority vote of Town Board members when considering a change of zone application subject to a protest petition.  So what is a Protest Petition?

A protest petition is a written petition submitted to the municipal government in opposition to a change of zone application and signed by twenty percent (20%) of the property owners who either: (1) own property contained within the area which is the subject of the proposed zone change; (2) own property within one-hundred (100) feet immediately adjacent to the land proposed for the zone change; or (3) own property directly opposite the land proposed for the zone change and extending one-hundred (100) feet from the street frontage of such opposite lands. See, Town Law § 265.  Consequently, the potential pool of change of zone objectors eligible to file a protest petition is limited to those property owners located in the subject zone change area, or within just one-hundred feet thereof.

Moreover, in Eadie v. Town Board of Town of North Greenbush, 7 N.Y.3d 306 (2006), the Court of Appeals affirmed the Third Department’s reversal of the trial court’s finding that a property owner seeking a zone change could not “buffer” the surrounding one-hundred (100) feet with property that it also owned thereby precluding a protest petition.  In reversing the trial court and affirming the Third Department’s findings, the Court of Appeals held that “[t]he power to require a supermajority vote is dependent on the distance of one’s property from land that will actually be affected by the change.  Landowners who obtain rezoning can insulate themselves against protest petitions by “buffer zoning” i.e. leaving the zoning of a strip of property unchanged.” Id. at 306. The Court of Appeals specifically determined that the reconfiguration of lot lines to avoid a protest petition, whether undertaken in good faith or bad faith is irrelevant.  Id. at 315.  The ultimate goal of a protest petition is to protect only those property owners located within the zone change area, or within one-hundred feet thereof.  Hence, providing a one-hundred foot buffer of land surrounding the proposed zone change area will summarily defeat the requirement for a supermajority vote under Town Law § 265 and the newly revised Brookhaven Town Local Law adopted at § 85-38.

So, what does this all mean for land use practitioners, developers and the property owners who may be affected by a zone change?  In my opinion, not much.  As it applies to Brookhaven Town and other towns, as well as villages that impose a supermajority vote requirement in the wake of a protest petition; before the supermajority vote requirement is triggered, at least twenty percent (20%) of the property owners located within the proposed zone change area, or within one-hundred feet thereof, must file a written petition.  As discussed above, a protest petition can be summarily defeated by the applicant’s use of “buffer zoning.”  Likewise, municipalities that have historically entertained change of zone applications on their own motion should be prepared for the possibility that a protest petition could be used by property owners as a sword against the municipality in an effort to defeat a change of zone that is otherwise desired by the municipal board.

The question then becomes, will Brookhaven Town’s new local law requiring a supermajority vote of the Board when a protest petition is presented in connection with a change of zone really reflect the community’s input as the Town desires?  Perhaps the next contentious change of zone application will provide us with that answer.  Stay tuned for the update.

There is a movement afoot among Long Island municipalities to regulate or, in some cases, ban the planting, growing or cultivation of bamboo within their communities.  To some, bamboo is an exotic evergreen plant that creates an attractive and effective privacy screen.  To others, however, it is an aggressive, invasive plant that causes ecological harm and significant damage to property, if not properly contained.  The fast-growing roots, or rhizomes, of certain varieties of bamboo plants have been known to buckle driveway surfaces, puncture swimming pool walls, and compromise underground sanitary systems and utility lines.

The Town of Smithtown recently became the first Long Island Town to adopt sweeping regulation on the planting and growing of bamboo.  Smithtown’s ordinance provides that “no owner, tenant or occupier of property anywhere in the Town of Smithtown shall cause, suffer or allow bamboo to be planted, maintained or otherwise permitted to exist within 10 feet of any property line, street, sidewalk or public right-of-way.  Violators of this law are subject to monetary fines and may be ordered to remove the bamboo.  In certain instances, the Town may enter onto the violator’s property and remove the bamboo and assess the cost thereof against the property by adding it to the property’s tax bill.  The Towns of Brookhaven and Hempstead, the City of Long Beach, and the Villages of Woodsburgh and The Branch, have all followed by passing similar legislation.  At the present time, the Towns of Oyster Bay and Islip are considering the adoption of their own bamboo regulations.

Several years earlier, the Fire Island Villages of Saltaire and Ocean Beach adopted local laws regulating the planting and growing of bamboo.  Saltaire’s law prohibits the planting or growing of bamboo anywhere within the Village.  The local law, however, contains an exception for bamboo that was planted or otherwise permitted to grow prior to the effective date of the local law, provided that the property owner takes measures to prevent the bamboo from invading or spreading onto adjoining or neighboring properties.  According to the Village Code, violations of the local law are subject to a fine of up to $250 per day, in addition to civil and criminal penalties.  Last year, the Village of Babylon adopted a local law that was very similar to the one adopted by Saltaire.

However, not all Long Island municipalities have seen fit to regulate bamboo.  This past December, the Village of Sag Harbor voted to withdraw proposed legislation regulating bamboo from further consideration.  After two public hearings, at which the Village Board heard from both proponents and opponents of the proposed legislation, the Board unanimously determined that the situations in which bamboo causes problems between neighbors were too varied to legislate.  This past summer, a proposed law regulating bamboo in the Town of Huntington was defeated by a split vote of the Town Council.

While governmental regulation of bamboo is undoubtedly welcomed by those who are threatened by, or suffered from, a neighbor’s invasive bamboo, such regulations are only enforceable by the municipalities themselves.  For those who wish to take matters into their own hands, a property owner may trim any invasive bamboo roots or limbs at the property line, provided that the trimming is done in such a way that does not permanently injure the bamboo or adversely impact the bamboo’s physical integrity.  A victim of invasive bamboo may also assert claims based on traditional trespass and private nuisance[1] and seek recovery of money damages for the consequences of the trespass and/or an injunction against future trespass or nuisance.


[1] See, e.g., Yager v. Thompson, 1 Misc.3d 902A (District Ct., Nassau Co. 2003), affirmed, 8 Misc.3d 138A (App. Term 2005).