Posted by: Patricia Salkin | April 17, 2015

EPA Releases EJ 2020 Action Agenda for Comment

From the EPA website:

EPA is seeking input on its draft EJ 2020 Action Agenda framework (PDF) (5 pp, 162K). EJ 2020 will help EPA advance environmental justice through its programs, policies and activities, and will support our cross-agency strategy on making a visible difference in environmentally overburdened, underserved, and economically distressed communities.

Strengthening our collaborations with the communities we serve, our governmental partners and all other interested stakeholders will be key to achieving meaningful outcomes in these communities.

EJ 2020: over next five years, EPA will focus on

  • Deepening environmental justice progress in EPA’s programs to improve the health and environment of overburdened communities
  • Collaborating with partners to expand our impact in overburdened communities
  • Demonstrating progress on outcomes that matter to overburdened communities

EJ 2020 is a strategy for advancing environmental justice … It is not a rule.

Under Plan EJ 2014, EPA laid a foundation for integrating environmental justice in all EPA programs, including rulewriting, permitting, enforcement, science and law. There have been many significant milestones over the last four years of building EJ into the agency’s regulatory practice, including guidance for rulewriters, enhanced public participation for EPA-issued permits, building EJ into our enforcement targeting and resolution of enforcement cases, EJSCREEN, EJ legal tools, and many others. We have also revitalized environmental justice across the federal family, assembled promising practices from our rich history of working with communities, and initiated the development of a cross-cutting Environmental Justice Research Roadmap.

The open public comment period for the draft EJ 2020 Action Agenda framework (PDF) (5 pp, 162K) will last from April 15, 2015 to June 15, 2015. We will be reaching out to many groups and communities for comment from April til June. Written comments should be sent to ejstrategy@epa.gov.

For more information or to participate in dialogue sessions with EPA, please contact Charles Lee (lee.charles@epa.gov), Deputy Associate Assistant Administrator for Environmental Justice, or your Regional or Program Point of Contact.

This draft framework for EJ 2020 outlines our thinking about the current efforts that require continued and focused attention, and what additional challenges we should undertake. We hope to have a robust dialogue with the communities we serve, our governmental partners and all other interested stakeholders on whether this framework addresses the most important work. This is just a draft; all comments and suggestions to inform and shape EPA’s EJ action agenda are invited and encouraged.

See: http://www.epa.gov/environmentaljustice/ej2020/

The Court found substantial evidence in the record supporting the Zoning Board’s conclusion that granting two requested area variances would cause increased population density from the presence of an apartment building in a neighborhood comprised of single-family homes, that the variances necessary to accommodate an apartment building would be substantial, and that the petitioners’ difficulty was self-created because they were aware of the property’s zoning classification when they purchased the property.  Because the board reviewed the appropriate statutory factors in making its determination, and rendered its determination after considering the appropriate factors and properly weighing the benefit to petitioners against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted, the action taken by the Board was not illegal, arbitrary, or an abuse of discretion. Accordingly, the appeal was dismissed and the judgment of the trial court was reversed.

People, Inc. v City of Tonawanda Zoning Board of Appeals, 2015 WL 1280303 (NYAD 4 Dept. 3/20/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_02257.htm

Steven Sherman, a real estate developer, initially filed this suit on January 12, 2012, in the Supreme Court for Orange County, New York, alleging that for over the previous decade, the Town wrongfully obstructed his efforts to develop MareBrook, a 398 acre parcel of land he purchased in 2001. Plaintiff claimed that by implementing a series of amendments to the local zoning laws that specifically targeted his project, and otherwise engaging in conduct that frustrated his ability to even begin development, the Town violated his rights to freedom of religion, freedom to petition, substantive due process, procedural due process, equal protection, and his right not to have his property taken without just compensation under the federal and New York state constitutions. Pending before the Court in this case was the Town’s renewed motion to dismiss following the Second Circuit’s reversal of this Court’s determination that Sherman’s federal takings claim was unripe.

As a preliminary matter, the Court noted that Sherman incorrectly relied on the Second Circuit’s conclusion that his takings claim constitutes a continuing violation. Under the continuing violation doctrine, where a plaintiff can demonstrate an ongoing or continuing violation of his federally protected rights, the plaintiff is entitled to bring suit challenging all conduct that was part of the violation, even conduct that occurred outside the limitations period. Under federal law, a claim arising under § 1983 accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action. The court found that in order for Sherman to be entitled to the benefit of the tolling provision of § 1367(d), Sherman I must have been dismissed pursuant to § 1367(c). Since there was no dispute that Sherman I was voluntarily dismissed pursuant to Fed.R.Civ.P. 41(a)(1) (A)(i), a circumstance not contemplated by § 1367(c), Sherman’s federal constitutional claims must have accrued on or after January 12, 2009. 

As to the retaliation claim, the Circuit Court’s opinion that the Town “singled out Sherman’s development, suffocating him with red tape” over the course of a decade to “make sure he could never succeed in developing MareBrook,” was sufficient to show that the defendants’ conduct was motivated by or substantially caused by [the plaintiff’s] exercise of speech. Evidence that Village repeatedly refused the plaintiffs’ requests to enforce zoning codes and ordinances over a nine-year period was sufficient to constitute a continuing violation. Conversely, Sherman’s due process claims did not constitute a continuing violation because they were based on discrete acts by the Town that were readily discerned by Sherman at the time the acts were taken. Finally, because Sherman’s complaints concerned the exercise of discretionary acts, the Town was entitled to immunity from his state law claims. Therefore, Defendants’ motion to dismiss was granted in part and denied in part.

 Sherman v Town of Chester, 2015 WL 1473430 (SDNY 3/31/2015)

Riverfront Development Group, LLC (Applicant) filed an application for a special exception and a variance from the City of Harrisburg Zoning Code section 7–309.16, which the Board interpreted as providing a restriction of a maximum of two units per lot, in order to erect two, two-unit rental apartment buildings and to waive portions of the setback and accessory parking requirements. Riverfront appealed from an order of the Dauphin County Court of Common Pleas, affirming the decision of the City of Harrisburg Zoning Hearing Board that denied Applicant’s variance and special exception application.

The Applicant first argued that the Board abused its discretion in interpreting the Zoning Code contrary to its plain meaning. Section 7–309.14(a) of the Zoning Code permits the construction of “one or two-family detached dwellings having a floor area of four hundred (400) square feet or more for each family” in an RLB so long as the buildings are in conformance with the remainder of the Zoning Code. The Board argued that, in interpreting its own ordinance, the language of the Zoning Code prohibits the construction of more than one two-family unit per lot in an RLB.  However, the Applicant asserted that section 7–309.14(a) allows for the construction of as many units as feasible within the dimensional restrictions of the Zoning Code, so long as the units are one- or two-family. The court found that the Board had an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own Zoning Code, and any doubt must be interpreted in favor of the landowner. Thus, the Board improperly read into the Zoning Code a rule that there may only be one dwelling per lot. Accordingly, the court held that the Board abused its discretion in denying Applicant’s variance and special exception application on the grounds that Applicant’s proposal to build two dwellings on one lot was not in accordance with the Zoning Code, and reversed the trial court.

Riverfront Development Group, LLC v City of Harrisburg Zoning Hearing Board, 109 A.3d 358 (PA Commwlth 1/30/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1690961.html

Plaintiff Safe Harbor Retreat, LLC proposed  an “executive retreat” for persons suffering from alcoholism and other forms of substance abuse.  Senior Building Inspector Thomas Preiato determined that Safe Harbor met the criteria of “functioning as a family unit” pursuant to sections 255–1–20 (Family) and 255–8–50 (Occupancy by a family).  As a result of BI Preiato’s determination, Safe Harbor claims to have expended significant funds and effort to establish the Premises as a community residence. BI Preiato then reversed his position to Safe Harbor, informing Safe Harbor that it was operating an unauthorized “Semi–Public Facility, in a residential district,” and that, pursuant to Town Code, a “Special Permit” is required. Rather than seek a special permit from the Town’s Planning Board, Safe Harbor instead filed an “Application” to the Town’s ZBA to “appeal” BI Preiato’s determination, claiming that its residents continue to be treated as the functional equivalent of a family, apparently to relieve it from special permit and variance requirements of the Town Code.

According to the Town, Safe Harbor was required to obtain a “final decision” from the Town on its request to operate at the Premises, but failed to do so because it never applied for a special permit from the Town. The federal district court therefore found that because of Safe Harbor’s failure to seek a special permit, the Town has not rendered a final decision regarding Safe Harbor’s use of its Premises; nor has the Town had the opportunity to make an accommodation through the Town’s “established procedures used to adjust the neutral policy in question,” namely, special permit and variance procedures. Accordingly, the Court found that this action was not ripe, and dismissed it without prejudice.

Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 918771 (EDNY 3/2/2015)

Plaintiffs David Witt and Kinuyo Gochaku Witt brought an action against the Village of Mamaroneck and Building Inspector Robert Melillo pursuant to 42 U.S.C. § 1983.  The action arose from the legal requirements Defendants imposed on Plaintiffs in connection with their efforts to repair their home in the aftermath of Hurricane Irene.  Plaintiffs maintained that similarly situated homeowners were not subjected to the same treatment, which therefore constituted a violation of their equal protection and substantive due process rights under the Fourteenth Amendment.  Plaintiffs also alleged a Monell claim against the Village. These claims were dismissed, and the Plaintiffs were given leave to amend their complaint. The Amended Complaint consisted of equal protection, substantive due process, and procedural due process claims, along with a Monell claim against the Village and various claims for relief under state law.

Here, Plaintiffs did not allege that other damaged properties had a similar market value and required the same relative dollar amount of repairs. Furthermore, beyond the houses located on their street block, Plaintiffs did not make any allegations with respect to the market value of the other homes identified in the SAC, and the SAC was silent as to whether the other homeowners on Plaintiffs’ block spent the same, or even a similar amount, on repairing their homes. Since Plaintiffs failed to allege differential treatment from similarly situated individuals, their equal protection claim was dismissed. The failure to establish other similarly situated property owners also led to the dismissal of the Plaintiffs’ “class of one” and selective enforcement claims.

As to the due process claims, the court found that even if Plaintiffs had carried their burden of establishing the deprivation of a cognizable property interest, it was doubtful that Defendants’ acts against their land were arbitrary, conscience-shocking, or oppressive in the constitutional sense, and not merely incorrect or ill-advised.  Here, under Chapter 186 of the local code, a homeowner may appeal the application of Chapter 186 by the building inspector to the Board.  The court found that to the extent that Defendants genuinely believed that Plaintiffs were subject to Chapter 186, they were within their right to enforce it. Finally, the court held that a Monell claim cannot be made absent an underlying constitutional violation; a §1983 claim can only be brought against a municipality if the action that is alleged to be unconstitutional was the result of an official policy or custom. Because Plaintiffs did not establish a constitutional violation, their Monell claim also failed. Accordingly, the Defendants’’ motion to dismiss was granted.

Witt v Village of Mamaroneck, 2015 WL 1427206 (SDNY 3/27/2015)

The opinion can be accessed at: http://www.village.mamaroneck.ny.us/pages/mamaroneckny_attorney/Witt%20033114.pdf

Frontier, a private developer, filed an application with the Town to rezone the Property from a mobile home park to a five hundred (500) residential unit with one (1) and two (2) bedroom apartments and up to forty-five thousand (45,000) square feet of retail space. On December 29, 2011, the Town Board of the Town of Babylon granted Frontier’s application to change the zoning from E Business and B Residence to Multiple Residence use, subject to various conditions and covenants under Resolution 743. By Resolution Number 551, the Town Board of the Town of Babylon adopted the relocation plan (“Plan”) for mobile homes and households on the Property, subject to the approval of the Town Attorney. The Plan provides for a maximum of twenty-thousand dollars ($20,000) per household in relocation assistance, limited to residents in a household who: (1) actually occupy a unit; (2) are in good standing; (3) submit, to the Independent Relocation Consultant, the name and contact information of the resident who will receive the relocation assistance on behalf of the household; and (4) vacate the premises within ninety (90) days of receiving a notice to vacate. The complaint alleges that defendants violated: (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq.; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1982; (4) 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; and (5) 42 U.S.C. § 3608 and its “affirmatively furthering” obligations.

Frontier contended that this case should be dismissed for lack of subject matter jurisdiction because plaintiffs’ claims were based upon the incorrect premise that the relocation plan required Frontier Park residents to sign a release giving up their “rights” to the one-hundred (100) affordable/workforce units. The complaint, however, contained no allegations that any plaintiffs executed the documents associated with the Relocation Plan, nor did it allege that plaintiffs applied for the affordable/workforce housing units which were denied based upon their agreement to the Plan. The court found that plaintiffs could not plausibly allege that execution of the Plan documents foreclosed any “right” to the affordable housing because the Plan contains no such provision; nor could plaintiffs allege that they applied for and were denied affordable/workforce housing as a consequence of agreeing to the Plan’s terms.

The court held that the complaint contained allegations wholly unsupported by the public record and by the documents upon which it is based and which have been included in, or affirmatively omitted from, its exhibits. The court found that the improper conduct was willful as Resolution 494 did not nullify Resolution 743 and none of the documents attached to plaintiffs’ complaint confer any rights to the affordable/workplace housing, or foreclose plaintiffs from applying for such housing, as a consequence of agreeing to the Plan. Accordingly, Frontier’s motion to dismiss for lack of subject matter jurisdiction was granted, plaintiffs’ complaint was dismissed with prejudice, and Frontier’s motion for Rule 11 sanctions was granted.

Amityville Mobile Home Civic Ass’n v. Town of Babylon, 2015 WL 1412655 (E.D.N.Y. 3/26/ 2015)

The Zoning Board of Appeals of the Town of Brookhaven denied the petitioner’s application for an area variance to maintain an accessory apartment on the subject premises.  The trial court upheld the denial and the petitioner appealed.  Judicial review is limited to ascertaining whether the action taken was illegal, arbitrary and capricious, or an abuse of discretion.  In reaching its decision, the Zoning Board of Appeals of the Town of Brookhaven engaged in the balancing test prescribed by Town Law § 267–b(3)(b). The court found that the ZBA’s conclusion that the grant of the variance would produce an undesirable change in the character of the neighborhood and a detriment to nearby properties was based on the testimony of the attendees at the public hearing and the ZBA’s own familiarity with local conditions. Furthermore, it found that the hardship alleged by the petitioner was self-created, for zoning purposes, as the petitioner acquired the property subject to the restriction. Finally, it was not arbitrary and capricious for the ZBA to have concluded that there was a feasible alternative to the variance, as the petitioner could have easily reduced the size of the accessory apartment. The court therefore affirmed the dismissal of petitioner’s claims.

Hatgis v DeChance, 2015 WL 894771 (NYAD 2 Dept. 3/4/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D44506.pdf

Posted by: Patricia Salkin | April 9, 2015

Long Island Coastal Resiliency Summit

Join planners, attorneys, government officials and others at Touro Law Center for an historic Summit on sea level rise, climate change and developing coastal resilience — from the ground up.

Long Island Coastal Resiliency Summit

First Annual Conference of the Land Use & Sustainable Development Law Institute

Thur., April 16, 2015

6 CLE credits (Professional Practice)

7.25 AICP-CM credits (including 1.75 law credits*; certification pending)

Find more information and register online at tourolaw.edu/resiliency2015.

9:00 Welcome—Dean Patricia Salkin
9:10 Assessing the Risks to the Region: Climatology & Long Island—Daniel Bader (Research Analyst at Columbia University’s Center for Climate Systems Research)
10:00 Morning Keynote—Kate Dineen (Managing Director, NY Rising Community Reconstruction Program, NY Governor’s Office of Storm Recovery)
10:30 Coffee Break
10:45 Putting the Regulatory Pieces Together: the Community Risk & Resiliency Act (CRRA), Coastal Zone Management Act, LWRPs and model local codes— Kari Gathen (NYS DOS); Mark Lowery (NYS DEC); panel commentator Sarah Adams-Schoen (Professor & Director of the Institute on Land Use & Sustainable Development Law, Touro Law Center) [*certification pending for 1.25 AICP-CM Law Credits]
12:00 Lunchtime Keynote—Michael Gerrard (Director of the Sabin Center for Climate Change Law, Columbia Law School)
1:30 Resilience is SmartGrowth: Regional Best Practices— Eric Alexander (Director, Vision Long Island); Paul Beyer (NYS DOS Director of Smart Growth Planning); Patricia Bourne (City of Long Beach Econ. Devel. Director); Jonathan Halfon (FEMA Deputy Field Coordinator, Community Planning & Capacity Building); Sarah Lansdale (Suffolk County Director of Planning); panel commentator Joseph A. Siegel (EPA Region 2 Senior Attorney)
2:50 Living Shorelines: Science and Legal Hurdles—Dr. Henry Bokuniewicz & Jay Tanski (Stony Brook University School of Marine & Atmospheric Sciences); Pamela R. Esterman (Sive Paget & Riesel, P.C.) [*certification pending for .5 AICP-CM Law Credits]
4:00 Afternoon Break
4:10                  Practical Tools Breakout Sessions
Auditorium Room 210
Increasing Resilience While Decreasing NFIP Premiums Under the CRS— John Botos (Certified Floodplain Manager, Town of East Hampton); Bill Nechamen (NYS DEC, Chief, Floodplain Manager); Crystal Tramunti (FEMA CRS Manager) New Resilience Mapping Tools—Jeff Herter (NYS DOS, Dep’t of Planning & Development); Stephen Lloyd (Senior Spatial Analysis – GIS Manager for the Nature Conservancy on Long Island); Amanda Stevens (Project Manager, NYSERDA)
5:15-

7:00

Reception

*conference agenda subject to change

Touro Law extends its deep appreciation to conference Silver Sponsors the New York Sea Grant, Cashin Spinelli & Ferretti, LLC, and Cameron Engineering & Associates LLP; Conference Bronze Sponsors Sahn Ward Coschignano & Baker, PLLC and Farrell Fritz, PC; as well as cosponsors the Metro New York Chapter of the American Planning Association, the Municipal Law and Environmental Law sections of the New York State Bar Association, the New York Conference of Mayors & Municipal Officials, the Association of Towns of the State of New York, and the New York State Association of Counties.

We would also like to thank our generous Institute sponsors: Castagna Realty Co., Inc. & The Skolnick Family Charitable Trust.

Defendant Pittsfield Charter Township, through its Planning Commission and Board of Trustees, denied a rezoning application submitted by Plaintiff Muslim Community Association of Ann Arbor, doing business as Michigan Islamic Academy (“MIA”). According to MIA, the denial of the rezoning application means that it cannot build a new Islamic school on property within Pittsfield Township that it wishes to utilize for that purpose. MIA claims that the Township’s decision to deny the rezoning application was based on hostility toward Islam, and asserts claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

The Township argued that MIA had no legally cognizable interest in the property and it is therefore entitled to summary judgment on all three remaining RLUIPA claims. Even though MIA admitted that it did not own the property and has never owned the property, it argued that it has an interest in the property that is sufficient under RLUIPA’s definition of “land use regulation.” Despite this MIA was found not to have offered any evidence showing that it has, or ever had, a legally cognizable interest in the property. Accordingly, the court granted summary judgment in favor of the Township and allowed MIA the ability to reassert the claims should it acquire a legally cognizable interest in the property.

Muslim Community Association of Ann Arbor v Pittsfield Charter Township, 2015 WL 1286813 (ED MI 3/20/2015)

The opinion can be accessed at: http://www.rluipa-defense.com/files/2015/01/Pittsfield.pdf

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