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Due to the proliferation of advanced mobile devices, such as smartphones and tablets, wireless service providers anticipate a significant increase in data traffic over their networks in the next few years.  As a result, mobile operators have been compelled to find new ways to increase their network capacity, provide better coverage and reduce network congestion. One solution has been to create a new small cell network consisting of a series of small low-powered antennas – sometimes called nodes – that are typically attached to existing utility poles or streetlights located in the public right of way. In many municipalities, however, service providers and their contractors are facing strong opposition from elected officials and residents who have expressed concerns about the impacts from this new equipment.

One of the more recent battles is currently taking place in the Westchester County community of Rye, where an application by Crown Castle NG East LLC (“Crown Castle”) has already been the subject of two lawsuits, one which resulted in a ruling that delays associated with environmental review pursuant to the State Environmental Quality Review Act (“SEQRA”) do not violate the Telecommunications Act of 1996 (“TCA”).

The City of Rye (“City”) entered into a right of way use agreement (“RUA”) with NextG Networks of NY, Inc. (“NextG”) on February 17, 2011. Pursuant to the RUA, NextG was authorized to install and operate a form of small cell technology, known as distributed antennae systems (“DAS”), to expand existing wireless telephone services and coverage by installing its equipment within the public right of way (“ROW”), mostly on pre-existing utility poles. Between 2011 and 2015, NextG installed nine nodes within the public ROW on existing utility poles.

The RUA precluded NextG from assigning or transferring its rights under the agreement, except in limited circumstances and only with prior written notice of its intent to make such a transfer. Thereafter, on April 10, 2012, NextG became a wholly owned indirect subsidiary of Crown Castle International Corp., but NextG did not notify the City of its transfer of rights under the RUA until May 25, 2012.

In December of 2015, in some unspecified manner, Crown Castle advised the City of its intent to install equipment cabinets within the public ROW that are dimensionally larger than the pre-existing cabinets. The request was memorialized in a letter from Crown Castle to the City Council on April 8, 2016. In a subsequent letter, dated June 24, 2016, Crown Castle requested that the City Council adopt a resolution confirming that its application to install larger equipment cabinets was a Type II action under SEQRA or, alternatively, adopt a SEQRA “negative declaration” at its next public meeting.

Public hearings were held on Crown Castle’s application in July, August, and October of 2016 and in April of 2017. At the October 5, 2016 public hearing, the City Council declared its intention to as serve as lead agency for purposes of reviewing Crown Castle’s application under SEQRA. During the April 22, 2017 public hearing, the City Council issued a “positive declaration” for the proposed project under SEQRA. It also indicated that, in the event that the application is determined to be exempt from SEQRA, the application should be denied.

A positive declaration is a determination that an action may result in one or more significant environmental impacts and requires a comprehensive environmental review of the action, including the preparation and review of an environmental impact statement (“EIS”), before an agency decision may be made regarding the action. The SEQRA regulations contain mandatory minimum and maximum time periods associated with the processing of EISs that necessarily postpones a lead agency’s final decision until after the SEQRA process has been completed. A negative declaration is a determination by the lead agency that an action will not result in a significant adverse environmental impact and consequently no EIS will be prepared.

Following the City Council’s adoption of a positive declaration, Crown Castle commenced an action in the United States District Court for the Southern District of New York, entitled Crown Castle NG East LLC v. The City of Rye, et al., 17 CV 3535 (E.D.N.Y., December 8, 2017), alleging that the City and City Council violated the RUA and the TCA.  Crown Castle also alleged claims under Article 78 of the CPLR and the New York State Transportation Corporations Law (“TCL”). The City moved to dismiss the complaint on the basis that Crown Castle failed to state a TCA claim.

Section 253(a) of the TCA provides that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 253(c) further provides that “nothing in this section affects the authority of a . . . local government to manage the public rights-of-way . . . on a competitively neutral and nondiscriminatory basis.” Section 332(c)(7)(B)(iii) states that “any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence in a written record.”

With respect Crown Castle’s claim that the City’s 18-month delay in providing a decision on its application amounted to a prohibition of telecommunications services under TCA § 253(a), the Court disagreed and held that the City’s review process, including the associated SEQRA review, was not a “legal requirement” prohibited under TCA § 253(a). It also noted that the TCA does not render a SEQRA review or any delays associated with that review a violation of federal law.

In support of its holding, the Court cited the District Court’s decision in New York SMSA Ltd. P’Ship v. Town of Riverhead Town Board, 118 F.Supp.2d 333 (E.D.N.Y. 2000), aff’d, 45 Fed App’x. 24 (2d Cir. 2002), where the court noted that “a positive SEQRA declaration necessarily delays a final decision” and that “this court will not hold that a local government’s invocation of that statute is precluded because of the existence of the TCA.” The Court also held that municipal review alone cannot be a proscribed barrier to entry under Section 253(a) because the TCA § 332 requirement for “substantial evidence” necessitates a thorough review in order to justify the denial of a request to place, construct, or modify wireless facilities.

The Court also rejected Crown’s other TCA claims. It found that TCA § 253(c) does not create a stand-alone violation of the TCA because it is a safe harbor for municipalities or a “savings clause” that carves out liability rather than imposes it. The Court also found that because the City’s “denial” was hypothetical, it was neither a “regulation” nor a “decision” for purposes of stating a TCA § 332(c)(7)(B) claim. Moreover, the Court noted that the purported “denial” was not a final decision for Section 332 because a SEQRA positive declaration is not a final agency decision that is reviewable under New York law. Accordingly, the City’s motion to dismiss was granted.

The dispute continued in the Westchester County Supreme Court in Crown Castle NG East LLC v. The City of Rye, et al., 50310/18 (Sup. Ct., Westchester Co., August 20, 2018), wherein Crown Castle sought to have its state law claims adjudicated. However, the Court never addressed the merits of the state law claims because it concluded that Crown Castle was not a proper assignee or transferee under the RUA and, therefore, did not have standing to maintain the proceeding.

While these two decisions represent significant victories for the City of Rye and its residents, both decisions were made on procedural grounds, and neither addressed the merits of Crown Castle’s federal and state law claims. Communities throughout New York and elsewhere that have been presented with applications for the installation of small cell nodes will undoubtedly be watching closely to see how Crown Castle’s battle with the City of Rye ultimately plays out.

If you have any questions concerning the subject matter of this post, please contact Anthony at aguardino@farrellfritz.com.

 

In Voutsinas v. Schenone, 2018 NY Slip Op 07439 (2d Dept, November 17, 2018), the Appellate Division, Second Department, reminded land use practitioners of not only the importance of appealing decisions rendered by Town and Village Boards, including Trustees, Zoning and Planning Boards, even if not all of the findings of facts in the decision are adverse to the applicant, but also, the consequences that can be brought upon a second application made to the same board or body for similar relief.

In Schenone, the landowner and tenant (collectively “Petitioners”) made an application to the Village of Rockville Centre Zoning Board of Appeals (“Zoning Board”) seeking an off-street parking space variance in connection with a proposed two-story restaurant to be constructed in the Village.  On March 12, 2014, the Zoning Board denied the application as presented.  However, the Zoning Board agreed to grant an off-street parking space variance to construct a one-story restaurant finding that the Village could accommodate a parking variance in connection with the proposed square footage of a one-story restaurant.   Petitioners did not appeal the March 12, 2014 Zoning Board decision.

Instead, Petitioners made a second application to the Zoning Board requesting to construct a two-story restaurant with valet service providing off-street parking at two nearby properties.  In denying the second application, by decision dated November 21, 2014, the Zoning Board held that the two nearby properties were subject to recorded covenants and restrictions that barred the properties from providing off-street parking.  Consequently, the Zoning Board denied the remaining request for a two-story restaurant relying on its March 12, 2014 decision stating that “absent the valet parking proposal, this second application was ‘not materially different’ from the petitioners/plaintiffs first application for a parking variance, and that it was bound by its March 12, 2014 determination finding that  the “addition of a second floor created an undue parking burden in an already congested area of Rockville Centre.”

Petitioners appealed the November 21, 2014 Zoning Board decision. The Supreme Court upheld the Zoning Board decision and dismissed the petition.  On appeal, the Second Department upheld the Supreme Court decision stating that ‘”[t]he principles of res judicata and collateral estoppel apply to quasi-judicial determinations of administrative agencies, such as zoning boards, and preclude the relitigation of issues previously litigated on the merits.”   Hence, when the Zoning Board issued its March 12, 2014 determination that the Village could not accommodate the congestion resulting from a two-story restaurant at the site; this finding of fact, without an appeal, became binding in the context of this application.

On appeal, Petitioners argued that because they submitted revised building plans, the second application is different from the first application.   The Second Department rejected this contention stating that “the revisions to the building plans submitted in support of their second application for a parking variance did not change the parking considerations attendant to each application.”    In other words, the second application requested the same two-story restaurant and when the alternative parking solution was found to be untenable, the Zoning Board was essentially left with the same initial request made for a two-story restaurant and denied in the first March 12, 2014 Zoning Board decision.

The take away here is that findings of fact made by a Board of body become the equivalent of “law of the case.”  As such, if there is any reason to believe that an amended application for similar relief will be sought, an appeal should be taken from the first decision, even if not all parts of the first decision are adverse to your application.  Although the appeal may never need to be perfected, simply taking the appeal preserves a party’s rights.

 

 

 

 

 

In Real Estate Bd. of New York, Inc. v. City of New York, Petitioner-Plaintiff Real Estate Board of New York, Inc. (“REBNY”) commenced a hybrid article 78 proceeding and plenary action against the City of New York (“City”) challenging the City’s adoption of Local Law No. 50 of 2015 (“Local Law”), which placed a moratorium on the conversion of hotel rooms to residential units.

REBNY’s article 78 claims sought to annul the Local Law and permanently enjoin the City from enacting similar legislation unless it complied with the City Charter’s Uniform Land Use Review Process (“ULURP”) and the State Environmental Quality Review Act (“SEQRA”). REBNY’s plenary claims sought compensation for taking and for due process and equal protection violations under the State and Federal constitutions.

The City moved to dismiss REBNY’s claims based on standing, among other things. The Supreme Court, New York County (“Motion Court“), granted the City’s motion and dismissed all of REBNY’s claims for lack of standing.  On appeal, the Appellate Division, First Department (“Appeals Court“) effectively reversed the Motion Court’s decision.  The Appeals Court held that REBNY had standing to bring its article 78 claims, except under SEQRA.  The Appeals Court also held that REBNY had standing to assert its plenary causes of action, but held that REBNY abandoned its claims under 42 U.S.C. 1983 because REBNY did not address them on appeal.

The City enacted the Local Law in June 2015 to allow for the study of the effect of the conversion of hotel rooms from transient guest spaces to full-time residential units on the City’s economy. Its legislative findings asserted that large hotels are essential to vacation and business travelers, important generators of well-paying jobs and anchors for surrounding economic activity. The findings also expressed concern that the conversions are occurring quickly and may be irreversible. In addition, the legislative intent noted the current market conditions, the profitability of conversions and the City’s developers’ rush to convert.

The Local Law placed a two-year moratorium (extended to four years, i.e. June 2019) on the conversion of Manhattan hotel rooms to residential units. More specifically, the Local Law applied to hotels with at least 150 units and prohibited the conversion of more than 20% of hotel rooms. The Local Law provided an exemption for conversions begun in the two years preceding its effective date and allowed owners to seek a waiver from the City’s Board of Standards and Appeals (“BSA”), which waiver was not as-of-right.

REBNY, a non-profit corporation comprised of 17,000 members (property owners, developers, lenders, managers, architects, designers, appraisers, attorneys and brokers), asserted that 175 hotels, including 29 REBNY members, were affected by the Local Law. REBNY argued that by restricting the rights of affected hotels, the Local Law reduced the value of the properties, among other things.

The City moved to dismiss on the basis that REBNY lacked organizational standing.  To have organizational standing to challenge the enactment of the Local Law, REBNY must satisfy three elements : (i) one or more of its members must have standing; (ii) the interest it asserts must be germane to its purpose; and, (iii) neither the claim asserted nor the relief sought requires the individual members’ participation (ensuring the organization is the proper petitioner/plaintiff). Standing requires injury-in-fact which falls within the zone of interests and which is different in kind or degree from the public at-large.

The Appeals Court ultimately held that REBNY sufficed the injury requirement. Owners of property subject to new zoning restrictions are presumptively affected by the change. REBNY member hotels were negatively affected by the Local Law, including but not limited to, the diminution of property value and the costs associated with applying for a waiver. These negative effects satisfied the injury-in-fact requirement.

One of the bases cited for this finding was the Local Law’s own legislative intent, which noted that the Local Law would not be necessary if conversions were not so profitable. Thus, with respect to first part of the three-prong test for organizational standing, the Appeals Court held one or more member’s sustained sufficient injury-in-fact within the zone of interests and different in kind from the public at-large.

However, REBNY satisfied the second and third prongs for organizational standing on only some its claims.  Pertinently, with respect to the article 78 claims, the Appeals Court held REBNY had standing for all claims, except under SEQRA. REBNY focuses on the economic and political health of the real estate industry. The Court rejected REBNY’s argument that it sought to protect its member’s environmental interests in air quality and traffic. REBNY’s only “environmental” focus is on the economic environment.  Economic interests – alone – are insufficient to confer SEQRA’s zone of interests. While economic interests are germane to REBNY’s purpose to the extent it is a real estate industry advocacy group, environmental interests are not.  Therefore, REBNY is only a proper petitioner for the non-SEQRA claims.

Notably, the sole dissenting Judge opined, among other things, that REBNY did not have standing for any claim. The dissent argued that REBNY’s allegations of potential future economic harm were amorphous and did not suffice an injury-in-fact. REBNY’s members have neither attempted to convert nor sought exemption by waiver form the BSA. REBNY did not provide competent proof, e.g. appraisals, evaluations, etc. Additionally, the waiver application fee is de minimis and does not constitute an injury.

An application was made for a site plan to the Planning Board of the City of Poughkeepsie for a 24 two-bedroom unit condominium complex in four buildings on a 3.4 acre parcel adjacent to an historic district.   The site had existing mature trees on the perimeter of the property, some of which were proposed to be cut down and replaced with new trees.   On April 19, 2011, the City of Poughkeepsie Planning Board issued a negative declaration pursuant to the New York State Environmental Quality Review Act (“SEQRA”). The Historic Southside Neighborhood Association appealed the determination in an Article 78 Proceeding to the Dutchess County Supreme Court seeking an order annulling the negative declaration and directing the Planning Board to issue a positive declaration and proceed with an Environmental Impact Statement (“EIS”). See Jeanette Peterson as President of the Historic Southside Neighborhood Assn. v. Planning Board of the City of Poughkeepsie et al., Index No. 3511/2011, September 2, 2015.

The Supreme Court stated the standard in reviewing the negative declaration issued by the Planning Board was limited to “whether the agency identified the relevant areas of environmental concerns took a hard look at them, and made a reasonable elaboration of the grounds for its determination.” The Supreme Court found that the Planning Board took the requisite “hard look” at the potential impacts of the proposed project on the bordering historic district during a 20 month review period. The Court found that the Planning Board’s reliance on the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) which issued three letters concluding that it did not perceive any substantial impact to the neighboring historic district was reasonable. The Supreme Court upheld the negative declaration and dismissed the proceeding. The Historic Southside Neighborhood Association appealed the matter to the Appellate Division.

In its decision dated July 5, 2018, the Appellate Division, Second Department, in the Matter of Jeannette Peterson, etc., v. Planning Board of the City of Poughkeepsie, et al., 2018 N.Y. Slip. Op. 05049, reversed the Supreme Courts determination. Regarding the impact to the historic district the Appellate Division found the Planning Board’s reliance on the OPRHP insufficient stating that the Planning Board “merely relied upon a letter from the New York State Office of Parks, Recreations and Historic Preservation, which stated only that the proposed action would not have an adverse impact on the historic district. Such a conclusory statement fails to fulfill the reasoned elaboration requirement of SEQRA.”

Additionally, the Court reviewed the Planning Board’s determination regarding the potential impacts to vegetation or fauna cited in the negative declaration which stated that the proposed action would not result in the “removal or destruction of large quantities of vegetation or fauna.” However, the Environmental Assessment Form relied upon by the Planning Board noted the reduction of the 3.4 acre parcel’s forestation from 2.75 acres to 0.3 acres. The Court stated, “[i]n the context of this project, the level of deforestation is significant.”

Therefore, the Appellate Division found that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern and determined that the Planning Board’s negative declaration was arbitrary and capricious. The matter was remitted to the Planning Board for the preparation of an Environmental Impact Statement.

Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality.

Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the other district without needing to apply for a change  of zone.  Problems for applicants and practitioners arise when the proposed use on the property is prohibited on the other side of the  zoning boundary line.  Under those circumstances, applicants may face hostile boards or opponents claiming that because such use is prohibited in one of the districts, it requires a use variance.  As a use variance can often be an insurmountable hurdle, practitioners must carefully craft a record to support the proposed use for a split zoned parcel.

Recently, in  the City of Saratoga Springs, a neighboring restaurant owner sued to block a proposed pet kennel, claiming it required a use variance because kennels were prohibited in one of the two zones that split the property.  In other words, the restaurant owner was claiming that the prohibited tail was wagging the permitted dog.  Unfortunately, the restaurant owner was barking up the wrong tree, and in June of 2018, the Appellate Division affirmed the City of Saratoga Springs Zoning Board of Appeals (ZBA) determination that a use variance was not required for the proposed kennel project and granted the necessary area variances.  See, Wen Mei Lu v. City of Saratoga Springs—N.Y.S.33D —(3d Dept 2018).

In Wen Mei Lu, Pet Lodges Inc. submitted an application to the City’s Building Inspector in 2016, seeking approval of the proposed construction of a pet boarding facility.  The 6,000-square-foot kennel facility was planned for a 1.6 acre parcel of land that was split zoned Rural Residence and Tourist Related Business (TRB).  The smaller rear portion of the property, zoned Rural Residential, allows for animal kennels, but the TRB zone that comprises the larger portion of the property fronting on State Route 9, prohibits the use.

The application was denied by the City’s Building Department on the ground that the project required area variances for certain setback issues.  Pet Lodges Inc. then applied to the ZBA for area variance relief.  At the hearing, the restaurant owner’s attorney submitted letters and testimony claiming, among other things, that the kennel required a use variance, because it was a prohibited use in the TRB zone, and was fundamentally inconsistent with the permitted uses such as service establishments, eating and drinking establishments and bed and breakfasts.

The Appellate Division, in finding that the ZBA rationally determined a use variance was not required, noted that although kennels are prohibited in the TRB zone, under the City’s zoning ordinance, where a zoning district boundary line divides a lot or land, the district requirements on either side of the boundary may be construed, at the property owner’s option, as extending 100 feet into the remaining portions of the property.  Here, the applicant chose to extend the Rural Residential district where kennels are permitted into the TRB commercial zone where kennels are prohibited.

Finding that such an extension of a zoning boundary did not require a use variance, the Court went on to hold that the ZBA’s determination to grant the necessary area variances had a rational basis in the record.  The Court also determined that while a small portion of the facility’s parking area and driveway will lie within the TRB district, the ZBA rationally found that such accessory uses were not prohibited under the zoning ordinance.   The Court noted that ZBAs are “invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law.”

Given the potential complexities associated with split zoned properties, this decision provides some clarity as to what the courts and zoning boards are considering when faced with split zoned lots.

 

 

 

A few days ago, the Town Supervisor of the Town of Southampton and the Town Trustee President sent a letter to the State Comptroller and State Park Commissioner requesting an opinion as to whether Town Trustee property, known as Hayground Cove or the Rose Hill Drive Boat Ramp, a small waterfront area with a boat launch, is parkland.  If so, it would be regulated by New  York State’s strict interpretation of the public trust doctrine.

At issue is a private homeowner’s 15-year lease with the Trustees, which would  allow the neighboring waterfront estate exclusive use to portions of the Trustees property to construct a private driveway in exchange for maintaining the Town’s existing boat ramp.  Without state legislative approval, such exclusivity could be as thorny as a rose thicket and may run afoul of New York’s public trust doctrine.

The Public Trust Doctrine & Parkland Alienation

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses.  See,  Matter of Avella v City of New York, 29 NY3d 425 [2017].  New York’s public trust doctrine is based on English common law that has evolved over centuries.  In sum and substance, the public trust doctrine provides that certain land should, by use or by the purpose of its conveyance, be available for the use and enjoyment of the public.  Only the State Legislature has the power to alienate parkland. See, New York State Office of Parks, Recreation and Historic Preservation Handbook on the Alienation and Conversion of Municipal Parkland

Under New York State’s public trust doctrine, land can become parkland either by a formal dedication through express provisions (i.e. restrictions in a deed or a legislative enactment), or by implied dedication manifested by acts such as continued use as a park. Id.  Implied dedication of parkland occurs by actions or declarations by a local government that are unmistakable in their purpose and character as to intend to dedicate land for use as parkland. Examples include a municipality publicly announcing its intention to purchase the land specifically for use as a park and long continued and accepted use of land as a park can also constitute dedication through implication. Id.

Parkland alienation occurs when a municipality wishes to convey, sell, or lease municipal parkland or discontinue its use as a park no matter what  the size.  In order to legally convey parkland to a third party, or to use parkland for another purpose, a municipality must receive prior authorization from the New York State Legislature and be approved by the Governor.

In alienation cases, leases are carefully examined to determine the extent to which exclusivity is granted and a public benefit is served.  See, Lake George Steamboat Co. v. Blais, 30 NY 2d 48 [1972] (exclusive lease of a park’s marina space to a private sightseeing company was found to be parkland alienation).

The Hayground Cove-Rose Hill Road Boat Ramp

According to the Town of Southampton’s website, the Rose Hill Boat Ramp is a public boat ramp for town residents. The surrounding Town-owned land appears to be operated as a park in connection with that boat launch, which use has gone on for decades.  Under the lease agreement with the Trustees, in return for taking on the maintenance of the public boat ramp, the homeowner was able to move a line of trees from the middle of his property to the middle of the Trustees’ property, expanding the private lot’s circular driveway.  The tree-moving work has already been completed.

Conclusion

While it is laudable that the Trustees are attempting to maintain a town boat launch at no cost to town residents, which arguably could be a plausible public purpose, is that sufficient in light of the long history of New York courts prohibiting parkland alienation for non-park uses absent specific authorizing legislation?   We await a determination of the State Comptroller and Park Commissioner to see if the homeowner’s lease with the Town is valid. Either way, that decision could have a profound impact on similar agreements.  Stay tuned.

 

 

 

 

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”).

Local governments in New York may regulate land use within their borders directly through their zoning codes and indirectly by adopting a variety of other statutes and regulations. There are, however, limits to their power. Municipalities, of course, must not discriminate on the basis of religion in violation of the U.S. or New York State Constitutions or other applicable federal or state laws.

That message was delivered loud and clear in a recent decision by the U.S. District Court for the Southern District of New York in a long-running court battle over a proposed rabbinical college in the Village of Pomona, in Rockland County.  In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 07-CV-6304 (KMK)(S.D.N.Y. Dec. 7, 2017), the Court, following a 10-day bench trial, ruled that the Village could not use zoning and other laws it adopted to thwart the construction of the rabbinical college and associated dormitory housing proposed in the community.  In an earlier proceeding to consider the parties’ motions for summary judgment and a punitive motion for sanctions against the Village for the spoliation of evidence, the Court granted portions of each party’s motion, including the sanctions motion that resulted in an award of attorneys’ fees and costs relating to the spoliation dispute.  See Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 7-2007-CV-6304 (KMK)(S.D.N.Y. 2015).  For a more detailed discussion of the pre-trial motions, see Charlotte Biblow’s two-part blog post, How To Spend Over $1.5 Million (And Counting) of Taxpayer Funds Defending A Land Use Claim and Facebook Posts And Text Messages Result In Monetary And Other Sanctions Being Imposed Against A Municipality.

The case involved approximately 100 acres of land in Pomona purchased in 2004 by the Rabbinical College of Tartikov, Inc. Tartikov sought to build a “kollel” or rabbinical college on the property that would include housing for its students – all affiliated with the Orthodox Jewish community, including various sects of the Hasidic community – and the students’ families. According to Tartikov, the on-campus housing would permit students to study from 6 a.m. until 10 p.m. and also to meet their religious obligations to their families.

Tartikov and future students and faculty (collectively, the “Plaintiffs”) commenced an action in 2007 to challenge portions of three laws that Pomona adopted: an “Accreditation Law,” which defined educational institutions and dormitories; a “Dormitory Law,” which limited the size of dormitories; and a “Wetlands Law,” which established wetlands protections in the Village (collectively, the “Challenged Laws”).  The Plaintiffs argued that the Challenged Laws effectively prevented the construction of Tartikov’s rabbinical college in the Village and were discriminatory and substantially burdened their religious exercise.  The Village claimed that the Challenged Laws had been passed for legitimate reasons and were intended to prevent the construction of a large number of housing units for students and their families that the Village contended would overburden its infrastructure and detract from its rural character.

The Court ruled that the Village passed the Challenged Laws “with a discriminatory purpose.”  Specifically, the Court opined that the Village enacted the Challenged Laws to prevent the spread of the Orthodox/Hasidic community within the Village, and, in certain respects, to specifically target Tartikov and the property it owned. The Court said that it based this conclusion “on the context in which the laws were adopted” and “the unsatisfactory and incredible reasons presented for their adoption.”  The Court noted that a number of Village officials had made statements indicative of their prejudice towards Tartikov and Orthodox/Hasidic Jews. The Court also pointed out that members of the community expressed animus towards Orthodox/Hasidic Jews and that the Village’s Board of Trustees “acted on that animus.”

While the Court invalidated the Challenged Laws as a violation of the Plaintiffs’ First and Fourteenth Amendment rights to freely exercise their religion and equal protection of the laws, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., the Fair Housing Act, 42 U.S.C.  3601 et seq., as well as their right to freedom of worship under the New York Constitution, local government officials and their counsel should be guided by the Court’s critical focus on the discriminatory motives behind the Village’s adoption of these laws. The evidence cited by the Court for its conclusions and its application of that evidence to constitutional and statutory standards highlights the official and non-official actions that government officials should avoid when faced with similar circumstances.

On March 28, 2018, the Babylon Town Board adopted a moratorium on any new land use applications that seek to increase a parcel’s wastewater limits established by the Suffolk County Department of Health Services (“SCDHS”) by utilizing Pine Barrens Credits (“PBC”), which effectively transfer development rights from other parts of Suffolk County to properties within the Town of Babylon.  During the period of the moratorium, the Town plans to study the potential impacts to groundwater from allowing developers to increase development density by acquiring PBCs.

The concept of transferring development rights using PBCs derives from the Long Island Pine Barrens Maritime Reserve Act, which was adopted in 1993 for the purpose of protecting approximately 100,000 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  As one method of land preservation, the Act authorizes the creation of a transfer of development rights (“TDR”) program, the specifics of which are set forth in the Central Pine Barrens Comprehensive Land Use Plan (“Plan”).  Under the TDR program, a PBC can be used to transfer the development potential from a parcel of property within the protected Pine Barrens Core Preservation Area (“Core”), or other environmentally-sensitive area identified in the Plan (a “sending parcel”), to a parcel in a designated area outside the Core (a “receiving parcel”).  Upon acceptance of the PBC, the sending parcel’s development rights are transferred to the receiving parcel, which may now be developed more intensely.  For a more detailed discussion of the Pine Barrens TDR program, see John Armentano’s blog post, Pine Barren Credits – There’s Money In Those Trees.

Historically, PBCs have been accepted by several towns and by the SCDHS to permit a new development project, or an expansion or change of use of an existing building, that will result in a wastewater discharge (effluent loading) that exceeds the SCDHS’s allowable sanitary flow rate for parcels that are served by an individual on-site sewerage system (i.e., not connected to a municipal sewer system).  The allowable flow rate for a particular parcel is set forth in Article 6 of the Suffolk County Sanitary Code and is calculated based on the proposed use, and size of the building and the parcel on which it sits, as well as the hydrogeological (groundwater recharge) zone in which the parcel is located.  A PBC may be used to permit additional effluent loading up to a maximum of twice the allowable density.

Following the recent approval of two development projects in North Babylon and Deer Park, the Town has decided to take a closer look at the environmental consequences of allowing for increased density.  According to Richard Groh, the Town’s chief environmental analyst, the Town’s planning and environmental control departments have formed a working group to study the impacts to groundwater that will result from continuing the practice of accepting PBCs to increase development density.  Upon completion of the study, the group will submit its recommendations to the Town Board for consideration.

In Matter of Save America’s Clocks, Inc. v. City of New York, the majority of a divided 3-2 Appellate Division, First Department, panel attempted to clarify the authority of the New York City Landmarks Preservation Commission (LPC) under the New York City Landmarks Preservation and Historic Districts Law (“Landmarks Law”).  The majority ruled that the LPC may require a private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.

The case involved a 19th Century building in lower Manhattan and, in particular, the clocktower atop the building’s western end, which houses a purely mechanical tower clock with a mechanism similar to London’s “Big Ben.” A room on the building’s fourteenth floor has an interior spiral staircase that leads up to a landing housing the clock’s pendulum, and then to the clocktower’s machine room, where the clock mechanism sits.  Above the mechanism is the clock’s 5,000 pound bell.

New York City owned the building from 1968 until 2013, and used it to house courts and city government offices.  During that time, the LPC designated the exterior of the building a landmark, as well as 10 interior spaces of the building as interior landmarks, including the clocktower gallery, the clocktower machinery room, and the “No. 4 Striking Tower Clock.”  The City conveyed the building to a private developer in December 2013, by a deed that expressly provided that the conveyance was subject to the landmark designation.

Shortly thereafter, the new owner submitted an application for a certificate of appropriateness (COA) to the LPC, seeking permission to refurbish the building’s exterior and interior and to modify some of the landmarked interior spaces. Among other things, the application requested permission to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock.

The LPC held a public hearing on the owner’s application. There, the LPC’s counsel advised the commissioners that the LPC did not have the power under the Landmarks Law to require “interior-designated spaces to remain public” and “to require that [the clock] mechanism remain operable.” The LPC then approved the COA.

After various individuals and organizations challenged the LPC’s decision in an article 78 proceeding, a decision by Supreme Court, New York County, partially annulled the COA to the extent that it allowed work inside the clocktower that would completely eliminate public access and allowed work that would convert the clock from a mechanical to an electrical system of operation.  The decision was appealed to the Appellate Division, First Department.

Over the dissent of two justices, a majority of the panel affirmed the Supreme Court’s decision after finding that LPC’s determination was irrational and affected by an error of law because it was based on the erroneous advice of its counsel that caused a misunderstanding of LPC’s authority under the Landmarks Law.  The court concluded that, contrary to the legal advice it received, the LPC has the authority under the Landmarks Law to regulate the clock mechanism because it effectuates the Landmarks Law’s statutory purposes and because the law’s language “clearly gives the LPC authority to require the owner to run the clock by its still functioning mechanism and to deny the request to electrify it.”

The court reasoned that the LPC had designated the building’s fourteenth floor interior, including the clocktower machinery room and the clock machinery, as an interior landmark because the clock’s mechanism “represents an element of the city’s cultural and economic history and contributes to the building’s historical value,” and because maintaining it “would promote pride in the ‘accomplishments of the past’ and advance the [Landmarks Law’s] statutory purposes.”

Moreover, the court said, the LPC’s approval of the clock mechanism proposal was not rational. In the court’s view, the building’s “majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the Landmarks Law exists,” because, as provided in Section 25-301(b), the “protection, . . . perpetuation, and use of [objects] of special character or special historical or aesthetic interest or value is a public necessity.”

The court also examined whether the LPC has the authority to retain public access to the clocktower, and ruled that, under the Landmarks Law, the LPC may reject a COA that would cause a designated interior to be inaccessible to the public, and may require the owner to continue to provide at least some degree of public access.  The court reasoned that the statutory purposes of the Landmarks Law would be thwarted if the public was denied access to the clocktower and the opportunity to view its historic mechanism.

Whether the First Department’s decision will be the final word on this issue remains to be seen as the sharp division in the panel makes it likely that the case will make its way up to the Court of Appeals.  For now, however, the decision means that the Landmarks Law permits the LPC to require the private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.