In 2014, the Town of North Hempstead (“Town”) passed a law requiring warning signs on utility poles in the Town. As part of a larger project, the Long Island Power Authority (“LIPA”) and PSEG Long Island LLC (“PSEG”) placed new utility poles along existing rights-of-way. The new poles, like the old poles, were treated with pentachlorophenol (“Penta”), a chemical used to prevent damage to the wood. In April 2014, opponents of the project discovered EPA information suggesting that Penta was harmful to human health. The following month, the Town began considering laws to require the posting of warning signs on the poles, and such a bill was approved in September 2014.
In January 2015, LIPA and PSEG commenced an action in federal court, alleging the law violated State and Federal freedom of speech. Specifically, they claimed that the local law was vague, overbroad, and preempted by state statutes giving the New York State Department of Environmental Conservation (“DEC”) jurisdiction over Penta and other pesticides.
On a motion for summary judgment, the Court held that the warning signs constituted noncommercial speech, for which the government’s ability to compel mandatory disclosures is far more limited. As the Court wrote, “the warning signs bear no discernible relationship to the Plaintiffs’ products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine.” The Court also found that the signs were not government speech, as the government was not the speaker on the signs and did not appropriate funds to transmit the message.
Applying strict scrutiny, the Court found that the Town lacked a compelling interest in the warning signs, and accordingly that the law was not narrowly tailored to achieve a governmental interest. The Court suggested that the Town could have chosen to convey its message through television advertising, public education campaigns, or signs on public property. The Court also rejected the Town’s claims that placing warning signs on the utility poles was more effective, as the Town did not establish that there was a serious public safety concern, and further failed to provide evidence supporting the efficacy of its chosen method of addressing any such concerns.
The case was PSEG Long Island LLC v. Town of North Hempstead, 158 F.Supp.3d 149 (E.D.N.Y. 2016)
Petitioner commenced a CPLR article 78 proceeding to challenge Respondent City of Rochester Planning Commission’s approval of the application of Respondent Morgan Management, LLC, for a special permit. The special permit allowed construction of an apartment building on property owned by Respondent Monroe Voiture No. 111 Memorial Home, Inc., La Societe Des 40 Hommes, “in association with the overall redevelopment of the property.” Petitioner is a not-for-profit corporation that owned the adjacent property, including the George Eastman House.
Pursuant to the Municipal Code of the City of Rochester, Chapter 120, Article XVII, the City established Planned Development District No. 14, which includes the Petitioner’s and Monroe Voiture’s properties. The City's intent in creating the District was “to recognize and permit a defined area for the delivery of programs and community services offered by George Eastman House and the Monroe Voiture… and to provide for the orderly growth and development of the properties.” After a hearing, the Planning Commission found that the proposed project met the City's standards for approval of a special permit, including that the proposed project would be in harmony with the goals, standards and objectives of the City's Comprehensive Plan. The Planning Commission also considered that, beyond the construction of a multifamily apartment building, the proposed project included renovation of the clubhouse, allowing for the continuance and expansion of the programs and community services offered by Monroe Voiture. Thus, the Court found the Planning Commission's approval of Morgan's special permit application was not arbitrary and capricious, irrational, or contrary to law.
The case was George Eastman House, Inc. v Morgan Management, 130 A.D.3d 1552 (4th Dep’t 2015).
On July 18, 2012, Respondent Zoning Board of Appeals of the Town of Oyster Bay (“ZBA”) granted an application Respondent Karen Malamud for a use variance to use a single family home as a parent-child residence, subject to the May 14, 2012 plans. Respondent Town of Oyster Bay Department of Planning and Development (“DPD”) issued a building permit for the rear addition to Malamud’s property based upon revised plans dated July 20, 2012. Petitioners, Malamud’s neighbors, filed an administrative appeal challenging the issuance of the permit, and commenced an Article 78 proceeding on June 13, 2013. The Supreme Court, Nassau County granted the respondents’ separate motions to dismiss the petition as time-barred, denied the petition and dismissed the proceeding. Petitioners appealed.
On appeal, the Appellate Division, Second Department found that contrary to Petitioners’ contention, the Article 78 challenge to the ZBA’s issuance of the use variance was not timely. The law provides that the Article 78 proceeding must be instituted within 30 days of the ZBA’s determination being filed in the office of the Town Clerk. Here, the determination as filed on July 18, 2012, and the Article 78 proceeding was commenced on June 13, 2013. The Court also found that Petitioners’ administrative appeal from the issuance of the building permit was untimely. The Planning Department issued the building permit on August 7, 2012. It was from that date that the 60–day statutory period began to run, yet Petitioners did not file their appeal until December 20, 2012. Thus, the filing of the administrative appeal was also untimely. Accordingly, the Court affirmed the dismissal of the petition, with a bill of costs.
The case was Leitner v. Town of Oyster Bay Planning and Development Dept., 143 A.D.3d 986 (2d Dep’t 2016).
Petitioner applied for a building permit to undertake certain renovations to an existing building on the property so that it could continue to operate as a boarding house. Corporation counsel for Respondent City of Kingston Building Safety Division informed Petitioner that a boarding house was not a lawful preexisting nonconforming use, and denied the petition. Petitioner brought a CPLR Article 78 proceeding to review the determination, but the Supreme court remitted pending a final determination. Once the denial was official, Petitioner appealed to the City of Kingston Zoning Board of Appeals, which affirmed the denial. Petitioner again filed an Article 78 proceeding to challenge the determination, and the Supreme Court partially vacated the decision to the extent it required the nonconforming user to obtain a permit or license to operate, and otherwise upheld the determination. Petitioner appealed.
On appeal, the Third Department agreed with Petitioner that the Supreme Court acted in error by substituting its judgment for that of the ZBA by basing its decision on a rationale not cited by the ZBA in its determination. However, the Court found that despite this error, the only issue before it was whether the ZBA’s decision as arbitrary and capricious.
It was not in dispute that the property operated as a boarding house and had previously been used as a nursing home, however the City's zoning law expressly prohibited the substitution of nonconforming uses. In determining that the boarding house was a change from the prior use, the ZBA relied in part on the affidavit of a relative of the owner and operator of the property from the 1950s through the 1970s, and who also lived on the premises with her family. This woman stated that the property was operated as “Garry's Nursing Home,” which was corroborated by other documents in the record. Nurses assisted residents with dressing, bathing and shaving, and dispensed medication. A 1958 compliance letter also established that the property was subject to the Social Welfare Law, and advised Garry's Nursing Home that it must provide around-the-clock coverage by a licensed nurse, maintain appropriate medical records, and dispose of narcotics properly.
Based on this testimony and accompanying documentation, the Court found there was sufficient evidence in the record for the ZBA to rationally conclude that the property was no longer being used as a nursing home. The Court also held, without discussion, that Petitioner’s remaining arguments lacked merit. Accordingly, the Court affirmed the judgment of the lower court.
The case was Tri-Serendipity, LLC v. City of Kingston, 145 A.D.3d 1264 (3d Dep’t 2016).
Court Finds ZBA’s Denial Of Applications To Renew Use And Area Variances Not Illegal, Arbitrary, Or Abuse of Discretion
In 2006, Petitioner applied for a use variance to convert two offices on the first floor of a two-story brick building into three residential apartments. Petitioner also applied for an area variance from the off-street parking requirements. In 2007, the Board of Appeals of the Town of Hempstead (“ZBA”) granted the applications until 2012, subject to certain conditions. In 2009, Petitioner applied for another use variance to convert the remaining office on the first floor into two residential apartments, together with an area variance from the off-street parking requirements. The ZBA denied both applications. In 2012, Petitioner sought a rehearing on its 2009 application, and renewal of its 2007 variances, all of which were denied. Petitioner brought an Article 78 proceeding to review the ZBA’s denial of its applications. The Supreme Court annulled the portion of determination that denied the application to renew use and area variances, but upheld portion that denied application for new use and area variances. The parties then appealed and cross-appealed from the judgment.
On appeal, the Appellate Division, Second Department found that the ZBA's findings of fact did provide a rational basis for denying Petitioner’s application for a renewal of the 2007 variance. The ZBA found that Petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267–b(2)(b), and the fact that the ZBA temporarily approved the same application in 2007 did not relieve Petitioner of its evidentiary burdens for purposes of renewing or seeking an additional use variance. As Petitioner failed to show any financial evidence that it could not obtain a reasonable rate of return absent the requested use variances, the ZBA’s decision to deny Petitioner’s applications was not illegal, arbitrary, or an abuse of discretion.
The Court similarly found that the ZBA’s decision denying Petitioner's applications to for a new area variance and to renew the area variance issued in 2007 was not illegal, arbitrary, or an abuse of discretion. There, the ZBA properly considered the benefit to Petitioner if the variances were granted as weighed against the detriment to the neighborhood. The ZBA found that the area variances were substantial and would adversely impact the nearby residential neighborhood by creating a “disruptive additional demand for on-street parking in the residential area to the south.” This finding was rational and supported by the record. Accordingly, the Court held that the Supreme Court should have denied the petition in its entirety.
The case was Monte Carlo 1, LLC v. Weiss, 142 A.D.3d 1173 (2d Dep’t 2016).
Second Department Finds Denial Of Subdivision Application Based Upon Watershed Regulations Did Not Constitute a Taking
In 2005, Claimant/Appellant acquired title to a 16.81 acre parcel of undeveloped real property in the Village and Town of Monroe. The property was located in the RR 1.5 ac zoning district, a designation that included “single family detached dwellings on lots of 3 or more acres in size” as a permitted use. In 2006, Claimant applied for approval to develop the property by subdividing it into three lots and then constructing a single-family dwelling on each lot. The proposal also included installation of a separate septic system for each of the proposed dwellings. However, as the property was located within the Lake Mombasha watershed, it was subject to watershed protection regulations promulgated by the New York State Department of Health (“DOH”) pursuant to article 11 of the Public Health Law. These regulations prohibited placement of a subsurface sewage disposal system within 300 feet of the lake. Relying on this provision, the Town Planning Board denied Claimant's subdivision application in November 2008, as the necessary septic systems would violate the watershed regulations. After the denial, Claimant brought several actions against the State of New York, including the instant action, wherein Claimant alleges that application of the watershed regulations constituted a per se taking entitling it to compensation. The Court of Claims denied Claimant’s motion for summary judgment and granted the summary judgment motion for the State. Claimant appealed.
On appeal, the Appellate Division, Second Department found that Claimant failed to establish that the subject property had suffered a complete elimination of value as a result of the watershed regulations. Moreover, the court noted that “a threshold inquiry in any regulatory takings claim is whether the proscribed use was part of the landowner's title to begin with.” Here, Claimant acquired title to the subject property 85 years after the watershed regulations went into effect, and therefore there was no interest in installing a septic system to have been “taken.” Finally, Defendant submitted evidence that the claimant's parcel was once joined with abutting lands that were split into separate parcels in 1989. Therefore, “the right to install a septic system was never part of the ‘bundle of rights’ the claimant acquired with title to the property.” Thus, Claimant could not succeed on its takings claim. Accordingly, the Court affirmed the decision of the Court of Claims denying Claimant's motion for summary judgment and dismissed the claim.
The case was Monroe Equities, LLC v. State, 145 A.D.3d 680 (2d Dep’t 2016).
The 70.70-acre property at issue was located in the Village of Kiryas Joel, and consisted 69.23 acres after the partial taking. Claimant, Monroe Bakertown Road Realty, Inc. (“Claimant”), and the condemnor County of Orange (“County”), agreed that high density housing was the highest and best use of the property. At a nonjury trial, the parties offered opposing evidence on the density and scope of the housing that could be built on the property. Claimant’s appraiser testified that under a comparable sales approach analyzing three recent sales of vacant land approved for multi-family residential units in the Village, and making various adjustments based on time, location, size, zoning, and topography, the entire property was worth $27,150,000 before the taking, and $26,050,000 after the taking, a difference of $1,100,000. The County's appraisal also used a comparable sales methodology, but analyzed four recent sales of vacant land outside the Village limits, concluding a value of $1,555,400 before the taking and $1,522,400 after the taking, or a difference of $33,000. The County also provided evidence that the Department of Health would not approve Claimant’s proposed building plan due to inadequate water supply. The Supreme Court adopted with the County’s appraisal, concluding that “[t]he lack of adequate water supply is a predominate factor which cannot be disregarded and leads this court to accept the evaluation placed on the property by the County of Orange.” Claimant appealed.
On appeal, the Court noted that when private property is taken for public use, the condemnor must compensate the owner to put him in the same relative position as if the taking had not occurred. Where there is a partial taking, damages are the difference between the value of the whole before the taking and the value of the remainder after the taking. The Court agreed that a high density, multi-family residential development was the highest and best use of the property. However, while the County's witness testified that the County would not have permitted a high density residential project due to the lack of available water, proof was adduced that the Village had undertaken efforts to increase its water well supply capacity. This uncertainty over water supply and governmental approval would affect the price a buyer would be willing to pay, but simply rejecting Claimant’s appraisal and adopting the County's appraisal failed to adequately consider how the market would factor the water supply uncertainty and governmental approval issues into the selling price of this property.
The Court concluded that the facts presented at trial did not warrant the determination that the appraised valuation submitted by the County had to be accepted. Thus, the court reversed and remitted the matter to the Supreme Court, Orange County, to recalculate the value of the subject property in accordance with this decision and order.
The case was County of Orange v. Monroe Bakertown Road Realty, 130 A.D.3d 823 (2d Dep’t 2015).
The Common Council of the City of White Plains (“Council”) held public meetings on December 9, 2013 and December 19, 2013 to consider a findings statement pursuant to the State Environmental Quality Review Act (“SEQRA”), and at the conclusion of the second meeting, voted to adopt the proposed findings statement. Petitioners brought an Article 78 proceeding to challenge the resolution, alleging that the revisions made between the December 9 and December 19 meetings violated the Open Meetings Law. The Supreme Court, Westchester County dismissed the petition, and petitioner’s appealed.
On appeal, the Appellate Division, Second Department affirmed the lower court’s decision. Noting that the Open Meetings Law applies to any “meeting of a quorum of a public body for the purpose of transacting public business,” the Court held that discussions between individual members and with the City’s corporation counsel did not violate the Open Meeting Law where no quorum was present. In addition, the draft revisions were posted on the City’s website in advance of the December 19, 2013 meeting at which the resolution was adopted. Accordingly, the Court held no violation occurred.
The case was Gedney Ass’n v. City of White Plains, 147 A.D.3d 938 (2d Dep’t 2017).
Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the seventh post in our series examining the proposed amendments. The focus of this post is fee transparency.
In addition to substantive alterations to the SEQRA regulations, such as by amending the Type I and II lists, the proposed amendments also address several accounting issues. One particularly notable change relates to the fee assessment authority of lead agencies. Currently, a lead agency must provide a cost estimate when it assumes responsibilities for preparing the EIS. The proposed amendments would change this language to increase transparency.
The proposed amendments require that the lead agency provide, upon request from the project sponsor, “an estimate of the costs for preparing or reviewing the draft EIS.” The applicant is also entitled, upon request, to receive copies of invoices or work statements prepared by a consultant and submitted to the lead agency for services rendered in preparing or reviewing the EIS. In explaining its rationale for these amendments, DEC states that “a project sponsor should have the right to receive an estimate of the lead agency’s costs for the review of the EIS along with written documentation to support such fees” as a matter of “fairness and disclosure.”
DEC held a public hearing on the regulations on March 31, 2017. It will no be accepting comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.
Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the sixth post in our series examining the proposed amendments. The focus of this post is mandatory scoping.
Scoping, which was added to the SEQRA regulations in 1987, is “the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS,” in essence focusing the EIS process on those issues that are most relevant. Initially, scoping was optional and did not require public input. After the 1995 amendments, scoping remained optional but was strongly recommended, and if undertaken, must include a draft scope for public review.
Under the proposed amendments, scoping would become mandatory for all environmental impact statements and may be initiated by the lead agency or the project sponsor. The amended regulations also place a strong emphasis on using the recently revised environmental assessment forms (“EAFs”) early in the scoping process to better define what issues warrant additional scrutiny in the EIS, as opposed to those issues that may be excluded as minor or not impactful.
The amendments would also modify the standard for accepting or rejecting the adequacy of a draft EIS. Currently, the project sponsor must accept or defer issues that arise after preparation of the final written scope. However, a lead agency may currently undermine this decision by rejecting a draft EIS as inadequate for failing to include deferred issues. Under the proposed regulation, a project sponsor’s decision to defer an issue and treat it as a public comment about the draft EIS, to be included in the final draft, cannot be a basis for the lead agency to reject a draft EIS as inadequate. In addition, determining the adequacy of a resubmitted draft EIS can only be based upon the written list of deficiencies provided by the lead agency following the previous review. As a result, DEC hopes that project sponsors will take a less “defensive approach” to creating EIS records and leave out extraneous information that is often included in pursuit of creating a “bullet proof EIS” draft.
DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.