Posted On: May 30, 2006


An appellate court held that a planning board abused its discretion by amending a SEQRA draft environmental impact statement based on the board’s concern that the proposed subdivision was inconsistent with the goals of a recently implemented voluntary program giving area landowners incentives to conserve agricultural property. In Matter of Two Trees Farm, Inc. v. Planning Board of Town of Southampton the Appellate Division Second Department modified and affirmed the judgment of the Supreme Court, deleting a provision directing the planning board to approve the application for preliminary subdivision approval.

In reviewing the planning board’s action, the court noted that the board did not amend the DEIS because the statement failed to adequately address adverse environmental impacts, rather the board’s amendment was based on a concern not falling under SEQRA, and therefore the court found the amendment to be improper.

Amendments to a DEIS must address adverse environmental impacts in order to be valid. A planning board may not approve an EIS based on improper amendments to a DEIS. In Matter of Two Trees Farm the appellate court held that the court below correctly annulled the planning board’s decision to accept the final EIS and other actions subsequent to the amendment because all steps taken after the amendment were based on the improper amendment. The court further found that the Supreme Court improperly substituted its own judgment for that of the planning board when it directed the board to approve the preliminary subdivision application.

Posted On: May 19, 2006

Silverberg Zalantis LLP Successful in Defending SEQRA Determination

An appellate court agreed with Silverberg Zalantis LLP that the zone changes implemented by the Village of Lake Grove did not require a full environmental impact statement before a SEQRA negative declaration could be issued. In Matter of Lake Grove Partners LLC v. Middleton, the Appellate Division Second Department upheld the lower court decision finding that the Village Board had taken a “hard look” at the potential environmental impacts from the creation of a “Business Districts Plan” and was not required to issue a draft environmental impact statement (“DEIS”) prior to issuance of a negative declaration and the approval of zoning amendments.

Lake Grove Partners LLC, the owners of property within the zone complained that the new zoning precluded development of “Big Box” stores such as Home Depot and that the Village should have prepared a DEIS to look at the potential economic impacts of precluding such stores. The Village argued that the detailed plan and reviews by its consultants was sufficient to demonstrate that the zone changes would have beneficial impacts, including the impacts upon potential traffic generation. In addition the Village found that the changes would maintain the vitality of the existing retail districts. The Court agreed with the Village, finding the Village had taken the required hard look and had provided a reasoned elaboration of the basis for the negative declaration.

The appeal was argued by Katherine Zalantis of Silverberg Zalantis LLP, who acted as co-counsel with Mark Anesh of Wilson Elser Moskowitz Edelman & Dicker LLP on the appeal.

Posted On: May 12, 2006

Municipality Liable Under Contract for Construction Work

A municipality is liable under a construction contract once awarded, irrespective of whether the municipality decides to terminate before the contract is actually signed. In the case of Xavier Contracting LLC v. the City of Rye the Appellate Division Second Department held the City had liability for the contract awarded to Xavier, despite the fact that the City terminated the project before the contracts were executed because one of six other contractors on the project failed to meet the bonding requirements.

The City had let seven contracts out to bid for a construction project that included general construction, electric, plumbing etc. The City awarded seven contracts including one to Xavier for general construction. The only requirement for moving forward on the project was that each successful bidder had to submit proof of insurance and a bond. One contractor failed to produce a bond. The City decided not to go with the next lowest bidder but rather to rescind all of the contracts. Xavier sued claiming it was entitled to compensation under its contract.

The Supreme Court granted summary judgment on liability. The Appellate Division affirmed, finding that absent an express provision in the bid documents making each of the separate contracts contingent on the others the City “could not unilaterally refuse to perform.” Xavier was represented by Silverberg Zalantis LLP

Posted On: May 6, 2006

Zoning Board May Not Use Public Safety As Sole Basis for Interpretation

A zoning board may consider public safety when interpreting a zoning ordinance but must also look at the meaning of the ordinance, noted the Appellate Division, Second Department in Matter of Northern Dutchess Rod and Gun Club v. Town of Rhinebeck. The Rod and Gun Club sought to place trap shooting within 300 feet of a road. The local ordinance provides that if such uses are closer than 500 feet to the “property boundary” a variance is required. The Zoning Enforcement Officer determined that since the property was bisected by a road, the road was not the property boundary. Therefore the proposed use was not within 500 feet of a property boundary and did not require a variance.

On appeal by other property owners to the zoning board of appeals, the board determined that a variance was required and stated: “the issue of public safety takes precedence over the issue of what constitutes a property boundary”. The Appellate Division noted that when an ordinance is ambiguous a zoning board may take into consideration public safety in reaching an interpretation. Yet the Court found that in this instance there was a failure to interpret the term property boundary. The Court remitted the matter to the Zoning Board for further consideration