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THE COMMISSIONER OF AGRICULTURE AND MARKETS PROPERLY ENFORCED A TOWN RESOLUTION WHICH PROHIBITED CONNECTING A WATER MAIN SERVICING AN AGRICULTURAL AREA TO A NEW RESIDENTIAL SUBDIVISION; THE DEVELOPERS WERE ‘INTERESTED PERSONS’ AND WERE PROPERLY ALLOWED TO INTERVENE IN THE COMMISSIONER’S ARTICLE 78 ACTION TO ENFORCE THE TOWN RESOLUTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, the Commissioner of Agriculture and Markets, had the authority to enforce a 2004 Town Board resolution which restricted the use of water provided by a water main to existing residential uses and agricultural uses. In 2016 the Town Board passed a resolution allowing a connection with the water main to service a new residential subdivision. The Commissioner brought an Article 78 proceeding to enforce the 2004 resolution and the developers of the residential subdivision were properly allowed to intervene:

Supreme Court did not abuse its discretion in permitting the developers to intervene. Petitioner may well be correct that the developers do not have standing to bring suit to challenge his determination, but “[t]he bases for permissive intervention are broader than they are for standing to originate the proceeding” … . The developers have property interests that will be impacted should petitioner succeed … and all share the view of the Town and respondent Town Supervisor that petitioner lacks authority to enforce restrictions on water main access that the Town Board later attempts to vitiate. In our view, this is sufficient to render them “interested persons” who can at least intervene with regard to that portion of the petition/complaint founded upon CPLR article 78 … . …

A local government enjoys broad autonomy under “the ‘home rule’ provision of the New York Constitution,” but that autonomy does not extend to actions “that conflict with the State Constitution or any general law” (…see NY Const, art IX, § 2 [c] [ii]; Municipal Home Rule Law § 10 [1]). Among the general laws of New York is Agriculture and Markets Law article 25-AA, which “was enacted upon a finding that many of the agricultural lands in New York state are in jeopardy of being lost for any agricultural purposes due to local land use regulations inhibiting farming, as well as various other deleterious side effects resulting from the extension of nonagricultural development into farm areas” … . …

Petitioner was … within his rights to order the Town to comply with the 2004 resolution following an investigation and, upon the Town’s failure to seek review of his determination and refusal to comply with it, commence the present enforcement litigation … . Matter of Ball v Town of Ballston, 2019 NY Slip Op 04519, Third Dept 6-6-19

 

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THE CITY ALLOWED THE LOT TO BE USED FOR COMMUNITY GARDENS BUT NEVER UNEQUIVOCALLY DEDICATED THE LOT AS PARKLAND, THEREFORE THE PUBLIC TRUST DOCTRINE DID NOT APPLY AND THE CITY CAN DEVELOP THE LAND (SECOND DEPT).

The Second Department determined land used for a community garden (Lot 142) was never unequivocally dedicated as parkland by the city. Therefore the public trust doctrine did not prohibit the city from developing the land:

Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to parkland without obtaining the approval of the legislature … . A party seeking to establish such an implied dedication to parkland and thereby successfully challenging the alienation of the land must show that (1) “[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use” … . “It remains an open question whether the second prong . . . applies to a municipal land owner”… . Regardless, “[w]hether a parcel has become a park by implication is a question of fact which must be determined by such evidence as the owner’s acts and declarations, and the circumstances surrounding the use of the land” … . “[I]f a landowner’s acts are equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication'”… .”The burden of proof rests on the party asserting that the land has been dedicated for public use” … .

Here, the defendants submitted evidence showing that the City’s actions and declarations did not unequivocally manifest an intent to dedicate Lot 142 as parkland. Their exhibits showed that the City permitted the community garden to exist on a temporary basis as the City moved forward with its plans to develop the parcel. Their exhibits also demonstrated that any management of Lot 142 by the City’s Department of Parks and Recreation was understood to be temporary and provisional … . Matter of Coney Is. Boardwalk Community Gardens v City of New York, 2019 NY Slip Op 04162, Second Dept 5-29-19

 

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THE PUBLIC SERVICES COMMISSION HAS THE AUTHORITY TO IMPOSE RATE CAPS AND OTHER RESTRICTIONS ON ENERGY SERVICE COMPANIES WHICH USE THE PUBLIC UTILITY INFRASTRUCTURE TO DELIVER ELECTRICITY TO CONSUMERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Public Service Commission (PSC) has the authority to impose rate caps on energy service companies (ESCOs) who use the public utility infrastructure:

… [W]e are asked to determine whether the Public Service Law authorizes the Public Service Commission (PSC) to issue an order that conditions access to public utility infrastructure by energy service companies (ESCOs) upon ESCOs capping their prices such that, on an annual basis, they charge no more for electricity than is charged by public utilities unless 30% of the energy is derived from renewable sources. We conclude that the Public Service Law, in authorizing the PSC to set the conditions under which public utilities will transport consumer-owned electricity and gas, has such authority. * * *

Because the PSC is empowered to regulate utilities’ transportation of gas and electricity and created the ESCO markets for the benefit of consumers, and because the legislature has delegated to the PSC the authority to condition ESCOs’ eligibility to access utility lines on such terms and conditions that the PSC determines to be just and reasonable, it follows that the PSC has authority to prohibit utilities from distributing overpriced products by conditioning ESCOs’ access on a price cap. That is, the statutory framework permits the PSC, pursuant to its authority to regulate the energy market, to impose a price cap on ESCOs as a condition of eligibility. Therefore, although the PSC has no direct rate-making authority over ESCOs, it did not exceed its statutory authority in determining that public utility transportation of energy sold by ESCOs is not “just and reasonable” if ESCOs are charging consumers more than that charged by public utilities. Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2019 NY Slip Op 03655, CtApp 5-9-19

 

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PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT).

The Fourth Department determined petitioner did not have standing to seek a State Environmental Quality Review Act (SEQRA) review of one-day squirrel hunting event put on by a volunteer fire department:

Prior to 2017, the one-day hunting contests at issue had been held annually by respondent as fundraisers, with prizes having been awarded based on the weight of squirrels turned in at the end of each contest. Petitioner resides approximately 50 miles from the area where respondent has held the hunting contests. She alleges an environmental injury-in-fact based on her fondness for squirrels, the impact that the hunting contests may have on the “local ecology,” and the possibility that the contests may result in the killing of squirrels that she sees near her residence. Petitioner contends that she therefore has standing to bring this proceeding/action. We reject that contention.

Standing is “a threshold requirement for a [party] seeking to challenge governmental action” … . The burden of establishing standing to challenge an action pursuant to SEQRA is “on the party seeking review” … . “The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action” … . In addition, to establish standing under SEQRA, a petitioner must establish, inter alia, “an environmental injury that is in some way different from that of the public at large”… .

Here, we conclude that petitioner has not met her burden of establishing an environmental [*2]injury-in-fact. Although petitioner may have alleged some environmental harm, she has alleged, at most, an injury that is “no different in either kind or degree from that suffered by the general public” . Petitioner also has not established that the hunting activities at issue have affected the wildlife where she resides, nor has she established that she has used, or even visited, the area where the hunting contests have been conducted … . Matter of Sheive v Holley Volunteer Fire Co., Inc., 2019 NY Slip Op 01982

 

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LOCAL LAW WHICH HAD BEEN DECLARED VOID COULD NOT BE THE BASIS FOR DETERMINING WHETHER PETITIONER’S USE OF THE LAND FOR MINING WAS A VALID PREEXISTING NONCONFORMING USE (THIRD DEPT).

The Third Department determined that a local law which had been declared void could not be the basis for determining whether the petitioner’s use of the property for mining was a valid preexisting nonconforming use. Once the local law had been declared void the prior law went back into effect. That law was not changed until 2015. So the 2015 law is the proper basis for determining whether the property is subject to a valid preexisting nonconforming use:

Central to petitioner’s contention is the general premise that the judicial nullification and voidance of an ordinance revives, by operation of law, the prior ordinance in effect before the null and void law was adopted … . Even more fundamental, a voided law can have no lasting effect … . To that end, “a void thing is no thing. It changes nothing and does nothing. It has no power to coerce or release. It has no effect whatever. In the eye of the law it is merely a blank, the same as if the types had not reached the paper”… . Therefore, inasmuch as an annulled law can have no lingering effect, petitioner is entitled to have its nonconforming use rights evaluated as of the effective date of the 2015 ordinance, unless, of course, that ordinance is also annulled prior to any such determination … . To hold otherwise would not only give the annulled Local Law No. 2 complete effect, i.e., render mining a nonconforming use in petitioner’s zoning district as of the date of the illegally-enacted law, but it would incentivize municipalities to rush to enact local laws with any number of infirmities, including SEQRA violations. Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 2019 NY Slip Op 01272, Third Dept 2-21-19

 

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MOTION TO PURGE THE CONTEMPT ORDER REGARDING THE REMOVAL OF SOLID WASTE THAT HAD BEEN DUMPED ON A FIELD BY DEFENDANTS SHOULD HAVE BEEN GRANTED AND THE INCARCERATED DEFENDANT SHOULD BE RELEASED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants’ motion to purge the contempt order should have been granted and one of the defendants, Cascino, who had been incarcerated for more than a year to force compliance with the underlying order, should be released. The court had ordered defendants to remove solid waste that had been dumped by then on a field. Much of the material had been removed but questions of fact remained whether all of it had been removed:

… [A] question of fact remains as to whether defendants completed the required remediation. This impasse brings us back to the fundamental problem that the disputed material looks like regular topsoil to the human eye. Despite ongoing removal efforts and Supreme Court having concluded multiple hearings throughout 2016 and 2017 as to the remediation performed, the difficulty of identifying the precise location of any remaining material has left the parties at a continuing impasse.

Given these circumstances, we conclude that to continue Cascino’s incarceration any further would serve no viable purpose and cannot be sustained. We are satisfied that the record establishes a significant effort on defendants’ part to purge the contempt, while recognizing that there remains some dispute as to whether all the disputed material has been removed. That said, until such time as a definitive showing has been made that the disputed material actually remains and precisely where, it would be improvident to continue Cascino’s incarceration. For these reasons, we conclude that the order must be reversed and defendants’ motion to purge the contempt granted. Town of Copake v 13 Lackawanna Props., LLC, 2019 NY Slip Op 01271, Third Dept 2-21-19

 

ATTORNEY GENERAL MAY IMPOSE CIVIL PENALTIES FOR VIOLATION OF THE TIDAL WETLANDS ACT AND THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION WAS ENTITLED TO SUMMARY JUDGMENT ON ITS ACTION TO COMPEL DEFENDANT TO SUBMIT A RESTORATION PLAN AFTER DEFENDANT, CLEARED AND FILLED WETLANDS AND CONSTRUCTED A BULKHEAD AND FENCE ON WETLANDS (SECOND DEPT).

The Second Department, reversing Supreme that the attorney general (AG) can impose civil penalties pursuant to the Environmental Conservation La (ECL fro violations of Tidal Wetlands Act and the Department of Environmental Conservation was entitle to summary on its action to impose penalties and compel defendant to submit a restoration plan:

… [P]laintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on the fourth cause of action in the amended complaint, which sought to recover civil penalties pursuant to ECL 71-2505 for the defendant’s post-February 1, 2008, violations of the Tidal Wetlands Act, and to compel the defendant to submit a restoration plan addressing those violations. In support of their motion, the plaintiffs submitted evidence demonstrating, inter alia, that between 2011 and 2012, the defendant, without a permit, cleared wetland vegetation and placed fill, constructed a bulkhead in delineated state tidal wetlands and in the tidal creek, and installed a 900-foot long fence in tidal wetland adjacent areas in violation of ECL 25-0401… . In opposition, the defendant failed to raise a triable issue of fact … . New York State Dept. of Envtl. Conservation v Segreto, 2019 NY Slip Op 01084, Second Dept 2-13-19

 

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PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AND THE POWER PLANT BECAME OPERATIONAL AT THE OUTSET OF THE MOTION PRACTICE SEEKING TO VACATE CERTAIN PERMITS WHICH ALLOWED THE PLANT TO RESUME OPERATIONS, THE APPEAL WAS DEEMED MOOT AND THE PETITION WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined that Sierra Club’s petition seeking to vacate permits issued to allow respondents to operate a natural gas and biomass power plant, which was formerly coal-powered, was properly dismissed as moot. Petitioner’s did not seek a temporary restraining order or other measures to preserve the status quo. The plant became operational while the motion seeking temporary injunctive relief was pending:

We agree with respondents that the appeal should be dismissed as moot … . Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from ” rendering a decision that would effectively determine an actual controversy’ ” … . In addition to the progress of the construction, other factors relevant to evaluating claims of mootness are whether the party challenging the construction sought injunctive relief, whether the “work was undertaken without authority or in bad faith” …, and whether “substantially completed work” can be undone without undue hardship… . The primary factor in the mootness analysis is “a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Generally, a petitioner seeking to halt a construction project must “move for injunctive relief at each stage of the proceeding” … .

The plant has been operating lawfully since March 2017. The failure to preserve the status quo is entirely the fault of petitioners, who waited until the last possible day to commence this proceeding, failed to request a TRO, failed to pursue an injunction with any urgency, waited until the last possible day to take an appeal, spent nine months perfecting the appeal, and failed to seek injunctive relief from this Court until approximately one year after the entry of the judgment, in a transparent attempt to avoid dismissal of this appeal. Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 01022, Fourth Dept 2-8-19

 

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THE TERMS OF THE PURCHASE CONTRACT INDICATED BUYER, WHO PURCHASED THE PROPERTY KNOWING IT WAS CONTAMINATED BY OIL, WOULD INDEMNIFY SELLER FOR COSTS RELATED TO THE ENVIRONMENTAL CONDITIONS, QUESTION OF FACT WHETHER BUYER, WHO SIGNED THE CONTRACT ‘ON BEHALF OF AN ENTITY TO BE FORMED,’ WAS INDIVIDUALLY LIABLE (FOURTH DEPT).

The Fourth Department determined that the terms of the purchase contract for property contaminated by oil indicated the buyer would indemnify the seller for costs associated with the condition of the property. The Fourth Department further held there was a question of fact whether the buyer signed the contract in his individual capacity in that he signed “on behalf of an entity to be formed:”

The purchase contract provided that a “Phase One Environmental report” had been completed on the property and that Marks, the “Buyer” of the property, was in receipt of the environmental report and “approve[d] of same.” The contract further provided that Atkin was the “Seller,” the property “was not in compliance with federal, state and/or local laws/ordinances,” the Buyer agreed to purchase the property “as is,” the “Buyer accept[ed] the property as is, with no representations or warranties as to environmental conditions” of the property, and the Buyer “release[d] and indemnifie[d] Seller with respect to any claims as to environmental conditions on or related to the property.” Thus, the terms of the contract establish that, prior to entering into the contract, both Atkin and Marks were generally aware of the property’s historical environmental contamination by the Exxon defendants and their predecessor, and the language in the indemnification provision, considered in light of the contract as a whole and the circumstances of the sale of the property, clearly and unambiguously expresses the intent of the parties that the Buyer would indemnify the Seller with respect to any claims regarding environmental conditions related to the property … . …

Although it is well settled that “[a]n individual who acts on behalf of a nonexistent corporation can be held personally liable” … , the determination “[w]hether a person is personally obligated on a preincorporation transaction depends on the intention of the parties” … . One Flint St., LLC v Exxon Mobil Corp., 2019 NY Slip Op 00752, Fourth Dept 2-1-19

 

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REQUEST WAS PROPERLY DEEMED AN APPLICATION FOR AN AREA VARIANCE, NOT A USE VARIANCE, AND WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined: (1) RAM’s request for permission to build a hotel was a request for an area variance, not a use variance; (2) the statutory factors for granting a use variance were considered by the zoning board; (3) the board complied with the State Environmental Quality Review Act (SEQRA); and (4) the area variance was properly granted:

Pursuant to Town Law § 267(1)(b), an area variance is defined as the “authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” … . One aspect of RAM’s request for a variance related to a provision of the Town’s Zoning Law which required that a hotel have its “principal frontage” on a state or county highway … . We agree with the ZBA and the Supreme Court that the “principal frontage” requirement is a “physical requirement,” rather than a use restriction, and that RAM’s application is thus properly regarded as one for an area variance. We note that the other aspect of RAM’s application for an area variance related to the height of the roof of the proposed hotel, and there is no dispute that that aspect of RAM’s application was properly categorized as a request for an area variance. …

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community … . Town Law § 267-b(3)(b) provides that in making its determination, the zoning board shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. In applying the balancing test set forth in Town Law § 267-b(3)(b), a zoning board need not justify its determination with supporting evidence with respect to each of the five statutory factors as long as its ultimate determination balancing the relevant considerations is rational … . Matter of Route 17K Real Estate, LLC v Zoning Bd. of Appeals of the Town of Newburgh, 2019 NY Slip Op 00605, Second Dept 1-30-19

 

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