Environmental Law – Page 10 – New York Appellate Digest

Civil Procedure, Environmental Law, Judges, Land Use, Municipal Law, Zoning

IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT).

The Second Department determined that the zoning code provisions enacted by the village board of trustees, which concerned the maximum floor space and coverage on residential lots, were consistent with the village’s comprehensive plan and properly enacted. The Second Department further found that the requirements of the State Environmental Quality Review Act (SEQRA) were met. However, the portions of the petition which sought declaratory relief and related damages should not have been summarily dismissed along with the portions which sought Article 78 relief because no demand for dismissal of the declaratory relief portions had been made:

… [I]n the absence of a dispositive motion addressed to the fifth, sixth, seventh, and eighth causes of action, which sought declaratory relief and damages not in the nature of CPLR article 78 relief, the Supreme Court should not have, in effect, dismissed those causes of action. “In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Bonacker Prop., LLC v Village of E. Hampton Bd. of Trustees, 2019 NY Slip Op 00432, Second Dept 1-23-19

January 23, 2019

Environmental Law, Municipal Law, Negligence, Toxic Torts

APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly, we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other than the passage of time, respondent has offered no particularized evidence in opposition to establish that it suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third Dept 1-17-19

January 17, 2019

Eminent Domain, Environmental Law

CLAIMANT ENTITLED TO COMPENSATION BASED UPON THE VALUE OF THE LAND BEFORE IT WAS DESIGNATED PROTECTED WETLANDS WHICH COULD NOT BE DEVELOPED (SECOND DEPT)

The Second Department modified (reduced) the award for condemnation of regulated land but upheld the Supreme Court’s legal reasoning. Claimant owned vacant land in a commercial zone. After claimant acquired title New York City took title by eminent domain and designated the land as protected wetlands. Claimant sought the difference in value of the land before and after the wetlands regulation. The Second Department held that claimant was entitled to that relief but accepted the city’s pre-regulation value of the land, which was substantially less than the claimant’s valuation (which had been accepted by Supreme Court):

As the City does not dispute, the claimant established that there was a reasonable probability that the imposition of the wetlands regulations on the property would be found to constitute a taking, inasmuch as the parties agreed that the imposition of the regulations diminished the value of the property by approximately 95% and that there was virtually no chance that the New York State Department of Environmental Conservation would issue a permit allowing the property to be developed … .

Accordingly, the claimant established its entitlement to an increment … .

“The increment above the regulated value of the property that must be added to the regulated value of the property is a percentage that represents the premium a reasonable buyer would pay for the probability of a successful judicial determination that the regulations were confiscatory” . “When adding an increment to the value of vacant land to reflect its development potential, the specific increment which is selected and… applied must be based on sufficient evidence and be satisfactorily explained” … . Matter of New Cr. Bluebelt Phase 3, Staten Is. Land Corp. (City of New York), 2019 NY Slip Op 00128, Second Dept 1-9-19

January 9, 2019

Civil Procedure, Environmental Law, Land Use, Zoning

FOUR MONTH STATUTE OF LIMITATIONS APPLIED TO THE DECISION BY THE PLANNING BOARD THAT NO ENVIRONMENTAL IMPACT STATEMENT WAS NECESSARY, PETITION TO ANNUL THAT DECISION WAS UNTIMELY (SECOND DEPT).

The Second Department determined the four-month statute of limitations applied to the planning board’s decision that an environmental impact statement was not necessary and the petition to annul that decision was untimely:

To the extent that the petition alleges the Planning Board’s noncompliance with SEQRA [State Environmental Quality Review Act], the four-month statute of limitations applies (see CPLR 217[1]…). An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decision-maker arrives at a ” definitive position on the issue that inflicts an actual, concrete injury'” … . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party … . Here, the statute of limitations began to run with the issuance of the negative declaration for the project on February 19, 2015, as this constituted the Planning Board’s final act under SEQRA and, accordingly, any challenge to the negative declaration had to be commenced within four months of that date … . Matter of Stengel v Town of Poughkeepsie Planning Bd., 2018 NY Slip Op 08488, Second Dept 12-12-18

December 12, 2018

Employment Law, Environmental Law, Municipal Law

BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW AND PENAL LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT).

The Third Department determined that petitioner, formerly a village building inspector, was properly terminated for failing to require asbestos abatement for a demolished building. Because the allegations constituted crimes pursuant to the Environmental Conservation Law (ECL) the charges were not time-barred. The evidence was deemed sufficient to support the charges:

Petitioner’s primary contention on appeal is that the charge should have been dismissed as untimely. Indeed, “no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges” (Civil Service Law § 75 [4… . However, this limitations period does not apply “where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime” … . …

… [P]etitioner is alleged to have “knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos.” If proven, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711 [3]). As to count 9, petitioner is alleged, with regard to the demolition of the building, to have “engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air” in a populated area. These allegations would, if proven at trial, constitute the crime of criminal nuisance in the second degree (see Penal Law § 240.45 [1]). Likewise, we find that the allegations against petitioner as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct (see Penal Law § 195.00 [2] …). Accordingly, the Hearing Officer properly found that the charge is not time-barred … . …

At the hearing, petitioner admitted that he was aware that the demolition of the building not only began without the requisite permits, but that the contractors hired to complete the job agreed to do so for only $5,000 — rather than an estimated $150,000 — in exchange for future contracts. It is further undisputed that the demolition resulted in the release of asbestos fibers where workers and passersby would be exposed to the legislatively-recognized carcinogenic agent… . As to the quantity of asbestos released, a report conducted more than a year prior to the building’s demolition found varying percentages of asbestos in the building’s products — from 1.4% to 23.5% — far exceeding the 1% threshold necessary to trigger abatement requirements … . Petitioner testified that, although he was aware that the building contained asbestos and had discussed this report with respondent’s civil engineer, John Fuller, he had not read the report and “assumed” that the quantity of asbestos present did not require abatement. When asked why he did not investigate the issue of abatement further in his role as respondent’s Code Enforcement Officer, he stated that he “had no obligation” to do so. Further, the Hearing Officer credited the testimony of Chief of Police Robert Mir that petitioner had told one of the demolition contractors, Sam Kearney, that he was “good to go” in response to concerns about whether asbestos was present in the building. Marciano Soto, a contractor hired to supervise the demolition of the building, similarly testified that petitioner told him on multiple occasions that the building did not contain asbestos. Upon our review, we find substantial evidence in the record to sustain the charge that petitioner “committ[ed] acts constituting crimes” — namely, endangering public health, safety or the environment in the fourth degree, official misconduct and criminal nuisance in the second degree — and, thus, to support the determination terminating petitioner’s employment … . Matter of Snowden v Village of Monticello, 2018 NY Slip Op 08226, Third Dept 11-29-18

MUNICIPAL LAW (EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/EMPLOYMENT LAW (ENVIRONMENTAL LAW, MUNICIPAL LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/ENVIRONMENTAL LAW (MUNICIPAL LAW, EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))

November 29, 2018

Eminent Domain, Environmental Law, Real Property Law, Utilities

ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

UTILITIES (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/REAL PROPERTY LAW (GAS PIPELINE, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/EMINENT DOMAIN (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/ENVIRONMENTAL LAW (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))

November 9, 2018

Administrative Law, Environmental Law, Municipal Law, Zoning

ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Court, over a dissent, determined that the NYC “open space” zoning resolution (ZR) requirements can not be satisfied on a building by building basis. The permit allowing the construction of a nursing home facility on a parking lot, therefore, should not have been issued. The open space on the roof of the proposed building would not be accessible to all who resided on the zoning lot. Such access is part of the definition of “open space:

The language in ZR § 12-10 is “clear and unambiguous” … . ZR § 12-10 has always defined “open space” as being “accessible to and usable by all persons occupying a #dwelling unit# or a #rooming unit# on the #zoning lot#” … . That language unambiguously requires open space to be accessible to all residents of any residential building on the zoning lot, not only the building containing the open space in question. To further bolster our finding that this language is clear and unambiguous, the 2011 amendments to ZR §§ 23-14 and 23-142 eliminated all references to “building” and replaced it with “zoning lot.” Equally dispositive is the identical change in the definition of “open space ratio” in ZR § 12-10. Of course, the impracticality of allowing the residents of one building on a zoning lot to have access to, and use of, open space located on the rooftop of another building on the zoning lot is obvious. Yet, respondents’ apparent contention concerning ZR § 12-10’s open space requirement — that any rooftop that may be considered open space for the purposes of the open space requirement shall or must be considered open space irrespective of access — gives credence to the impracticality. That is not what ZR § 12-10 says.

ZR § 12-10 unambiguously provides that “[o]pen space may be provided on the roof of . . . [a] building containing residences” and that “[a]ll such roof areas used for open space shall meet the requirements set forth in this definition.” Thus, any rooftop space that is to be considered open space for the purposes of satisfying the open space requirement under the Zoning Resolution must be accessible and usable by all residents on a zoning lot. Lest there be any doubt, we find that the 2011 amendments now preclude the use of the building-by-building methodology, which had been an exception to this clear statutory import. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2018 NY Slip Op 06870, First Dept 10-16-18

ZONING (ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/MUNICIPAL LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/ADMINISTRATIVE LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/OPEN SPACE (NYC ZONING, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))

October 16, 2018

Environmental Law, Labor Law, Labor Law-Construction Law, Negligence, Trusts and Estates

ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT).

The Second Department determined the action based upon exposure to lead in utero was properly dismissed. Plaintiff alleged his father’s clothes were saturated with lead at work:

At common law, employers have a duty to provide a safe workplace, but this duty has been limited to employees (see Labor Law § 200…). It has not, as the plaintiff contends, been extended to encompass individuals who were not employed at the worksite such as the plaintiff or his mother during her pregnancy … .

While “[a] landowner generally must exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises'” … , the facts alleged in this case differ from those to which a landowner’s duty to exercise reasonable care for the protection of individuals off site has been held to extend … .

Contrary to the plaintiff’s contention, the alleged violations of Occupational Safety and Health Administration (hereinafter OSHA) regulations … , the Occupational Health and Safety Act of 1970 , specifically 29 USC § 654(a), and Labor Law § 27-a do not constitute negligence per se. The violation of OSHA regulations provides only evidence of negligence … . Moreover, neither the plaintiff nor his mother during her pregnancy belonged to the class intended to be protected by OSHA or its implementing regulations, 29 USC § 654(a), or Labor Law § 27-a, namely employees … . Campanelli v Long Is. Light. Co., 2018 NY Slip Op 06225, Second Dept 9-26-18

NEGLIGENCE (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/TOXIC TORTS (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/ENVIRONMENTAL LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))

September 26, 2018

Civil Procedure, Corporation Law, Environmental Law, Land Use, Municipal Law, Real Property Law

THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM ON THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over a partial dissent, reversing Supreme Court, determined that the Real Estate Board of New York (REBNY) had standing to challenge a Local Law which placed a two-year moratorium on the conversion of hotels to condominiums or other residential uses. The court further determined that the REBNY did not have standing to challenge the statute under the State Environmental Quality Review Act (SEQRA). The REBNY alleged that 29 of its members owned hotels subject to the law:

Owners of real property who are subjected to a new zoning classification or other use restriction are “presumptively affected by the change” and “therefore technically have standing” to assert claims … .

Accepted as true for purposes of these CPLR 3211 motions, REBNY’s assertion that its member hotel owners are currently negatively affected by the moratorium is sufficient to establish standing in the plenary action and in the article 78 proceeding under ULURP [the City Charter’s Uniform Land Use Review Process] … . * * *

REBNY’s claimed environmental harm is nothing more than economic harm (i.e., the reduction in property values, the loss of business opportunities and the added expense of applying for a waiver under Local Law 50). REBNY’s own filings reflect that the organization’s constitution mentions the environment only once, and only insofar as the environment relates to economic impact. The affidavit by REBNY’s president does not salvage REBNY’s standing argument. The president claims that “SEQRA is a concern” for all REBNY members in “proximity” to the hotels due to potential impacts on traffic, noise, air quality, waste disposal and demand for public services. This argument … fails to establish injury separate and apart from injury to the general public … . Matter of Real Estate Bd. of N.Y., Inc. v City of New York, 2018 NY Slip Op 05906, First Dept 8-23-18

REAL PROPERTY LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/MUNICIPAL LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/CIVIL PROCEDURE (STANDING, THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/ENVIRONMENTAL LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT)).STATE ENVIRONMENTAL QUALITY REVIEW ACT (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/LAND USE (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/HOTELS (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/CORPORATION LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))

August 23, 2018

Administrative Law, Appeals, Environmental Law

TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT’S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT).

The Second Department determined the town planning board's rescission of a 1987 negative declaration under the State Environmental Quality Review Act (SEQRA) was proper. The board found that the regulatory landscape in 2013 constituted new information or a change in circumstances justifying rescission. The court noted that its review powers are limited to whether the board's action satisfied SEQRA procedurally and substantively, and cannot include determining whether the board was “correct:”

The record supports the Planning Board's conclusion that changes in the regulatory landscape for environmental matters constituted new information or a change in circumstances … . Moreover, in determining that the project may result in significant adverse environmental impacts, the Planning Board identified specific environmental concerns relevant to the criteria for determining significance … .

The petitioners argue that the Planning Board's conclusion was incorrect. However, “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . Our review is limited to “whether the agency procedures were lawful and 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” … . Here, the Planning Board satisfied this standard. Leonard v Planning Bd. of the Town of Union Vale, 2018 NY Slip Op 05757, Second Dept 8-15-18

ENVIRONMENTAL LAW (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/APPEALS (ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))

August 15, 2018