KKS Properties, LLC (“KKS”), was the owner of property in the Town of Bethlehem, New York. In conjunction with the construction of an extension of State Route 85, the State of New York (“SONY”), appropriated a parcel of KKS’s property, which bifurcated the property from north to south, leaving a parcel to the east of the bypass and a parcel to the west. The eastern parcel continued to enjoy access while access to the western parcel was reduced. Both parties entered into an agreement for an advance payment in the amount of $718,500 for the appropriated land. However, believing such compensation to be insufficient, claimant commenced a proceeding, asserting that the limited access granted to the western parcel of its land had rendered the northernmost 16.04 acres unsuitable for development to its highest and best use, and sought consequential damages of $1,583,000.

At trial, KKS presented testimony that SONY’s appropriation, and the corresponding restrictions to vehicular and utility access severely limited its ability to develop the western portion of its land for its highest and best use. KKS also presented testimony of a licensed real estate appraiser, who opined that the highest and best use of the parcel, both before and after, was for commercial development consistent with the zoning requirements. The land was valued before the taking at $2,360,000 and after the taking at $350,000, thus estimating total direct and consequential damages to be $2,010,000.

SONY offered testimony of a certified general real estate appraiser. She opined that the highest and best use of the property, both before and after, was for residential development and valued the direct damages for the taking of claimant’s property at $211,000. Further, the value of the entire property before the appropriation was $773,000 and that the value after the appropriation was $574,000; as the differential was less than the direct damages assessed, she concluded that claimant did not suffer any consequential damages.

The Court of Claims found KKS’s property would not have been rezoned absent the bypass extension and concluded the highest and best use of the land was for residential development. The total damages of $532,000 were a result of the taking. SONY then moved pursuant to EDPL 304 (H) for an order awarding it judgment against KKS for overpayment. The court entered judgment in favor of SONY for $304,679.57, which included the overpayment of $186,500, plus statutory interest. KKS appealed.

On appeal, the Appellate Division reversed. The court stated that while it was settled that a condemnee may not receive an enhanced value for its property when the enhancement can be exclusively attributed to the reason for the taking itself, the court found that SONY failed to demonstrate that “but for” the bypass extension, KKS’s property would not have been rezoned. Further, the predominant rule in condemnation cases is that in determining an award to an owner of condemned property, the findings must either be within the range of the expert testimony, or be supported by other evidence and adequately explained by the court. Here, because the appraisals of both parties’ experts were flawed, leaving the court without competent proof on which to base its valuation, the court had to remit the matter to the Court of Claims to determine the valuation of KKS’s property and the calculation of damages based on the property’s highest and best use as hamlet and commercial hamlet lands

In re Acquisition of Real Prop. by State, 119 AD3d 1033 (NY 7/3/2014)

The opinion can be accessed at:


NE Colorado Cellular, doing business as Viaero Wireless (“Viaero”), sought to construct a telecommunications tower in the City of North Platte, Nebraska (“the City”). The North Platte City Council (“City Council”) voted to deny Viaero’s application for a permit to build the tower, finding that the tower would be inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed suit against the City for violation of the Telecommunications Act of 1996 (TCA), alleging that the City Council decision was neither “in writing” nor “supported by substantial evidence.” The district court upheld the City’s decision.

The court looked at the Fourth and Eleventh Circuits in analyzing the “in writing” requirement, and found that nowhere does the statutory text require that the denial and the “written record” be separate writings. Section 332 requires only that the denial and the record both be written, and does not require that the written denial state the reasons for the denial. Even though Congress may require an agency or board to state its findings, it did not do so here. Thus, the in writing requirement was met when the City Council passed and memorialized a formal resolution. Substantial evidence was found to exist because the City Council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood. In the context of a zoning decision, this is enough for a “reasonable mind” to accept as “adequate to support a conclusion” that the proposed tower would be out of place in the neighborhood.

Because the City Council’s denial of a CUP to construct the proposed telecom tower was both “in writing” and “supported by substantial evidence”, the court held that the district court did not err in granting summary judgment to the City.

NE Colorado Cellular, Inc v City of North Platte, 2014 WL 4116809 (8th Cir. 8/22/2014)

The opinion can be accessed at: http://webcache.googleusercontent.com/search?q=cache:http://www.courthousenews.com/home/OpenAppellateOpinion.aspx%3FOpinionStatusID%3D116752

At issue was whether a five year moratorium enacted in the City of Fort Collins, Co is preempted by the rules of the Colorado Oil and Gas Conservation Commission, a body created by the Oil and Gas Conservation Act. The trial court held athough the State Oil and Gas Conservation Act does not expressly preempt all local regulation of drilling, the five year moratorium substantially impedes the state’s significant interest in oil and gas development and production. As such, the ban is impliedly preempted. In addition, the ban prohibits a technique to chemically treat wells that the Act expressly allows. As such, the ban is also preempted by operational conflict.

As in the Longmont County case decided a month earlier, the court applied the four-part test set forth by the Colorado Supreme Court: whether there is a need for statewide uniformity of regulation; whether the municipal regulation has an extraterritorial impact; whether the subject matter is one traditionally governed by state or local government; and whether the Colorado Constitution specifically commits the particular matter to state or local regulation. The court also considered the three forms of preemption: a) express preemption; b) implied preemption; and c) operational conflict preemption, and granted summary judgment to the challengers of the ordinance.

The Court determined that the municipal ordinance was impliedly preempted by the State’s Oil and Gas Conservation Act, which authorized the Commission “to comprehensively regulate the production and development of oil and gas.” The Court said, “the Ordinance does not attempt to exercise any land-use authority that is harmonious with the Act. The Act is a total ban. Second, although the Ordinance expires after five years, the preemption analysis
does not change. A city ordinance is preempted by state law regardless of how long that
ordinance has legal effect. …A city can no more pass a preempted ordinance that lasts for five years than it can pass a preempted ordinance that lasts indefinitely.”

Lastly, the Court held that even if there was no implied preemption, there was an operational conflict because the ordinance “prohibits what the Act expressly authorizes the Commission to permit.”

Colorado Oil and Gas Association v. City of Fort Collins, Slip Op. (D.C. Larimer Co. 13CV31385, 8/7/2014).

The opinion can be accessed at: http://media.bizj.us/view/img/3401521/order-grant.pdf

Editor’s Note: This case is reposted from the Midwest Planning BLUZ blog: http://blogs.extension.iastate.edu/planningBLUZ

In April of 2013 the West Side Christian Church in Evansville, Indiana submitted an application to the City’s Engineer’s Office seeking permission to erect thirty-one six-foot plastic crosses on a 1.5-mile-long public riverfront for two weeks in August of 2013. The city denied the permit originally because the display was intended to be decorated with phrases like “Jesus saves,” which was against the City municipal code regarding “First Amendment signs.” When the permit was resubmitted without the religious phrases, the Board of Public Works approved the display contingent on a disclaimer being placed on either end of the display saying that it was not endorsed by the City of Evansville.

In June 2013 Cabral and Tarsitano (plaintiffs) filed a complaint against Evansville challenging the display as violating the Establishment Clause, and requested a preliminary injunction preventing the installation of the crosses. The church then filed a motion to intervene in July. The district court entered an injunction holding that, “the City’s approval of this display of crosses constitutes an impermissible endorsement of religion that violates the Establishment Clause of the First Amendment.” The city did not appeal the decision. The church, however, filed a timely appeal arguing that the display did not violate the Establishment Clause and that instead the injunction violates the church’s First Amendment rights.

Rather than address the First Amendment issues, the Seventh Circuit Court of Appeals found that the church lacked standing to pursue its appeal. There are three requirements that must be met in order for a litigant to have standing: (1) they must have suffered an actual or imminent injury in fact, (2) the injury must be traceable to the challenged action, and (3) it must be likely, not just speculative, that the injury will be redressed by the court returning a favorable decision. Standing does not exist in this appeal primarily due to the fact that even if the court were to overturn the district court’s decision, it is only speculative as to whether the “injury” suffered by the church would be redressed because the City of Evansville might deny the permit for a number of reasons. Such speculation as to future events is not enough to support a claim of standing “[S]tanding requires that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In addition, the only party expressly bound by the injunction – the city of Evansville – did not appeal the lower court decision and was not a party to the church’s appeal. A judgment will not be altered on appeal in favor of a party who did not appeal, even if the interests of the party not appealing are aligned with those of the appellant.

For these reasons, the church’s appeal was dismissed for lack of standing.

Cabral v City of Evansville, IL, 759 F.3d 639 (7th Cir 6/25/2014)

The opinion can be accessed at: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D06-25/C:13-2914:J:Williams:aut:T:fnOp:N:1369638:S:0

In 2004, respondents Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC and Nancy Hull Godshall, (hereinafter collectively referred to as the “developers”), submitted an application to respondent Adirondack Park Agency (“APA”) for approval of the proposed Adirondack Club and Resort to be located on privately-owned land in the Town of Tupper Lake, Franklin County. The 6,235–acre project site included and surrounded the closed Big Tupper ski area and was bordered by the Village of Tupper Lake, State Route 30, and a municipal golf course. The application was amended and supplemented by the developers several times until it was deemed complete by the APA in 2006. In 2007, the APA ordered that an adjudicatory hearing be conducted and identified the issues for determination. The developers submitted updated application information in 2010. Shortly thereafter, the APA issued an extensive final order and drafted 14 permits for the various aspects of the project. As approved, the project included 659 residential units, a 60–bedroom inn, a downhill ski area, a marina and valet boat launching service, over 15 miles of public and private roads, wastewater treatment systems and various recreational amenities and maintenance facilities. Various environmental organizations brought this article 78 proceeding to challenge determination of Adirondack Park Agency, which approved developers’ application for resort to be located on project site within Adirondack Park. The court granted the petitioners’ motion for permission to appeal from Supreme Court’s order denying their motion for leave to conduct discovery.

In reviewing the petitioner’s substantive claims, the court noted that judicial review of the APA’s determination does not require overwhelming evidence or even a preponderance of the evidence, but merely relevant proof that a reasonable mind would accept as adequate to support a conclusion. The court first found that the APA considered the limited time period during which withdrawals from Cranberry Pond would be permitted to occur and the evidence of the prohibitive cost of using Tupper Lake as a water source during the initial phases of the project. Accordingly, the APA could rationally conclude that a permit to use Cranberry Pond was authorized because it was the only alternative which reasonably could accomplish the applicant’s objectives. The court then addressed the petitioner’s claim that the development would adversely affect the wildlife; in the absence of any evidence of protected species on the project site, the court held it was rational for the APA to approve the permit application without requiring the developers to conduct a comprehensive wildlife survey. Next, the court found substantial evidence also supported the APA’s approval of the residential development. Although the APA found that the project would necessarily eliminate some commercial timber harvesting activities on the resource management lands, it rationally determined that the development and implementation of a forest management plan as required by the permit for the Large Eastern Great Camp lots would “lead to a healthy working forest.”

Petitioners then claimed that the project would have an undue adverse impact on the nearby state-owned, DEC–operated boat launch at Tupper Lake. However, because the launching and boarding of boats by the valet service would permit the project’s residents and guests to use the boat launch in the same manner as any other member of the public, the court found that this decision for approval was also supported by substantial evidence by the APA. As to the fiscal impact claim, the court found that there was substantial evidence that, even if the developers were to default on the FCIDA bonds, there would be minimal risk to the local municipalities. Finally the petitioners’ procedural claims were similarly found to be without merit by the court because: the order approving the project contained over 100 findings of fact, followed by the APA’s conclusions of law; the petitioners failed to make any written comment with respect to the completeness of the hearing record and cannot argue that they were refused the opportunity to do so; and the APA extended the project’s “in existence” time period to 10 years from the date of issuance of the final order and determined that it will consider this project to be in existence upon conveyance of the first residential building lot authorized by a permit. Accordingly, the court affirmed the lower court’s holding, dismissing the petitioners’ claims.

Protection of the Adirondacks! Inc v Adirondack Park Agency, 990 N.Y.S. 2d 643 (A.D. 3 Dept. 7/3/2014)

The opinion can be accessed at: http://law.justia.com/cases/new-york/appellate-division-third-department/2014/516901.html

T–Mobile applied for a use variance to erect a 150–foot monopole that was to have a six-foot lightning rod on top and support up to nine antennae. David Sileo, a West Deptford resident who lived on a property approximately three-hundred feet away from the proposed monopole, testified in opposition, arguing that it would be an eyesore. After hearing the testimony, the Board voted unanimously to approve the variance, contingent on site plan approval. Sileo, acting pro se, filed an action in lieu of prerogative writs challenging the Board’s action. On the return date, the judge granted the Township of West Depford’s (Township) motion to intervene, which it did as a party defendant.

The Township’s answer included a cross-claim against T–Mobile and the Board for: (1) failure to request a height variance; (2) failure to address whether the variance approval would substantially impair the intent or purpose of the R–6 zone; and (3) failure to provide a negative-criteria analysis under N.J.S.A. 40:55D–70(d). The court held that, despite T–Mobile’s failure to explicitly request a height variance, the Board had jurisdiction to grant one. The court concluded that the omission was de minimis in light of three facts: (1) the public notice explicitly stated that T–Mobile was seeking a height variance; (2) objections were heard on the issue during the public hearing; and (3) the Board’s resolution stated that it granted “all necessary and requested variances.” As a result, the court invalidated the grant of the use variance and remanded the matter to the Board.

The Board then voted to deny the variance, and T–Mobile appealed alleging that the Board’s determination concerning impairment of the master plan and zoning ordinance was conclusory and unsupported by facts. The court invalidated the Board’s denial of the variance and directed the Board to grant site plan approval within thirty days. The court retained jurisdiction of the T–Mobile complaint and dismissed the Sileo/Concerned Citizens complaint with prejudice. Counsel for T–Mobile and the Board entered into a settlement agreement, which provided that the Board would be able to pursue an appeal of the use variance, but that it would grant site plan approval with specified changes. The Board again voted to deny site plan approval. T–Mobile filed a motion to enforce litigant’s rights based on the Board’s refusal to comply with the settlement agreement. The judge granted that motion, and the order specified that it constituted the requisite zoning approval to enable T–Mobile to apply for a construction permit and precluded further remands to the Board.

After considering the facts regarding the monopole, the court found that: the use was passive; it generated no noise, no odor, no traffic, no waste, and no light pollution; the existing topography and vegetation would not be disturbed; the setback and other bulk requirements of the zone remained satisfied; and the surrounding buffer zone and existing vegetation would mitigate the negative visual impact of the lower portion of the structure. The court also applied the Sica balancing test in residential districts and concluded that minimal visual impact of a monopole would not constitute a substantial detriment. Accordingly, the court reversed the Board’s denial of T–Mobile’s use variance, and granted T–Mobile’s motion to enforce the settlement.

T-Mobile Northeast, LLC v Township of West Deptford Zoning Board of Adjustment, 2014 WL 4098140 (NJ Sup. 8/21/2014)

The opinion can be accessed at: http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2014/a4188-12.html

Posted by: Patricia Salkin | September 23, 2014

Second Circuit Court of Appeals Revives RLUIPA Lawsuit

Editors Note: This posting is reprinted with permission from the RLUIPA Defense Blog at: http://www.rluipa-defense.com

On September 19, 2014, the Second Circuit issued its decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014), reversing the lower court’s entry of summary judgment in favor of the Borough of Litchfield concerning some of its claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The case involves Chabad’s attempt to expand a building it purchased in the Borough’s Historic District to accommodate its religious mission. The Borough states that Chabad’s “proposed modifications called for a 17,000-square foot addition . . . , including administrative offices, classrooms, a nearly 5,000 square-foot residence for Rabbi Eisenbach and his family, an indoor swimming pool, guest accommodations, kitchens, and a ritual bath.” The Borough’s Historic District Commission denied Chabad’s application.

Chabad sued under RLUIPA’s substantial burden, equal-terms, and nondiscrimination provisions. It also brought claims under the U.S. Constitution and state law.

The U.S. District Court for the District of Connecticut granted summary judgment in favor of the Borough. It concluded that Chabad’s substantial burden claim failed because Connecticut’s statutory scheme pertaining to the modification of property in a historic district (C.G.S. § 7-147a et seq.) is a neutral law of general applicability. It also found that Chabad’s equal-terms and nondiscrimination claims failed because Chabad had not established valid comparators. The District Court rejected Chabad’s remaining constitutional and state law claims for many of the same reasons.

The Second Circuit reversed the District Court’s entry of summary judgment on the substantial burden and nondiscrimination claims. It concluded that even though § 7-147a’s statutory scheme may be neutral and generally applicable, it constituted an “individualized assessment” and therefore invoked the substantial burden provision’s jurisdictional hook. In so ruling, the Second Circuit rejected the District Court’s holding that laws of neutral and general applicability, as a matter of law, cannot impose a substantial burden on religious exercise under RLUIPA.
Although the Second Circuit remanded the case to the District Court for consideration of whether the Borough’s actions substantially burdened Chabad’s religious exercise, it provided some guidance as to the factors that should be considered:

Westchester Day School enumerates some of the factors that may be considered to determine whether a substantial burden is imposed, including whether the law is neutral and generally applicable. In conducting the substantial burden analysis, we considered several factors. See 504 F.3d at 352 (stating that the “arbitrary and unlawful nature” of defendant’s conduct “support[ed]” a substantial burden claim, while also looking to “other factors”); see also Fortress Bible Church, 694 F.3d at 219 (finding that arbitrary and capricious application of land use regulation “bolstered” a substantial burden claim). In addition to the arbitrariness of a denial, our multifaceted analysis considered whether the denial was conditional; if so, whether the condition was itself a substantial burden; and whether the plaintiff had ready alternatives. . . . see also Fortress Bible Church, 694 F.3d at 219 (considering whether rejection of land use application denied plaintiff the “ability to construct an adequate facility” for its religious exercise, or was merely a “rejection of a specific building proposal”). Our sister circuits have contributed additional texture to this analysis. See, e.g., Bethel World Outreach Ministries, 706 F.3d at 558 (weighing whether plaintiff had “reasonable expectation” of receiving approval to build church when it bought property and deeming it “significant that the [defendant] has completely prevented [the plaintiff] from building any church on its property”); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (considering as a factor whether plaintiff “bought property reasonably expecting to obtain a permit,” particularly when alternative sites were available); Midrash Sephardi, Inc., 366 F.3d at 1228 (deeming it significant that the plaintiff could operate a church “only a few blocks from” its preferred location).
The Second Circuit – which had never before interpreted RLUIPA’s nondiscrimination provision – reversed the District Court’s entry of summary judgment in favor of the Borough on this issue. It determined that the District Court erred by bypassing circumstantial evidence that could have supported Chabad’s claim of discrimination and considering only Chabad’s cited comparators. The Second Circuit joined its sister circuits in looking to equal protection precedent to evaluate nondiscrimination claims. It decided that “establishing a claim under RLUIPA’s nondiscrimination provision, as with the Supreme Court’s equal protection precedent, requires evidence of ‘discriminatory intent.’” Because the District Court did not look beyond religious comparators, the Second Circuit vacated the granting of summary judgment on this claim, and remanded for consideration of whether Chabad had established a prima facie case.

The remainder of Chabad’s claims on appeal were rejected, largely due to Chabad’s failure to adequately brief them. The Second Circuit did, however, reverse the District Court’s dismissal of Rabbi Eisenbach’s claims for lack of standing, finding that he had met the constitutional requirements of Article III standing, since he alleged that he intended to live at the proposed facilities.

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, 2014 WL 4652510 (2nd Cir. 9/19/2014)

The opinion can be accessed at: http://rluipa-defense.com/docs/Chabad%20Lubavitch.pdf

Posted by: Patricia Salkin | September 22, 2014

NY Governor Signs Community Risk and Resliency Act

What follows is the Governor’s Press Release:

Governor Andrew M. Cuomo today signed into law the Community Risk and Resiliency Act to strengthen New York State’s preparedness for the effects of climate change and help protect communities against severe weather and sea level rise. The Community Risk and Resiliency Act advances a number of important recommendations of the NYS 2100 Commission, which the Governor convened after Superstorm Sandy to develop more resilient infrastructure systems across the state.

“The new reality of extreme weather has had painful consequences for New Yorkers in virtually every region of our state, but today we’re taking another step forward in our goal of building back better, stronger, and more resilient than ever before,” Governor Cuomo said. “This new law contains a comprehensive package of actions that help strengthen and reimagine our infrastructure with the next storm in mind. I am proud to sign this legislation as we continue to move New York forward to a cleaner and more resilient future.”

The Governor signed the legislation in conjunction with Climate Week 2014 in New York City, which features more than 100 events, including the United Nations Climate Summit, to highlight how governments, businesses, academia and citizens can reduce carbon pollution and prepare for the inevitable changes of a warming world. The Governor also proclaimed the week of September 22 as “Climate Week” and urged international collaboration to reduce greenhouse gas emissions and to make our nations and communities more resilient to climate hazards.

The Community Risk and Resiliency Act requires State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions (A06558/ S06617-B). The standards would apply to smart growth assessments, siting of wastewater treatment plants and hazardous waste transportation, storage and disposal facilities, design and construction regulations for petroleum and chemical bulk storage facilities and oil and gas drilling permits, and properties listed in the state’s Open Space Plan, as well as other projects.

In addition, the State Department of Environmental Conservation will adopt official projections for sea level rise by January 1, 2016 and update the projections every five years. The Department of Environmental Conservation and the Department of State will also prepare model local laws to help communities incorporate measures related to physical climate risks into local laws, as well as provide guidance on the implementation of the Act, including the use of resiliency measures that utilize natural resources and natural processes to reduce risk.

Senator Diane Savino, sponsor of the bill, said, “In the wake of Hurricane Sandy, New Yorkers understand that extreme weather is the new reality. Too many homeowners lost their homes when Sandy arrived at our shores and thousands of residents continue to feel the hardship from the storm’s incredible devastation. This legislation will finally require State agencies to take climate risk into account when issuing new permits and funding new projects that impact our daily lives. I applaud Governor Cuomo for signing this bill into law and for his unwavering commitment in the rebuilding of our communities.”

Assemblyman Robert Sweeney, Chair of the Assembly Committee on Environmental Conservation and sponsor of the bill, said, “This law ensures that New York State is responsible in the use of taxpayer monies. This legislation, which came as a result of hearings after Superstorm Sandy and Hurricanes Irene and Lee, ensures that state funds and permits for projects, such as water and sewage treatment plants, include consideration of the effects that climate change and extreme weather could have on these facilities. Extreme weather events, which used to occur once every hundred years, are now occurring with increased force and frequency. New York State must adapt to the changing climate reality. Given the proximity to water in many New York State communities, this legislation will allow us to rebuild our communities to withstand the effects of climate change. I am delighted that Governor Cuomo has signed the bill into law.”

Department of Environmental Conversation Commissioner Joe Martens said, “Governor Cuomo recognizes the risks of climate change and has worked closely with the State Legislature, State agencies, local communities and other partners to develop smart strategies to minimize potential impacts on residents, businesses and natural resources. This new law builds on these efforts by providing a stronger, pre-emptive defense against potential threats from extreme weather and flooding due to climate change, which will also better protect our environment.”

Secretary of State Cesar A. Perales said, “Governor Cuomo leads the nation with his vision and determination to address climate change adaptation and community resiliency. The Department of State will continue working with our sister agencies by providing planning expertise to help communities throughout the state implement long-term resiliency strategies, particularly in vulnerable coastal areas.”

Governor’s Office of Storm Recovery Executive Director Jamie Rubin said, “With instances of extreme weather becoming all the more common, we must continue to reimagine New York in an innovative and efficient way. Incorporating resiliency into each of our NY Rising programs, the State assists homeowners, small businesses and entire communities to build back better and stronger than before. The new Community Risk and Resiliency Act will further this goal, while demonstrating the State’s continued commitment to protecting at-risk coastal neighborhoods.”

New York State Division of Homeland Security and Emergency Services Commissioner Jerome M. Hauer said, “The Community Risk and Resiliency Act recognizes that with climate change comes more extreme weather conditions and New York State needs to be prepared to respond to more frequent and extreme weather events. This requires more hands-on training, equipment and response capabilities that will enhance our current operations and make New York the most prepared state in the nation.”

Scientists have confirmed a sea level rise of approximately 13 inches since 1900 along New York’s coast, and have also measured a significant increase in the proportion of total precipitation that arrives in heavy rainfall events. These climate changes, coupled with land-use planning, zoning and investment that allow and sometimes encourage development in at-risk areas, have resulted in more people, businesses and public infrastructure existing in vulnerable areas.

New York and other Northeast and Mid-Atlantic states pioneered the Regional Greenhouse Gas Initiative, the first market-based program to cap and reduce greenhouse gas emissions from power plants. Under this program, emission allowances are sold at auctions and the proceeds are reinvested in projects that support clean energy technologies, provide greater energy efficiency and help lower consumer energy bills, all while driving further reductions in greenhouse gas pollution.

The Community Risk and Resiliency Act will coordinate science and existing policy to create a safer New York. New York State has already invested millions of dollars in research programs to better understand climate change’s effects on New York. In addition, the NY Rising storm recovery programs include components for climate change resilience and adaptation.

The Nature Conservancy, New York Chief Conservation and External Affairs Officer Stuart F. Gruskin said, “By signing the Community Risk Reduction and Resiliency Act into law, Governor Cuomo has ensured that New York State will take a proactive approach to the challenges of our changing climate. By implementing recommendations made by Governor Cuomo’s 2100 Commission, in which The Nature Conservancy participated, the new law will help create a more resilient New York. We appreciate Governor Cuomo’s continued leadership on climate resilience issues, and thank the bill sponsors Senator Diane Savino and Assembly Member Robert Sweeney for their leadership on this issue in the Legislature.”

Business Council of New York State President and CEO Heather C. Briccetti said, “Many infrastructure projects consider designs to address physical climate risk such as strategic landscaping or building placement. This Act will require that the Department provide certainty for the State, localities and private investors with the development of guidance that address physical climate risk. The Business Council thanks Governor Cuomo, and legislators Senator Savino and Member of the Assembly Sweeney, for their leadership and advancement, amendments and enactment of this Act because it represents one of many opportunities where the interests of the business community and the environment can be addressed jointly.”

Natural Resources Defense Council, New York Political and Legislative Director for the Urban Program Richard Schrader said, “This important law will provide state and local governments as well as the business community with crucial tools to best address the enormous challenges that climate change is already presenting us. As world leaders gather in New York for climate week, we thank the Governor for signing this vital legislation.”

Audubon New York Executive Director Erin Crotty said, “Audubon New York applauds Governor Andrew Cuomo and the New York State Legislature, especially the leadership of Senator Diane Savino and Assemblyman Robert Sweeney, for enacting the Community Risk Reduction and Resiliency Act. Audubon’s recently released scientific report indicates that more than half of North American birds will be threatened by climate change. Audubon’s report is a call to action that we must do more to reduce greenhouse gas emissions and protect the places that birds need to thrive and survive now and into the future. This law will help us reach these goals by ensuring future climate risk is part of public infrastructure financing and permitting programs and that sea level rise projects are developed. We look forward to working with the Administration to support this important law’s swift implementation.”

New York League of Conservation Voters President Marcia Bystryn said, “The Community Risk and Resiliency Act is a critical piece of New York State’s climate resiliency strategy. We applaud the legislature for its passage and Governor Cuomo for signing it into law.”

The Village Board of Trustees determined that the proposed expansion of a day care facility into vacant retail space would “result in a dangerous traffic situation, an over intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services.” As a result, the request for a special use permit was denied and the petitioner appealed.

Noting that the burden of proof for a special use permit is lighter than that required for a variance, since the special use permit already contemplates a permitted use, and that the denial of the special use permit must be supported by evidence in the record and not solely community opposition, the appellate court stated that even where support for a denial exists, courts must give deference to the authorized board and may not substitute their own judgment. Further, the Court noted that it is appropriate for board members to base their decision upon, among other things, their knowledge of the community.

Apparently, the Board did not comply with the time limitations in Village Law 7-725-b(6) for the decision on the application, but the Court said that such action does not give rise to an annulment of the decision since the Board did issue one. If the petitioner wanted to address this issue, the proper route should have been a special proceeding to compel the Board to issue a determination on the application.

Smyles v Board of Trustees of Incorporated Village of Mineola, 2014 WL 4210181 (NYAD 2 Dept. 8/27/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2014/2014_05991.htm

Posted by: Patricia Salkin | September 20, 2014

NY Appellate Court Dismisses Appeal over Sawmill Operation as Moot

Petitioners challenged the approval of a sawmill and milling operation by the Town of Livonia Joint Zoning Board of Appeals who had determined that the use of the land for sawmill purposes constituted an agricultural or farming operation within the meaning of the Town Code. The appellate court dismissed the appeal as moot since the petitioners failed to seek injunctive relief or to make any other attempt to preserve the status quo pending the appeal. The court also noted that a condition use permit had been granted for the use of a portable saw mill on the property in 2006.

Graf v Town of Livonia, 991 N.Y.S. 2d 211 (A.D, 4 Dept. 8/8/2014)

The opinion can be accessed at: http://www.nycourts.gov/courts/ad4/clerk/decisions/2014/08-08-14/PDF/0668.pdf

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