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In 1999, the Greenport Group, LLP (“Greenport Group”) acquired a 31 acre parcel of land located on the east side of Chapel Lane and the north side of the Main Road in Greenport in the Town of Southold. The southerly portion of the property was zoned “Limited Business” and the northerly portion was zoned “Hamlet Density”. When purchased, there were four buildings on the property, each containing two residential units that were part of a larger project to build multi-residence senior citizen housing, which had been approved for an additional 140 units. The Planning Board and Zoning Board of Appeals granted a conditional site plan and special exception approval for the construction of the multiple residence complex in or about 1976, with certificates of occupancy being issued for the four buildings on the property in 1984. The additional units were never built and no further construction took place on site.

On September 12, 2000, the Town Board of the Town of Southold adopted a local law, Local Law 20 of 2000, changing the zoning of the property to Residential Low Density, R-80. The R-80 designation increased the minimum lot size permitted on the property from 10,000 square feet to 80,000 square feet. The local law was filed with the Secretary of State on October 2, 2000. Thereafter, the Greenport Group filed a hybrid Article 78 proceeding and Declaratory Judgment action in Supreme Court on February 2, 2001, entitled Greenport Group, LLP and Adrienne Solof v. The Town Board of the Town of Southold, Index No. 01-2730, seeking a judgment declaring that the local law up-zoning the property was null and void. Greenport Group alleged that the Town Board’s actions were arbitrary and capricious, that the re-zoning subjected their property to disparate treatment and constituted reverse spot zoning, that they had vested rights in the prior zoning designations, that the rezoning was inconsistent with the goals of the Town Comprehensive Plan, and the rezoning constituted a regulatory taking of the property without just compensation. In response, the Town Board moved for summary judgment.

The Supreme Court, Suffolk County, by decision dated June 17, 2015, granted summary judgment in part, dismissing the Greenport Group’s claims that (i) the Town failed to comply with the notice requirements rendering the local law adoption invalid since plaintiff actually participated in the local law hearing, (ii) the Town’s adoption of the local law changing the zoning constituted impermissible spot zoning where Greenport Group failed to allege or offer evidence that the change was “for the benefit of the owner to the detriment of other owners”, (iii) that Greenport Group had vested property rights in the prior zoning of the property when no construction was performed on site in connection with the development prior to the zone change, and (iv) the re-zoning constitutes a taking without just compensation since Greenport Group citing an 80% diminution of the property’s value was deemed insufficient and failed to prove that the property was incapable of producing a reasonable return or that the economic value of the property was destroyed by the zone change.

The Supreme Court denied the Town’s motion for summary judgment relative to the second and fifth causes of action asserted by Greenport Group. The second and fifth causes of action asserted by the Greenport Group alleged that the Town Board’s adoption was arbitrary and capricious representing an unconstitutional abuse of the Town Board’s zoning authority, and that the re-zoning was unjustified and failed to achieve the purported goals of the local law and land use plans. Here, the Court found that Greenport Group had raised triable issues of fact as to whether the Town Board’s stated intent of the re-zoning was the actual purpose for re-zoning Greenport Group’s property. The Supreme Court stated, “[p]arenthetically, since the re-zoning was enacted approximately 14 years ago, the witnesses’ recollection as to the zoning classification was legitimately less than ideal. Although the Town Board’s decision appears to be supported by the CR48 Land Use Study… and tremendous deference is given to the local municipality’s decision-making process and its authority, the Court will not simply rubberstamp a local municipality’s assertion that it was following the advice of its own consultant. Instead, the Court must examine the record, including the adopted legislation, to determine whether the legislation was reasonable and enacted in accordance with the municipality’s land use plan. Here, notwithstanding the documentary evidence supporting the Town Board’s claim, plaintiffs raise questions of fact concerning similarly situated properties included within the CCG studies but treated differently by the Town Board.” Therefore, the Supreme Court denied the Town’s motion for summary judgment with respect to these two causes of action.

The parties cross-appealed the matter and the Appellate Division, Second Department, in its decision entitled Greenport Group, LLC et al., v. Town Board of the Town of Southold, dated December 5, 2018, remitted the matter to the Supreme Court for “severance” of the causes of action asserted by Greenport Group and the entry of judgment declaring the Local Law that changed the zoning classification was valid. The Appellate Division reviewed and affirmed the lower court’s dismissal of each of Greenport Groups causes of action. However, the Court found that the Supreme Court should have granted the Town Board’s motion for summary judgement with respect to the second and fifth causes asserting that the rezoning of the property was arbitrary and inconsistent with the comprehensive plan. The Appellate Division cited the “heavy burden of countering the strong presumption of validity accorded the enactment [of local laws]” and further stated that “if the validity of the legislative classification for zoning purposes is even ‘fairly debatable,’ the classification must be sustained upon judicial review (citing, Matter of Town of Bedford v. Village of Mount Kisco, 33 NY2d at 186).” The Appellate Division also found that Greenport Group failed to raise a triable issue of fact, contrary to the Supreme Court’s findings, regarding the purpose and intent of the re-zoning stating, “[w]hile the courts must satisfy themselves that the rezoning meets the statutory requirement that zoning be in accordance with the comprehensive plan of the community, this does not entail examining the motives of local officials (Udell v. Haas, 21 NY2d 463, 471).” Ultimately, the Appellate Division found that the local law changing the zoning classification of the Greenport Group’s property was valid and remitted the matter to the Supreme Court for appropriate judgment.

 

 

In a decision dated October 30, 2018, Supreme Court Judge Joseph Pastoressa remanded a decision made by the Southampton Village Architectural and Historic Board (BARHP) for further consideration. Manger et al. v. Board of Architectural Review and Historic Review of the Village of Southampton.

 The property owner in Manger applied to the BARHP for a certificate of appropriateness to construct a single family dwelling and accessory structures on two separate lots in the Village of Southampton. The lots are in a Historic District which requires a Certificate of Appropriateness as a condition precedent to issuing a building permit.

During the public hearing process that resulted in an approval of the application, the Board stated that it could not consider the size of the house in its review of the proposed construction. The Board took this position because the house as proposed fully complied with the Zoning Code of the Village of Southampton. That position was supported by Board precedent and a prior decision in Ferrara v. Board of Architectural Review.

Immediate neighbors of the property brought the Article 78 proceeding and argued that scale and size were different measurements and the Board could consider the scale of houses and any corresponding impact on the neighboring properties. Alternatively, the property owner and Village argued that if a house complied with Zoning then the BARHP was powerless to require a reduction in size. Ultimately, Judge Pastoressa rejected that argument and sent the matter back to the Board for re-consideration.

This case highlights the tension between the Zoning Code and the Historic and Landmark Preservation Code. Historically, zoning was enacted to protect light and air between properties. This protection is accomplished through setbacks and the restrictions on the size of a structure. One of the stated considerations of the Historic and Landmark Preservation Law is the impact of new construction on the character of nearby properties.

As held by Judge Pastoressa, the BARHP now may consider the impact of new construction on surrounding properties. But, that consideration still must include an analysis of the new construction under Zoning Code provisions.

Since the Declaration of Purposes of the Zoning Code (§116-1) and the Legislative Findings and Intent (§65-1) in the Historic and Landmark Preservation Law share many common core goals, compliance with the Zoning Code is certainly compelling if not overwhelming evidence that the mass and scale of new construction is appropriate.  So, while the option to reduce the size of a structure is seemingly available to the BAHRP, it must show that the Zoning Code somehow failed to achieve one of its basic goals. There must be significant evidence showing an impact not addressed by the Zoning Code for the BARHP to reduce the size of a structure under that which is allowed by Zoning.

Ultimately, this leaves a potential purchaser of real property in a bind. Any advice by counsel to a purchaser must be given with a caveat that the BAHRP has final say and compliance with the Zoning Code does not guarantee approval.

 

The Appellate Division, Second Department, issued a decision on October 10, 2018, which rejected a town’s attempt to saddle an applicant with over $17,000 in consulting fees supposedly incurred by the town in reviewing special use permit and area variance applications for an antenna tower to be used by an amateur radio (a/k/a ham radio) hobbyist. The installation of the tower was expected to cost less than $1,000.

In Matter of Landstein v. Town of LaGrange, Myles Landstein, the owner of residential property located in the Town of LaGrange (“Town”) in Dutchess County, sought the special use permit and area variance to install a 100-foot antenna tower on his property for his personal use in connection with his ham radio station. The Town Code limits towers to 35 feet in height.

Mr. Landstein had already obtained a license for his ham radio station from the Federal Communications Commission (“FCC”). After receiving the FCC license, Mr. Landstein applied to the Town and paid the $250 filing fee. Although the applications clearly indicated that all costs incurred by the Town for the review of the applications were the sole responsibility of the applicant, Mr. Landstein added a comment to the application requesting that he be advised in advance of the review cost amount.

The applicant indicated that the 100-foot tower, which would be 18-inches by 18-inches in dimension, was needed to operate the ham radio station effectively and would be barely visible above the tree line. Town residents objected, contending the tower would be an eyesore and interfere with cellular and internet service.

The applications were discussed at 14 separate public meetings over the course of 2 years. The applicant even agreed to decrease the height of the tower to 70 feet. However, he would not agree to pay the ever-increasing legal fees that the Town sought to recover from him, which at one point exceeded $17,000. Mr. Landstein’s attorney wrote to the Town complaining that the fees were excessive in light of tower’s modest installation cost and violated an FCC regulation. Thereafter, the Town Board passed a resolution indicating that it would review and audit its consultant costs to determine if they were “reasonable and necessary.”

The audit revealed that the town attorney’s charges were not solely attributed to the specific area variance application before the Town Zoning Board of Appeals (“ZBA”) but were more generic. They included charges for: (1) attendance at the ZBA hearings, (2) travel time, (3) telephone calls with ZBA members, (4) internal conferences at the town attorney’s law firm, (5) drafting the ZBA agendas, (6) reviewing the applicant’s files, and (7) legal research. Upon completion of the audit, the Town Board passed a resolution reducing the legal fees from more than $17,000 to $5,874. The resolution also required the applicant to maintain a $1,000 minimum balance in an escrow fund for future costs incurred with the applications, which would need to be replenished as the balance fell below that amount. The resolution indicated that the applications would not be further reviewed absent the payment of the fees and the establishment of the escrow fund.

The applicant sued. The trial court denied the Article 78 proceeding, but the applicant prevailed at the Appellant Division. The appellate court found that the Town’s fee provision exceeded state statutory authority. The Appellate Division noted that such fees needed to be “reasonable and necessary.” The Court found that the definition of “reasonable” in the Town Code was appropriate as it required a reasonable relationship to customary charges of similar consultants in the region in connection with similar land use applications. The Town Code definition of “necessary,” however, was rejected by the Appellate Division as it was way too broad, and was out of step with established precedent. The Town Code defined necessary consulting fees as those required “to assist in the protection or promotion of the health, safety or welfare of the Town or its residents; to assist in the protection of public or private property or the environment from potential damage…to assure or assist in compliance with laws, regulations, standards or codes which govern land use and development; to assure or assist in the orderly development and sound planning of a land use or development;…or to promote such other interests that the Town may specify as relevant.” The Appellate Division found the “to assist” language particularly troubling. The Court was equally troubled by the actions of the Town, first insisting that it be paid in excess of $17,000 in legal consulting fees, and its later reduction to $5,874, which was achieved by the Town merely striking entries from the invoices, without regard to their content or connection to the applications. The Appellate Division noted that the Town imposed liability without making any attempt to determine if similar charges were imposed by other municipalities for similar applications.

The Appellate Division also took aim at the escrow fund with its minimum $1,000 balance. The Court found this perpetual replenishment fund to be an impermissible effort to avoid having the Town’s taxpayers shoulder their share of the cost of governmental functioning.

Municipalities would be wise to examine their own codes to make sure that they seek reimbursement of costs that are reasonable and necessary in light of the specific project at issue, and not use that provision to dissuade or discourage land use applicants or as a means of underwriting the cost of government.

New York State Town Law § 277(9) authorizes a town Planning Board to require a developer to provide a performance bond or other security covering the cost of installation of subdivision infrastructure and improvements in case the developer fails to finish the required work. Specifically, Town Law §277(9) states: “[a]s an alternative to the installation of infrastructure and improvements, as above . . . prior to planning board approval, a performance bond or other security sufficient to cover the full cost of the same, as estimated by the planning board or a town department designated by the planning board to make such estimate . . . shall be furnished to the town by the owner.”

On October 24, 2018, the Appellate Division, Second Department explored the extent of this enabling legislation in the case of Joy Builders Inc. v. Town of Clarkson.  In Joy Builders v. Town of Clarkson, Joy Builders was developing two subdivisions approved by the Planning Board; a 22 lot subdivision called Highland Vista Estates and a 55 lot subdivision called Little Tor Subdivision.  Both subdivisions were approved by the Planning Board with the condition that Joy Builders would build the infrastructure required for each one including roads, curbs, sidewalks, street signs, light poles and monuments. Joy Builders was required to post performance bonds for each subdivision pursuant to New York State Town Law §277(9).  Additionally, the Town of Clarkson had enacted Town Code §254-18B which authorized the Town to withhold the issuance of building permits for 10% of each subdivision until Joy Builders had completed the required infrastructure improvements. The enactment of this law was the Town’s effort to ensure that the required infrastructure work would be completed.

Specifically, Town Code §254-18B stated:  “Ten-percent restriction of building permits pending dedication of improvements in subdivisions.  Building permits shall be restricted, in accordance with the map note per §254-29B of this chapter, to footings, foundations and utilities only on 10% or one of the structures or dwelling units, whichever is greater, in each subdivision until all required improvements have been completed to the satisfaction of the Department of Environmental Control and shall have been dedicated to the town, unless waived by the Planning Board.”

In response to having Town Code §254-18B imposed, Joy Builders brought a declaratory judgement action against the Town seeking a judgment that the Town Code provision was null and void as ultra vires. The Supreme Court denied Joy Builder’s motion for summary judgement on the complaint, and Joy Builders appealed. The Appellate Division reviewed the enabling authority set forth in Town Law §277 and reversed the Supreme Court’s determination.

The Court stated: “[h]ere, a plain reading of Town Law § 277 establishes that (1) it has no express provision authorizing the Lot Holdback Provision set forth in Town Code § 254-18B, (2) pursuant to the rules of statutory construction, the express provisions of Town Law § 277 must be construed to exclude provisions such as those in Town Code § 254-18B which are not contained in § 277 (see Walker v Town of Hempstead, 84 NY2d 360, 367), and (3) it has no provision from which the Lot Holdback Provision of Town Code § 254-18B can be implied (see Matter of Gruber [New York City Dept. Of Personnel—Sweeney], 89 NY2d 225, 234; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 75 NY2d 619, 627). Thus, Town Code § 254-18B is inconsistent with the plain language of Town Law § 277(9), which expressly sets forth the manner in which a developer can be required to provide financial security to ensure the completion of the installation of required infrastructure and other mandatory improvements.”

Since the matter was a declaratory judgment action, the Court remitted the matter back to the Supreme Court for the entry of a judgment declaring that Town Code §254-18 was null and void as ultra vires and that the conditions imposed on Joy Builders arising out of that Town Code section were also null and void.

 

Following the adoption of a moratorium on development along Port Washington’s waterfront, North Hempstead Town officials have proposed new zoning regulations designed to preserve public access and prevent excess building in Port Washington’s Waterfront Business (“B-W”) District.  The Town’s B-W District encompasses approximately 10 acres adjacent to Manhasset Bay, and runs along the west side of Main Street from Sunset Park to Dolphin Green.  According to North Hempstead Town Code, Article XVIIA, the B-W District was established “to promote, enhance and encourage water-dependent uses and increase opportunities for public access along the Town’s commercial waterfront.”

At a well-attended meeting held on July 25, 2018, at the Port Washington Public Library, Supervisor Judi Bosworth, Councilwoman Dina De Giorgio and Commissioner of Planning Michael  Levine, using PowerPoint slides, presented the Town’s findings made during the moratorium and their ideas and proposals for new zoning regulations in the B-W District.

Commissioner Levine compared the unique character of Port Washington’s waterfront to vibrant waterfront communities on Long Island, such as Port Jefferson, Northport and Greenport, and also Newport, Rhode Island, all of which provided inspiration for the proposed changes.  He then identified the goals and objectives of the new zoning regulations, which include encouraging an appropriate mix of land uses, contextual building design, and the creation of more public access and open space.  The proposed regulations are intended to create a more vibrant and accessible waterfront community, while maintaining the area’s small-town character.

In order to accomplish the stated goals and objectives, the proposed regulations would place additional limits on building height and density to reduce the scale of development and require that new structures be arranged so that Manhasset Bay is both visible from the street and accessible to the public.  This would be accomplished by requiring, among other things, a minimum view corridor of at least 35 feet extending from the front property line to the water’s edge.  A public access corridor of at least 20 feet would also be required along the shoreline that would allow the Town to extend the Bay Walk south to Sunset Park.

While the proposed regulations call for a reduction in the “as of right” height limit and density, they offer incentives for increased height and density to developers who propose smaller buildings, provide additional open space, and incorporate “green” sustainable infrastructure and enhanced architectural design elements into their buildings.  For instance, the 18 dwelling units per acre baseline density for residential buildings in the B-W zone may be increased up to 36 dwelling units per acre based on a numerical scoring system that rewards developments that maximize open space and public access and are designed with desirable architectural elements.

In addition to changes to the bulk and area requirements of the zone, certain developments proposed in the B-W District would be subject to an amended review process under the new regulations.  New development on properties larger than 25,000 square feet would be subject to site plan approval by the North Hempstead Town Board, which would review the layout of the building on the site and the adequacy of landscaping, lighting and building design.  Developments which propose a residential component would also require a special use permit from the Town Board.

According to Town officials, the Town Board intends to hold a public hearing to consider the adoption of new regulations for the B-W District in the fall, prior to the expiration of the moratorium in November 2018.

Questions regarding zoning regulations in Port Washington or the Town of North Hempstead?  Please contact me at aguardino@farrellfritz.com.

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General Municipal Law §239-m requires that before taking action on a land use application, a municipal agency like a Zoning Board of Appeals or Planning Board must refer the application to a county or regional planning commission for its recommendation. This referral and receipt of comments and recommendations from the planning commission is no longer just a nicety. It is jurisdictional.

Any variance or site plan or other land use approval is null and void if the approving agency has not followed this referral procedure. e.g., Ernalex Constr. Realty Corp v. City of Glen Cove, 681 N.Y.S. 2d 296 [2d Dept.1998]; 24 Franklin Ave. R.E. Corp. v. Heaship, 30 N.Y.S.3d 695 [2d Dept. 2016].

Moreover, the statute of limitations does not even begin to run to challenge an agency action (the grant of a variance, for example) if the variance is jurisdictionally defective because the referral procedure was not followed. e.g., Hampshire Mgt. Co., No. 20, LLC v. Feiner, 860 N.Y.S.3d 714 [2d Dept. 2008].

Old news.

So, what happens if an agency grants a variance without following the referral procedure and then, perhaps realizing its mistake, grants an amended variance where it does make the proper referral to the planning commission?

In Fichera v. NYS Dept. of Environmental Conservation, 74 N.Y.S.3d 422 [4th Dept. 2018], the Fourth Department held that the original and the amended variances were both null and void. The applicant had received variances from the Town’s ZBA, and permits from the DEC needed to conduct mining. The ZBA and the applicant argued that the time to challenge the original variance had run and that the amended variance was perfectly fine because the referral process had been diligently followed.

The Appellate Division disagreed. First, the Court applied the “old news” rules above to find that the original variance was jurisdictionally defective because of the failure to follow the referral process. Then, they also held that the same jurisdictional defect tolled the statute of limitations so that the challenge to the original variance was timely. Therefore, the original variance was vacated as jurisdictionally defective.
What about the amended variance? Shouldn’t that be upheld because there was a proper referral and, therefore, no jurisdictional defect?

Not so fast, said the Court. The applicant’s problem was that the ZBA relied on the initial variance in granting the amended one: “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the ZBA’s approval of the amended variance is likewise null and void. . . .

One factor that appears to be important is that the planning commission had strongly recommended that the variance be denied. A zoning board can override the commission’s recommendation by a super-majority vote. Here, the ZBA had voted unanimously to override the commission’s recommendation to deny the amended variance. No good, said the Court: “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.”

The applicant’s and the ZBA’s problem, it appears, is that they took a short cut to rely on the original variance, at least in part, in deciding to approve the amended variance. In retrospect, they should have made a new determination. The Court agreed and remitted the matter back to the ZBA “for a new determination on petitioner’s application.”

Hindsight is always accurate, and the impetus to avoid re-hashing materials already reviewed is understandable. But the short cut here, especially in light of the opposition from the planning commission and organized concerned citizens, lead to a long road. A good lesson.

It turns out, according to the Supreme Court, Orange County, that the standards for review of municipal contracts are noticeably less stringent for New York Village Boards than for Town Boards.  Village Boards may approve a contract in principal, allowing the Mayor some room for further negotiation and language changes.  Town Boards must review and approve the actual, final contract; and the Supervisor may not refine or sign any other contract.  That was the Court’s analysis in Guazzoni v. Village of Tuxedo Park, ____ N.Y.S.3d ____, 2018 N.Y. Slip Op. 28177, 2018 WL 2946114 (Sup. Ct., Orange Co. 6/12/2018).

 

The Trustees of the Village of Tuxedo Park passed a resolution that the Village enter into a consulting agreement with an outside Consultant.  (The Court’s opinion does not disclose the nature of the consulting.)  The Board’s resolution states that the contract was to be “substantially” in the form reviewed by the Trustees, “together with such changes as may be reviewed by counsel and approved by the Mayor” and one of the Trustees.  The Mayor then signed a contract under which the consultant was paid approximately $5,371 per month and an additional sum of $800 per month for costs or reasons not discussed in the opinion.

Plaintiffs were not happy with the contract – again, for unspecified reasons.  They brought an action claiming that the Mayor had not been authorized to enter into the contract as it was finally drafted and signed after review and modification by counsel (presumably the Village Attorney), the Mayor and the single Trustee specified by the Board.

The Court held that a Village Board did not have to approve the final contract.  The Court recognized that statutory restrictions on a municipality’s power to contract serve the purpose of protecting the public from “corrupt or ill-considered actions of municipal officials.”  However, it was sufficient that the Trustees had authorized the Mayor to sign a contract that was substantially like the terms the Trustees had reviewed.

The Court relied on NY Village Law §4-412(1)(a) which defines the general powers of Village Trustees as, broadly speaking, the “management of village property and finances.”  The Village Law does not specify the manner in which village contracts must be made, and there is “no express statutory provision requiring village boards to approve contracts in their entirety before their execution by the mayor.”

In contrast, NY Town Law §64 defines the powers and duties of Town Boards and states that a Town Board “may award contracts” to “be executed by the supervisor in the name of the town after approval by the town board.”  Therefore, says this opinion, a Town Board must approve the exact contract with all details before the Supervisor can sign it – but Village Boards may approve the substance of a deal with a municipal contractor; and the Mayor may sign any contract that does not change the substance approved by the Trustees.

It was not strictly necessary for the Court to construe Town Law §64 to decide the village case before it – although the analysis is certainly interesting.  The lack of any detail of how the final contract negotiated by the Mayor and one of the Trustees differed from the substance approved by the Trustees is also intriguing.  Without that information it is difficult to know why the plaintiffs were concerned enough to bring an action challenging the contract and, more importantly, how this recent case may affect future municipal contracts.

Since the Court ultimately did not dismiss the complaint because the record was insufficient, the case will continue; and there might be further lessons to learn.  The lesson for now is that it is crucial to review the procedure by which contracts are adopted if your client is the municipality or a citizen challenging the municipality’s contracts.

 

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.

By letter dated November 24, 2009, the Town of Riverhead’s Building Department Administrator provided that the docks, bulkheaded structures, commercial oyster operation, and six summer rental cottages were legal pre-existing nonconforming uses of the property at 28 Whites Lane, on Reeves Creek, Aquebogue NY (“subject property”). The subject property is owned by John and Sandra Reeves, hereinafter the “Respondents”. The Petitioners, neighbors of the subject property, appealed this determination to the Zoning Board of Appeals (“ZBA”) which rendered a decision sustaining the November 24, 2009 letter. The Petitioners challenged the ZBA’s determination in an article 78 proceeding, Matter of Andes v. Zoning Board of Appeals of the Town of Riverhead, John Reeve et al. Supreme Court, Suffolk Co. Index No. 10-27305, April 8, 2013. The Supreme Court annulled the ZBA’s decision and remitted the matter back to the ZBA citing that the ZBA decision “contained no independent factual findings supporting this determination.”

The ZBA reheard the matter on June 23, 2016. By decision dated August 11, 2016, the ZBA again sustained the November 24, 2009 letter as to the pre-existing nonconforming uses on the property. This time, however, the ZBA’s record was replete with factual findings in support of its determination.

The Town of Riverhead first adopted its zoning code in 1959. Several zoning amendments were made throughout the years, rendering the different uses of the subject property nonconforming at different times. [1]    The ZBA considered testimony from numerous sources establishing the continuing pre-existing nonconforming uses and structures on the subject property. For example, with regard to the shellfish operation, Robert E. White, the son of Washington White, testified at the July 23, 2009 ZBA hearing that his family purchased the property in the 1930’s and that it was used for a shellfish operation which was continued by his brother Benjamin White. He further submitted that the “underwater property” was purchased by the Lessard family in the 1990’s who “continued the operation.” David Lessard testified that he continued the commercial shellfish operation to the present day.  The ZBA made further findings, sustained in part by similar testimonial evidence, supporting the pre-existing nonconforming summer cottages and marina uses.  Ultimately, the ZBA upheld the November 24, 2009 Building Department Administrator letter once again.

The neighbors challenged this ZBA determination in a second article 78 proceeding entitled Matter of Andes v. Zoning Board of Appeal of Town of Riverhead et al., Sup. Ct. Suffolk Co., Index No. 16-8742, December 15, 2017.

Petitioners argued that (i) the Respondents failed to provide business records to corroborate the continuance of the marina or commercial oyster operation, (ii) the commercial oyster operation was run without the proper shell-fishing permits, (iii) the marina structures were not completed until 2008, and (iv) the basin where the shellfish operation took place had non-functional bulkheading and required dredging to be operational during the time periods they were claimed to be in use, among others. Notably, Petitioners alleged that the majority of the evidence relied upon by the ZBA was based on the testimony of Respondents, the Reeves, and their primary witnesses who Petitioners argued were “town insiders” since they worked for the Town of Riverhead.

The Court reviewed the evidence considered and findings made by the ZBA in its decision and held that the ZBA decision was rational and not arbitrary and capricious. The Court set forth the standard of review for pre-existing nonconforming uses and restated the long-standing legal principle that a court cannot substitute its judgment for that of the board. Petitioners clearly wanted the Court to weigh the value of the evidence relied upon by the ZBA; however, the Court stated:

Here, it cannot be said that the Zoning Board’s decision lacks evidentiary support in the record; that the nature of the evidence relied on by the Zoning Board is almost entirely testimonial is of no consequence for purposes of this analysis (see Town of Ithaca v Hull, 174 AD2d 911,571 NYS2d 609 [1991]). Likewise, while the court is sensitive to the implication of the petitioners’ claim that the Zoning Board discredited their proof in favor of the affidavits and hearing testimony of “insiders,” i.e., the Reeves and “their friends,” it remains constrained by the limited scope of review afforded in article 78 proceedings, particularly absent proof of actual bias or favoritism. The court also rejects the petitioners’ implicit claim that judicial review of a zoning board’s determination requires some kind of comparative analysis of the quality and quantity of the evidence adduced in support of and in opposition to an application. A court may not weigh the evidence or reject the choice made by the board where the evidence is conflicting and room for choice exists (Matter of Toys “R” Us v Silva, supra). Even to the extent it has been held that a board’s determination must be supported by “substantial evidence,” a court need only decide whether the record contains sufficient evidence to support the rationality of the board’s determination (Matter of Sasso v Osgood, 86 NY2d 374,633 NYS2d 259 r1995J; Matter of Slonim v Town of E. Hampton Zoning Bd. of Appeals, 119 AD3d 699, 988 NYS2d 890 [2014]. lv denied 26 NY3d 915, 23 NYS3d 641 [2015]) (emphasis added).

 As to the petitioners’ claim that the Reeves failed to sustain their “high” burden of persuasion, the court notes that this standard applies only to a matter before a municipal officer or board and not to a judicial proceeding; it bears repeating that the scope of judicial review of a zoning board’s determination is limited to an examination of whether the determination has a rational basis, even when that determination involves an application to establish or certify a prior conforming use (e.g. Matter of Keller v Haller supra; Matter of Watral v Scheyer, 223 AD2d 711, 637 NYS2d 431 [1996]). Whether, as the petitioners further contend, the Reeves lacked the necessary permits, certificates, and approvals to operate a marina on the property until the new docks and bulkheading were constructed and completed in 2008, or whether the Lessards did not have shellfish diggers permits from 1994 through 1997 so they could not have lawfully been using the Reeves’ property for that purpose during that time, is largely irrelevant.

Ultimately, the Court upheld the ZBAs determination affirming the Building Department Administrator’s letter; the petition was denied and the proceeding dismissed. Given that the matter has been an issue before the Town of Riverhead since 2003 and the Court since 2010, it is not surprising that Petitioners filed a notice of appeal.

[1] In 1959 with the first enactment of zoning, Riverhead Town rendered the commercial oyster operation on the property a preexisting nonconforming use. The six cottages became pre-existing nonconforming in September 1970 when the Town of Riverhead amended the zoning code definition of Marina Resort to exclude summer cottages. In 2004, the Town re-zoned the property to RB-40, eliminating marinas as permitted uses rendering the marina use, docks and bulkheading on-site nonconforming. Additionally, Riverhead Town Code §301-222(C) provides that a nonconforming use may not be reestablished “where such nonconforming use has been discontinued for a period of one year.”

In 2014, the New York State Legislature enacted a significant amendment to the Environmental Conservation Law (ECL) reducing setbacks required to discharge a long bow in the lawful act of hunting from 500 feet to 150 feet from occupied buildings and public places.  ECL11-0931(2).  This created a ripple effect in many Long Island municipalities that previously codified the State’s regulation of 500-feet.  For example, the Town of Smithtown still maintains a local law requiring a 500-foot setback, which now conflicts with the State’s 2014 150-foot setback requirement.

The question now becomes whether New York’s preemption doctrine prevents municipalities from maintaining local laws conflicting with State law.  In this case, can the Town of Smithtown maintain its 500-foot setback for the discharge of a long bow as opposed to the State’s 150-foot setback?

Some would say that the State occupies the field of hunting, because it declared title to the wildlife in its sovereign capacity for the benefit of all the people (ECL 11-0105). Consequently, hunting the State’s wildlife is regulated by the New York State Department of Environmental Conservation (NYSDEC) ECL Title 7.

However, the State also provided municipalities broad latitude to regulate themselves through the Municipal Home Rule Law (MHR).  MHR confers on local governments the authority to adopt laws for, among other things, the protection of health, safety and welfare, to the extent they are not inconsistent with either the State Constitution or any other State law. MHR 10(1)(ii).

In DJI Restaurant v City of New York , the Court of Appeals explained the two ways State law preempts local laws as follows: (1) where an express conflict exists between State and local law (conflict preemption) and (2) where the State has evidenced its intent to occupy the field (field preemption).

Field preemption exists when a local law regulating the same subject matter is deemed inconsistent with the State law.  In this situation, the local law must yield, because it thwarts the State’s overriding policy for State-wide uniformity. See, Matter of Chwick v. Mulvey, (state law regarding firearm licenses preempted a Nassau County ordinance against “deceptively colored” handguns where comprehensive regulations by the State demonstrate the Legislature’s intent to occupy the field”).

Presently, New York has not expressly preempted the regulation of hunting; and there does not appear to be any case directly on point for conflict preemption.  However, the State’s intent to “occupy the field” of hunting appears evidenced by comprehensive ECL statutes, the framework of NYSDEC regulations and strict licensing requirements. See, ECL Title 11.

Moreover,  given the purpose and scope of the State’s legislative scheme, including the need for statewide uniformity, the State need not expressly state that it is preempting local municipalities in the area of hunting. See generally, Albany Area Blders v. Town of Guiderland,  However, in the case of Smithtown, it appears the State may have to take a more explicit position or risk the balkanization of hunting regulations on Long Island and possibly other parts of the State.  This seems particularly counterintuitive when dealing with the State’s wildlife.