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).


Appellate Court Finds County’s Valuation of Property In Partial Taking Condemnation Inadequate

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).


Court Affirms That Adoption Of SEQRA Findings Did Not Violate Open Meetings Law

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).


DEC Proposes Amendments To SEQRA Regulations, Part Seven: Fee Transparency

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.


DEC Proposes Amendments To SEQRA Regulations, Part Six: Mandatory Scoping

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.


DEC Proposes Amendments To SEQRA Regulations, Part Five: Additions To The Type II List – Zoning and Variances

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 fifth post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to relating to zoning and variances.

As noted in previous posts, Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The goal is to accelerate the SEQRA review process by categorically excluding actions that almost invariably receive negative declarations.

The proposed amendments add a variety of zoning-related actions to the Type II list.  This includes: (1) expanding the exemption for individual lot line and setback variances to include all “lot line adjustments and area variances not involving a chance in allowable density;” (2) certain minor subdivisions under the municipality’s subdivision regulations; (3) redevelopment of certain previously disturbed sites already served by public infrastructure; and (4) “in a city, town or village with an adopted zoning law or ordinance, reuse of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance.”  Another notable change under the proposed amendments is that the recommendation of a county or regional planning entity made following referral of an action pursuant to General Municipal §§ 239-m, 239-n would not be subject to SEQRA review.

The proposed amendments also include several provisions addressing acts that benefit the public.  For example, the amendments would designate both the dedication of parkland, as well as an agency’s acquisition of less than one hundred acres of land to be dedicated as parkland, as Type II actions.  Similarly, the amendments would add “the transfer or conveyance of five acres or less by a municipality or a public corporation to a not-for-profit corporation for the construction or rehabilitation of one, two or three family housing.”  This provision, entitled “Certain Transfers of Land to Provide Affordable Housing,” is meant to facilitate transfers to organizations such as Habitat for Humanity and comparable organizations.

There are other zoning-related provisions, but for brevity these are not addressed here.  However, full descriptions and rationales can be found in the Final Draft of the proposed amendments, available at the link below.

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.


DEC Proposes Amendments To SEQRA Regulations, Part Four: Additions To The Type II List – Cellular and Broadband

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 fourth post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to relating to cell towers and broadband.

As noted in previous posts, Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The goal is to accelerate the SEQRA review process by categorically excluding actions that almost invariably receive negative declarations.

Like with the energy improvements discussed in our last post, many of the proposed additions to the Type II list are intended to encourage other state policy goals.  The actions relating to cellular and broadband service follow this pattern as well, by promoting measures to expand coverage.  For example, the proposed amendments add the installation of fiber-optic or other broadband cable technology in existing highway or utility rights of way to the list of Type II actions.  This would remove hurdles to greater installation of high-speed broadband service, a priority for the state as an essential component of promoting job growth and competitive industries.

The proposed amendments also add the co-location of cellular antennas and repeaters to the list of Type II actions, providing that the existing structure on which they are installed is not a designated as historic place under state or national registries.  This change better conforms the co-location procedures with federal law, while removing the need, in some cases, for the installation of an additional transmission tower.

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.


DEC Proposes Amendments To SEQRA Regulations, Part Three: Additions To The Type II List – Green Projects

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 third post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to add certain the environmentally friendly measures.

Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The purpose of this list is to accelerate the SEQRA review process and reduce the administrative burden on both the lead agency and applicant by categorically excluding actions that almost invariably receive negative declarations. The proposed amendments would expand this list by adding several new types of actions to the Type II list.

With respect to environmentally friendly improvements, the proposed amendments would add two new types of actions to the Type II list.  The first is “Green Infrastructure,” defined as “practices that manage stormwater through infiltration, evapotranspiration and reuse such as the use of permeable pavement; bio-retention; green roofs and green walls; tree pits, stormwater planters, rain gardens, vegetated swales, urban forestry programs; downspout disconnection; and stormwater harvesting and reuse.”  While these practices could be used in new development projects, the proposed amendments would be limited to retrofit projects (the replacement or altering of an existing structure to incorporate green infrastructure practices).

Similarly, another proposed addition is “Upgrade of Structures to Meet Energy Codes.”  As the name implies, this would expand the existing “replacement, rehabilitation, or reconstruction” language for in-kind upgrades to include meeting energy codes.  Currently, the provision is limited to upgrades to meet the applicable building and fire codes.

Finally, the proposed amendments would add a broad category for the installation of solar energy arrays with a generating capacity of five megawatts or less.  The focus is on installation on existing structures, or alternatively on land such as sanitary landfills, sites zoned for industrial use, or placed on or over residential and commercial parking facilities (lots or garages).  This meets a variety of state goals relating to clean energy, improving air quality, etc., and does so by utilizing dead space in existing structures or otherwise unused land.  The five-megawatt cap also ensures that large, utility-scale projects will still require SEQRA review.

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.


DEC Proposes Amendments To SEQRA Regulations, Part Two: Modifying The Type I List

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 second post in our series examining the proposed amendments.  The focus of this post are the threshold modifications to the Type I list of actions.

Type I actions (Part 617.4) are acts presumed to be of potential environmental significance.  As a result, a lead agency is required to complete a full environmental assessment form for each such action and coordinate review between agencies. Type I also includes thresholds after which actions that would otherwise be designated as “Unlisted” are elevated to Type I actions.  The proposed amendments to Part 617 would amend these thresholds with respect to three issues.

First, the proposed amendments would lower the threshold for the number of residential units in cities, towns and villages of various population levels, as the current thresholds were found to be so high that they were rarely triggered.  Specifically, the threshold for populations of 150,000 or less would be lowered from 250 to 200, the threshold for populations of 150,001 to 1,000,000 would be reduced from 1,000 units to 500 units, and the threshold for populations over 1,000,000 would be lowered from 2,500 to 1,000 units.  These limits are expected to capture various large projects that would otherwise proceed as Unlisted, encourage greater public input, and ensure coordination between reviewing agencies.

Second, the proposed amendments would change the parking space threshold, which is currently 1000 vehicles, to include a lower threshold for smaller municipalities.  Under the proposal, the threshold would remain 1000 vehicles for a city, town, or village with a population over 150,000, but drop to 500 vehicles for municipalities with less than 150,000 persons. Based on the gross floor area typically associated with parking requirements at this level, the proposal is expected to impact only a small number of projects that wouldn’t otherwise be categorized as Type I.

Finally, the proposed amendments would add a threshold for historic resources, designating Unlisted actions in close proximity to historic resources as Type I actions.  It would also include properties that have been determined by the Commissioner of the Office of Parks, Recreation and Historic Preservation as eligible for listing on the State Register of Historic Places. This aligns SEQRA’s methodologies with the federal equivalents, as the State Historic Preservation Act was modelled on the federal National Historic Preservation Act.

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.


DEC Proposes Amendments To SEQRA Regulations, Part One: Introduction

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. The proposed amendments aim to streamline the environmental review process, while also updating the regulations to reflect the changes, both technological and otherwise, that have occurred since the last major overhaul of Part 617 in 1995.  This will be the first in a series of posts examining the proposed amendments.

Examples of the changes to be discussed in forthcoming posts include: (1) modifying certain thresholds in the Type I list of actions, i.e. those deemed more likely to require an environmental impact statement; (2) expanding the Type II list of activities, i.e. those DEC has categorically deemed to not have a significant adverse impact on the environment (this will be the subject of multiple posts); (3) provisions encouraging the electronic filing of environmental impact statements; (4) transparency measures relating to the use of consulting firms by lead agencies; and (5) making scoping of environmental impact statements mandatory (it is currently optional).

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.



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