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MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motions for leave to file late notices of claim in these actions stemming from pollution escaping from a landfill should have been granted. Although leave to file a late notice of claim can not be granted after the statute of limitations has run, here the statute of limitations was tolled by the filing of a federal class action suit:

Although more than one year and ninety days had elapsed between the November 2016 accrual date alleged in claimants’ proposed notices of claim and their application for leave to serve late notices of claim, we agree with claimants that the filing of the federal class action in March 2017, in which claimants are putative class members, tolled the statute of limitations … . …

… [T]he court abused its discretion in denying their application insofar as it sought leave to serve late notices of claim on respondent … . “In determining whether to grant such [relief], the court must consider, inter alia, whether the claimant[s have] shown a reasonable excuse for the delay, whether the [respondent] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [respondent]” … . Although claimants failed to establish a reasonable excuse for the delay, “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … .

… [B]ecause respondent knew that its Site was upgraded to a Class 2 site in 2015 and because similarly situated individuals served timely notices of claim on respondent alleging “substantively identical” exposure to the Site’s pollutants and resulting damages … , we conclude that claimants established that respondent received the requisite actual timely knowledge of the claims claimants now assert. We further conclude that claimants met their initial burden of establishing that respondent would not be substantially prejudiced by the delay inasmuch as respondent has been investigating similar claims since early 2017 … and that, in opposition, respondent failed to make a “particularized showing” of substantial prejudice caused by the late notice … . Matter of Bingham v Town of Wheatfield, 2020 NY Slip Op 04241, Fourth Dept 7-24-20

 

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LOCAL LAW REVISING ZONING DISTRICTS AND ALLOWING MINING WAS VALIDLY ENACTED; CONTRARY TO SUPREME COURT’S FINDING, TWO PETITIONERS HAD STANDING BY VIRTUE OF THEIR OWNING PROPERTY SUBJECT TO THE NEW ZONING PROVISIONS; ONE PORTION OF THE LOCAL LAW USURPED THE POWERS OF THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) AND WAS ANNULLED; ANOTHER PORTION ADDRESSING TRUCK TRAFFIC VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS ANNULLED (THIRD DEPT).

The Third Department, in a comprehensive and detailed decision which can not be fairly summarized here, determined a local law which included and new zoning map, revised zoning districts and allowed mining on properties with existing permits was validly enacted. Disagreeing with Supreme Court, the Third Department noted that two of the petitioners, Holser and Hastings, had standing to challenge the State Environmental Quality Review Act (SEQRA) review by virtue of owning property subject to the rezoning ordinance. The court found that one section of the Local Law usurped powers reserved under SEQRA requiring annulment of that section. The court found that another paragraph of the Local Law prohibiting the transport of minerals on town roads did not carve out exceptions for deliveries as required by the Vehicle and Traffic Law. With respect to the standing issue, the court wrote:

For purposes of standing, when a property owner challenges the SEQRA review process undertaken in conjunction with a zoning enactment to which its property is subject, “ownership of the subject property confers a legally cognizable interest in being assured that the Town satisfied SEQRA before taking action to rezone its land”  … . “[S]tanding should be liberally constructed so that land use disputes are settled on their own merits rather than by preclusive, restrictive standing rules. To that end, the allegations contained in a petition are deemed to be true and are construed in the light most favorable to the petitioner” … . Holser and Hastings have demonstrated that they reside in the Town and own property therein. It is not necessary to assert “proof of special damage or in-fact injury” … , nor do they have to state a noneconomic environmental harm. All that is necessary for standing is to demonstrate ownership of property subject to the rezoning ordinance … . Matter of Troy Sand & Gravel Co., Inc. v Town of Sand Lake, 2020 NY Slip Op 04212, Thrid Dept 7-23-20

 

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CITY TOOK THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACTS OF THE REDEVELOPMENT PLAN, INCLUDING ITS EFFECTS ON RENTER DISPLACEMENT; SUPREME COURT SHOULD NOT HAVE ANNULLED THE ADOPTION OF THE PLAN (FIRST DEPT).

The First Department, reversing Supreme Court, ruled that the City Council, in approving the redevelopment plan, had taken the requisite hard look pursuant to the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Act (CEQRA) at the environmental impacts of the plan as described in the Final Environmental Impact Statement (FEIS):

Petitioners argued that the City violated SEQRA and CEQR by failing to take a “hard look” at eight issues: (1) impact of rezoning on existing preferential rents and effect on renter displacement; (2) impact on area racial makeup; (3) impact on minority and women-owned businesses (MWBEs); (4) accuracy of prior City FEIS projections on rezoning impacts; (5) impact of loss of the existing Inwood library; (6) impact on emergency response times; (7) cumulative impact of other potential area rezonings, including the adjacent 40-acre MTA railyard; and (8) speculative purchase of residential buildings in the wake of the rezoning. …

We find that the City’s decision was not arbitrary and capricious, unsupported by the evidence, or contrary to law. The City took the requisite “hard look” at all the issues requiring study under SEQRA/CEQR … , but did not have to parse every sub-issue as framed by petitioners … . Moreover, the City was “entitled to rely on the accepted methodology set forth in the [CEQR] Technical Manual” … , including in determining what issues were beyond the scope of SEQRA/CEQR review. Matter of Northern Manhattan Is Not for Sale v City of New York, 2020 NY Slip Op 04235, First Dept 7-23-20

 

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THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) EXEMPTED THE GAS PIPELINE COMPANY FROM ANY REVIEW REQUIREMENTS OF THE EMINENT DOMAIN PROCEDURE LAW (EDPL); THE COMPANY WAS FREE TO EXERCISE EMINENT DOMAIN OF THE LAND IN DISPUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that the certificate of public convenience and necessity issued to petitioner, National Fuel Gas Supply, for construction of a gas pipeline, exempted National Fuel from any requirements of the Eminent Domain Procedure Law (EDPL). Therefore National Fuel did not need to comply with the notice and hearing requirements of the EDPL before exercising eminent domain of the land in dispute:

In 2017, the Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to petitioner National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. … [t]his certificate …—which did not condition National Fuel’s eminent domain power on receipt of a water quality certification and which remained valid and operative at all relevant times despite the New York State Department of Environmental Conservation’s intervening denial of National Fuel’s application for such a certification—exempted National Fuel from the public notice and hearing provisions of article 2 of the Eminent Domain Procedure Law (EDPL) in accordance with EDPL 206 (A). …

The question before us distills to whether the certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission (FERC) to National Fuel satisfies EDPL 206 (A) so as to entitle National Fuel to exercise eminent domain over the land in dispute without undertaking additional review of the pipeline’s public benefit. If satisfied, EDPL 206 (A) excuses compliance with various provisions of EDPL article 2 where a proposed condemnor has successfully completed a review of the project’s public benefit and use before a state, federal, or local agency. * * *

… [W]here, as here, a gas company holds a valid certificate of public convenience or necessity from FERC for the proposed construction of a pipeline and that certificate places no relevant conditions on the eminent domain power and has not been stayed or revoked by FERC or a federal court properly reviewing its issuance, compliance with article 2 is excused under EDPL 206 (A). Matter of National Fuel Gas Supply Corp. v Schueckler, 2020 NY Slip Op 03563, CtApp 6-25-20

SUMMARY OF THE FOURTH DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020

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

 

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THE IMMEDIATE NEIGHBORS HAD STANDING TO CONTEST THE APPROVAL OF THE CONSTRUCTION OF A DOLLAR STORE; THE PLANNING BOARD DID NOT NEED TO SEND THE MATTER TO THE ZONING BOARD OF APPEALS TO INTERPRET A ZONING ORDINANCE WHICH WAS ONLY A GUIDELINE CONCERNING THE ALLOWED LENGTH OF A BUILDING FACADE; THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (THIRD DEPT).

The Third Department, reversing Supreme Court, noting that the abutting neighbors (Cady and Crawley) had standing to contest the town planning board’s approval of the construction of a Dollar Store, determined Supreme Court should not have found that the matter must be sent to the Zoning Board of Appeals (ZBA) for a variance proceeding. Because the zoning ordinance in question, concerning the length of a building facade, was only a guideline, it was not necessary to involve the ZBA to interpret it:

Cady and Cawley’s residence is directly adjacent to the proposed construction site, and the proposed retail store would be directly across the woods from their property. The store’s main parking lot, which is located behind the store, is in the line of sight of Cady and Cawley’s property. As a result, the store is likely to obstruct or interfere with the scenic views within the scenic viewshed overlay district from Cady and Cawley’s property. Cady and Cawley have standing because they have demonstrated that they would suffer an “injury in fact – i.e., actual harm by the action challenged that differs from that suffered by the public at large — and that such injury falls within the zone of interests, or concerns sought to be promoted or protected by the statutory provision under which the agency has acted” … . * * *

… [T]he Town zoning code states that “the length of any faÇade should generally not exceed 50 feet maximum [horizontal dimension]”. Insofar as the subject provision lacks any compulsory language, … this provision is deliberately phrased …  as a guideline, rather than as a prohibition; in other words, there was no requirement for a referral to the ZBA to determine the plain language of the statute. …

… [O]ur review of the record reveals that the Planning Board underwent a nearly four-year process that involved in-depth environmental impact reports, multiple draft EISes [environmental impact statements] and public hearings, which formed the basis of the FEIS [final environments impact statement] and SEQRA [State Environmental Quality Review Act] findings statement. Accordingly, we find that the Planning Board complied with its procedural and substantive requirements under SEQRA … . Matter of Arthur M. v Town of Germantown Planning Bd., 2020 NY Slip Op 03440, Third Dept 6-18-20

 

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THE TOWN’S SEQRA NEGATIVE DECLARATION REGARDING THE EXPANSION OF A CAMPGROUND WAS ARBITRARY AND CAPRICIOUS; THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND THE CAMPGROUND CONSTITUTED ILLEGAL CONTRACT ZONING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town planning board’s adoption of negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) with respect to the expansion of a campground (BBFC) was arbitrary and capricious. The Second Department further found that the development contract between the town and BBFC constituted illegal contract zoning:

The Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites, and adopted the negative declaration based largely upon its finding that the campground had been operating 154 campsites—albeit illegally—for many years. Under the circumstances, the Planning Board’s adoption of the negative declaration was arbitrary and capricious.

… [T]he development agreement entered into between the Town Board and BBFC constituted illegal contract zoning. “[N]o municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties” … . The test is whether the development agreement committed the Town to a specific course of action with respect to a zoning amendment … . The Town Board agreed to amend the zoning code to permit 210-day occupancy limit, a change from the current 120-day occupancy limit, in exchange for BBFC’s agreement that the 210-day occupancy limit would apply to all of the campsites, including the original 74 approved campsites. This was an agreement binding on BBFC to give a form of consideration in exchange for legislative action and to limit the Town Board’s authority to change the bulk requirements in the zoning code until such time as BBFC would not be negatively affected by such change … . Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03112, Second Dept 6-3-20

In the same matter, the Second Department determined the granting of an area variance for the campground, based upon the nonconforming campsites which had already been constructed, was arbitrary and capricious. Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03113, Second Dept 6-3-20

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THE QUARRY OWNER HAD, AS A PRE-EXISTING NONCONFORMING USE, A VESTED RIGHT TO MINE THAT PORTION OF ITS LAND SUBJECT TO A PENDING APPLICATION FOR A PERMIT FROM THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ZONING BOARD AND SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner had a vested right to mine that portion of its land subject to a pending application for a mining permit from the Department of Environmental Protection (DEP). Petitioner operated a quarry, which was an allowed pre-existing use of the land, and had a DEC permit to mine 37.5 acres (the entire parcel is 241 acres) The petitioner was seeking a permit from the DEC to expand the number of acres to be mined from 37.5 acres to 94 acres. While the application for the permit was pending, the town enacted a new zoning law that allowed mining on only those lands subject to an existing DEC permit. Petitioner sought a declaration that it had a vested right to mine its entire parcel as a prior nonconforming use and Supreme Court dismissed the proceeding:

” [N]onconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance'” … . ” By its very nature, quarrying involves a unique use of land. . . . [A]s a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed'” … . “[W]here . . . the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of [the] protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property” … . …

… [T]he petitioner demonstrated that it has a vested right to mine those 94 acres as a prior nonconforming use … . In opposition, the respondents/defendants failed to raise a triable issue of fact. Further, for the same reasons, the petitioner demonstrated that so much of the ZBA’s determination as found that the petitioner does not have a vested right to mine those 94 acres was affected by an error of law, arbitrary, and capricious … . …

Accordingly, the Supreme Court should have granted the petitioner’s motion to the extent of declaring that the petitioner has a vested right to mine 94 acres of its property as a prior nonconforming use … . Matter of Red Wing Props., Inc. v Town of Rhinebeck, 2020 NY Slip Op 03119, Second Dept 6-3-20

 

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PLAINTIFF DID NOT HAVE STANDING TO CONTEST PERMITS GRANTING THE CONVERSION OF DEFENDANT’S PROPERTY FROM MANUFACTURING TO RETAIL; PROXIMITY TO DEFENDANT’S PROPERTY WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to contest the defendant City’s issuing permits allowing defendant CAB to convert property from manufacturing to retail. Plaintiff operated a grocery store 450 feet from CAB’s property. The Second Department held proximity was not enough to confer standing on plaintiff:

“In land use matters, . . . [the plaintiff] must show that it would suffer direct harm, injury that is in some way different from that of the public at large'” … . “An allegation of close proximity may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury” … . “However, this does not entitle the property owner to judicial review in every instance” … . “Rather, in addition to establishing that the effect of the proposed change is different from that suffered by the public generally, the [property owner] must establish that the interest asserted is arguably within the zone of interests the statute protects” … . Thus, “even where [the property owner’s] premises are physically close to the subject property, an ad hoc determination may be required as to whether a particular [property owner] itself has a legally protectable interest so as to confer standing” … .

Here, the plaintiff alleged standing on the basis of proximity, issues and interests within the zone of interests, and adverse impacts. We disagree with the Supreme Court’s finding that the plaintiff had standing to commence this action. The plaintiff failed to allege any harm distinct from that of the community at large … . 159-MP Corp. v CAB Bedford, LLC, 2020 NY Slip Op 01892, Second Dept 3-18-20

 

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UNRESOLVED QUESTIONS OF FACT CONCERNING WHETHER THE CONSTRUCTION OF A WHOLE FOODS STORE IN THE VICINITY OF A RECREATIONAL TRAIL AND A PUBLIC USE EASEMENT VIOLATES THE PUBLIC TRUST DOCTRINE (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined petitioner’s violation of the public trust doctrine causes of action should not have been dismissed. The action relates to the construction of a Whole Foods store in the vicinity of a recreational trail and a public use easement:

… [T]he court erred by granting a declaration in favor of respondents on petitioner’s … causes of action … which allege violations of the public trust doctrine, because there are unresolved factual issues concerning the impact of the Whole Foods development on a recreational trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail ,,, , Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754, Fourth Dept 1-31-20

 

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WASTEWATER TREATMENT COMPANY’S CONTRACT WITH THE MUNICIPALITY WAS NOT VOID; THE CONTRACT WAS IN THE PUBLIC INTEREST AND THERE WAS NO PROOF THE BID SPECIFICATIONS WERE IMPROPERLY DEVELOPED WITH THE COMPANY OR DESIGNED TO ENSURE THE COMPANY RECEIVED THE CONTRACT (THIRD DEPT).

The Third Department, over a partial dissent, determined the plaintiff municipality breached its contract with defendant sewage-treatment company. The plaintiff municipality argued that, although there was competitive bidding under General Municipal Law 103 and 120-w, the contract was void because the bid specifications were improperly developed with the defendant and were designed to ensure defendant got the contract, but that argument was rejected by both Supreme Court and the Third Department:

… [P]laintiff provided nothing to contradict the proof that [use of defendant’s technology] served the public interest because it was safer, more reliable and less likely to generate troublesome odors than other technologies.

[D]efendant produced an affidavit from plaintiff’s then-mayor, who stated that the options for sludge treatment had been thoroughly investigated and that the type of equipment offered by defendant would further the public interest by stabilizing plaintiff’s sludge disposal costs, providing an environmentally sensitive means for that disposal and decreasing odors emanating from the WWTF [wastewater treatment facility] that might affect ongoing waterfront development. The then-mayor further averred that the bid documents were prepared by municipal employees and that the specifications included nothing of peculiar benefit to defendant. … Defendant’s president, a mechanical engineer, confirmed that point and averred that “[n]early any sludge drying pelletizing system on the market” could have satisfied the bid specifications. Plaintiff accordingly failed to meet its burden of showing that the 2004 agreement was void, and defendant demonstrated its entitlement to summary judgment on claims relating to that agreement’s validity … . City of Kingston v Aslan Envtl. Servs., LLC, 2020 NY Slip Op 00192, Third Dept 1-9-20

 

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