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In 2015 the Village of East Hampton enacted five local laws reducing the maximum allowable gross floor area for residences, reducing the maximum permitted coverage for all structures,  reducing the maximum allowable gross floor area for accessory buildings, amending the definition of “story” and amending the definition of “cellar”. The petitioner/plaintiffs (“petitioners”) own real property in the Village and commenced a hybrid Article 78 proceeding and Declaratory Judgment action entitled Bonacker Property, LLC v. Village of East Hampton Board of Trustees et al., Supreme Court, Suffolk County, Index No. 15-12506, September 2, 2016, challenging the enactment of the local laws. Petitioners sought to annul the Board of Trustee’s adoption of a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and claimed that (i) the local laws were not in accordance with the Village Comprehensive Plan, (ii) the Board of Trustees improperly relied upon recommendations from the Planning and Zoning Committee, and (iii) the Board of Trustees failed to comply with SEQRA. The petition also sought declaratory relief. The Supreme Court denied the petition, dismissed the proceeding/action and declared the local laws constitutional and valid. The petitioners appealed.

The Appellate Division, Second Department upheld the Supreme Court’s determination in Matter of Bonacker Property, LLC et al, v. Village of East Hampton Board of Trustees, et al., dated January 23, 2019. The Court noted that New York State Village Law §7-722(11)(a) requires that where a village has adopted a comprehensive plan, the village’s zoning decisions must be in accordance with the plan. However, the Court went on to recognize the presumption of validity afforded to the legislative act of enacting zoning laws. The Court quoted Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, stating “[e]ven if the validity of a provision is fairly debatable, the municipality’s judgment as to its necessity must control.”   Ultimately, the Court found the enactments limiting gross floor area and coverage “entirely consistent with the comprehensive plan.”

The Court also found that the Village Board of Trustees complied with the requirements of SEQRA stating the Board identified the relevant areas of environmental concern, took the requisite “hard look” at them and made a reasoned elaboration in its negative declaration. The Court stated, “[g]iven the nature of the proposed action here, which would have only beneficial environmental effect, and the focus of the assessment form, which is to identify negative environmental effects of the proposed action, the rapid review and completion of the environmental assessment form was not arbitrary or capricious.”

Moreover, the Court found that the record supported the Supreme Court’s determination that the Planning and Zoning Committee was advisory in nature, did not perform governmental functions and it was proper for the Board of Trustees to rely on the committee’s advice pertaining to the enactment of the local laws.

Ultimately, the Court upheld the Supreme Court’s determination with regard to the Article 78 claims however remanded the declaratory judgment claims back to the Supreme Court since the Supreme Court improperly employed the summary procedure applicable to an Article 78 proceeding to dispose causes of action to recover damages or seeking declaratory judgment. The Court noted, “where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action.” Thus, the Court remitted the matter back to the Supreme court for further proceedings on those causes of action for damages and declaratory judgment. Finally, the Court expressed no opinion as to the merits of those claims.

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who operated a gas station and a convenience store at the Premises. Both the gas station and the convenience store were legal nonconforming uses under the Town’s zoning regulations.

Under Section 240-29 of the Code of the Town of LaGrange (hereinafter the “Code”), a “nonconforming use . . . is one which existed lawfully” prior to the date that the Code or an amendment to the Code was enacted, which results in the failure of that prior use to conform to the Code (see Code § 240-29[B]). However, in order for such use to maintain its status as a nonconforming use, it must not be discontinued. The Code provides that a nonconforming use is deemed discontinued when “the nonconformity has ceased for a period of one year or more” (see Code § 240-29[F][4]).

The case arose out of an accident in June 2013, when a fuel delivery tanker hit a light pole, spilling approximately 3,000 gallons of gasoline on the Premises. This forced the gas station and the convenience store to temporarily cease business operations and begin remedial efforts. After the Owner completed the restoration work in October 2014, a leak was discovered in the gasoline pump system piping when it was tested in anticipation of reopening. This required additional remediation and further delayed the reopening.

Eventually, the Owner completed this additional work and thereafter sought approval from the Town’s building inspector to reopen the gas station. The Owner also applied for a building permit from the Town’s building inspector “to upgrade the convenience store building, which had not been damaged by the spill and remediation efforts.” Section 240-29(E) of the Code permits the “re-establishment of nonconforming uses after casualties,” under certain time conditions. Section 240-29(E) of the Code provides the following:

“If any nonconforming building or structure or any building or structure containing a nonconforming use shall be damaged or destroyed by fire or other casualty, such building or structure . . . may be restored and any such nonconforming use resumed to the extent that such building, structure or use existed at the time of the casualty, provided that a building permit for such restoration is obtained within a period of one year from such casualty and is diligently prosecuted to completion.”

Pursuant to that provision, the building inspector granted the Owner’s request, giving it one year from September 22, 2015—the date of the building inspector’s determination—to re-establish its nonconforming use.

A Dunkin Donuts franchise (the “Petitioner”) located across the street from the Premises appealed the building inspector’s determination to the Town’s Zoning Board of Appeals (the “ZBA”). The Petitioner contended that the nonconforming use had been lost and could not be re-established, citing Sections 240-29(E) and (F) of the Code.

The ZBA determined that “there was ‘more to maintaining a gasoline filling station than pumping gas,’” and that the “remediation of the petroleum spills amounted to a continuation of the nonconforming use.” Thus, there was no “discontinuation” within the meaning of Code Section 240-29(F)(4). Furthermore, the ZBA concluded that the building permit requirement of Code Section 240-29(E) did not apply to the convenience store because neither casualty affected the convenience store.

Ultimately, the Supreme Court rejected the Petitioner’s Article 78 challenge, holding that the ZBA’s determinations were rationally based and entitled to deference. The Second Department affirmed. Therefore, under HV Donuts, a nonconforming use may not be lost by remedial and restoration activities that temporarily shut down site operations, provided these activities are diligently pursued and completed.

The Long Island Pine Barrens Maritime Reserve Act, Environmental Conservation Law, Article 57 (the “Act”), was adopted in 1993 for the purpose of protecting approximately 102,500 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  The Act defines the boundaries of the Central Pine Barrens and divides it into two geographic areas, one a 55,000 acre Core Preservation Area (“CPA”), where development is generally prohibited, and the other a 47,500 acre area designated as the Compatible Growth Area (“CGA”), where development is permitted, but only in compliance with certain standards and guidelines designed to preserve the ecology and hydrology of the Central Pine Barrens.

The Act also mandated the creation and implementation of the Central Pine Barrens Comprehensive Land Use Plan (the “Plan”), and created the Central Pine Barrens Joint Planning and Policy Commission (the “Commission”).  The Commission oversees the implementation of the Plan and is charged with joint land use review, regulation, permitting, and enforcement along with local municipalities, as well as the operation of a transferable development rights and conservation easement program.  See, prior blog posts, Pine Barren Credits – There’s Money In Those Trees and Town of Babylon Imposes Moratorium on Use of Pine Barrens Credits to Increase Development Density

Among the Commission’s responsibilities is the review of applications for large-scale development that meets the threshold constituting a Development of Regional Significance.  Pursuant to the Plan, the following developments are defined as Developments of Regional Significance:

  • A commercial, industrial or office development project exceeding 300,000 square feet of gross floor area, or an addition to an existing commercial, industrial or office development where the addition is 100,000 square feet or more and that addition causes the total square footage to exceed 300,000 square feet.
  • A multifamily residential development project consisting of three hundred (300) or more units.
  • A single family, detached residential development project consisting of two hundred (200) or more units.
  • A development project resulting in a traffic impact which would reduce service by two (2) levels below existing conditions or to a level of service of D or below.

In order for the Commission to approve a Development of Regional Significance, the development must comply with all of the standards and guidelines set forth in Volume 1, Chapter 5, of the Plan.  The standards and guidelines are intended to minimize certain areas of environmental concern, such as nitrate and nitrogen discharge, wellhead protection, protection of wetlands and surface waters, stormwater runoff and recharge, and preservation of natural vegetation and plant habitat.  Developments that do not comply with the standards and guidelines may apply to the Commission for a hardship waiver, which can only be granted upon a showing of an extraordinary hardship or compelling public need.

Applications for Developments of Regional Significance are made to the Commission upon submission of a Transmittal Letter, Owners Affidavit, General Project Data Sheet and Standards and Guidelines for Land Use.  The application must also be accompanied by copies of prior approvals, the final approved map or site plan, other maps or data that document and support the information presented, an Environmental Assessment Form or Findings Statement and supporting documentation necessary to comply with the State Environmental Quality Review Act (“SEQRA”) and a Suffolk County Planning Commission determination (if applicable).

Within 60 days of the submission of a complete application, the Commission will hold a public hearing on the application, at which time the applicant and members of the public are provided an opportunity to comment on the development proposal.  The Commission must render a decision within 120 days after declaring an application complete, unless the time is extended by mutual agreement, otherwise the proposal is deemed approved by the Commission.

Developers that propose large-scale developments on lands within the Central Pine Barrens are wise to evaluate whether their proposals constitute Developments of Regional Significance early in the process because the Commission’s discretionary review process creates additional entitlement risk and can result in a longer timeline for securing project approval.

In Joy Builders, Inc. v. Town of Clarkstown, 2018 N.Y. Slip Op. 07110, 165 A.D.3d 1084 (2d Dept 2018), a developer (“Developer”), in connection with the development of two subdivisions, challenged a provision of the Town Code of the Town of Clarkstown (“Town”) which authorized the Town to withhold the issuance of building permits for a subdivision until the applicant/owner has completed the requisite infrastructure and improvements and dedicated the same to the Town.  The Supreme Court, Rockland County, denied the Developer’s motion for summary judgment and the Developer appealed.  The Appellate Division, Second Department, reversed and declared the Town Code provision null void and struck the subdivision conditions affected by that provision.

With respect to the Developer’s projects, the Town Planning Board had approved two subdivisions of 22-lots and 55-lots, respectively.  The approvals contained a condition requiring the Developer to build certain infrastructure and post performance bonds for each project.  Town Code Section 254-18B authorized the Town to withhold the issuance of building permits for 10% of the lots of each subdivision until the Developer completed and dedicated the infrastructure and improvements.  The basis of the “holdback” was to ensure that applicants/owners complete the requisite work.  During construction, the Town relied upon the holdback provision and withheld the issuance of buildings permits for three lots in one subdivision and six in the other.  The Developer, then, commenced this action challenging the Town’s withholding and seeking a declaration that Section 254-18B was null and void.

The Appellate Division noted that towns and municipalities lack the inherent power to enact zoning or land use regulations – rather, they are creatures of statute.  As such, towns may only engage the powers conferred by the State Legislature.  The pertinent statute, Town Law Section 277(9) authorizes the Town to obtain enumerated forms of security in order to ensure the full cost of infrastructure and improvements in the event a developer abandons a project.  However, withholding the issuance of building permits is not among these.  The Court determined that Town Law Section 277 does not expressly authorized the holdback and no such authority can be implied.  Therefore, Town Code Section 254-18B was inconsistent with the Town Law and the Town does not have the power to withhold building permits to provide financial security for the completion of work.

The Court declared Section 254-18B void and struck the conditions of withholding. The Court’s ruling reaffirms strict adherence to the enumerated powers for municipalities in the land use and zoning context.

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.