2nd Circuit Rejects Claim That Plaintiff Had A Constitutionally Protected Interest in Hardship Relief from Landmark Designation

Plaintiff Stahl York Avenue Co., LLC, (“Stahl”) which owns landmarked buildings on Manhattan’s Upper East Side, appealed from the dismissal of its § 1983 substantive due process claim against the City of New York and New York City Landmarks Preservation Commission. Stahl argued the lower court erred in concluding it lacked a constitutionally protected interest in hardship relief from landmark designation because, if the Commission had adhered to New York City's Landmarks Preservation Law and controlling Commission precedent, it would necessarily have granted Stahl hardship relief.

The Court noted that although the Landmarks Law states the Commission “shall” grant hardship relief if a landmarked property is incapable of earning a reasonable return, it also affords the Commission wide discretion to determine whether an applicant has made the requisite showing. Here, where Commission considered hypothetical post-renovation rates of return, it had the authority to decide the appropriate input values for factors such as future rental rates, vacancy rate, operating expenses, etc. to determine whether the property was capable of earning a reasonable return.  In doing so, the Commission replaced Stahl's proposed rental rates of $35 and $20 per square foot with rates of $40 and $28, lowered Stahl's forecasted vacancy rate and collection loss from 10% to 5%, and cut Stahl's estimated operating costs from $14.20 or $15.70 per gross square foot to $11.46 per gross square foot.

Based on this analysis, the Court found that the Commission neither contradicted its own precedent nor acted arbitrarily and capriciously in concluding that the income approach was the appropriate method to measure assessed value in Stahl's rental scenarios. Moreover, these alleged “errors” had no material effect on the property's projected profit margin.  Thus, Stahl failed to show a strong likelihood that its application would have been granted but for arbitrary and capricious decision-making. Accordingly, the Court affirmed the district court’s dismissal of this claim.

The case was Stahl York Avenue Co., LLC v City of New York, 2016 WL 860431 (2d Cir. March 7, 2016).

Digging Into DEC’s Proposed Part 360 Regulations: Part V – Part 362 Combustion, Thermal Treatment, Transfer, and Collection Facilities

This is the fifth 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 362- Combustion, Thermal Treatment, Transfer, and Collection Facilities. This Part has four subsections.

Section 362-1 is Combustion Facilities and Thermal Treatment Facilities.  This includes a wide range of facilities using fire or heat to treat solid waste, including “mass burn, modular, and fluidized bed combustors; thermal treatment facilities that utilize plasma arc, pyrolysis and gasification; low- temperature thermal desorption units such as thermal strippers and soil roasters; and facilities that combust refuse-derived fuel.”  This includes the burning or thermal treatment of materials otherwise covered Part 361, like waste tires, unadulterated wood, and cooking oil, and the section further adopts similar regulations to Part 361 for the handling of those respective materials. Explicitly excluded is the in-house treatment of medical waste produced on-site by hospitals, clinical laboratories, etc., and, oddly enough, crematories.

Those facilities which qualify for the strictest regulations under 362-1 (criteria vary by volume and waste type) will be required to submit engineering reports detailing the type, quantity and method of storage on-site; the pressure, temperature, and pounds per hour of all stead generated and used; total electric consumption and generation; and water usage for cooling, quench, sanitary and processing needs, including the amount recycled. They must also have waste control plans that include inspections of incoming waste, procedures to detect and screen out hazardous, radioactive or otherwise prohibited waste (ex: batteries, mercury products, etc.), and residue treatment plans for ash, slag, and other waste generated by the facility. This includes instituting and following sampling, testing, and chain of custody procedures to ensure safe levels various hazardous substances.

The next section, 362-2, Municipal Solid Waste Processing Facilities, represent the other side of the coin to Section 361-1’s recycling facilities. Whereas 361-1’s facilities handle waste that has been source-separated (i.e. separated by type prior to collection), facilities falling under Section 362-2 perform post-collection separation of municipal waste to recover recyclables (or produce refuse-derived fuel). These facilities must also have waste control plans and radioactive waste detection plans mandating inspections designed to prevent hazardous or radioactive from entering the waste stream. They are also prohibited from handling friable asbestos and source-separated recyclables, rechargeable batteries, mercury-containing products, etc.

The regulations also impose limitations on “all tipping, sorting, processing, compaction, storage, and related activities,” namely that they be conducted in enclosed buildings with adequate odor controls, asphalt or concrete paving and drainage structures, and daily cleaning. Storage may be outdoors if in sealed containers or covered trailers, however all storage of unprocessed waste is limited to no more than 3 calendar days. Processed materials may be stored for 60 days, or up to 180 days with DEC permission.

The remaining sections of Par 362, transfer facilities will be discussed in the next post.  A PDF of the full proposed Part 362 – Combustion, Thermal Treatment, Transfer, and Collection Facilities regulations can be found here: http://www.dec.ny.gov/docs/materials_minerals_pdf/pt362.pdf

Court Upholds the Denial of an Area Variance as Supported by Substantial Evidence

Respondent Zoning Board appeals from a judgment granting a CPLR article 78 petition and annulling the determination of the Board denying petitioners' application for two area variances for the construction of an apartment building. On appeal, the Appellate Division found the Zoning Board rendered its determination after considering the appropriate statutory factors and therefore the determination was not illegal, arbitrary, or an abuse of discretion. Specifically, the Board found that granting the requested area variances would cause increased population density from the presence of an apartment building in a neighborhood of single-family homes, that further substantial variances to construct the building would be necessary, and that Petitioners' difficulty was self-created because they knew of the property's zoning classification at the time of purchase.  Having properly weighed the benefits to Petitioners against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted, the appeal was dismissed and the judgment of the trial court reversed.

The case was People, Inc. v City of Tonawanda Zoning Board of Appeals, 126 A.D.3d 1334 (App. Div. 2015). The full decision can be found here: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_02257.htm

Digging Into DEC’s Proposed Part 360 Regulations: Part VI – Part 362 Combustion, Thermal Treatment, Transfer, and Collection Facilities, continued

This is the sixth 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 remaining sections of the proposed Part 362- Combustion, Thermal Treatment, Transfer, and Collection Facilities.

Section 362-3 governs waste transfer facilities, i.e. facilities which receive solid waste with the purpose of subsequently transferring it to another facility for further processing, treatment, transfer or disposal. There are several exemptions to this section, the most notable of which is for transloading facilities (i.e. transferring cargo between modes of transportation, such as truck to train or vice versa.). However, to qualify for the exemption the facility must meet certain criteria: waste is only accepted from transporters under its ownership or control, and the waste is in “rigid, leak-proof, closed containers” which remain closed at all times and are not placed on the ground at any point during transfer.

In addition, Transfer Facilities are subject to most of the same regulations as Collection Facilities under 362-2, including the waste control and radioactive waste control plans, the limitations on tipping, sorting, etc. requiring it be conducted in enclosed structures with paved floors and drainage structures, and the limitations on the types of material that may be handled. Refer to our previous post for a more detailed list.

The final subsection of Part 362 is 362-4, Household Hazardous Waste Collection Facilities and Events. This deals with the “collection, storage and disposal of household hazardous waste and wastes from conditionally exempt small quantity generators (CESQGs),” which cross-references Part 371. The application of this section is extremely limited, as collection events are limited to no more than 12 days within a calendar year. 

A PDF of the full proposed Part 362 – Combustion, Thermal Treatment, Transfer, and Collection Facilities regulations can be found here: http://www.dec.ny.gov/docs/materials_minerals_pdf/pt362.pdf

Digging Into DEC’s Proposed Part 360 Regulations: Part IV – Part 361 Material Recovery Facilities, Continued

This post will cover the remaining sections of Part 361. These sections are relatively brief, roughly five pages each. They include:

Section 361.4, Wood Debris and Yard Trimmings Processing Facilities, which covers facilities that process yard trimmings and wood debris into mulch or other beneficial products. This section specifically excludes construction and demolition wood debris, as well as facilities that compost or burn wood debris, and primarily addresses the storing of tree debris, with a focus on fire prevention. This includes the manner and height to which trees are stacked, and also explicit anti-fire provisions like limitations on storage temperature, flammable materials, and requiring sufficient on-site water to douse fires.

Section 361-5, Construction and Demolition Debris Processing Facilities, covers construction and demolition debris. As this section was discussed at length in a previous newsletter and blog post, it won’t be addressed here except to say that it is supplemented by provisions in several other sections.  That article can be found here.

Section 361-6, Waste Tire Handling and Recovery Facilities, is exactly what it sounds like: discarded tires. This only applies to facilities that handle or store at least 1,000 tires at a time, not counting those on vehicles, and does not include facilities that burn tires. This section includes storage and fire prevention regulations, as well as provides for the resale of tires. It is also noteworthy that there are several Beneficial Use Determinations under which tires are no longer considered waste.

Section 361-7, Metal Processing and Vehicle Dismantling Facilities, covers facilities that dispose of metal and end-of-life vehicles, excluding, among other things: (1) source-separated waste, (2) construction and demolition debris, and (3) waste tires, all of which are covered by subsections previously discussed. This includes both auto repair shops with more than 25 end-of-life cars on-site and vehicle dismantling facilities. Substantively, the regulations primarily concern removing of fluids such as engine oil, transmission fluid, brake fluid, coolant, and fuel from the vehicle prior to storage, crushing, or shredding. Fluids “must be drained, removed, collected, and stored for appropriate use, treatment, or disposal to the maximum extent possible.” The provision also requires removal of batteries, mercury containing components, and airbags.

Finally, Section 361-8 is Used Cooking Oil and Yellow Grease Processing Facilities. This section covers the use of spent cooking oil or yellow grease for manufacturing purposes, notably for use in biofuels. This only applies to facilities handling more than 1,000 gallons per year, with stricter regulations applying to those that handle over 500,000 gallons per year. The regulations focus on ensuring containment through the use of a secondary containment system, as well as spill and fire prevention.

Though not discussed, each of the sections described in this post also include recording requirements for the source and quantity of waste being handled.

A PDF of the full proposed Part 361 – Material Recovery Facilities regulations can be found here: http://www.dec.ny.gov/docs/materials_minerals_pdf/pt361.pdf

Court Upholds Denial of Variances for Accessory Structure

After the Zoning Board denied Petitioner’s application for setback and area variances for a second-story addition to an accessory building, and that decision was affirmed by the trial court, Petitioner appealed. On appeal, the Appellate Division affirmed the judgment in favor of the Zoning Board of Appeals.

As periodically discussed on this blog, the statutory test for granting an area variance requires the zoning board of appeals to weigh the benefit to the applicant against detriments to the health, safety, and welfare of the neighborhood if the variance is granted. The five factors the ZBA considers are: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.” In addition, personal observations of members of the zoning board may also be considered.

Here, the Court found that the evidence and Board member's inspection of the property supported the conclusion that granting the variances would be to the detriment of nearby properties and undesirably change the neighborhood’s character. In addition, the Board rationally concluded that the requested variances were substantial and that there was a feasible alternative to increasing the size of the accessory building, since there were other structures on the property that could provide additional storage space. Likewise, Petitioners' hardship was self-created as they completed the additions to the building without obtaining a building permit. Finally, the Court noted that the Board “was entitled to consider the effect its decision would have as a precedent.”

The case was Sacher v. Village of Old Brookville, 124 A.D.3d 902 (App. Div. 2015) and can be found at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_00773.htm

Court Finds Party Was Indispensable In Variance Case

The Zoning Board of Appeals for the Town of Islip granted an application by nonparty Wetherall for area variances for a shed, outdoor shower stall, and garbage bin. Petitioners commenced the instant Article 78 proceeding to annul the ZBA's determination. Although the petition named Wetherall as Respondent, the Supreme Court granted Wetherall’s motion to dismiss, finding Petitioners' attempt to serve by the “affix and mail” method of CPLR 308(4) was defective as a matter of law. The Supreme Court then issued a decision to annul the ZBA's determination.

On appeal, the Appellate Division noted a court may excuse the failure to join a necessary party and let the action to continue in the interest of justice after evaluating the five factors in CPLR § 1001(b): “(1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party.”

After weighing the five factors in § 1001(b), the Court concluded that Wetherall met these criteria and was indispensable. The Supreme Court should have therefore denied the part of the Petitioners' motion to compel the Building Commissioner for the Town of Islip to revoke that portion of the certificate of compliance relating to a shed and outdoor shower stall, as well as those sections relating to annulment of the determination granting the area variances for a shed and outdoor shower stall, and dismissed those portions of the proceeding.

The case was Feder v. Town of Islip Zoning Bd. of Appeals, 980 N.Y.S.2d 537 (App. Div. 2014).

Court Affirms Planning Board’s Conditional Site Plan Approval

Petitioner owned property along the western shore of Lake George, on which Petitioner operated the Olympian Village Motel. Respondents LaPlantes owned an adjacent parcel to the north of Petitioner's property, where they operated a motel (Stepping Stones Resort). Respondents applied for and were granted an area variance by the Town of Lake George Zoning Board of Appeals to make certain modifications to the height of the fence between the properties. The NY Supreme Court upheld the ZBA's issuance of the variance, but remitted for consideration of the application of Town Code § 175–23, which provides the screening requirements for all structures within 300 feet of the Lake George’s mean high-water mark. On remittal, the ZBA concluded application of the ordinance was a matter for Respodent Town of Lake George Planning Board to resolve. The Planning Board, after expressly referencing the number of trees “up through the fence line,” conditionally approved the LaPlantes' application for site plan review. The Supreme Court dismissed Petitioner's Article 78 proceeding, finding the Planning Board's determination was rational and rejecting Petitioner’s contrary interpretation. 

Petitioner argued that interpreting the ordinance was a purely legal question to which no deference to the Planning Board's interpretation was required. Though the ordinance required the view of the fence from the water be “filtered,” the Court found “filtered” was not functionally equivalent to “invisible.” Here, the Planning Board considered arguments by counsel for the respective parties and observations by one of its members, who personally visited the site and made specific reference to the number of trees along the fence line. Thus, the record as a whole provided a rational basis for the Planning Board's determination. In addition, further factors such as the staggered height of the fence, its positioning, and evidence of similar fences in the vicinity of petitioner's property further supported finding the Planning Board's conditional site plan approval was not arbitrary and capricious.

The case was Edscott Realty Corp. v Town of Lake George, 134 A.D.3d 1288 (App. Div. 2015).

Digging Into DEC’s Proposed Part 360 Regulations: Part III – Part 361 Material Recovery Facilities

This is the third 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 361 on Material Recovery Facilities, or what are more commonly known as recycling facilities. This Part has eight subsections, each addressing a different type of recycling facility as categorized by the material handled. For example, there are subsections for facilities that handle waste tires, wood debris, facilities that engage in composting, and so forth. 

Section 361.1, Recyclables Handling and Recovery Facilities, addresses facilities that handle “source separated, non-putrescible recyclables.” These are what people commonly consider “traditional” recyclables like glass, plastic, newspapers, etc., and “source separated,” as opposed to “single stream,” simply means that they are separated by type when collected.  The regulations for such facilities are relatively light, placing limits on the duration of storage, requiring materials delivered to or leaving the facility be weighed and recorded, and that facilities either register or be permitted based on their scope of operation.

Section 361.2, Land Application and Associated Storage Facilities, governs septage, food processing waste, and other organic waste to be used for land application, i.e. put into the soil to improve quality or provide plant nutrients. In short, this subsection addresses waste directly used as fertilizer for agricultural purposes. This section is also comparatively dense, requiring highly technical analyses of the soil and waste used, including measurements of the amount and/or ratio of organic and inorganic nitrogen, ammonia, nitrate, etc. being applied, the rate of application, pH levels in the soil, etc. There are also health and safety provisions relating to the crops grown and precautions to ensure crops or animals destined for human consumption do not come into contact with waste material.

Section 361.3 addresses Composting and Other Organics Processing Facilities. Other than using a similar yet broader set of materials than Section 361.2, the main difference is that the material is used to create a distinct, “mature product for use as a source of nutrients, animal feed, organic matter, liming value, or other essential constituent for a soil or to help sustain plant growth,” rather than to be applied directly to the soil. This section also has highly technical rules to stop groundwater contamination by leachate and governing the heat-drying of waste materials (for an example, view the Tables at the end of the section).

The remaining sections of Part 361 will be covered in the next post. A PDF of the full proposed Part 361 – Material Recovery Facilities regulations can be found here: http://www.dec.ny.gov/docs/materials_minerals_pdf/pt361.pdf

Court Finds That Substantial Improvements And Expenditures Alone Do Not Create A Vested Right

In 2000, Plaintiffs Exeter Building Corp. and 17K Newburgh, LLC took ownership of a 29-acre parcel of real property in the Town of Newburgh. The property was zoned R-3, permitting multi-family housing. In 2002, Plaintiffs applied to the Town's Planning Board for approval of a site plan for a proposed project, Madison Green, consisting of 34 residential buildings, each with four single-family units (136 units total). On March 6, 2006, the Town Board enacted Local Law No. 3 (2006), its comprehensive plan, and the Plaintiffs’ property was rezoned to R-1. Plaintiffs commenced an action seeking to invalidate Local Law 3 and for a declaration that they have vested rights, under statute and common law, to develop Madison Green under the R-3 zoning regulations. In November 2006, a Supreme Court order invalidated Local Law 3, but also declared that Plaintiffs did not have vested rights to develop Madison Green under the R-3 zoning regulations. After further developments, Plaintiffs brought a second action in 2009, in which it was declared they had a vested right to develop Madison Green. Defendants appealed.

On appeal, the Appellate Division noted that in New York, a vested right is acquired when the landowner has demonstrated a commitment to the purpose for which the permit was granted, as demonstrated by making substantial changes and incurring substantial expenses for the development. Neither issuance of a permit nor the landowner's substantial improvements and expenditures alone can establish that right. Rather, the landowner's actions in reliance on the valid permit must be so substantial that the municipal action result in serious loss that renders the improvements essentially valueless. Here, the Court found that none of the permits acquired by Plaintiffs, either alone or in the aggregate, amounted to the Town's approval of Madison Green. Accordingly, the court held that the Supreme Court should have declared that the plaintiffs do not have a vested right to develop the property under the R-3 zoning regulations.

The case is Exeter Bldg. Corp. v. Town of Newburgh, 980 N.Y.S.2d 154 (App. Div. 2014).

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