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February 10, 2014

New York Courts Issue Two Significant Public Trust Doctrine Decisions

In an eventful month for parkland alienation cases in New York City, two recent state court decisions interpreted different issues pertinent to the public trust doctrine, which requires approval from the New York State legislature before parkland may be alienated for non-park uses.

The rulings from New York State Supreme Court justices in Manhattan and Brooklyn addressed, respectively, what proof is required to demonstrate that a parcel has been dedicated as parkland by implication and what activities constitute an appropriate “park use.”  In both cases, the Courts ruled that the City had violated the public trust doctrine and was required to seek the approval of the State Legislature before proceeding.

Raritan Baykeeper v. New York City, Index No.  31145/06 (Sup. Ct. Kings Cnty., Decided Dec. 20, 2013)

Filed in 2006, this long-running litigation involves a 20-acre composting facility operated by the City Department of Sanitation in Spring Creek Park in Old Mill Creek, Brooklyn.  The facility was intended to process leaves and other organic waste collected from around the City for use as fertilizer in Spring Creek Park and other parks.

Petitioners alleged that the placement and operation of the composting facility within Spring Creek Park violated the public trust doctrine, on the basis that a solid waste management facility could not be considered an appropriate park use, that the public was deprived of recreational access to the area of the facility, and that the facility created an unbearable nuisance.  The City argued that the composting facility fell within the meaning of a legitimate “park use” under the public trust doctrine because the compost would be used in park maintenance.

Interpreting the term “park use,” the Court focused on whether the use was consistent with the public’s recreational enjoyment of the park, and held that the composting facility was not, noting the incompatibility between the “industrial scale processing of waste” at the Spring Creek Park facility and traditional and legitimate park uses.  The Court cited a spectrum of cases on which some private uses such as restaurants and holiday markets were held to be non-violative of the public trust doctrine while solid waste disposal sites were not legitimate park uses.

Under the terms of the Court’s order, the City is enjoined from operating the composting facility until it obtains legislative approval.

A full copy of the Raritan Baykeeper decision is available here.

Glick v. Harvey, Index No. 103844/12 (Sup. Ct. N.Y. Cnty., Decided Jan. 7, 2014)

The second recent parkland alienation decision concerns the City-approved expansion plans proposed by New York University (“NYU”) for an area in Greenwich Village south of West 3rd Street and north of Houston Street, on which NYU plans to build a number of new campus facilities.  The litigation focused on the fate of four parcels of land within that area – known as Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run – all of which the petitioners alleged to be dedicated parkland that could not be alienated under the NYU plan without the approval of the State Legislature.

Courts have repeatedly held that land can become parkland (and thus covered by the public trust doctrine) either through express or implied dedication.  Long-continued use of a parcel for park purposes can constitute dedication by implication.  Because the parcels at issue in this case are mapped as streets and not as parkland, the issue of implied dedication was central to the Court’s decision.

This high-profile case included testimony from a number of former City officials on behalf of the petitioners, including former commissioners of the Department of Transportation and the Department of Parks and Recreation.  The Court looked to the affidavit of longtime Parks Commissioner Henry Stern in evaluating a list of factors that could help determine whether implied dedication had occurred, including long-time, continuous use of the land for park purposes, Parks Department signage, maintenance of the property by the Parks Department, and public statements by City officials identifying the property as parkland.

The Court ruled that despite some evidence presented by the City that the use of the parcels as parks was intended to be temporary, the Department of Parks and Recreation also treated three of the four parcels as parks through signage and maintenance efforts, limiting its ability to later claim that the parcels had not become parkland.  The City must now seek approval from the State Legislature before the NYU plans for these parcels can move forward.  The City Law Department has not announced whether it plans to appeal.

The Glick decision has important implications for the City’s use of non-parkland sites for long-term recreational uses in programs such as Greenstreets and GreenThumb gardens.    Although the petitioners demonstrated longstanding use of three of the four parcels as parkland, the City had also maintained official Department of Transportation jurisdiction over the properties to allow for future non-park uses.  Despite existing case law in the First Department holding that there could be no implied dedication where the owner has expressed contrary intent, the Court ruled that long-continued use of the land for park purposes may be sufficient to establish dedication by implication.

A full copy of the Glick decision is available here.

January 22, 2014

Gowanus Canal Historic District Proposed

By: Ed Roggenkamp — Filed under: Land Use & Development, New York City Environmental Law — Posted at 9:17 pm

Friends and Residents of Greater Gowanus (“FROGG”), a nonprofit organization, has proposed the listing of a new historic district – the Gowanus Canal Historic District – on the National and State Registers of Historic Places. According to FROGG’s proposal, the proposed historic district encompasses just over 50 blocks lying roughly along the Gowanus Canal in Brooklyn and covering 369 properties, including three bridges over the Canal, several former industrial buildings and factories dating back to the 19th century, and a wide range of residential, commercial, and mixed-use buildings.

In 2006, the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) determined that the corridor immediately surrounding the Gowanus Canal was eligible for listing on the National and State Registers.  In its recent nomination, FROGG has proposed listing an enlarged district on both sides of the canal that extends as far west as Fourth Avenue and as far east as Court Street.

Section 14.09 of the New York State Historic Preservation Act and Section 106 of the National Historic Preservation Act require consultation with OPRHP to ensure that any State- or federally-funded or approved project minimizes or avoids impacts to properties that are listed on (or eligible to be listed on) the Registers. Thus, listing of the proposed district would require projects within and around the district that require approvals or funding from any State or federal agency to be undertaken in consultation with OPRHP. Owners of income-producing properties added to the Registers may also qualify for certain tax benefits.

Owners of properties within the proposed district may object to the listing of their properties. If a property’s sole owner (or, for multiple-owner properties, a majority of the owners) objects, the property will not be listed on the National Register. Property owners’ objections does not legally prevent their properties from being listed in the State Register if the proposed historic district is accepted for listing by OPRHP; however, OPRHP has typically not listed properties over owners’ objections.

A community meeting on the proposal is scheduled for February 11, 2014 from 6:30 to 8:00 p.m., at 232 Third Street in Brooklyn. Comments on whether the proposed historic district should be nominated to the National and State Registers are due by March 12, 2014 to the State Historic Preservation Officer Dan McEneny, Division for Historic Preservation, N.Y. State Office of Parks, Recreation and Historic Preservation, Peebles Island, P.O. Box 189, Waterford, NY 12188-0189. The State Historic Preservation Review Board will consider the nomination at its next meeting on March 13, 2014.

For more information, contact David Yudelson or Michael Bogin.

December 13, 2013

Appellate Division Affirms Dismissal of Challenge to Tuxedo Reserve

By: Steven Barshov — Filed under: Land Use & Development, Project Updates, SEQRA — Posted at 2:58 pm

On November 11, 2013, in a unanimous decision, the New York State Supreme Court Appellate Division, Second Department, affirmed the dismissal of an Article 78 Special Proceeding which had challenged the approvals for Tuxedo Reserve, a large scale mixed-use development of more than 1,000 residential units and in excess of 100,000 square feet of non-residential uses in Orange County, New York.  Sive, Paget & Riesel represented the developer through both the development review process and the litigation, with Steven Barshov serving as lead counsel.

In May 2012, the New York State Supreme Court, Westchester County dismissed the challenge to the project’s environmental review and local land use approvals, finding that the Petitioners lacked standing and failed to state a claim on which relief can be granted.  On appeal, Petitioners argued that their proximity to the project’s boundaries supported a presumption of standing.  The Appellate Division rejected this argument,  holding that the presumption of standing based on proximity must be predicated on distance to the structures or areas being developed, not merely to the closest point on the perimeter of the 2400-acre Tuxedo Reserve property.

The decision clarifies an important limitation on presumptive standing that is especially significant in relation to large scale developments, especially those, like Tuxedo Reserve, with substantial conservation buffers around the perimeter of the project.  For more information on the project and the Court’s latest decision, contact Steven Barshov.

November 15, 2013

Highlights from the Division of Environmental Remediation’s Annual Report

The Division of Environmental Remediation of the New York State Department of Environmental Conservation (DEC) has released its 2012-2013 Annual Report, noting key developments of the past State Fiscal Year (April 1, 2012 – March 31, 2013).

As reflected in the Annual Report, DEC’s environmental remediation programs affect many businesses across the state. For example, in the 2012-2013 State Fiscal Year, there were more than 18,000 actions that required intervention by the Division of Environmental Remediation; additionally, DEC had jurisdiction over 109,000 petroleum bulk storage tanks and 4,600 chemical bulk storage tanks.

Key developments discussed in the annual report include the following:

Brownfield Cleanup Program:

The past year saw an uptick in the number of projects approved to enter the state Brownfield Cleanup Program (BCP). In the past State Fiscal Year, 45 projects were approved, with 29% of these projects located in New York City. In prior reporting cycles since 2007, that number has ranged from 28-34. The increase in approved applications likely reflects the race to qualify for tax credits under the BCP, which are being phased out and will not be available for parties that do not receive their BCP Certificate of Completion by the end of 2015.

State Superfund Program

DEC’s authorization to bond new funds for the State Superfund Program has expired. DEC can use appropriations from prior years and cost recoveries to support the program. DEC received $12.1 million in cost recovery revenue in the past State Fiscal Year.

In the past State Fiscal Year, 13 “Class 2” sites, which are deemed to pose a significant threat to human health and/or the environment and require action, were added to State’s Inactive Hazardous Waste Site Registry. This number represents a decline from prior years; there had been at least 19 new Class 2 listings annually from the 2006-2007 through 2011-2012 State Fiscal Years.

Environmental Restoration Program

Funding for DEC’s Environmental Restoration Program, which reimburses municipalities for brownfield cleanup and redevelopment, has been revived: “Under the Cuomo administration’s New York Works capital infrastructure program, the 2013/2014 New York State Budget included $12 million which DER will use to complete cleanup of projects where funding had previously not been available.” New applicants to the program had not been approved since 2008 due to lack of funding.

Bulk Storage Program:

Revisions to the state’s Petroleum Bulk Storage and Chemical Bulk Storage regulations are under way, pursuant to a two-phase public participation process. In Phase One, initial informal draft revisions reflecting changes in federal law were released for public comment. Phase Two comprises the release of formal drafts and the acceptance of public comments thereon; the formal drafts would account for further changes in state and federal law and are expected to be issued in the 2014-2015 State Fiscal Year.

Liquefied Natural Gas:

DEC has proposed new regulations for the siting, storage and transport of liquefied natural gas in New York State. The agency expects to finalize and promulgate the regulations in the present State Fiscal Year. Public comments on the proposed regulations are being accepted until December 4, 2013.

Radioactive Materials:

Draft revisions to DEC’s regulations on the prevention and control of radioactive material are expected to be released in the present State Fiscal Year. New regulations establishing cleanup criteria for remediation of radioactive contaminated sites are also expected in the present State Fiscal Year.

Vapor Intrusion Initiative:

DEC identified 421 sites to be evaluated for vapor intrusion, where a remedial plan had been approved before vapor intrusion was recognized as a major concern. As of March 2013, 318 of these sites have been evaluated and 108 sites are undergoing such evaluation.

Former Manufactured Gas Plants Initiative:

As of March 2013, DEC has issued or entered into cleanup orders or agreements for 213 of 221 identified former manufactured gas plant facilities.

For more information on the Division of Environmental Remediation’s programs, please contact Michael Lesser.




June 26, 2013

Supreme Court Strikes A Blow For Property Rights

By: Steven Barshov — Filed under: Land Use & Development, Supreme Court — Posted at 9:21 am

On June 25, 2013, the United States Supreme Court in Koontz v. St. Johns River Water Management District clarified and limited the power of a local governmental agency to deny a land use permit unless the applicant agreed to make a monetary payment or expenditure.  The Supreme Court ruled 5-4 that such a required expenditure would trigger heightened constitutional scrutiny under both the “essential nexus” test enunciated in Nollan v. California Coastal Commission and the “rough proportionality” test enunciated in Dolan v. City of Tigard.  The majority opinion, written by Justice Alito and joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, found no significant constitutional difference between a local government requiring a property owner to relinquish a property right as a condition of receiving a land use approval, such as the beach access easement at issue in Nollan or the property donation at issue in Dolan, and a local government denying a land use approval unless the applicant agreed to expend funds.

Koontz was a property owner who applied for permits to develop Florida land containing wetlands.  Koontz offered to permanently preserve approximately three-quarters of his roughly 15 acres by conservation easement and to develop the remaining quarter.  The St. Johns River Water Management District declined to approve Koontz’s proposal and stated instead that it would approve either a 1 acre development and 13.9 acre conservation easement or Koontz’s plan, so long as he also agreed to pay to replace culverts on one off-site parcel or fill in ditches on another, either which would have enhanced approximately 50 acres of District-owned wetlands.   Koontz refused to accede and the Management District denied the application.  Koontz sued, claiming that the District’s required off-site wetlands mitigation was grossly disproportionate to the actual environmental impacts of his proposed project.

The Supreme Court did not decide whether the specific wetland mitigation required by the Management District was constitutional.  Rather, the  Court clarified the tests that should be applied and did so over a vigorous dissent by Justice Kagan, which was joined by Justices Ginsberg, Breyer, and Sotomayor.

In recent years, off-site project mitigation has been utilized increasingly by local governments, especially as budgets for infrastructure tighten.  Project applicants and municipalities now are on notice that the administrative record for a land use approval or denial, often principally an environmental impact statement and its associated findings, must contain sufficient evidence to confirm that the required expenditure can be sustained under the essential nexus and rough proportionality tests.  For further information, contact Steven Barshov, SPR’s senior land use counsel.

May 13, 2013

Appellate Division Upholds Municipal Zoning Law Banning Fracking

On May 2, 2013, the Third Department of the New York State Supreme Court, Appellate Division, upheld a municipal zoning ordinance banning “all activities related to the exploration for, and the production or storage of, natural gas and petroleum,” in the case of Norse Energy Corporation USA v. Town of Dryden.

The Town of Dryden passed the ordinance in 2011 amid concerns about the environmental impact of high volume hydraulic fracturing, or “fracking,” in the Marcellus Shale.  The ordinance was challenged by Anschutz Exploration Corporation, an oil and gas exploration company that owned leases covering approximately 22,200 acres of land in the Town of Dryden.  Anschutz – which later assigned its interest in the leases to Norse, the appellant in the case – argued that Dryden’s ordinance was preempted by a provision of New York’s Oil, Gas, and Solution Mining Law (the “OGSML”), which states that the OGSML supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries . . . .” New York Environmental Conservation Law 23-0303(2).  Anschutz (and later Norse) argued that this preemption clause prevents municipalities from using their zoning powers to ban fracking within their borders, while Dryden argued that the zoning provision was not the type of regulation targeted for preemption by the OGSML.

Since the OGSML does not define what it means by “regulation of the oil, gas and solution mining industries”, the court in Norse Energy Corporation examined the legislative history of the law in order to determine whether the Town’s zoning ordinance fell within the ambit of the preemption clause.  The court ultimately concluded that the OGSML was aimed at “insur[ing] uniform statewide standards and procedures with respect to the technical operational activities of the oil, gas and mining industries”, and not to regulate where those activities could take place. Hence the OGSML would preempt a local law that attempted to regulate the actual operation of a natural gas well, but, the court held, it did not “usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”

This decision has important implications for fracking in New York State.  According to Earthjustice, an environmental group involved in the litigation, over 150 municipalities in New York have passed zoning ordinances banning or restricting fracking within their borders; in fact, a similar ordinance passed by the town of Middlefield was upheld by the same court on the same day. Another group, FracTracker, has compiled a table of municipal zoning actions on fracking in New York state, showing 55 bans and 105 moratoria on fracking, as well as several municipalities that have passed resolutions in favor of fracking.  The Norse Energy Corporation decision could encourage other municipalities to pass their own zoning resolutions restricting or banning fracking within their borders.

For more information about hydraulic fracturing and zoning matters, please contact Steve Barshov.

April 12, 2013

City Council Approves Redevelopment of Pier 57 in Hudson River Park

On April 9, 2013, the New York City Council unanimously approved a proposal to redevelop the historic Pier 57 within Hudson River Park, at the foot of West 15th Street in Manhattan.  This followed approval by the City Planning Commission in March, and the environmental review of the project by the Hudson River Park Trust (“HRPT”) and other agencies, through the preparation of an environmental impact statement (“EIS”).  SPR is serving as HRPT’s environmental counsel for the Pier 57 redevelopment, continuing the Firm’s representation of Hudson River Park since its establishment in the 1990s.

Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places.  It has been vacant since the 1990s.  Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier.  The project may also include cultural space, an educational facility, and a marina.

SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River.  This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.

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