Posted by: Patricia Salkin | December 24, 2019

New York Governor Signs Environmental Justice Law

This information was written and shared by Columbia Law School Professor Michael Gerrard:

Governor Andrew Cuomo today signed A1564/S2385, new Article 48 of the Environmental Conservation Law.  The new law begins with this declaration:

“It is hereby declared to be the policy of this state that all people, regardless of race, color, religion, national origin or income, have a right to fair treatment and meaningful involvement in the development, implementation and enforcement of laws, regulations and ;policies that affect the quality of the environment.”

“Fair treatment”  is defined to mean “that no group of people … should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from” various facilities and policies, and that no group of people should suffer from inequitable allocation of public resources or financial assistance for environmental protection and stewardship…”

“Meaningful involvement” is defined to mean “the provision of opportunities for citizen participation in decision making that are as reflective of the diversity of interests and perspective found within the affected community as possible…”

Moreover, the law provides that affected communities “be provided as early as possible in the decision making process prior to the selection of a preferred course of action by federal, state, local or tribal agencies,” and be given “the provision of technical data and the assumptions upon which any analyses are based…”

The statute established a Permanent Environmental Justice Advisory Group (PEJAG) with 17 members — five from community-based organization, four from businesses, two from the environmental offices of local governments, and the rest from state or national environmental organizations. The Governor and the leaders of the Legislature appoint the members. PEJAG shall “monitor compliance” with the EJ policy; make recommendations on how to improve the policies; comment on proposed rules; and take other specified actions.

Every state agency “shall be guided in its decision making” by an EJ policy to be adopted by each agency.

The law does not provide for citizen suits or other external enforcement other than PEJAG.

The signing of the law also triggers a January 1, 2020 effective date for New York’s Climate Leadership and Community Protection Act, which Governor Cuomo signed in June.

 

This post was authored by Matthew Loeser, Esq.

This case arose from a zoning decision by the Town of Carolina Beach, which approved a conditional use permit for respondent Carolina Beach Development Company, LLC (“CBDC”) to develop a Publix grocery store in a shopping center owned by respondent Wilmington Holding Company (“WHC”). This decision affected the adjacent commercial parcel owned by petitioner Jubilee Carolina, LLC, which had been granted a conditional use permit to construct a Harris Teeter grocery store on its property. The Town Council approved Jubilee’s site plan with interconnectivity to common access points between WHC’s property and Jubilee’s property for vehicular traffic; however, the Town Council approved CBDC’s conditional use permit but did not adopt the recommendation to include interconnectivity to Jubilee’s property (“CBDC Permit”). Specifically, the CBDC found that interconnectivity was not required under the Town’s ordinance.

Following the Town Council’s decision, Jubilee filed a petition for writ of certiorari before the New Hanover County Superior Court seeking review of the decision to grant the CBDC Permit. In its petition, Jubilee asserted that the Town acted arbitrarily and capriciously, that the decision was not supported by substantial evidence, and that Jubilee had a statutory vested right to interconnectivity in its conditional use permit. The Superior Court held that Jubilee’s vested rights argument was not properly before it, and upheld the decision to grant the CBDC Permit without interconnectivity.

On appeal, the court first found that since the decision to grant the CBDC Permit never addressed whether Jubilee acquired a statutory vested right, it was improper for Jubilee to assert the issue for the first time before the superior court, as the review was limited to errors of law.

Jubilee contended that the superior court erred in affirming the Town’s decision to grant the CBDC Permit because the findings of fact were not supported by substantial evidence and the Town Council’s decision was arbitrary and capricious. Here, the record reflected in both the transcript and in the video recording of these proceedings that the decision of the board was the result of a deliberative process and that consideration was given to the arguments made by Jubilee regarding interconnectivity. As such, the decision was not found to be arbitrary or capricious. Furthermore, there was no evidence presented that any member had a fixed opinion prior to the hearing that was not susceptible to change. Accordingly, the court affirmed the holding of the superior court.

Jubilee Carolina, LLC v Town of Carolina Beach, 2019 WL 5206274 (NC App. 10/15/2019)

Posted by: Patricia Salkin | December 5, 2019

NY Trial Court Dismisses Criminal Charges for Sign Ordinance Violation

This post was authored by Amy Lavine, Esq.

 Zoning ordinances are often enforced through criminal actions, but the procedural requirements tend to be stricter than in civil enforcement actions and defects may result in the charges being thrown out. This was the case in a 2019 criminal action brought against a gas station owner in Rye, New York for maintaining a sign without a valid permit. People v Vera & Magda Realty Corp., 2019 NY Slip Op 32650(U) (N.Y. City Court, City of Rye, Westchester County August 29, 2019).

The court explained that “a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution,” and “in order for an information to be facially sufficient, the factual part of the information (along with any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged.” With the exception of the hearsay requirement, which is waived if not timely raised during trial, the failure to comply with any of these requirements can be asserted at any time.

Applying these rules to the ordinance in this case, the court found that the information had to allege that a sign was constructed or maintained on the defendant’s property in the City of Rye, and that the sign did not have a valid permit. The information filed by the building inspector, however, merely alleged that defendant “did willfully commit a[n unspecified] violation at the property….” It did not explain how the defendant was responsible, however, nor did it state the particular violation that was committed, and it accordingly had to be dismissed as facially insufficient. As the court explained, the “the bald, conclusory allegation that the defendant committed a violation does not suffice. The information does not specify the offending signs, nor how the illuminated gas price signs at the gas pumps or the freestanding sign are in violation of the law. It does not assert there was no permit for either sign.”

Although it was unnecessary for resolution of the case, the court also addressed various arguments raised by the defendant. On the defendant’s first point it found that the sign, which displayed illuminated gas prices and was mounted on a freestanding pole, did not qualify for the ordinance’s exemption for “informational signs” since the ordinance specifically limited informational signs to the owner’s name, phone number, location and/or hours of operation and required them to be placed on a window or door. The court also rejected the defendant’s claim that it was not responsible for the sign, which had been installed by its gas station tenant, because another provision in the city code specifically provided that property owners would be considered responsible for all signs displayed on their property.

The court agreed with the defendant, however, that the city’s sign ordinance would be preempted to the extent that it conflicted with a state law requiring gas stations to post price signs on their pumps. It mentioned on this point that “the apparent problem with the price signs on the gas pumps is due to them appearing illuminated in red where Code section §165-4(H)(3) restricts illumination to appear white when illuminated. This restriction makes little sense3 as a matter of optics since white contains red within its spectrum and red light is less visible than white light. It seems more likely the enacting City Council was concerned with the intensity of the lighting rather than its color. Perhaps, the City Council might consider regulating light intensity rather than color, thus legalizing the gas pump signs.”

This post was authored by Amy Lavine, Esq.

 A New York appellate court held in July that dismissal was appropriate in an action challenging a zoning board’s interpretation of a buffer area requirement between the petitioners’ properties and a subdivision proposed on adjacent land. The petitioners conceded that they failed to timely serve the zoning board, and the court rejected their request for an extension of time because there was no evidence that they had made any attempt to serve the zoning board during the statutory appeals period. The court emphasized that the petitioners didn’t seek an extension until more than four months after appeals period had expired and more than three months after the respondents had moved to dismiss the case. “Those factors, considered as a whole,” the court concluded, “weigh against extending petitioners’ time for service in the interest of justice.”

Matter of Janiga v Town of W. Seneca Zoning Bd. of Appeals, 2019 NY Slip Op 05859 (N.Y. App. Div. 4th Dept. 7/31/19).

This post was authored by Amy Lavine, Esq.

An application for a special exception to operate a wildlife educational center was found to be consistent with the comprehensive plan in a Delaware case decided in 2019, but the court nevertheless affirmed the denial of its permit application because it failed to provide sufficient evidence regarding its impacts on odors and traffic.

In finding that the wildlife center was consistent with the comprehensive plan the court explained that the application supported the plan’s goal of encouraging “existing businesses… but not large-scale, regional retail uses” as well as the goal of promoting wildlife and natural habitat education. Moreover, by designating wildlife educational centers as a specially permitted use, the court found that the town legislature had already determined that the use conformed to the comprehensive plan.

The court nevertheless upheld the board of adjustment’s denial of the wildlife center’s application because it failed to satisfy all of the ordinance’s requirements for granting special exceptions. First, there was substantial evidence for the board of adjustment to conclude that the wildlife educational center would cause objectionable odors. As the court explained, “Considering that the animals are to be housed outside, the number of total animals is uncertain, and several of the animals are scent marking, a reasonable person could find that odors from urine and other animal waste would produce objectionable odors to neighboring property owners, even though the animals are considered ‘small’, ‘low waste producing’ and Barn Hill provides cleaning and maintenance.” The wildlife education center also failed to provide sufficient evidence for the board of adjustment to determine whether the proposed use would have detrimental impacts on traffic. The only evidence that it submitted regarding traffic consisted of the size of the parking lot and estimated attendance figures, but as the court noted, this evidence provided little to no information about the wildlife center’s likely traffic impacts.

Barn Hill Pres. of Del., LLC v. Bd. of Adjustment, 2019 WL 2301991 (5/29/19).

This post was authored by Amy Lavine, Esq.

The Massachusetts Land Court held in November that the keeping of two pet goats violated a town zoning bylaw that prohibited animal husbandry in residential districts.

It was undisputed in the case that the goats, Dean and Deluca, were pets, as they were used “for pleasure rather than utility.” Although the court noted that the keeping of pets is often permissible as an accessory use even where not specifically allowed, it also noted that “the goats’ status as pets does not mean that the keeping of goats cannot also constitute ‘animal husbandry’ under the bylaw.”

The definition of “animal husbandry” in the zoning bylaw was stated as “the raising and keeping of animals,” and the property owners argued that this meant “the breeding and raising of domestic animals for commercial use, such as meat, milk, or eggs.” This interpretation would have excluded their goats, as they were neutered and had no commercial uses. The court acknowledged that this argument had some merit, but it was nevertheless outweighed by two other considerations. First, goats tended to fall within the common meaning of “animal husbandry,” as evidenced by dictionary entries for “animal husbandry” and “domestic animals,” as well as the traditional understanding that goats are farm animals. Second, and more significantly, the bylaw’s definition of “animal husbandry” specifically referred to goats in its classification for “larger animals,” which required a special permit.

The court ultimately concluded that both the property owners and the town offered reasonable interpretations of the zoning bylaw. Faced with these competing interpretations, however, the court was bound to give deference to the zoning board’s position. As the court explained, the zoning board “read the bylaw as addressing not how the animals are used, but instead as regulating the keeping of large or disruptive animals outdoors on residential property in order to prevent nuisances created by such animals. This reading, tied to the prevention of nuisance, is substantially related to the “public health, safety, convenience, morals or welfare” of the community and neighboring properties.”

Raesly v. Boughner, 2019 WL 5842961 (11/7/19).

This post was authored by Amy Lavine, Esq.

The New York Appellate Division, Second Department dismissed two challenges to the environmental review process for a waterfront redevelopment project in 2019. The first case involved a claim that a supplemental environmental impact statement should have been completed when the project’s development plan was amended, but the court concluded that the planning board sufficiently complied with the “hard look” standard for environmental review actions. In the second case, a neighboring village claimed that the project had to be restricted to certain parameters that were included in a memorandum of understanding regarding the project, but the court found that the parameters weren’t binding and that the agreement couldn’t be enforced under the term limits rule. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19); Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).

The Planning Board of the City of Glen Cove declared itself the lead agency for a 56-acre waterfront redevelopment project, and after determining that there was a potential for adverse environmental impacts it issued a positive declaration under the State Environmental Quality Review Act (SEQRA). Over the next several years it conducted an extensive public hearing and review process, and it eventually adopted a final environmental impact statement and granted the developer a special use permit in 2011. In 2015, the planning board approved an amendment to the development plan that would decrease the project’s overall footprint and density while increasing the area devoted to parks, public amenities, and open space. The planning board found that a supplemental environmental impact statement was unnecessary because the proposed modifications wouldn’t result in any adverse environmental impacts that hadn’t already been studied and addressed. A group of concerned residents  and a neighboring village then commenced litigation to challenge the planning board’s environmental review decisions.

Preliminarily, the court found that the petition was time barred to the extent that it sought review of the decisions made by the planning board in 2011 that adopted the environmental impact statement and approved the project’s development permit. The petitioners failed to present any reason for barring the planning board’s statute of limitations defense, the court found, because they failed to demonstrate any improper conduct such as fraud or misrepresentation.

With respect to the planning board’s 2015 determination, the court explained that the decision to prepare a supplemental environmental impact statement must be based on two criteria: the importance and relevance of the new information, and the present state of information in the environmental impact statement. The court also emphasized that judicial review was limited in the context of environmental review determinations, including decisions regarding supplemental environmental impact statements, and it could only consider “whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion. In assessing an agency’s compliance with the substantive mandates of the statute, the courts must view the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.”

Applying these standards, the court upheld the planning board’s 2015 determination. As it explained, the record showed that the planning board identified the relevant areas of environmental concern, took a hard look at them, and provided a sufficiently reasoned elaboration of the basis for its decision. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19).

In a related action, the Village of Sea Cliff, along with its Mayor and Board of Trustees, sought declaratory and injunctive relief based on a memorandum of understanding that was executed between the village and the City of Glen Cove. The MOU provided that the village wouldn’t oppose the project as long as it complied with certain parameters, and the village claimed that the MOU was an enforceable contract that prohibited the planning board from going forward with the project to the extent that it exceeded those parameters. The court didn’t agree, however, and held that the MOU was unenforceable under the “term limits rule,” which prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so.” The court additionally found that there were no express terms in the MOU that obligated the planning board to any particular parameters. Rather, the MOU merely stated that the village wouldn’t oppose the project as long as it didn’t exceed the parameters set forth in the MOU.

Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).

This post was authored by Amy Lavine, Esq.

A New Jersey case decided in 2019 upheld a zoning ordinance that prohibited “signs placed upon motor vehicles which are continuously or repeatedly parked in a conspicuous location to serve as a sign.”

The court rejected the defendant’s argument that the ordinance was preempted by the state’s motor vehicle code because the ordinance did not regulate motor vehicles per se, but rather prohibited “the use of a motor vehicle as the functional equivalent of a stationary sign.”

The court also found that the ordinance was not impermissibly vague because “the phrase ‘to serve as a sign’ gives notice that if a person selects a ‘conspicuous location’ and continuously or repeatedly parks a vehicle in that location — for the purpose of having the vehicle serve as a sign — the person is subject to a fine.”

While finding that the ordinance was valid, the court nevertheless agreed with the defendant that there was insufficient evidence to support his conviction. In particular, although photographs of his alleged offense were submitted into evidence, there was no testimony explaining the photographs, and this testimony was necessary to establish that the defendant’s vehicle was in a “conspicuous” location and that it was serving as a sign.

State v. Colson, 2019 WL 2536128 (NJ App. Unpub. 6/20/19).

 

 

This post was authored by Amy Lavine, Esq.

A New Jersey case decided in June addressed conditional use variance criteria for non-residential parking lots located in residential zones and concluded that the ordinance was invalid because the requirement that such parking lots be “reasonably necessary for the convenience of the community” lacked sufficient specificity.

The plaintiff requested a conditional use variance to expand the parking lot at its Dunkin Donuts franchise onto an adjoining lot in the township’s residential zone. Under the township’s zoning ordinance, the criteria for granting a conditional use variance for a nonresidential parking lot included a requirement that the parking lot had to be “reasonably necessary for the convenience of the community.” After considering testimony from the plaintiff’s experts and comments from the public, the planning board denied the plaintiff’s application on the basis that expansion of the parking lot wasn’t “reasonably necessary for the convenience of the community.” In the board’s view, street parking was available to accommodate the parking needs of Dunkin Donuts customers and the evidence failed to establish that a lack of parking had created any safety issues of other dangerous conditions.

The plaintiff challenged the planning board’s denial of its conditional use variance, asserting that the ordinance was invalid because it failed to provide sufficient specificity. The trial judge ruled in the plaintiff’s favor and the court affirmed on appeal. As the court explained: “subsection (d) of the Ordinance required the Board to ascertain whether plaintiff’s proposed parking lot was ‘reasonably necessary for the convenience of the community and [would] not be detrimental to the health, safety or general welfare of the community or the surrounding property.’ However, subsection (d) of the Ordinance lacked “definite specifications and standards” consistent with N.J.S.A. 40:55D-67(a) to enable plaintiff to know the limit and extent of the Ordinance’s provisions to satisfy the conditional use requirement. Therefore, subsection (d) of the ordinance is void, and the Board’s denial of plaintiff’s application based on the void provision was arbitrary and capricious.”

The court also affirmed the conclusion of the trial judge that the ordinance was invalid in its entirety. As the court explained, the ordinance was intended to provide flexibility in the review of parking lots located within the township’s residential zones. If the invalid criteria was merely severed from the rest of the ordinance, the plaintiff’s parking lot would comply fully with the remaining criteria and neither the planning board nor the zoning board would have the authority to review the plaintiff’s application and consider the potential negative impacts associated with non-residential parking lots in residential zones. Severing the invalid criteria would accordingly frustrate the intent of the ordinance and the trial judge correctly invalidated the entire ordinance instead.

AMEE @ 46, LLC v. Twp. of Denville, 2019 WL 2591203 (NJ App. 6/25/19).

 

This post was authored by Amy Lavine, Esq.

 The New York Court of Appeals ruled in November that zoning regulations preventing a property owner from holding a music and camping festival did not restrict speech in violation of the First Amendment and were not void for vagueness. Town of Delaware v Leifer, 2019 NY Slip Op 08446 (N.Y. 11/21/19) (previously discussed here).

The defendant owned rural property in the Town of Delaware and wanted to host a three-day festival that he’d held twice before in previous years. Known as “The Camping Trip,” he advertised the event on his website as a celebration of Shabbat that would include live outdoor music and meals provided by food truck vendors and a Jewish nonprofit organization. Participants could either bring their own camping gear or pay for a tent spaces provided as part of the festival, and the event would also provide common facilities and services including off-site parking and shuttle service, a party tent, security, sanitary facilities, and medical services. The town filed a lawsuit to prevent the festival from going forward in 2016, claiming that the festival was a “theater” and was therefore prohibited in the rural district. The town ultimately withdrew its request for a preliminary injunction after reaching an agreement with the defendant that limited the 2016 festival to 400 attendees, required prior consultation with the health and fire departments, and made the town an additional insured on the festival’s insurance policy. The town reserved its right to pursue its general claim that the festival was a prohibited use of the property, however, and after the defendant began advertising for the 2017 season the town moved for summary judgment on its request for a permanent injunction. In response, the defendant argued that the zoning ordinance’s definition of a “theater” was unconstitutionally vague and that the prohibition of theaters in the rural district violated the First Amendment, both facially and as applied, by banning personal expressive conduct and residential performances.

The Court of Appeals began its analysis by recognizing the broad authority of local governments to regulate land uses “to meet the increasing encroachments of urbanization on the quality of life.” The Town of Delaware, it explained, had exercised its zoning powers with the stated purposes of “promoting agriculture,” “maintaining… [its] rural scenic character,” and “preventing… nuisances.” It accomplished these ends through the division of the town into seven zoning districts with distinct purposes and regulations, along with two additional overlay classifications. For each of the zoning districts, the ordinance provided for permitted uses, accessory uses, and uses allowed by special permit. Uses not falling into any of these categories were deemed prohibited, but variance and zoning amendment procedures were provided under the ordinance to allow relief in such cases.

With respect the rural district, the ordinance provided that the zoning designation was intended to be “conducive to the mutual existence of agricultural and low-density residential uses as well as certain unobtrusive commercial activities, ensuring both adequate amounts and choices of areas suitable for these respective uses.” Permitted uses included agriculture, agriculture services, bed-and-breakfasts, greenhouses, group homes, and detached one and two family dwellings, as well as customary and incidental accessory uses and various special uses such as campgrounds, country clubs, hotels, offices, and recreational uses. An outdoor music festival wasn’t listed among the permitted uses in the zone and wasn’t an accessory use that would be considered customary and incidental to the single-family residence located on the defendant’s property. The defendant had also never sought a special permit or variance to operate the festival, and as the court concluded, the festival was therefore “clearly prohibited” and the town was entitled to injunctive relief.

The court found that the defendant’s First Amendment argument was focused too narrowly on the zoning classification for “theaters,” as the restrictions on his property had to be reviewed in light of the zoning scheme for the rural district and in the context of town’s zoning law as a whole. When the zoning was considered in this broader context, it was evident that musical performances and other expressive land uses were permitted in other districts, and thus “neither the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional rights.” The court emphasized that the defendant wasn’t entitled to “an unfettered right to hold a three-day music festival on his property” simply because the event involved some expressive conduct. Rather, the town had authority to impose regulations in pursuit of its legitimate governmental goals, and in doing so it could place content-neutral restrictions on expressive conduct in the form of time, place, and manner regulations. As the court concluded: “By automatically allowing a limited and balanced suite of principal and accessory land uses that are closely related to the government’s purpose of preserving agricultural character…, but prohibiting a range of more obtrusive uses absent a special use permit or variance (including “theater[s]” with attendant noise and traffic), the provisions directly promote that government purpose, which would be less effectively achieved in their absence. Indeed, it was not unreasonable for the Town to conclude that an event like the Camping Trip is the sort of land use that, like a theater, would threaten the Rural District’s agricultural character.”

The court also rejected the defendant’s contention that the zoning restrictions were invalid on facial overbreadth grounds, explaining that “They do not affect personal displays of music, drama or film consistent with residential use, including singing at home or watching a film in one’s living room. The accessory use provisions permitting home occupations and uses customarily accessory to principal uses like dwellings encompass additional protected music, drama and film-related expression that one may conduct on a residential property. Simply put, the Zoning Law does not restrict the type of musical expression or entertainment typically associated with residential use of property, such as that attendant to a backyard barbeque, birthday party or similar gathering of family and friends (including observance of Shabbat).” The court acknowledged that there might be a small subcategory of theater uses that would be consistent with the rural district zoning, but the fact that the prohibition on theaters wasn’t perfectly tailored wasn’t enough to undermine its validity, especially when considered along with the fact that ample alternative modes of communication were permitted throughout all of the town’s zoning districts. “Notably,” the court explained, “the constitutional validity of an ordinance does not depend on whether the specific party challenging the regulation is actually able to access land for the desired purpose…. Inasmuch as the provisions simply seek to limit certain cultural presentations to the non-rural areas where they would have a less damaging impact, they also survive defendant’s overbreadth challenge.”

The court similarly dismissed the defendant’s facial and as-applied vagueness claims, explaining again that the zoning law clearly listed the uses that were allowable in the rural district and clearly set forth uses not specifically permitted were prohibited. In short, the zoning regulations were sufficient to put the defendant on notice that an outdoor music festival was not a permitted use of his property. As the court explained, “the legality of defendant’s event does not turn on whether it fits within the defined land use of a “theater.” In any event, the definition — in addition to the stated purposes of the Rural District and the list of land uses allowed only with a special use permit — was adequate to alert a person of ordinary intelligence that the myriad preparations supporting the presentation of a three-day music festival, including security, tents, food trucks, and sanitation plans, would require either a variance or a special use permit to proceed.” And to the extent that the defendant’s vagueness claim was premised on his belief that the theater restriction prohibited personal expressive displays, the court reiterated that this was an unreasonable interpretation of the zoning ordinance, which clearly allowed personal displays of expression as accessory uses.

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