In April of 2016 we published the blog entitled “Mining in the Hamptons: Appellate Division Affirms Town of Southampton Zoning Board of Appeals Limitations on Pre-existing Nonconforming Uses Associated with Hamptons Mining Operation.” Despite the Appellate Division’s decision regarding certain pre-existing nonconforming uses occurring on the site, Sand Land Corporation’s (“Sandland”) pre-existing mining use of the property was never at issue, until now.

In January 2018, the New York State Department of Environmental Conservation (“DEC”) issued a determination entitled “Ruling of the Chief Administrative Law Judge on Threshold Procedural Issue, January 26, 2018” essentially halting the DEC’s review of Sandland’s mining permit application until further information was submitted by the Town of Southampton. Sandland, was authorized pursuant to a Mined Land Reclamation Law (MLRL) permit issued by the DEC to mine sand and gravel from 31.5 acres of the 50 acre site to a depth of 160 feet above mean sea level, which is 60 feet below the surface elevation at 220 feet. In January of 2014, Sandland submitted an application to the DEC to expand its current permit to mine 4.9 additional acres and excavate the floor of the mine to 120 feet above mean sea level- lowering the mine floor by 40 feet. The DEC notified the applicant that a permit modification to expand the mine “beyond its previously approved life of mine boundaries” was considered a “new application”, classified as a “major project” and required a statement that mining was not prohibited at the site.

NYS Environmental Conservation Law (“ECL”) §23-2703, Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criteria having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer. Opponents of Sandlands’ application argued that because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

ECL §23-2711(3) requires that the DEC notify the Town’s “Chief Administrative Officer” for properties not previously permitted pursuant to that title and seek input regarding whether mining is permitted on site.[1] The Town responded with a letter noting the Certificate of Occupancy authorizing mining on site but noted that if the DEC was characterizing this as a new mine, that new mines are prohibited in all zoning districts.[2] The Town further noted the location of the property in the Aquifer Protection Overlay District and requested that the reclamation of the property be expedited to allow the property to be used for conforming residential purposes. However, the Town did acknowledge that “certain nonconforming uses, if they are established to pre-exist zoning, are allowed to continue and even expand under certain circumstances pursuant to Town Code §330-167B”.

Additionally, the Town Code provides for the continuance of nonconforming uses pursuant to §330-115 which states, “Any lawful use occupying any building, structure, lot or land at the time of the effective date of this chapter or any amendment thereto which does not comply after the effective date of this chapter or any amendment thereto with the use regulations of the district in which it is situated may be continued in the building or structure or upon the lot or land so occupied, except as provided in § 330-119.”[3]

The DEC held a hearing where the applicant argued that the application only sought renewal of an existing permit for a lawful preexisting nonconforming use. Ultimately, however the DEC Administrative Law Judge held that ECL § 23-2703(3) prohibits the DEC from processing mining permits for mines located in towns such as the Town of Southampton, Suffolk County, where the county, with a population of over one million people, draws its primary drinking water for a majority of its residents from a designated sole source aquifer, and the town has a local law prohibiting mining in the town. Additionally, the Administrative Law Judge found that Sandland had not established that the proposed mine expansion was authorized under the Town’s local zoning laws. The reviewing Judge adjourned the matter pending submission of proof adequate to establish that applicant’s proposed mine expansion is authorized under the Town’s local law.

As determined by the New York State Court of Appeals, a prior nonconforming use for mining is unique in that it is not limited solely to the land that was actually excavated before the enactment of a restrictive zoning law (in this case, March 27, 1983) but extends well beyond.[4] The well-known Court of Appeals case, Syracuse Aggregate, established that pre-existing mining rights extend to the boundaries of the property regardless of whether that specific area was mined prior to the change in the zoning law. In examining the nature of mining as a nonconforming use the Court stated:

“By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” [5]

In furtherance of this premise, the Court of Appeals in Buffalo Crushed Stone extended that holding to properties purchased in contemplation of mining that are separate and apart from the original mined parcel.[6] The Court stated,

“Consequently, a prior nonconforming use for quarrying cannot be limited solely to the land that was actually excavated before the zoning law, because-in this unique type of industry- landowners commonly leave portions of their land as mineral reserves to be excavated at a future time.[7]   Mine owners commonly leave portions of their land as mineral reserves to be excavated at a future time.”[8]

The question remains, then, how this administrative court essentially halted the continuation of this “unique” mining operation that pre-exists zoning via the DEC permitting process without applying or even considering this well-established line of Court of Appeals cases.  Indeed, the reviewing Administrative Law Judge did cite the Syracuse Aggregate case but only for the following premise: “A town’s authority includes not only the power to prohibit the development of new mines ( see id. at 684), but to impose reasonable restrictions limiting the expansion of and eventually extinguishing prior nonconforming mining uses within the town (See Matter of Sand Land Corp. , 137 AD3d at 1291-1292; Matter of Syracuse Aggregate Corp. v Weise , 51 NY2d 278, 287 [1980] Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison , 1 NY3d 561, 562 [2003] [Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination.]).”

However, the Judge failed to take notice of the Court of Appeals holding in Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164, 664 N.E.2d 1226 (1996), upholding a zoning law banning mining except for preexisting operations. “Towns may not directly regulate mining, but they retain the power to zone — even to zone out mining totally, as long as non-conforming uses are protected, as the Constitution mandates, to prevent a de facto taking.” See McKinney’s Practice Commentaries to NYS Environmental Conservation Law 23-2703 , Philip Weinberg (emphasis added).

Procedurally, Sandland’s mine permit expires in November of 2018. The matter was appealed administratively in a motion to reargue, a second hearing took place and we look forward to the Administrative Law Judge’s ruling.

 

[1] ECL §23-2711(3) further states,(a) The chief administrative officer may make a determination, and notify the department and applicant, in regard to: (i) appropriate setbacks from property boundaries or public thoroughfare rights-of-way, (ii) manmade or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof, (iii) the control of dust, (iv) hours of operation, and (v) whether mining is prohibited at that location. Any determination made by a local government hereunder shall be accompanied by supporting documentation justifying the particular determinations on an individual basis.

[2] Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix-Concrete Inc. v. Town of Southampton et al., 104 A.D.2d 499 (1984).

[3] Town Code § 330-119, Compulsory termination of nonconforming uses, bars, taverns and nightclubs, addresses the amortization of pre-existing nonconforming nightclubs.

[4] Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150 (1980); Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(stating “quarrying contemplates a gradual unearthing of the minerals in the land, as so excavation of portions of the land may be sufficient to manifest an intention to conduct quarrying on the property as a whole.”)

[5] Id. at 285, 434 N.Y.S.2d 150 (citations omitted).

[6] Buffalo Crushed Stone, Inc., 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(confirming the mining company had the vested pre-existing right to mine a separate parcel, “subparcel 5” which was not mined by its predecessors and separated by a road from the larger mined area.)

[7] Id. at 401.

 

[8] Id. at 396 stating, (“we hold that the long and exclusive quarrying operation of BCS and its predecessors and their preparations to use areas left as aggregate mineral reserves, consistent with the nature of quarrying, established a right of prior nonconforming usage on the disputed subparcels”).

Measuring the height of a structure may seem straightforward in the abstract, but sometimes in practice that is not the case. Take, for instance, a recent Southampton Town Zoning Board application – Matter of the Application of Hermann – where the height of a house was the subject of a challenge in front of the Zoning Board.

During construction of a residential dwelling, several stop work orders were issued and lifted based upon evidence submitted to the Building Inspector from different surveyors attempting to determine the height of the single family dwelling. Mostly the argument surrounded an interpretation of the term “average natural grade”, which is the point of measurement on the ground in Southampton. This case was complicated by two factors. First, the property was disturbed from the construction of a prior dwelling demolished to make way for the new dwelling. During the demolition the grade was lowered to accommodate a larger basement. Second, there was a ten foot change in slope from one side of the house to the other.

SOUTHAMPTON TOWN ZONING CODE

Southampton Town Zoning Code provides specific guidance for measuring the height of a structure in §330-5 “Definitions” which defines “Height of a Structure”. Section B of that definition states:

“In all other cases, the vertical distance measured from the average natural elevation of the existing natural grade (before any fill has been or is proposed to be placed thereon) as established on a plan prepared by a licensed professional surveyor, at and along the side of the building or structure fronting on the nearest street to the highest point of the highest roof or, in the case of a structure, to the highest point. On all flag lots and lots utilizing a right-of-way, the flagpole access or right-of-way shall be considered the street front.” (Emphasis added)

So, the challenge to the property owner was twofold:

  1. Determine a reasonable methodology to establish “average natural grade” on a previously disturbed lot; and
  2. Apply that methodology to a property that contained a significant slope.

PRIOR ZONING BOARD DECISIONS

Fortunately, the Zoning Board had decided two previous cases involving height variances that centered on determining average natural grade. In the Matter of the Application of Schwartz, the Board initially observed that determining the average natural grade of a parcel of property was an inexact science. Next, the Board determined that using spot elevation data and the Topographic Map of the Five Eastern Towns was a reasonable methodology in determining average natural grade. Finally, the Board determined that a single measurement or data point along a building line was insufficient and that at least two data points must be used to determine average natural grade which would then be the basis on which to measure height.

Approximately a year and a half later, the Zoning Board decided a similar application, the Matter of the Application of Rubin. In Rubin, the Board followed Schwartz by making these findings:

  • Measuring contours and topography is an inexact science.
  • Site specific topographical data is the most accurate piece of information necessary to determine average natural grade.
  • Interpolation of data derived from survey maps and site-specific topographical data is a reasonable way to determine grade issues.

STANDARD

Applying the findings in Schwartz and Rubin, site-specific elevation data combined with the most recent contour mapping available will allow a licensed surveyor to determine contour lines and use these contour lines to determine height.

APPLICATION TO HERMANN

The property owner in Hermann engaged a surveyor who used the following data to determine average natural grade:

  • 1956 Topographical Map prepared by the U.S. Coast Guard
  • 1973 Photographs of Original Foundation under Construction
  • 1974 Five Eastern Towns Topographical Map
  • Actual field data
  • 2007 LiDAR Contour Map
  • 2012 LiDAR Contour Map
  • Field Observation of Surrounding Topography of adjacent lot
  • 2015 Under Construction Photographs of the Current Foundation
  • Actual Height Measurement

Using that information, the surveyor made a determination that the house exceeded the permitted height, and the property owner had to obtain a variance. The request for relief was significantly less than that alleged by the neighbor, and the variance request was ultimately granted. In the Hermann decision, the Board found that the methodology used by the property owner’s surveyor to be the most meaningful and likely accurate because it incorporated the above data.

CONCLUSION

To determine the height of a building – at least in Southampton – a surveyor must consider all of the data available, especially when the property is already disturbed. It is also suggested that a property owner or surveyor provide the Building Inspector with the methodology used to determine average natural grade in advance of construction, so violations of height restriction are avoided.

As outlined in our prior blog by Anthony S. Guardino, posted on March 20, 2017 entitled, “East Hampton Considers New Laws Mandating Nitrogen-Reducing Sanitary Systems and Offering Rebates to Replace Existing Systems”, similar to the Towns of East Hampton and Brookhaven,  the Town of Southampton adopted a local law on July 25, 2017 requiring advanced nitrogen-reducing sanitary systems starting September 1, 2017.

The Town will require an Innovative and Alternative On-Site Wastewater Treatment System (“I/A OWTS”) for (i) all new residential construction; (ii) any substantial septic upgrades required by the Suffolk County Department of Health Services; and (iii) any increase of 25% or more in the floor area of a building for those projects located in the “High Priority Area” as defined by the Community Preservation Water Quality Improvement Plan Project (“CP WQIPP”). In addition, an I/A OWTS shall be required for any new septic system or a substantial septic system upgrade required by the Conservation Board or Environment Division pursuant to Town Code Chapter 325, Wetlands.

The I/A OWTS is defined in the Town Code as “an onsite decentralized wastewater treatment system that, at a minimum, is designed to result in total nitrogen in treated effluent of 19 mg/l or less, as approved by the Suffolk County Department of Health Services.”

Southampton is also offering a rebate program through its Community Preservation Fund for systems within the Medium and High Priority Areas of the CP WQIPP with the following qualifying limits: (i) if you earn less than $300,000 /year, up to 100% of the cost to a maximum of $15,000 is available and (ii) if you earn between $300,001 – $500,000/year, up to 50% of the cost to a maximum of $15,000 is available.

Prior to implementing the updated septic requirements, the Town of Southampton studied the need for such systems and drafted the Community Preservation Water Quality Preservation Plan Project. The CP WQIPP thoroughly identifies and reviews the need for the required sanitary upgrades, finds consistency with the Town’s Comprehensive Plan and outlines how the Town characterized the high and medium priority properties that are now required to comply with the law.

Specifically, the CP WQIPP states:“The WQIPP presented herein is designed to complement the 2015 Town of Southampton CPF Project Plan, by markedly advancing efforts to foster aquatic habitat and watershed restoration, promote flushing in our bays and tidal systems, abate non-point source pollution and runoff, reduce sewage discharges and nitrogen inputs, and reverse or stem other activities threatening our coastal resources and drinking water aquifers.”

The Town of Southampton has preliminarily mapped priority areas for the purpose of this plan, based on the following criteria:

  •  Locations with no public water (well water);
  • Older communities, where many of the homes are likely to have cesspools instead of septic systems;
  • Homes that are built on small lots (less than half-acre);
  • Sites that have shallow depths to groundwater (e.g. less than 10 feet);
  • Sites that may be temporarily under threat of flooding or storm surge (FEMA Flood zones, SLOSH7 zones);
  • Soils that may be too porous or too impermeable for proper treatment of wastewater;
  • Areas where groundwater reaches surface water bodies relatively quickly;
  •  Nearby water bodies listed as TMDL impaired or the site of restoration efforts.

Parcels in each hamlet that meet one or more of these criteria are delineated on the maps as high or medium priority as follows:

High Priority: A combination of the parameters described above (SLOSH, FEMA, TMDL, Size, etc.) and 0-2 year groundwater to surface water travel times.

Medium Priority: 0-10 year groundwater to surface water travel times excluding the areas in the High Priority above.

The CP WQIPP also includes maps of the entire Town delineating the High Priority Areas (all waterfront/coastal properties in the Town) and Medium Priority Areas. Although these low nitrogen systems require ongoing monitoring and maintenance, the Southampton law does not require ongoing inspections by the Town.  The Town of Southampton has set up a helpful website where property owners can look up their specific property to determine if they are located in a High or Medium Priority area.  Notably, the Town of East Hampton adopted its local law requiring nitrogen-reducing sanitary systems on August 8, 2017, however, the portion of the law requiring the new, nitrogen-reducing sanitary system does not take effect until January 1, 2018.

 

The New York State Uniform Fire Prevention and Building Code (“Uniform Code”) sets forth uniform building and fire prevention standards for New York State.  Article 18 of the NYS Executive Law requires municipalities within the State to administer and enforce the Uniform Code within their boundaries. Executive Law §379(3) states, “…no municipality shall have the power to supersede, void, repeal or make more or less restrictive any provisions of this article or of rules or regulations made pursuant to [the Uniform Code].”

However, a municipality may adopt more stringent local standards provided it petitions the NYS Code Council for a determination of whether such local laws or ordinances are reasonably necessary because of special conditions prevailing within the local government and that such standards conform with accepted engineering and fire prevention practices and the purposes of the Uniform Code. Executive Law §383. The adoption of more stringent laws that have successfully petitioned the NYS Code Council are available at https://www.dos.ny.gov/dcea/mrls.html (the majority of which relate to sprinklers or fire prevention codes).

Whether a particular local law or regulation is superseded depends upon whether it is inconsistent or in conflict with provisions of the Uniform Code. Local laws enacted pursuant to other municipal powers for example, under zoning or wetlands protection, are recognized as legitimate areas for government regulation and may also regulate the construction and use of buildings in municipalities.

Not so subtle conflicts between zoning laws and the uniform code exist in many municipalities requiring that these laws be considered and applied together. For the most part, courts reject arguments claiming local laws are preempted by the Uniform Code or invalid based upon a failure of the municipality to appeal the local law to the NYS Code Council. Brockport Sweden Property Owners Ass’n v. Village of Brockport, 81 A.D.3d 1416, 917 N.Y.S.2d 481 (4th Dept. 2011)(rejecting that local law was preempted by Uniform Code); Catskill Regional Off-Track Betting Corp. v. Village of Suffern, 65 A.D.3d 1340, 886 N.Y.S.2d 214 (2d Dept. 2009)(finding OTB failed to establish that Village Code improperly superseded the Uniform Code); People v. Robles, 22 Misc.3d 140 (A), 881 N.Y.S.2d 366 (Sup.Ct. App. Term 2009)(rejecting claim that Uniform Code preempted the City of Glen Cove code on the merits, finding an expressed interest in statewide uniformity rather than an implied statement of preemption); People v. Oceanside Institutional Industries, Inc., 15 Misc. 3d 22, 833 N.Y.S.2d 350 (Sup. Ct. App Term 2007)(finding that Uniform Code and Nassau County Fire Prevention Ordinance can coexist and applying more stringent sections of codes in conflict).

With the advent of Airbnb and like services, short term rental regulation has become a hot topic on the East End. A review of the occupancy standards in local rental codes and the Uniform Code for single family residences provides a noteworthy example of the local municipality/state regulation inconsistency.

Municipalities use the definition of “family” to limit the number of occupants permitted in single family residences and thereby control the use of homes in residential zoning districts. On the East End, Southampton and East Hampton Towns have used the definition of family to limit the number of persons occupying a rental property under their rental codes. See Southampton Town Code Chapter 270 and East Hampton Town Code Chapter 199  limiting the definition of family to include five or less unrelated persons living together (Southampton) or four or less living together as a single housekeeping unit (East Hampton).   Alternatively, both codes allow an unlimited number of persons that are related by blood, marriage, or legal adoption to reside together provided they live as a single housekeeping unit.

In addition to Town regulations addressing and limiting single family residence occupancy, the New York State Property Maintenance Code regulates occupancy by limiting the number of occupants per square foot per bedroom. Specifically, Property Maintenance Code §404.4.1 requires that “every bedroom occupied by one person shall contain at least 70 square feet of floor area, and every bedroom occupied by more than one person shall contain at least 50 square feet of floor area for each occupant thereof.”

The Property Maintenance Code does not define family but only references occupant which is defined as “an individual living or sleeping in a building.” Therefore, even if the group of persons renting a home in Southampton or East Hampton qualify as family and are not limited under the rental code definitions, compliance with the Property Maintenance Code is still required (notably, East Hampton and Southampton eventually codified the same restrictions). This section of the property maintenance code specifically addresses overcrowding issues. To that end, the Property Maintenance Code also prevents a bedroom from being used as the only means of access or egress to another bedroom; each bedroom must have access to a bathroom without passing through another bedroom; and bedrooms must comply with the requirements for light, ventilation, room area, ceiling height, room widths etc.

Other examples of perceived conflicts include occupancy standards set forth for commercial structures and restaurants in the County Health Department Codes, Uniform Code and local laws; third stories or mezzanine laws and restrictions; standards for bedrooms in basements; and new energy codes including LEED, Energy Star or other ratings systems embraced in local laws that could require higher standards than the Uniform Code. Upon adoption of such local laws, petitions to the NYS Code Council for approval are recommended. See 3 N.Y. Zoning Law and Practice §32A:35, State Preemption of Local Laws, Patricia E. Salkin, November 2016 update.

Ultimately, the Uniform Code and local municipal codes must be read and applied together to ensure compliance.

The Town of Southampton recently held several public hearings to consider a local law requiring an updated certificate of occupancy prior to all property transfers. Specifically, the local law proposed amending Town Code §123-16, Certificate of Occupancy, to state that “upon any change in ownership of a property, an updated certificate of occupancy shall be obtained.” After consideration at several meetings, starting in December of 2016 and ending in March of 2017, the Town Board determined not to proceed with the amendment.

Many East End villages already require an updated certificate of occupancy prior to transfers of property, [1] however East Hampton, Southampton and Southold towns do not. During its public hearing process, the Town Board of the Town of Southampton waded through the many issues raised with regard to the impacts of requiring an updated certificate of occupancy upon both property owners and the Town Building Department. The Town considered allowing exceptions for those transfers conducted for estate purposes only and those transfers between individuals and corporations, limited liability companies, trusts or other entities where the majority shareholder would be the same as the prior fee title owners. Additionally, the Town was asked to consider those properties that cannot obtain an updated certificate of occupancy upon transfer due to over-clearing where compliance requires significant re-vegetation of the property and in certain circumstances Planning or Conservation Board approvals. Obviously re-vegetation cannot occur during the winter months and there is no temporary certificate of occupancy provision in the Town of Southampton’s code potentially putting property owners in a hurry to sell in a difficult situation.

The Appellate Division, Second Department, addressed an updated certificate of occupancy code provision in Lazy S Group I, v. Gomez, et al., 60 A.D. 3d 999, 876 N.Y.S.2d 473 (2d Dept. 2009). This case involved an action for specific performance of a contract for the sale of real property in the City of Peekskill where the contract required the seller to deliver a valid certificate of occupancy authorizing the use of the premises as a four-family dwelling. At closing, the parties learned that the certificate of occupancy for the premises permitted its use as a “three-plus” family dwelling but not as a four family dwelling and title did not close. Litigation followed and during that time period the City of Peekskill enacted a new provision of the Code of the City of Peekskill requiring that an updated certificate of occupancy be obtained before any improved real property that is transferred may be used or occupied. The code imposed the burden of obtaining the certificate of occupancy upon the seller “unless the parties agree otherwise in their contract of sale.” (Peekskill City Code §300-48A(3)). The Supreme Court granted the seller’s motion for summary judgment dismissing the complaint and directing the delivery of the down payment to the seller as liquidated damages. The Appellate Division reversed noting that while the City Code imposed the burden of obtaining an updated certificate of occupancy on the Seller unless the contract stated otherwise, the contract in this case was silent with respect to which party must obtain the updated certificate of occupancy. Thus, the Court found that triable issues of fact existed as to whether the communications between the parties and conduct of the parties at closing constituted any agreement with regard to the updated certificate of occupancy and whether there was a breach and if so, which party was in breach of contract. This case illustrates issues that arise when updated certificates of occupancy are required by municipalities and further illustrates the benefit of addressing such matters with specificity in the contract of sale. Indeed, most real estate attorneys require updated certificates of occupancy in their riders to the contract and are successful in obtaining same unless the property is being sold “as is” or there are existing illegal structures that would take a significant amount of time and village/town approvals to cure (as in the case of those over-cleared properties that require costly re-vegetation and further town approvals).

Requiring updated certificates of occupancy for real property transfers burdens homeowners with legalizing all structures on their property and necessarily can delay real estate transactions to the chagrin of real estate brokers. However, the law would obviate any need for protracted and often difficult negotiations regarding properties that do not comply with the law or have existing, illegal structures and would therefore be welcomed by most attorneys. Regardless, for real property transfers in the East End towns, attorneys must continue to resolve such matters through contract negotiations.

[1] See Village of Quogue; Village of Sag Harbor Code §300-17.3(B); Village of Southampton Code §A119-8(A); Village of North Haven Code §55-7(A); Village of Westhampton Beach Code §197-64(C); & Village of East Hampton Code §104-11(A), among others.

Municipalities on Long Island are struggling to control rental properties. In Southampton, rental properties are governed by Chapter 270 of the Southampton Town Code (the “Code”). Section 270-3 of the Code establishes that an owner of a residential property shall not permit or allow its use or occupancy as a rental without first obtaining a permit. If an owner does rent without a permit, section 270-13(a) of the Code prohibits the owner’s collection of rent.

In Schwartz v. Torrenzano, 49 Misc.3d 943, 16 N.Y.S.3d 697, (Suffolk Co. 2015), the Supreme Court held that Southampton’s rental permit law creates a private cause of action allowing, in certain circumstances, a tenant to recoup rent paid to its landlord. The trial court’s holding in Schwartz was recently cited with approval by the Appellate Division, Second Department in Ader v. Guzman, 135 A.D.3d 671, 23 N.Y.S.3d 292 (2d Dept. 2016).

In Ader, tenants demanded the return of their rent after discovering that their summer rental lacked a permit. The Appellate Division, relying in part upon Schwartz, affirmed the Supreme Court’s holding that the Code affords tenants an implied private right of action and that the Ader lease was unenforceable. The Appellate Division held that because Southampton’s rental permit law is intended to protect the public health and prevent fraud, enforcing the illegal lease and permitting the landlord to keep the tenants’ rent violates public policy.

In a companion case, Ader v. Guzman & Corcoran Realty Group, LLC, et al., 135 A.D.3d 668, 22 N.Y.S.3d 576 (2d Dept. 2016), the Appellate Division held that Real Property Law §443(4)(b) does not impose a duty upon real estate brokers to investigate whether a rental property is properly permitted. Despite the Court’s holding, the New York State Department of State, in a guidance letter dated April 19, 2016, cautioned that “notwithstanding the decision in Guzman, a broker who fails to demonstrate a working knowledge of the property being marketed, fails to demonstrate the level of competency required to transact business as a licensee in violation of Real Property Law §§441 and 441-c.” The Department further warned that a broker’s commission “premised upon an unlawful agreement is ‘unearned’ in violation of Real Property Law §441-c.”

It is clear that from the Department’s perspective that brokers must make reasonable efforts to verify the legal status of the properties they offer and that, where a broker has actual knowledge that a property lacks a permit or is otherwise illegal, such information must be affirmatively disclosed.

 

Canoe Place Inn, Hampton Bays
Canoe Place Inn, Hampton Bays, photo credit: www.27east.com

The Town of Southampton re-zoned three properties located in Hampton Bays adjacent or close to the Shinnecock Canal by amending the Town’s Zoning Code to add section 330-248(V), creating the Canoe Place Inn, Canal and Eastern District Maritime Planned Development District. This local law, adopted on January 13, 2015, provides for the rehabilitation of the Canoe Place Inn for use as an inn, catering facility, and restaurant. The law also provides for the development of a 37-unit luxury, waterfront town-house community and associated wastewater treatment facility on the Shinnecock Canal.   Four individual property owners/taxpayers formed an unincorporated community group called Shinnecock Neighbors to oppose the zoning changes and to challenge the local law via a hybrid Article 78 proceeding and declaratory action. In the case, entitled Shinnecock Neighbors, et al. v. Town of Southampton, R Squared Development LLC et al., 3 NYS3d 679 [Sup. Ct. Suffolk Co. 2016], the Shinnecock Neighbors allege, in part, that the local law should be deemed null and void because the Town Board failed to comply with the New York State Environmental Quality Review Act (“SEQRA”) and take the requisite hard look at the potential environmental impacts of the proposed development. Several of the respondents moved to dismiss the petition and complaint on the grounds that the petitioners lacked standing. In an order dated August 30, 2016, the Hon. William B. Rebolini, Justice of the Supreme Court, Suffolk County, dismissed the motion and held that the four petitioners and their unincorporated community group, Shinnecock Neighbors, had the requisite standing to bring the proceeding/action.

As noted in the decision, in order to establish standing in a land use matter, a party “must suffer direct harm (i.e., injury-in-fact) that is in some way different from that of the public at large and, further, that the claimed harm is within the zone of interests protected by the statute or statutes alleged to have been violated.” Shinnecock Neighbors v. Town of Southampton, 3 NYS3d at 683. An organization or association such as Shinnecock Neighbors has standing when one or more of its members has standing to sue, the association demonstrates that the interests it asserts are germane to its purpose, and it is evident that neither the asserted claim nor relief requires the participation of its individual members. (See Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 570 NYS2d 778 [1991]; Matter of Dental Society of State of NY v. Carey, 61 NY2d 330, 474 NYS2d 262 [1984]).

Three of the four individual petitioners owned residential properties within 500 feet of the proposed wastewater treatment facility. As a result, the Court found that these three individuals had standing and stated, “[a]s it is alleged that each of them resides in close proximity to the proposed development, there arises a presumption that each will be adversely affected in a manner different from the public at large.” Shinnecock Neighbors v. Town of Southampton, 3 NYS3d at 684. Additionally, the Court found that their allegations of harm, including increased traffic, increased noise and air pollution, and degradation of the community from the proximity of the wastewater treatment facility were within the zone of interests protected by SEQRA and the Town’s zoning code. Id. at 684.

Interestingly, the fourth individually-named petitioner asserted a different rationale for standing. Although this petitioner lived about one mile from the canal and was not within the zone of interests protected by the statute, she claimed to be an environmental activist, professional artist and “art activist” who required access to the canal as it was a significant source of her creative inspiration and that the proposed development would have a profound negative effect on her work. The Court found that this fourth petitioner had standing and stated: “…her use and enjoyment of the area is more intense than that of the general public and, therefore, that she may be directly harmed in a way different in kind and degree from others…like claims of specific environmental injury, injury to a petitioner’s aesthetic and environmental well-being, activities, pastimes or desire to use and observe natural resources may also be found to state cognizable interests for purposes of standing.” Id. at 684. As each of the four petitioners had standing, the Court determined that the Shinnecock Neighbors also had the requisite standing. The underlying proceeding/action is still pending before the Court.

Back on September 6, 2016, this blog commented on the case of Matter of Long Island Pine Barrens Society, Inc. v Central Pine Barrens Joint Planning & Policy Commission, 138 AD3d 996 [2d Dept 2016]. In that case, none of the individual petitioners lived within the zone of interests. Nevertheless, the Appellate Division found that the Society had standing because one of the petitioners, the Society’s Executive Director, used and enjoyed the Pine Barrens to a greater degree than most members of the public. Thus, based on the holdings in the Shinnecock Neighbors v. Town of Southampton and Matter of Long Island Pine Barrens Society, Inc. v Central Pine Barrens Joint Planning & Policy Commission cases, an organization may have standing even though all its members reside outside the zone of protected interests if at least one member can articulate a rationale that shows he or she has an interest that is different from the general public, and that interest may be adversely impacted by the proposed action.

 

Several weeks ago, we wrote about the Village of Great Neck Plaza implementing a climate action plan to combat climate change.  We now report on the efforts of other municipalities on Long Island to implement sustainability plans and climate action plans that are aimed at preserving and protecting Long Island’s future.  Can these plans achieve the goal of ensuring the long-term viability of this region?

What Is Sustainability?

In its Statement of Qualifications, Sustainable Long Island defines sustainability as “a method of harvesting or using a resource so that the resource is not depleted or permanently damaged.”  In other words, sustainability seeks to meet present needs without compromising the resources available to future generations.  It is a melding of economic development, environmental health and social equity principles for the betterment of the earth and its current and future inhabitants. Sustainability focuses on conservation of resources, adaptation and innovation, and reliance on renewable resources.   It also relies on zoning and land use changes that encourage sustainable development practices.

Long Island’s Attempts At Sustainability Planning

Long Island Regional Planning Council’s Sustainability Plan

In December 2010, the Long Island Regional Planning Council issued its report entitled Sustainable Strategies for Long Island 2035, the first phase of its sustainability plan for the region.  The plan cautioned that unless entrenched notions for development and growth are changed, Long Islanders face an economic, environmental and social catastrophe. The plan’s components include: (1) tax and governance; (2) economy; (3) environment and infrastructure; and (4) equity.

The plan includes several different strategies for each component.  The economy component has nine strategies, several of which target innovations in energy efficiency, renewable energy technologies, affordable housing, worker training for 21st century jobs including jobs in health care, green energy, and remediation of contaminated sites.   The environment and infrastructure component has ten sustainable transportation strategies, including creating transit-supported communities and significant improvement to the public transportation system.  It also has six strategies for environment and infrastructure, including protection of water resources, developing regional energy and energy conservation programs, creating a “zero waste plan,” developing a climate change resilience plan to address sea level rise and coordinating emergency preparedness.  It also has four land use strategies that include protecting open space and farmland and protecting neighborhood character with location-compatible new development.  The equity component has five strategies, including the development of workforce housing, establishing training, education and employment centers in low-income and minority communities.

Suffolk County Climate Action Plan

Suffolk County adopted its Climate Action Plan in June 2015.  This Climate Action Plan is a framework to combat climate change and saves the county over $5 million per year from reduced energy use.  The county installed energy efficient condensing blocks, lighting upgrades, occupancy sensors, low-emissivity windows and HVAC upgrades in 30 county buildings.  It also installed solar photovoltaic array panels on new and existing structures, installed an electric vehicle charging station, and met the LEED standards for new construction and reconstruction of existing county buildings.  The plan calls for enactment of policies to evaluate cool/green roofs and other energy conservation techniques.  It is also conducting biodiesel pilot programs. It is looking at its handling of wastewater and is evaluating ways to decrease solid waste including recycling programs  and “paperless” county offices.  It is also taking steps to implement design guidelines for new residential, commercial and industrial buildings to reduce energy consumption and improve environmental quality.  The county is also looking at acquiring more open space (the county owns in excess of 162,000 acres of preserved land) as part of its sustainability plan.

The Town of Southampton Sustainability Plan

The Town of Southampton added a sustainability element to its comprehensive plan at the end of 2013. It is referred to as the Southampton 400+ Sustainability Plan.  This plan is aimed at maintaining the unique characteristics of the town; in particular, the scenic vistas, maritime heritage and world-class beaches.  In fact, the mission statement notes that the town is using the word “sustainability”  to mean sustaining and preserving the beauty, farmlands, woodlands, walkable village centers, culture and history of the town.  The town notes the plan is aspirational, to be used in the planning and land use process, but that policy, budget and legislative changes to implement the plan will be handled separately in the future.

The plan aspires to minimize human degradation of nature, improve fisheries and agricultural lands,  reduce the use of man-made persistent chemicals, reduce fossil fuel use and create vibrant economic prosperity, culture and learning.  It seeks to expand the Sustainable Southampton Green Committee website to provide information about living green in the town.  It also seeks to restore and protect the town’s ground and surface waters by expanding the Suffolk County Clean Water Coalition and continuing its efforts to develop a septic system inspection program.  It seeks to diversify the local economy, will promote the town’s “Safe and Sustainable” procurement policy and will expand the town’s website to encourage sustainable business practices.

On the land use side, the town notes it intends to promote the voluntary transfer of development rights to shift development away from sensitive and open space parcels.  It will also implement a Complete Streets policy, where appropriate, to encourage increased use of bicycles and walkable downtowns.   The town intends to develop a climate action plan to lower its carbon footprint and use alternative energy sources.  It is considering amending its town code to implement green building practices found in LEED and other similar third-party rating systems.

The Town of Huntington Climate Action Plan

The Town of Huntington adopted a Climate Action Plan in 2015.  It assessed municipal facilities and its operations, community-wide policies and initiatives , and climate change adaption and resiliency.   The town has already implemented energy conservation measures at Town Hall and other town-owned sites.  It upgraded HVAC systems and lighting and installed a 28kW solar photovoltaic generating system.  It conducted energy audits of its buildings.  It incorporated new energy requirements into the Town Energy Codes.  It is considering incorporating compliance with LEED principles in its building code as well as requiring green or cool roofs, improved insulation for new, and rehabilitation of existing, structures.  It is considering recommending the installation of solar panels on every facility that can reasonably support it.  It is looking at wind parks.  It is going to make additional upgrades to street lights and is looking at purchasing fuel efficient vehicles to replace its current fleet.  It intends to promote greater use of the HART bus system to raise ridership.  It is implementing paperless offices at town offices, reducing the use of Styrofoam and other disposal products and is considering a single town-wide water-wastewater district that includes sewered and un-sewered properties. It will consider reusing grey water where appropriate as well as ways to redesign recharge basins to enhance surrounding neighborhoods.

Okay readers, what do you think of these plans? Do you think they can achieve their goals of sustainability or decrease the impact on climate change? Let us know what you think.   We’d also like to hear from other municipalities regarding their sustainability and climate action plans.

Note: The author, Charlotte A. Biblow, a partner at Farrell Fritz, is president of the board of directors of Sustainable Long Island.

Located in the hamlet of Bridgehampton, Town of Southampton, a sand mine operation owned by Sand Land Corporation and run by Wainscott Sand & Gravel Corporation (“Sand Land”) had its zoning changed by the Town in 1972 from G-Industrial to CR Country Residence, now CR200, constituting five-acre residential zoning. Upon the zone change, the sand mine became a pre-existing nonconforming use. But now, this sand mine finds itself located in an affluent residential neighborhood with assessed values ranging from $1.5 million to $3.8 million.  The sand mine also abuts the posh Golf at the Bridge, (now known as The Bridge Golf Club), a private golf and country club. Naturally, the activity at the sand mine creates truck traffic, noise, dust and odors normally associated with such businesses, which is at odds with the residential and private golf club uses nearby.  However, the expansion of Sand Land’s business activities to include a mulching operation and concrete processing facility incited the neighbors to challenge the pre-existing use.

Sand Land v Southampton Town Zoning Board of Appeals

Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix Concrete v. Town of Southampton et al. Therefore, there is no other location in the Town where Sand Land could move and legally operate its mining operation.

In 2005, the neighbors (funded in part by the Golf Club owners) brought a Town Law §268(2) action to enjoin Sand Land from certain uses of its property. While the action was still pending, Sand Land sought a pre-existing certificate of occupancy from the Town Chief Building Inspector. In 2011, the Chief Building Inspector issued a pre-existing certificate of occupancy for (i) the operation of a sand mine, (ii) the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and (iii) the storage, sale, and delivery of sand, mulch, topsoil, and wood chips.  The Chief Building Inspector denied that Sand Land had a pre-existing use to receive and process concrete, asphalt, pavement, brick, rock and stone into concrete blend. The neighbors appealed the Chief Building Inspector’s determination to the Zoning Board of Appeals.

The Zoning Board found that Sand Land was entitled to the pre-existing sand mine use including the storage, sale and delivery of sand and receiving trees, brush, stumps, leaves, and other clearing debris as a pre-existing accessory use to the mining operation.  However, the ZBA found Sand Land was not entitled to a pre-existing certificate of occupancy for (i) the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and (ii) the storage, sale and delivery of mulch, topsoil, and wood chips. The Zoning Board found those uses to be new and an impermissible expansion of the nonconforming mining operation, stating, “there is no case law or holding to date that finds the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and the storage, sale and delivery of mulch, topsoil and wood chips to be a part of, or a natural outgrowth of, sand mining” citing, McDonald v. Zoning Board of Appeals of the Town of Islip, 31 A.D.3d 642 (2d Dept. 2006).

Southampton Town Zoning Board Prevails

Sand Land sued the Zoning Board. In a decision dated February 18, 2014, the trial court overruled the Zoning Board and re-instated the decision of the Chief Building Inspector. Sand Land Corp. v Zoning Board of Appeals, 43 Misc. 3d 1202 (Sup. Ct. Suffolk Co. 2014). The Zoning Board and the neighbors appealed.  A few weeks ago, the Appellate Division found “it was reasonable for the ZBA to conclude, in effect, that these “new uses” constituted a “significant change” from the nonconforming sand mine operation and the accessory receipt of various yard debris.  Accordingly, the Supreme Court erred in annulling the ZBA’s determination.” In the Matter of Sand Land Corp. v Zoning Board of Appeals, 2016 Slip Op. 02372 (Appellate Division, 2d Dept March 30, 2016).

Is this Truly a Win for the Town and its Residents?

The ZBA can celebrate its reasoned determination being upheld, but the result of its determination created a practical difficulty within the Town. Sand Land may choose not to accept delivery of trees/brush, stumps, leaves, and clearing debris, since it is not permitted to process and sell it. Numerous East End businesses used Sand Land as the site where they brought their refuse. According to the ZBA determination, even the Town of Southampton itself used to bring debris to the site.  This forces local landscaping and other businesses in the Town to travel farther to find a permitted receiving area to dispose of their refuse.  Indeed, Newsday reported Supervisor Jay Schneiderman stating, in response to the Appellate Division’s decision, “there is clearly a need to process yard waste” and that “he is trying to find ways to expand the capacity of the town’s three disposal sites to accommodate the waste.”

This is a perfect example of the difficulty with certain preexisting nonconforming uses. Although considered a nuisance by neighbors, they can be invaluable to a different faction of the community; in this case the landscaping business community, which plays an important role in keeping the Hamptons beautiful!

bulkhea1Villages of Quogue and West Hampton Dunes – The New York Court Of Appeals recently rejected the Town of Southampton Trustees’ appeal to regulate structures along the shoreline in the incorporated villages of the Town.  The cases involved parallel Second Department decisions in the villages of Quogue and West Hampton Dunes, where homeowners constructed shoreline-protecting structures without permits from the Trustees. The Trustees claimed to have jurisdiction over such matters, based on colonial patents.  Pursuant to a 19th-century state law, the Appellate Division decisions eviscerate Town Trustees’ jurisdiction in incorporated villages.

The denial of certiorari by the Court of Appeals,  the State’s highest court, is a major win for the Villages, and is the proverbial “nail in the coffin” of the Town Trustees’ long-held policy of regulating and prohibiting shore-hardening structures in villages throughout Southampton.  It will be interesting to see how the Town Trustees and the Villages will handle such a sea change.

An earlier Long Island Land Use & Zoning blog post concerning the appellate court rulings can be found here.