January 25, 2012
The New York City Department of City Planning (“DCP”) has proposed amendments to the New York City Zoning Resolution, expanding the environmental (E) designation program that identifies sites of potential environmental concern. The Mayor’s Office of Environmental Remediation (“OER”), which administers the E designation program, is anticipated to publish draft rules to implement the proposed changes in coming weeks.
During area-wide rezonings, the Zoning Resolution authorizes the placement of E designations on affected lots with potential significant adverse air quality, noise or hazardous materials impacts. Before undertaking any land use or property changes that require a building permit from the Department of Buildings (“DOB”), owners of designated lots must first receive approval from OER that E designation requirements have been satisfied, which may involve additional environmental analysis or remediation.
DCP has summarized the proposed changes to the E designation and related sections of the Zoning Resolution, broadly characterizing the revisions in six categories: environmental restrictive declarations; applicability; enforcement; post-approval modifications; ongoing monitoring; and duplicative and outdated text updates.
Most importantly, the amended text makes the E designation program applicable to environmental restrictive declaration (“RD”) properties, the first step in doing away with the practice of using environmental RDs. Currently, DCP uses RDs to ensure investigation and any necessary environmental remediation on applicant-controlled properties in connection with zone changes, variances, special permits and other DCP-issued authorizations. The E-designation program currently only applies to zoning map amendments; typically, area-wide rezoning. The proposed amendments would merge both into an expanded E designation program.
The City Planning Commission held a public hearing on the Zoning Resolution amendment on January 4, 2012 and will continue its review through February 29, 2012. The City Council will then have 50 days to review the amendment. OER has also indicated that it will be publishing its draft rules implementing the E designation program in the coming weeks. Sive, Paget & Riesel is tracking these developments, and will continue to provide updates as the zoning amendment is finalized and the OER rules become available for review and comment.
For more information on E designations, contact Christine Leas or David Yudelson.
January 18, 2012
New York City developers now have a new factor to consider in project design. On January 4, 2012, the Department of Environmental Protection (“DEP”) adopted a new stormwater performance standard (the “performance standard”), requiring large and medium-scale development projects in combined sewer areas to incorporate larger detention basins or install relatively expensive green or blue roof systems. The performance standard also imposes stormwater reduction requirements on certain building alterations that increase impervious surfaces.
The DEP rules amend Chapter 31 of Title 15 of the Rules of the City of New York, which regulates the construction, permitting, and inspection of sewer connections. For a new development, the performance standard establishes a “stormwater release rate” equal to the greater of 0.25 cubic feet per second (“cfs”) or 10% of the new development’s “allowable flow,” the stormwater flow that can be released into a storm or combined sewer based on existing sewer design criteria. In no case, however, will the new release rate exceed allowable flow.
For medium and large sized lots, these changes would effectively require a significant increase in stormwater detention on site. Lots smaller than 5,000 square feet are not likely to have a release rate that exceeds 0.25 cfs, so they will probably only need to comply with existing sewer availability and connection application process requirements.
Redevelopment projects in combined sewer areas may also need to meet new performance requirements. If a redevelopment requires an alteration permit from the Department of Buildings (“DOB”) and will increase existing impervious surfaces (including building footprints) by more than 20%, the release rate for the altered area must be proportional to the ratio of the altered area to the total site area. Moreover, on such projects, no new points of stormwater discharge are permitted. Proposed redevelopments that increase impervious surfaces or building footprints by 20% or less are exempt from the stormwater performance standard unless an additional sewer connection is proposed.
In addition to the new performance standard, the DEP and DOB have developed new “Guidelines for the Design and Construction of Stormwater Management Systems” (the “Design Manual”) which the City hopes “will ease the development community’s transition to stricter stormwater release rates when connecting to the City’s combined sewer system.” The stormwater performance standard and Design Manual are key elements of the broader New York City “Green Infrastructure Plan” unveiled by Mayor Bloomberg on September 28, 2010, which aims to reduce combined sewer overflows (“CSOs”) into the City’s waterways by 40% by 2030.
Finally, because the City expects more stringent federal and state Municipal Separate Storm Sewer Systems (MS4) requirements to be published within the next year, the City expects to revisit the stormwater performance standard and the Design Manual to add stormwater management requirements in separately sewered areas. The City will then also revisit the adequacy of the stormwater management program in combined sewer areas.
For more information on the new stormwater performance standard, contact Michael Bogin.
January 9, 2012
As the controversy surrounding high-volume hydraulic fracturing, or “hydrofracking”, in New Yorkcontinues to swirl, the question of whether local government has the power to limit or ban hydrofracking through local zoning is emerging as one of the central and most fractious issues in the debate. The New York State Assembly passed a bill in 2011 that would subject hydrofracking to local land use laws, but the New York State Senate did not. Similar legislation is highly likely to be introduced in both houses of the Legislature in 2012. According to a recent report by the Associated Press, one of the co-sponsors of the 2011 legislation in the Senate, Senator James Seward of Oneonta, has requested that the Commissioner of the New York State Department of Environmental Conservation, Joe Martens, address the power of local governments to regulate hydrofracking in State administrative rules the DEC has proposed adopting and is currently studying.
A number of municipalities chose not to await action by either the State Legislature or the DEC and enacted land use laws banning hydrofracking. Litigation against two of these municipalities was commenced and both court battles are moving close to decision. Both cases involve legal challenges to municipal zoning changes that effectively ban hydrofracking activities within municipal boundaries. The outcome of these high profile cases will have far-reaching implications for municipal zoning inNew YorkState and for the future of hydrofracking in the state.
In Cooperstown Holstein Corporation v. Town of Middlefield (Sup. Ct. Otsego Co.), the plaintiff corporate landowner entered into two leases in 2007 granting the lessee the right to explore, develop, produce and market oil and gas resources on approximately 380 acres of plaintiff’s land. In June 2011, the Town of Middlefield amended its zoning ordinance to provide, among other things, that “[h]eavy industry and all oil, gas or solution mining or drilling are prohibited uses” within the town. Cooperstown Holstein filed suit in September 2011 challenging the zoning amendments on the ground that such municipal action concerning oil and gas operations is preempted by state law and asking the court to declare the amendments void.
In Anschutz Exploration Corporation v. Town of Dryden (Sup. Ct. Tompkins Co.), plaintiff driller and developer of oil and natural gas wells owns oil and gas leases covering approximately 22,000 acres in the Town of Dryden. The leases allow Anschutz to explore for, develop and produce natural gas from the lease holdings. In August 2011, the Town of Dryden amended its zoning ordinance to, among other things, specify that “[n]o land in the Town shall be used” for exploration or drilling for natural gas and/or petroleum, or for the transfer, storage, processing, treatment or disposal of natural gas and/or petroleum. Anschutz filed suit in September 2011 seeking to have the zoning amendments declared void on the ground of state preemption.
Plaintiffs’ legal challenges in Cooperstown Holstein and Anschutz are primarily based on Article 23 of the Environmental Conservation Law (ECL), which sets forth the state’s policy regarding development of mineral resources and authorizes the Department of Environmental Conservation to regulate and issue permits for oil and natural gas development. In particular, plaintiffs rely on ECL § 23-0303(2), which provides:
“The provisions of this article shall supersede all local laws or ordinances relating to the local regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”
Plaintiffs argue that this provision preempts all local regulation, including zoning, of oil and gas development except for matters relating to local roads and property taxes. The defendant towns have responded by claiming that ECL § 23-0303(2), while limiting local regulation of oil and gas activities, does not affect or override traditional home rule powers of municipalities on zoning matters. In support of their argument the towns cite a 1987 New York Court of Appeals decision interpreting New York’s Mined Land Reclamation Law in which the Court held that a similar provision did not prohibit municipalities from exercising their traditional zoning authority to restrict or ban mining. Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987).
Oral argument in Anschutz was held in November. The court reserved decision but is expected to issue its ruling soon. Cooperstown Holstein was argued in December, and the court agreed to accept additional written submissions until mid-January 2012. A ruling in that case is not expected until February at the earliest. Whatever the initial resolution in these two closely watched cases may be, a final determination of the preemption issue will depend on the outcome of the nearly certain appeals to follow.
For more information on hydrofracking issues contact Christopher Amato or Steven Barshov.
September 29, 2011
On September 16, a natural gas company filed a lawsuit challenging new zoning laws in Dryden, New York that prohibit oil or gas exploration anywhere in the town. Dryden, a town in Tompkins County which sits atop the Marcellus Shale, is one of several central New York municipalities that have taken measures aimed at limiting the use of hydraulic fracturing, or “fracking.” In its petition, the Anschutz Exploration Corporation (“Anschutz”) argues that the New York Environmental Conservation Law (“ECL”), Section 23-0303(2), precludes local governments from regulating oil and gas drilling, except in the context of laws regulating local roads and property taxes.
The Dryden lawsuit comes in the wake of efforts by over twenty municipalities in central New York to assert control over hydraulic fracturing through the use of zoning or other mechanisms. In addition to sharing generalized concerns about the effects of fracking on drinking water and air quality, local communities also face, as a result of fracking, increased truck traffic on local roads, visual impacts, noise pollution, and other effects. If the present lawsuit results in a holding that local governments may not use zoning laws to regulate such effects, Dryden and other municipalities may need to examine how these effects may be managed through the regulation of local roads and taxes, consistent with ECL § 23-0303(2).
Alternatively, if Anschutz prevails in its suit, local governments may be constrained to rely on state law for generalized protections that could reduce fracking’s local effects. The New York State Department of Environmental Conservation recently released the complete version of its Revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) on the use of hydraulic fracturing, as well as proposed regulations governing hydraulic fracturing. Both the Revised Draft SGEIS and the proposed regulations are open for public comment through December 12, 2011
For more information about local governments and the regulation of hydraulic fracturing’s effects, contact Steven Barshov.
August 4, 2011
On July 29, 2011, Governor Cuomo signed a law authorizing local governments to create not-for-profit corporations to act as land banks with respect to vacant, abandoned, or tax-foreclosed property. These non-profit land banks will have the ability to sell property free and clear of prior tax liens. However, the new law does not insulate these newly created non-profits from liability for site contamination.
Newly created land banks will need to exercise caution in acquiring abandoned and foreclosed property, which are often contaminated from historic industrial activity. Such contamination may have been a factor contributing to the abandonment of the property, particularly in economically depressed areas. Federal and state laws can impose strict liability on owners of contaminated property to address the actual or potential release of hazardous substances. Although these laws provide a defense to government entities acquiring property involuntarily or through eminent domain, such defenses do not appear to be available to a land bank. Land banks would be well advised to consider this risk and to protect themselves by conducting due diligence investigations before taking title (in order to qualify for certain statutory defenses to liability) or by delaying taking title until a developer or other entity has been identified with the financial capacity and willingness to assume environment liability for past contamination.
June 23, 2011
As part of a deal at the end of the current legislative session, the New York Legislature has passed the “Power NY Act of 2011,” a sweeping energy bill negotiated between Governor Andrew Cuomo and legislative leaders. Section 12 of the new law reauthorizes and modernizes Article X of the Public Service Law, which expired on January 1, 2003, governing the siting and approval of power plants in New York.
The absence of a power plant siting law has been cited by some as one important reason why there has been scant development of power plants in New York in recent years, including alternative energy sources. (Others have cited the poor economy as the primary roadblock to new power plant development.)
Like its predecessor, the new version of Article X aims to centralize and streamline the siting approval process, although the threshold for application of the law has been lowered from 80 to 25 megawatts. The law creates and vests permitting authority with the New York State Board on Electric Generation Siting and the Environment (“the Board”). Seeking to balance the need for local input in siting decisions with the obstacles posed by “NIMBY” opposition to new power plants, the statute provides that two local residents will be part of the Board for each proceeding. The other five members of the Board will all be State officials. The law also provides for “intervenor funding” which will enable municipalities and other local parties to participate in all phases of the administrative review, including the mandated adjudicatory hearing.
The Board is given authority to override local laws and ordinances if they are “unreasonably burdensome.” Unless otherwise agreed to by an applicant or extended due to a “material and substantial amendment to the application” or “extraordinary circumstances,” Board decisions must be rendered within a year of the application being deemed complete.
Article X displaces the State Environmental Quality Review Act (SEQRA) process for covered projects, but mandates several environmental analyses of the facility’s impacts. These analyses include a “cumulative air quality analysis” of the combined effects from the proposed facility, other proposed sources and all existing sources; a description of the demographics of the surrounding community; and a description of “reasonable and available” alternative locations. It also requires the Board to find that the project minimizes or avoids disproportionate impacts on the surrounding community.
There are significant differences between the new version of Article X and the expired version. The lower 25 megawatt threshold will allow smaller projects to be covered by the law and may particularly benefit developers of wind projects, which in most cases would not have been covered by the expired version. The increased emphasis on environmental justice impacts addresses concerns stated by environmental groups. Current applicants for local and state permits for a power plant may elect to be covered by the new law.
In what appears to be the first legislative enactment that specifically and directly addresses greenhouse gas emissions, Section 21 of the Power NY Act requires the Department of Environmental Conservation to promulgate regulations “targeting reductions in emissions of carbon dioxide” for new power plants with a capacity of 25 megawatts or more.
Mark LeBel is a Summer Associate at Sive, Paget & Riesel, P.C.
June 17, 2011
After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.
The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.
The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees. With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”
The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.
Devin McDougall is a summer associate at Sive, Paget & Riesel
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