Second Circuit Holds Denial of Tower Application Was An Effective Prohibition of Wireless Services in Violation of the TCA

Plaintiffs-appellees Orange County, County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless, and Homeland Towers, LLC, sought to build a wireless communications tower in the Town of East Fishkill. Defendants-appellants, Town of East Fishkill and the Town of East Fishkill Zoning Board of Appeals (“ZBA”), denied plaintiffs' request for a special permit, a 40–foot variance, and a wetlands/ watercourse disturbance permit. Plaintiffs brought claims under the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) ( “TCA”), claiming the Town's denial was an effective prohibition of wireless services and unsupported by substantial evidence. The district court granted summary judgment for the plaintiffs.

On appeal, the Court first noted that the TCA's “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines.” In determining whether a significant gap exists, courts consider the gap's physical size, the number of wireless users affected, the location of the gap, and drop call or failure rates. Here, the Town's conclusion that any coverage gap was de minimis was contradicted by the plaintiffs' uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area: specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. It was also undisputed that the gaps affect roughly 35,000 commuters a day. Finally, plaintiffs investigated thirteen single-site and two multisite alternatives and determined that none would adequately remedy the gap. Thus, no alternative sites or preexisting structures could have supported a facility to remedy the coverage gaps. The Court therefore held that the district court properly granted summary judgment to Plaintiffs that the Town's denial of their application was an effective prohibition of wireless services in violation of the TCA.

The case was Orange Cty.--Cty. Poughkeepsie Ltd. P'ship v. Town of E. Fishkill, 632 F. App'x 1 (2d Cir. 2015).

Court Upholds Board of Appeals’ Reliance On Letters From Municipal Officials In Granting Variance

Petitioner commenced a CPLR Article 78 proceeding to review a determination of the Village of Great Neck Board of Appeals granting an application for variances and site plan approval. The trial court denied the petition and Petitioner appealed.

The appellate court affirmed, holding the Board was entitled to rely on letters it from municipal officials in making the zoning determination. Zoning Board determinations should be upheld where not illegal, irrational, or arbitrary and capricious.  Here, the decision to grant the application had a rational basis and was not arbitrary and capricious. The Court found Petitioner's claim the Board improperly relied on letters it obtained from the Chief of the Great Neck Alert Fire Company and the Village of Great Neck Building Department without affording her an opportunity to respond was without merit. In particular, the Court noted that the letters, which lacked any new factual allegations, were prepared by municipal officials who lacked any vested interest in the outcome of the Board’s deliberations.

The case was Applebaum v Village of Great Neck Bd. of Appeals, 2016 WL 1442271 (2d Dep’t April 13, 2016).

NY Appellate Court Affirms Lower Court Decision Upholding SEQRA Determination While Annulling Use Variance

Developers filed a preliminary site plan with the Planning Board of the Town of Bedford to build a car wash and detail facility. Most of the subject property was zoned as “RB,” or roadside business; while a rear portion was residentially zoned. The developers intended to use this residential portion as a driveway and parking lot. Due to concerns about the expected traffic flow from the proposed project, the Planning Board took lead agency status for a review pursuant to the State Environmental Quality Review Act (“SEQRA”).  Following a series of reports by traffic consultants and several public meetings, the Board issued a negative declaration.

Developers then applied to the Town of Bedford Zoning Board of Appeals (“ ZBA”) for use and area variances and a special permit, and following several public meetings, the ZBA granted the application. Regarding the use variance, the ZBA found the applicants could not realize a reasonable return without the variance and that the hardship had not been self-created. Petitioner DeFeo commenced a proceeding under CPLR Article 78 seeking to annul the Planning Board's negative declaration and ensuing use and area variances and special permit.

At trial, the lower court upheld the SEQRA determination, but found that the ZBA's determination to grant the use variance was not supported by a rational basis, and annulled the determination. In light of this decision, the lower court also annulled the ZBA's determination granting the area variances and special permit and the site plan approval by the Planning Board as academic.

On appeal, the Appellate Division Second Department affirmed, noting that:

To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created

Here, the developers submitted evidence that the residential portion of the property could not be used for a residence, or for any other permitted use, due to the topography, lack of support for a septic system, and narrowness of the residential portion. The developers also submitted an appraisal stating if the use variance were not granted, the development potential of the RB-zoned portion of the property would be reduced for the subject carwash project by 27%, for retail purposes by 35%, and for office space purposes by 53%.  However, the developers did not submit any actual financial information: including, but not limited to, the property’s: (1) original purchase price, (2) present price, (3) expenses and carrying costs, (4) taxes, and (5) the amount of any mortgages or other encumbrances on the property. The developers also failed to address the income presently being realized, or any estimate of what a reasonable return on the property, in whole or part, would be.

Finally, the Court noted that entitlement to a use variance is not established merely by proof that the proposed use would be more profitable than a use not requiring the variance. The developers are entitled to a reasonable return, not the most profitable return. For the foregoing reasons, the Court affirmed the lower court’s decision.

The case was Defeo v Zoning Bd. of Appeals of Town of Bedford, 2016 WL 1125992 (App. Div. 2d Dept. March 23, 2016).

Appeals Court Reverses On Standing, But Upholds Grant of Extraordinary Hardship Waiver for Mine in LI Pine Barrens

Westhampton Property Associates, Inc. (“Respondent”) owns and operates a sand and gravel mine partly in the “core preservation area” of the Long Island Central Pine Barrens and Town of Southampton. In 2011, Respondent applied to the Central Pine Barrens Joint Planning and Policy Commission for an extraordinary hardship waiver to vertically expand the mine from 44 feet above sea level to 26 feet above sea level. On October 17, 2012, the Commission granted Respondent the waiver. Richard Amper, in his individual capacity and as the Long Island Pine Barrens Society’s Executive Director, as well as two members of the Society’s Board of Directors, commenced a CPLR Article 78 proceeding to review the Commission's determination. The Supreme Court denied the petition, finding the petitioners lacked standing, and furthermore, the determination was not arbitrary, capricious, or an abuse of discretion.

On appeal, the Court first determined the lower court erred in holding the Petitioners lacked standing. Petitioners established Amper, in both his individual and professional capacities, used and enjoyed the Pine Barrens to a greater degree than most other members of the public. Thus the threatened injury to Amper by development in the core preservation area of the Central Pine Barrens was within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993. In addition, the Society had organizational standing test, as its interests in the proceeding were germane to its purposes, and neither the asserted claim nor the relief sought required participation of the individual members. Thus, both Amper and the Society had standing to challenge the determination at issue.

Regardless, the lower court properly dismissed the proceeding on the merits, as the record showed that Respondent’s proposed expansion needed an extraordinary hardship waiver. The Commission’s finding that any hardship was not self-created, and that Respondent had no other beneficial use of the property absent the hardship waiver, was not arbitrary and capricious. Likewise, the record supported finding the subject property, used as a mine since 1981, would be subject to various zoning restrictions if used as anything other than as a mine. As such, the Supreme Court’s dismissal of the proceeding was upheld.

The case was Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and Policy Commission, 2016 WL 1576954 (2 Dep’t April 20, 2016).

Appellate Court Affirms Denial of Town’s Motion to Permanent Enjoin of Defendants’ Use of Property for Composting and Processing of Mulch

Defendant owner owns of three contiguous parcels of real property in the Town of Brookhaven, the bulk of which is zoned A–1 Residential with a small portion within a J–2 Business Zoning District.  Defendant used the property for a composting and mulch-processing operation, and the Town commenced an action to permanently enjoin this use. The Town then moved for a preliminary injunction, contending Defendant’s use was unlawful under the zoning ordinance. In opposition, Defendant argues the operation constituted a lawful nonconforming, preexisting use of the subject premises. The Supreme Court denied the Town’s motion, and the Town appealed.

On appeal, the Appellate Division, Second Department noted it was improper for the lower court to deny the Town's motion based on collaterally estoppel due to the denial of a motion for that relief in a prior, related action. This was because in opposition to the Town's motion, Defendant did not make that argument or include the prior order and motion papers as exhibits to their opposition. Nevertheless, the Court found that while the Town ultimately might be successful, it had failed to demonstrate that the balance of the equities weighed in its favor. Here, the harm to the defendants if the injunction was granted would prove substantially burdensome and likely irreversible, the harm to the Town should the injunction be denied was more remote and uncertain. Furthermore, the Court found that granting the injunction would disturb the status quo, rather than maintain it. Accordingly, the Court held that the Town's motion for a preliminary injunction should have been denied on the merits.

The case was Town of Brookhaven v MMCCAS Holdings, Inc., 2016 WL 1230607 (App. Div. 2d Dept. March 30, 2016).

Digging Into DEC’s Proposed Part 360 Regulations: Part IX – Part 364 Waste Transporters, Continued

This is the ninth post in our series looking at the New York State Department of Environmental Conservation’s proposed revision and reorganization of Part 360. Today’s post will look at the final part of the proposed Part 364, Waste Transporters, namely the regulations governing permitted transporters.

Section 364-4 begins by stating “In lieu of the permit provisions provided in section 360.16…, all persons who transport regulated waste originating or terminating at a location in New York State, except those otherwise exempt or… [registered], must obtain a permit before transporting regulated waste...” In addition, transporters that ship both registration-eligible and permit-requiring waste must get a permit for all waste transportation they undertake.

Broadly speaking, a permit application requires: (1) a description of the type of waste to be transported; (2) the license plate number and registration for each transport vehicle to be used; (3) where the vehicles will be stored when not in use; (4) the name and address of all receiving facilities to be used and (5) evidence of their authorization to accept waste; (6) EPA ID if needed; (7) proof of insurance (various types); and (8) any other documentation required by DEC. The transporter must also disclose any transfer facilities it owns or operates. Once issued, a permit is valid for a year, is not subject to transfer or change of ownership, and are eligible for renewal or modification upon request. DEC may also issue temporary emergency permits at the request of law enforcement or where it deems there is an immediate threat to the public health. Finally, permits may be suspended or revoked for various reasons: failing to pay fees, failing to seek a required modification (new vehicles, etc.), violation of any rule or regulation related to the facility’s operation, the unsuitability of the applicant, and/or violation of a permit’s terms.

In regards to the actual transport of waste, 364-4 provides that transport vehicles must “include a cargo-carrying portion that is closed and secured except when loading or unloading.” Waste must be properly covered or contained to protect leaking, blowing, or discharge into the environment, and secured within the vehicle to prevent movement during transport. In addition, the driver may not leave the vehicle during loading and unloading. Transport vehicles must also identify the transporter on both sides, including placing the permit number in a color that contrasts with the background on the back and sides of the vehicle in text at least 3 inches high. Vehicles must also be marked placarded as required by the Transportation Law. Finally, there are a significant number of further regulations applying solely to the transport of biohazard waste.

The final two sets of regulation are documentation provisions. Transporters are required to keep a waste tracking document for each shipment of regulated waste. Transporters may only accept shipments that match the quantity and type on the tracking document, and may only deliver to the facility listed as the destination (except when the generator authorizes transport to another facility on the transporter permit, such as when delivery cannot be made to the listed facility). Finally, transporters must keep records for three years for every shipment, including the tracking documents, name and address of the generator, location where the waste was picked up, name and location of the receiving facility, quantity (volume or weight) and type of waste shipped, and the date of the shipment. A summary of this information must be included in the annual report mandated under Part 360.

A PDF of the full proposed Part 364- Waste Transporters regulations can be found here:

Appellate Division Holds Lawsuit Not Ripe for Review As Town Had Not Issued Final Decision On Use of Property To Care For Recovering Drug Users

Plaintiffs, who purchased a property within the Town of Babylon with the intended purpose of operating a facility providing care and counseling services to recovering drug users, alcohol users, and others, commenced an action alleging that the Town had violated their right to due process and equal protection by impeding them from utilizing the property for this purpose. The Town moved to dismiss the complaint as non-justiciable because Plaintiffs “never submitted a complete application for a building permit, a special use permit, or any other type of permit or approval, and since the Town never reached any final decision with respect to any such land use application.”  Despite this, the Supreme Court denied the Town’s motion to dismiss. On appeal, the Appellate Division, Second Department reversed.

In granting the Town’s motion to dismiss, the Court noted that the Planning Board had deemed the building permit application incomplete and informed Plaintiffs that they needed to submit an application for site plan review for a “change of use.”  In lieu of the requested documents, Plaintiffs submitted an “architectural site plan.”  The Planning Board refused to accept the alternative documents, and Plaintiffs failed to take any further steps to acquire a building permit, or for that matter any other type of permit or approval.  In light of this, the Court found that the process was still ongoing and the Town had yet to reach a final decision. As such, the Plaintiffs claims were not justiciable until the municipality “arrived at a definitive position on the issue that inflicts an actual, concrete injury.” The Court then dismissed the complaint.

The case was Loskot-D'Souza v. Town of Babylon, 137 A.D.3d 751 (N.Y. App. Div. 2016).

Digging Into DEC’s Proposed Part 360 Regulations: Part VIII – Part 364 Waste Transporters

This is the eighth post in our series looking at the New York State Department of Environmental Conservation’s proposed revision and reorganization of Part 360. Today’s post will look at the proposed Part 364, which governs Waste Transporters.

Part 364 is about getting waste safely from the point of generation to the site of final treatment or disposal, while preventing the intentional or accidental discharge of waste into the environment. This includes transport of nearly every material discussed in the previous posts, from raw sewage and sludge to industrial waste and construction and demolition debris. However, Part 364 does not apply to rail, water, or air transport. It also excludes more specific uses, like the transport of waste by farm vehicles for use on a farm. There is also a threshold weight for certain types of waste to be covered, while other types of waste are always exempt due to alternative, material-specific transporting regimes (ex: lead acid, batteries or explosives). In addition, waste transport by public utilities or “railroad service vehicle owned or operated by that utility or service” is also exempt. Finally, waste transportation wholly on-site by the person responsible for generating the waste is exempt.

Transporters subject to Part 364 fall under one of two regulatory schemes: registration or permitting. Registration, which is less burdensome than permitting, applies to specific types of transporters: those moving commercial solid waste in quantities over 2000 pounds, biohazard generators that generate and transport less than 50 pounds of waste per month, etc. Registered transporters do not need to mark their vehicles for waste they are authorized to carry, nor pay any environmental regulatory fees.  However, “all waste must be properly contained during transport to prevent leaking, blowing, or any other type of discharge to the environment” and must be “delivered to a receiving facility authorized to accept the waste.” Registered transporters must also fill out waste tracking documents for certain types of waste (ex: historic fill, biohazard). Finally, registered transporters must keep records of all waste transport for 3 years, including where the waste was picked up, the name and location of the facility where it was dropped off, the quantity (by weight or volume) and type of waste being transported, and tracking documents.

The requirements for permitted waste transporters will be covered in the next post. A PDF of the full proposed Part 364- Waste Transporters regulations can be found here:

Court Holds Water Resources Law Does Not Preempt Local Governments’ Authority to Regulate Land Use

Petitioners-plaintiffs owned rural residential land in the Town of Greig. Plaintiffs filed a special permit application to install 7,600 feet of underground pipeline to transport water from their property to a facility in a separate town, collecting “water from the naturally occurring aquifer under their land and to store such water for the purpose of bulk sale.” Respondent-defendant Planning Board of Town of Greig, refused to consider the application.  Petitioners commenced a hybrid CPLR article 78 / declaratory judgment action. The Supreme Court granted that petition-complaint, in part, by ordering the Planning Board “to consider the application on the merits according to lawful procedure and standards,” but declined to grant any affirmative relief.

Following the Court’s decision, the Planning Board granted the special permit, with several conditions. One condition was that “no construction on the pipeline may commence until the use of wells on the other property of the applicants is approved for commercial uses by the Town of Greig.” Petitioners commenced a second hybrid CPLR article 78 / declaratory judgment action to strike that condition from the special permit and for a declaration that the Planning Board was without authority to (1) regulate the use of water resources or (2) to require petitioners get additional approval to extract water from their property. The court consolidated and denied both requests, and petitioner’s appealed.

On appeal, the Appellate Division held that the Water Resources Law did not preempt local governments from “regulat[ing] the use of land through the enactment of zoning laws.” The court considered the statutory language, statutory scheme as a whole, and legislative history of the Water Resources Law, concluding that the law’s intent was to regulate water extraction “for commercial and industrial purposes” to preserve and protect natural resources. Thus, petitioners’ business could be blocked in residential districts whose primary purpose is to provide an environment for “safe, healthful and comfortable family life rather than the development of commercial instincts and the pursuit of pecuniary profits.” Additionally, petitioners lacked permission to use their residential property for a commercial use. Accordingly, dismissal of Plaintiffs’ second petition was affirmed.

The case was Smoke v Planning Board of Town of Greig, 2016 WL 1710454 (NYAD 4 Dept. 4/29/2016)

Digging Into DEC’s Proposed Part 360 Regulations: Part VII – Part 363 Landfills

This is the seventh post in our series looking at the New York State Department of Environmental Conservation’s proposed revision and reorganization of Part 360. Today’s post will look at the proposed Part 363, which governs Landfills. Unlike Parts 361 and 362, in which each subsection was a different type of facility under the broader umbrella, with its own detailed subparts, Part 363 only covers one type of facility: Landfills. As such, its twelve subsections individually address the various regulation categories (363-1 Applicability, 363-2 Exempt Facilities, etc.), with some having more than 20 subparts.  All told, the landfill regulations come in at over 100 pages.

Part 363 applies to all landfills, including new landfills, active and inactive existing landfills, lateral and vertical expansions of existing landfills, or landfills undergoing development. There are many exemptions however, such as excluding single-family dwellings, mines, or farms that dispose of generated waste on the property (provided it does not include any wastes listed as controlled, like pesticides, raw sewage, biohazard, batteries, etc.). Other exemptions include individual graves (including pet cemeteries), facilities for disposing of roadkill, and the religious burial of items. The final two exemptions, for tree debris disposal facilities and certain types of construction and demolition debris disposal facilities, do not apply to facilities located in Nassau or Suffolk county.

While not going into detail here, Part 363 includes dozens of pages on permit applications, siting requires, and the design and construction process for landfills. It also includes over 30 pages devoted to hydrogeologic investigation requirements, which are a type of environmental review. These requirements include dense and highly technical monitoring, sampling, and testing, requirements to ensure the landfill does not contaminate water sources or cause other types of environmental harm. The full regulations provide more detail, but it may be futile unless you are conversant in things like Benzanthracene, Acetylaminofluorene, and Isopropylidene chloride.

Finally, landfills are subject to a variety of safety and nuisance regulations, such as requirements that the landfill use operating cover to “control vectors, fires, odors, dust, and blowing litter.” Operating cover requires a minimum of “six inches of compacted cover” at the end of each day, if not more frequently, and a minimum of “12 inches of compacted operating cover” as a final layer when no further waste will be placed within the next year. There are also requirements to track and contain methane and other decomposition gases, to prevent potential explosions. Notably, Section 363-8.2 provides further operating requirements that apply only to landfills within Nassau or Suffolk.

Other areas of regulation addressed in Part 363 but not addressed here include closure requirements and custodial care, corrective measures, and landfill reclamation.

A PDF of the full proposed Part 363 – Landfills regulations can be found here:

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