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The Appellate Division held a town planning board has no jurisdiction to review a site plan for construction of a dock in a state owned navigable waterway, unless such authority is specifically delegated by the State pursuant to Navigation Law section 46-a. In Matter of Hart Family, LLC. V. Town of Lake George, the Court first addressed the issue of whether the question of the planning board’s jurisdiction had been preserved. The Court noted that while the issue was not discussed at the hearings, counsel for the Petitioner had questioned the authority of the planning board in a letter to the planning board’s attorney. Moreover, the Court held:

” even assuming that the issue had not been thus preserved, ‘a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent…'”

Then turning to the issue of jurisdiction, the Court noted that the proposed dock was to be constructed in the waters of Lake George and the state “holds title to the lands under Lake George in its sovereign capacity (see People v System Props., 2 NY2d 330, 344 [1957]) and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government…the Town is not included among the local governments enumerated in Navigation Law § 46-a (2), and we find no such delegation in any other source. Contrary to respondents’ claim, Town Law § 130 (17) (1) (b) pertains to “the anchoring or mooring of vessels” and does not address the construction of docks, boathouses or other structures covered by Navigation Law § 46-a. “

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The Appellate Division found that issuance of a demolition permit for an historic structure, where there was no specific proposal for a redevelopment plan was not improper segmentation under SEQRA. In the Matter of Saratoga Springs Preservation Foundation v. Boff, the Court upheld the issuance of a demolition permit that was challenged on a number grounds. The Court found that the local board was not arbitrary in its reliance on the conclusions by a building official that the structure was unsafe, despite contrary expert evidence submitted by the Petitioner, who opposed the demolition.

The Court further found that in light of the uncertain real estate market, it was reasonable to accept the statement by the applicant that he had no immediate redevelopment plans and. currently was seeking only to level the site, plant grass and erect a fence. In concluding these actions did not constitute improper segmentation of the SEQRA review the Court held:

“Such division is impermissible when the environmental review of an action is divided into smaller stages in order to avoid the detailed review called for under SEQRA (see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22). Conversely, segmentation is “allowed when the agency conducting environmental review clearly sets forth the reasons supporting segmentation and ‘demonstrate[s] that such review is clearly no less protective of the environment'” (Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 634 [2002], quoting 6 NYCRR 617.3 [g] [1]; see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22).

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The Appellate Division reversed the Supreme Court and upheld the denial of an area variance for a rear yard setback to an in ground pool, despite prior approvals of rear yard setback variances for in ground pools at other properties. In Matter of Blandeburgo v Zoning Board of Appeals of Town of Islip, the Court held that the Zoning Board of Appeals (ZBA) had conducted the proper balancing test and had concluded that the variance from 18 feet to 8.8 feet was substantial, adversely impacted the neighborhood and was self created.

Perhaps the fact that the pool was installed without a permit had something to do with the ZBA determination. But the Court went through the criteria to be applied to a ZBA’s decision and concluded there was a rational basis for the decision. As for the argument that other variances had been granted for rear yard set backs to pools and therefore the ZBA was bound by precedent unless it distinguished the present case from the prior approvals, the Court concluded:

“Contrary to the petitioner’s contention, the ZBA’s granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA….”

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The Journal Science has published an article suggesting that hydro tracking may be contributing to increases in the number and severity of earthquakes in the eastern United States. We do not usually discuss scientific articles in this Blog. In this instance, since the article discusses the need for regulation and the State of New York, as well as many municipalities are looking at regulating or even banning hydro fracking, we thought this was a timely article.

The article notes

” It has long been known that impoundment of reservoirs, surface and underground mining, withdrawal of fluids and gas from the subsurface, and injection of fluids into underground formations are capable of inducing earthquakes….several of the largest earthquakes in the U.S. midcontinent in 2011 and 2012 may have been triggered by nearby disposal wells….The petroleum industry needs clear requirements for operation, regulators must have a solid scientific basis for those requirements, and the public needs assurance that the regulations are sufficient and are being followed.”

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The Appellate Division upheld a determination to deny the subdivision of an approximately three acre parcel containing two vacant buildings into two lots, each containing one of the two existing buildings. In a Matter of Center of Deposit, Inc. v. Village of Deposit, the Court held:

“the Board identified a variety of reasons for its denial, including, among others, that the subject property lacked a legal means of ingress and egress and that the proposed subdivision would endanger ‘the health, safety, welfare and comfort’ of the Village at large ….Inasmuch as the Board’s conclusions – that there were significant safety issues surrounding the property and that petitioner had not established compliance with the relevant zoning laws – provided a rational basis to support its denial of petitioner’s application, such denial must be upheld (see Matter of MLB, LLC v Schmidt, 50 AD3d at 1434-1435).”

In addition, the Court rejected the claim that the planning board failed to act within the time required by Town Law. Initially, after holding a public hearing, the planning board had issued a SEQRA positive declaration, that was successfully challenged by the Petitioner. On remand the Board issued a negative declaration and held a further public hearing before denying the application. The Petitioner claimed that the hearing held prior to issuance of the positive declaration started the 62 day period for the board to issue a decision, in order to avoid a default subdivision approval. This claim was rejected by the Court.

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The Appellate Division upheld a SEQRA conditional negative declaration, as well as variances and site plan approval to construct a hotel. In Matter of Schaller v. Town of New Platz Zoning Board of Appeals et. al., the Court found the determinations of both the planning board and zoning board of appeals were fully supported by the record and findings of the boards.

“Here, a review of the record establishes that the Planning Board conducted a two-year coordinated SEQRA review of the application which included, among other things, consultation with traffic engineers; review of the expanded long form environmental assessment form, visual assessment form, traffic studies and related submissions; compliance with the comprehensive master plan, an architectural study, a water system and sewage report, and drainage and storm water impact studies; consideration of input from various interested agencies, as well as public comments and concerns received from public hearings and Planning Board meetings, and submissions by interested parties. The Planning Board conditioned the negative declaration on the applicant’s compliance with various mitigating measures designed to minimize potential environmental impacts, including constructing turn lanes, upgrading traffic signals, adding traffic signage, retention of certain trees for aesthetic purposes and construction of a previously approved water line loop/extension for water supply and sewer purposes. The Planning Board specifically noted the various environmental impacts it considered in reaching its determination and it took a hard look before concluding that the project would not have a significant impact on the environment. The Planning Board also provided detailed reasoning and elaboration for its determination in the negative declaration with regard to the lack of significant impacts on traffic and transportation, aesthetics resources, water and sewage resources, endangered species, historic resources, community character and services, and energy resources. ”

Likewise, the Court found the zoning board had properly weighed and balanced the issues before it determined to grant the requested height variance.

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The appellate division sustained a SEQRA negative declaration, but nonetheless reversed the grant of a special permit for failure to address all the criteria required for the issuance of a special permit. In the Matter of Frigault v. Town of Richfield Planning Board, the Court found that the Board took a hard look at potential environmental issues prior to issuing a negative declaration and complied with the Open Meetings Law. However, it failed to address each of the standards required for issuing a special permit.

The lower court found the Town had violated the Open Meetings Law and therefore annulled the SEQRA negative declaration and the special permit. In modifying the determination of the lower court, the appellate division held:

“the Board’s negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project’s impact on bats and birds, “shadow flicker,” noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project’s environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets.”

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In a very brief decision, the Appellate Division held that a restaurant and concessions in Union Square Park did not violate the Public Trust Doctrine. In Union Square Park Community Coalition, Inc v. New York City Department of Parks and Recreation, the Court held the uses: “are permissible park uses (see 795 Fifth Ave. Corp. v City of New York, 15 NY2d 221 [1965]) and the concession agreements are revocable licenses terminable at will, not leases (see Miller v City of New York, 15 NY2d 34, 38 [1964]).”

-Steven Silverberg

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The Appellate Division ruled that the New York Environmental Conservation Law (ECL) does not prevent a Town from enacting zoning that prohibits hydrofracking. In Matter of Norse Energy Corp. USA v. Town of Dryden, the Court held that provisions of the ECL that regulate mining did not conflict with the ability of municipalities to enact zoning codes that prohibit certain mining activities.

Noting that “[A]mong the powers delegated to local governments is the authority to regulate the use of land through the enactment of zoning laws (see Municipal Home Rule Law § 10 [1] [ii] [a] [11]; Statute of Local Government § 10 [6], [7]; Town Law § 261” the Court found the ECL language and legislative history did not evidence an intent by the state legislature, either explicitly or by implication, to preempt local zoning authority to prohibit mining operations.

Therefore, the Court concluded: “respondents’ decision to amend the Town’s zoning ordinance to prohibit the activity of hydrofracking does not conflict with the Legislature’s intent to ensure that, where oil or gas drilling occurs, the operations are as efficient and effective as possible.”

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The Appellate Division ruled that a zoning board correctly interpreted the zoning code when it held that keeping 40 racing pigeons was not what was intended in a zoning code that permits “customary household pets” as accessory to a residence. In Matter of LaRusso v. Neuringer the court found:

“the petitioner’s proposed use of a coop in his backyard to keep and raise 40 or more racing pigeons, or ‘racing homers,’ did not qualify as keeping ‘a reasonable number of customary household pets’ within the meaning of section 342-21(B)(7) of the Code. In reaching this determination, the ZBA considered record evidence that these pigeons would be specially bred, trained, and handled to compete in races, at least some of which may result in cash prizes. ”

In analyzing the criteria applicable to interpreting the zoning code the Court noted that generally

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