Last week, we reported on a $10 million award issued by the State to help revitalize downtown Hicksville. Well, the Governor is at it again. On August 8th, Governor Cuomo announced the winners of the third round of the Downtown Revitalization Initiative; and Central Islip is the big winner on Long Island.

The State’s Downtown Revitalization Initiative, started in 2016, is touted as being “a comprehensive approach to boosting local economies by transforming communities into vibrant neighborhoods where the next generation of New Yorkers will want to live, work, and raise a family.”   The ten Regional Economic Councils each get to select one downtown from its region “that is ripe for revitalization and has the potential to become a magnet for redevelopment, business, job creation, greater economic and housing diversity, and opportunity.” The selection is made from communities that submit applications to the applicable Regional Economic Council. The criteria for selection “includes: physical environment, past investment, future potential, recent or impending job growth, support for the local vision, and readiness.” The Village of Westbury was Long Island’s first round winner. Hicksville was its second round winner.

The Downtown Revitalization Initiative process is described in great detail in the State’s April 2018 Downtown Revitalization Initiative Guidebook.  The revitalization effort starts with a Local Planning Committee.  This committee, composed of local stakeholders, oversees the development of the strategic plan for the redevelopment.  The State provides this committee with support and technical assistance from a team of planners and consultants. The process also includes public engagement initiatives “to enable residents, public and private agencies, community organizations, local businesses, and institutions of learning to work towards a shared vision for a more vibrant downtown.”

So what is Central Islip’s proposed vision for a more vibrant downtown? According to the Central Islip Application submitted to the Long Island Regional Economic Council, the vision for Central Islip’s downtown includes:

    • Transit oriented development aimed at encouraging transit use and other forms of green transportation. This priority will center around the former Central Islip Train Station on Carleton Avenue.
    • Purchasing blighted and underused properties for use as parking facilities to increase downtown parking and facilitate redevelopment.
    • Rezoning and lot consolidation to encourage downtown redevelopment and growth, eliminating uses that are not compatible with a downtown, such as vehicle repair shops, and consolidating substandard lots to make them usable and encourage appropriate development.
    • Redeveloping the former Central Islip train station property, which would include transforming a brownfield site into a parking lot for an adjacent vacant piece of property owned by the Town’s Community Development Agency.
    • Expanding the Central Islip LIRR Train Station parking lot by adding 100 new parking spaces.
    • Acquiring and constructing cross access easements between Town parking facilities and adjacent properties to create shared parking to assist with traffic flow and mitigate traffic hazards along Carleton Avenue.
    • Redeveloping the former Central Islip Fire House into a mixed-used building or community center.
    • Implementing the Town’s Complete Streets Policy throughout the downtown to enhance affordable transportation, driving commerce in downtown, calming traffic and enhancing the general health and welfare of the residents of the Central Islip community.
    • Constructing Traffic Roundabouts and other safety mitigation techniques.

This expansive and impressive vision will take time to achieve, and the $10 million award is only a fraction of the investment that will be needed to achieve it. Hopefully, the Town of Islip is able to convert its vision into a thriving downtown for the Central Islip community. Stay tuned.

Last April, my colleague Anthony Guardino blogged about the Town of Southold’s local law banning “transient rental properties”, which Southold defined as dwellings that are rented out for less than fourteen nights at a time.   Now the Town of Huntington, New York is considering enacting a similar local law.

Huntington’s Proposed Ban

house for rent shutterstock_84704473The Town of Huntington proposes to ban short-term rentals a/k/a “transient rental property” of less than 30 days. The proposal also would prohibit the issuance of rental permits to transient rental properties.    If you are interested in commenting on this proposal, you should attend the public hearing, which is scheduled for Tuesday evening, January 10, 2017 at 7:00 p.m. in Town Hall, located at 100 Main Street in Huntington.

According to the sponsors of the proposal, council members Mark Cuthbertson and Tracey Edwards, complaints have been received over the past year from neighbors of residences who rent out rooms on a short-term basis, raising quality of life issues. The rooms are often advertised on Airbnb, Home Away and VRBO websites. Town rental permits typically are not obtained for these units, meaning they are not certified as meeting Town Code requirements. The Town permits bed-and-breakfast facilities, (referred to as Bed-and-Breakfast Homestays in the Town Code), but these facilities require approval from the Town Board to lawfully operate.

Town of Islip’s Short-Term Rental Law

The Town of Islip enacted a local law on December 15, 2015 concerning transient rental property.  Under the Islip Town Code, a dwelling unit is presumed to be transient rental property if it is advertised on short-term rental websites and is offered for less than fourteen nights. Interestingly, and not surprisingly, the definition excludes dwelling units located on Fire Island. (Islip Town Code § 68-649).  Islip requires a rental occupancy permit to lawfully rent out a dwelling unit and prohibits a rental occupancy permit being granted to transient rental property. (Islip Town Code § 68-650).

Village of Great Neck Estates Short-Term Rental Law

The Village of Great Neck Estates enacted a local law on October 10, 2016 that prohibits transient dwelling units in all zoning districts unless a transient dwelling unit permit is obtained from the Village.  Such permits only can be issued twice a year for any particular dwelling unit, must specify the proposed occupant on the application and are not transferrable to other occupants. (Village of Great Neck Estates Code § 230-22).  A transient dwelling unit covers a rental that lasts less than eight consecutive days, and a unit that is advertised on short-term rental websites is presumed to be a transient dwelling unit.

Stay tuned for an update after Tuesday’s public hearing.

By decision dated March 13, 2014, the Appellate Division, Second Department, upheld a trial court decision in Harbor Park Realty, LLC v. Modelewski, affirming certain relief granted by the Town of Huntington Zoning Board of Appeals (“ZBA”) to 1033 Fort Salonga, LLC, et al.  (hereinafter “1033”)  for a depth extension into a residential zone and parking, steep slope and retaining wall variances.  In upholding said relief and dismissing an Article 78 proceeding filed by  Harbor Park Realty, LLC, (“Harbor Park”), a nearby property owner, the Appellate Division  paved the way for 1033 to construct a commercial building to serve in relocating 1033’s Wine and Spirit’s business from Harbor Park’s Norwood shopping center to a nearby property.  Relocation of the Wine and Spirit’s store resulted in Harbor Park’s loss of its anchor tenant.

At first blush, the Appellate Division decision in Harbor Park resembles most Article 78 proceeding decisions involving the question of whether the decision of the ZBA was in keeping with the balancing test set forth in  Town Law 267-b(3)(b) and insuring that the decision of the ZBA was not illegal, arbitrary and capricious or an abuse of discretion.  In upholding the trial court decision, the Appellate Division stated that the “ZBA engaged in the balancing test prescribed by Town Law 267-b(3)(b), and properly found that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood.”  See, Matter of Pecoraro v. Board of Appeals of Town of Hempstead; Matter of Daneri v. Zoning Board of Appeals of the Town of Southold.  

However, upon review of several newly reported Appellate Division decisions, a second decision dated April 30, 2014, Harbor Park Realty, LLC v. Mandelik, caught my eye.  In Mandelik, the same property dispute was reviewed again. However, in Mandelik, petitioner Harbor Park sought review of site plan approval granted to 1033 by the Huntington Planning Board.  In upholding the site plan approval, the Appellate Division stated “[a] local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board’s actions was illegal, arbitrary and capricious, or an abuse of discretion. See, Matter of Hejna v. Planning Board of Village of Amityville.  Finding that the decision of the “[P]lanning Board of the Town of Huntington had a rational basis, and was not illegal, arbitrary and capricious, or an abuse of discretion” the appeal was dismissed.

In light of the legal challenge to the decisions of both the ZBA and the Planning Board, I thought it worthy to give the trial court decision a read.  This is where the sour grapes ripened.  Harbor Park is the owner of a shopping center wherein 1033’s Wine and Spirits store is the anchor tenant.  1033 purchased an adjacent property and sought to relocate the Wine and Spirits business to the newly developed site.   The ZBA and the trial court both noted that Harbor Park benefitted from the same depth extension that 1033 sought.  Fairness and equity dictated that Harbor Park could not object to 1033’s request for the same relief that Harbor Park received.  Further, the trial court noted that “[t]he petitioner’s arguments directed at the lot and size variance, parking issues and the steep slope variance appear really concerned not with claims of arbitrariness or capricious conduct by the ZBA (especially in light of the steep slope issues and depth extension at the other commercial establishments in the area) but rather its own economic interest because a valued and ‘anchor’ tenant is leaving to occupy the adjoining property.”

When the facts of a land use case involve parties who enjoy a business relationship, joint economic interest or even business competition, a land use practitioner should be  prepared for a court’s potential skepticism regarding a land use challenge.  If it appears to the Court that the objector is most likely looking to protect its economic interest instead of challenge an arbitrary land use decision, it is unlikely that the objector will prevail.  As noted in Genovese Drug Stores, Inc. v. Town Board of the Town of Islip, wherein the Court dismissed an Article 78 proceeding commenced by Genovese when CVS sought to located across the street, the Court stated that “the only legitimate objection to the determination of the Board’s (site plan approval) by Genovese would be increased competition as a result of the construction of a CVS pharmacy, and zoning laws do not exist to insure limited business competition.”

In what is believed to be unprecedented among zoning boards on Long Island, the Town of Islip Zoning Board recently permitted applicants to proffer testimony in support of their zoning application through the use of live video conferencing.  The applicants, who were clients of this firm, had purchased a summer residence in the community of Seaview on Fire Island in 2009, and soon discovered that an existing accessory guesthouse on the property did not have a Certificate of Occupancy.  Since the Islip Town Code no longer permits guesthouses on Fire Island, the applicants submitted an application to the Zoning Board seeking to establish their right to continue the guesthouse as a prior non-conforming use.  Under the Islip Town Code, the right to continue a prior non-conforming use must be established by proof that the structure was continuously used for the non-conforming use since prior to 1978, which is when the zoning regulations were amended to prohibit guesthouses.

In support of their case, the applicants submitted affidavits from two individuals to demonstrate the requisite continuity of use, but they were rejected by the Board on the basis that the affiants could not be questioned on their sworn statements.  One of the affiants, and the applicants’ primary witness, owned the property from the early 1970s to 2007, and constructed the main dwelling and converted the existing accessory structure into a guesthouse by adding a bedroom, bathroom and utility room in 1977.  Unfortunately for the applicants, this person was an elderly woman who now resided in Florida and was unable to travel to Islip to personally appear before the Zoning Board.

In an effort to address the Zoning Board’s preference for live testimony and the witness’ inability to personally testify before the Board, attorneys from Farrell Fritz requested that the Zoning Board permit the applicants to introduce “live” testimony through the use of video conferencing.  The applicants’ attorneys argued that live two-way video conferencing has been recognized by Federal and State courts as an acceptable means for obtaining testimony in judicial and quasi-judicial proceedings because it achieves all of the purposes of live in-person testimony, including the ability to cross-examine a witness and assess the witnesses mental capacity, veracity, accuracy and credibility.  They also cited several cases where the courts permitted testimony by video conferencing in cases where, as in this case, the witness resided in another State and travelling would cause an undue hardship.

After much deliberation, the Islip Zoning Board granted the applicants’ request have their witness to testify from her Florida home by way of a video conference link to Islip Town Hall.  On April 3, 2012, the witness provided the Board with live video testimony that the accessory structure at issue was continuously used as a guesthouse for family members and friends each and every summer from 1977 to 2007, when she sold the property.  Other witnesses provided live “in-person” testimony attesting to the fact that the accessory structure was similarly used from 2007 to present.  At the conclusion of all testimony, the Zoning Board voted unanimously to approve the application and permit the accessory structure to continue to be used as a guesthouse as a prior non-conforming use.

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).