Land Use, Construction, & Litigation Update (05/05/20)

Land Use, Construction, & Litigation Update (04/14/20)

Keeping Our Economy Functioning

Z&S Selected For 3rd Year As NYC’s Expert On Regulatory Takings For Eminent Domain Valuation Trials

Michael Zarin and Marsha Rubin Goldstein were first retained by the New York City Law Department in 2017 to analyze whether a Hypothetical Purchaser would likely pay a premium for condemned property with the goal of bringing a regulatory takings claim based upon implementation of the NY State Freshwater Wetland Regulations. The City is required to pay a property owner an “increment” over the land’s regulated value as just compensation where a takings claim is likely to be successful.

Expert reports, and Michael’s testimony in subsequent eminent domain valuation trials, cover the process of pursuing a successful regulatory taking challenge, including the steps needed to ripen the claim and the time and costs (such as legal fees) that a Hypothetical Purchaser would incur in bringing such a challenge. Michael has already testified in several Bluebelt cases in which the New York State Supreme Court has accepted his expert opinion that any increment to be paid by the City must be based upon the realities of the marketplace, including the actual time, costs and risks that a Hypothetical Purchaser would face in pursuing a regulatory takings claim.

The collective practical and legal experience of Z&S’ Attorneys -- spanning over four decades -- in environmental and general litigation, land use, wetland permitting, administrative law, urban renewal, and public-private redevelopment was a significant factor in its selection as an expert for the City on regulatory takings.

Zarin & Steinmetz Obtains Dismissal of Article 78 Proceeding on Jurisdictional Grounds

David Steinmetz and Tim Rode successfully moved to dismiss, pursuant to CPLR 3211(a)(7), an Article 78 proceeding brought against Dakota Supply Corp., Bilotta Realty Construction, Briga Enterprises, Inc., Bilotta Realty of Westchester, Inc., and the Zoning Board of Appeal of the Town of Cortlandt. The case, Mastromonaco v. the Town of Cortlandt ZBA, required the Westchester County Supreme Court to analyze the scope of the ZBA’s appellate jurisdiction. The specific issue before the Court was whether a town code enforcement officer’s refusal to accede to a resident’s requests to issue numerous code violations alleged by that resident against a neighbor constituted a “determination” or “interpretation” that was appealable to the ZBA. The Court held that it did not, accepting Respondents’ argument that the Petitioner had failed to identify any decision that would trigger the ZBA’s appellate jurisdiction.

A copy of the decision is available here.

Z&S Partner David Cooper Publishes Article on Eminent Domain

David Cooper’s article, entitled “Eminent Domain Proceedings and the Scope of the Project Rule: Navigating a Misunderstood Valuation Doctrine,” was published in the Winter Edition of the New York State Bar Association’s Municipal Lawyer Journal. The Article covers strategies for municipalities at the early stages of the eminent domain process to prepare for potential valuation challenges in subsequent just compensation trials.

The ”Miller Rule,” announced by the U.S. Supreme Court in 1943, dictates that the owner of a condemned property cannot enhance its “just compensation” award on a theory that the project for which the parcel was taken increased the market value of all properties in the neighborhood. A property located in a neighborhood experiencing revitalization as a result of a major public/private partnership could be worth far more than a property located in a distressed area experiencing little growth. The Miller Rule indicates that the condemned parcel should be valued as it existed before the Project commenced. An issue that often arises is how to value a property when the revitalization project occurs over various phases, and the condemned parcel was not included in the initial project phase. In this instance, a court may determine that the parcel was not within the original “scope of the project,” and as such, could be valued as if it were located within a rising market reflecting the revitalization of the overall neighborhood. The article offers insights for municipal officials into how New York courts have applied the Miller Rule to multi-phased projects, and how best to prepare during the initial steps of the eminent domain process for subsequent claims that the condemned parcel was not in the initial “scope” of the project.

A copy of the article can be viewed here.

Z&S Managing Partner David Steinmetz Selected as a “Counselor of Real Estate”

The Counselors of Real Estate (CRE) is an international organization of high profile property professionals which include principals of prominent real estate, financial, legal, and business advisory firms, as well as recognized leaders of government and academia. Membership is extended by typically by invitation to practitioners with a minimum of 10 years of real estate experience and three years of property advisory services. A stringent process of selection ensures that individuals awarded the “CRE” credential have attained the highest levels of expertise and achievement in their real estate specialty, particularly in the provision of sophisticated advice and high-level problem solving.

Six Z&S Attorneys Recognized by New York Metro Super Lawyers in 2019 in the Field of Land Use & Zoning

Zarin & Steinmetz is pleased to announce that Michael Zarin, David Steinmetz, David Cooper, Jody Cross, and Daniel Richmond have been selected to the 2019 New York Metro Super Lawyers list in the field of Land Use & Zoning. Only 5% of lawyers in the State are selected to this list annually.

Additionally, Kate Roberts was selected to the 2019 New York Metro Super Lawyers Rising Stars list in the field of Land Use & Zoning. Only 2.5% of attorneys are selected to this list annually.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Zarin & Steinmetz Secures Rezoning and Site Plan Approvals for a Mixed-Use Development in Downtown Pelham

On November 11, 2019, Z&S Partner David J. Cooper and Associate Matthew Acocella secured through a unanimous 6-0 vote the land use entitlements from the Village of Pelham Board of Trustees, green lighting the redevelopment of a former gas station along Wolfs Lane. The redevelopment will reactivate this dormant site with a 5-story building, consisting of approximately 1,400 square feet of ground floor commercial space, and 27 rental apartment on the upper floors. The Project required rezoning the site to the Village’s Business District Floating Zone (“BDFZ”), as well as various reviews from the Village Planning Board, ARB, and ultimately, approvals from the Village Board. This development is one of the first successful projects to be included in the Village’s BDFZ, which was enacted to facilitate the revitalization of underutilized parcels in the Village’s downtown business corridor.

David Steinmetz & Jody Cross Secure Favorable Determination For The Siting Of A Community Residential Facility in Mt. Pleasant

David and Jody represent Young Adult Institute, Inc. (“YAI”) in connection with its efforts to establish a community residential facility in the Town of Mt. Pleasant for six adults with developmental disabilities. Following an in depth search for an appropriate location, YAI notified the Town of its intent to establish the residence in accordance with the requirements of New York Mental Hygiene Law (“MHL”) Section 41.34.

Since its adoption in 1978, MHL Section 41.24, also known as the “Padavan Law” after its champion, Senator Frank Padavan, has protected these types of community residences for individuals with disabilities and their establishment in single-family neighborhoods, unless the municipality can demonstrate that the addition of such a residence would result in an “overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area.”

David and Jody represented YAI at a full-day evidentiary hearing before a Hearing Officer, at which testimony was given by representatives of both YAI and the Town. Following a recommendation by the Hearing Officer in favor of YAI, Theodore Kastner, MD, MS, the Acting Commissioner of the New York State Office for People with Developmental Disabilities, issued his determination that YAI may establish its proposed community residence. Specifically, Dr. Kastner held that the Town “failed to show clear and convincing evidence that the establishment of the subject community is not needed, or that it would result in an overconcentration of the same or similar facilities to substantially alter the nature and character of the area.”

Michael Zarin and David Cooper Publish Article in the NY Law Journal Questioning Government’s Ability to Take Property to Build Border Wall

In the March 13, 2019 edition of the New York Law Journal’s Eminent Domain column, Michael and David raise the question of whether a politically-motivated declaration of emergency could serve as a valid “public purpose” to permit the Government to take thousands of acres of private property along the Mexican border in light of the US Supreme Court’s warning in Kelo v. City of New London against “pretextual” takings that do not serve a legitimate public purpose. While courts generally defer to findings of public purpose, Congress’ rejection of the President’s request for $5.7 billion in funding for the wall, and its rebuke of the declaration of a “national emergency,” Michael and David opine that this may be one of those rare cases where the courts apply a higher level of scrutiny to a determination that taking private property would serve a public purpose.

See Michael D. Zarin & David J. Cooper, “Sufficient ‘Public Purpose’ to Take Property for Trump’s Wall?,” N.Y. Law Journal, March 13, 2019, at 5.

Dan Richmond Gets Property Rezoned In Yorktown

Dan Richmond successfully petitioned the Town Board of the Town of Yorktown to rezone property on Route 6 to enable its development for commercial purposes.  The approvals process involved referral to the Town Planning Board, Advisory Board on Architecture and Community Appearance, and Conservation Board.  Richmond obtained a Negative Declaration for the rezoning pursuant to the State Environmental Quality Review Act from the Town Board following a coordinated review.

David Cooper & Zachary Mintz Obtain Favorable Order In Condemnation Proceeding

Zarin & Steinmetz serves as Trial Counsel to the City of Port Jervis on multiple eminent domain valuation proceedings filed in connection with a federally funded bridge replacement project. In the most recent case, a property owner submitted a claim for over $1 million for the partial taking of its property. The majority of this claim was premised upon the theory that a bulkhead along a river was a separately compensable improvement worth $674,000.00. David Cooper and Zach Mintz successfully obtained an order from the Supreme Court, Orange County, precluding the introduction of any evidence in furtherance of this claim. The Supreme Court agreed with Z&S that the bulkhead was “integral” to the value of the real estate because without the bulkhead, the upland property would be susceptible to erosion and flooding, and not be developable. Accordingly, the Claimant’s potential monetary recover from the City was reduced by over 65 percent.

Dan Richmond To Give Presentation On New SEQRA Regulations To Rockland County Bar Association Zoning Committee

Dan Richmond will give a presentation to the Rockland County Bar Association Zoning Committee on December 11, 2018 at 12:30 pm at the Bar Association Offices on amendments to the regulations implementing the State Environmental Quality Review Act (SEQRA). The new regulations will become effective January 1, 2019. The Rockland County Bar Association is located at 337 North Main Street, New City, New York. Please RSVP to Manuela Gomez at (845) 634-2149.

Michael Zarin, David Steinmetz and Jody Cross Named to 2018 New York Metro Super Lawyers List

Zarin & Steinmetz is pleased to announce that Michael Zarin, David Steinmetz and Jody Cross have been selected to the 2018 New York Metro Super Lawyers list in the field of Land Use & Zoning. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Dan Richmond To Present at Live CLE Seminar on SEQRA on October 18th and October 24th

Dan will be part of a panel presenting on the ins and outs of the SEQRA process, including presentations on SEQRA Case Law and Regulatory Update and on Article 78 Challenges involving SEQRA. The live seminar will be offered twice, on October 18, 2018 (Plainview, NY) and October 24, 2018 (White Plains, NY). Use this link to register online for the October 18th CLE at a discounted rate (at checkout, use priority code 15999 and discount code G3284453): www.lorman.com/404380?p=13389&discount_code=G3284453 Use this link to register online for the October 24th CLE at a discounted rate (at checkout, use priority code 15999 and discount code R7819624): www.lorman.com/404381?p=13389&discount_code=R7819624

Michael Zarin, Dan Richmond and Kate Roberts Successfully Defend Approvals for French-American School of New York (FASNY)

By Decision and Order, dated August 24, 2018, the Honorable Joan Lefkowitz dismissed two consolidated challenges to approvals issued by the White Plains Common Council for the French-American School of New York (FASNY). The lawsuits challenged FASNY’s approved plans to construct a new 640-student school at the site of the former Ridgeway Country Club. These lawsuits came after seven years of exhaustive review by the City of White Plains, and several other lawsuits against FASNY, which Zarin & Steinmetz also successfully defended.

Michael Zarin, Dan Richmond, and Kate Roberts were instrumental in helping FASNY obtain its approvals, and successfully defending FASNY’s approvals.

The cases are captioned Gedney Ass’n, et al v. Common Council of White Plains & FASNY, Index No. 3084/2017 and Jaffe, et al v. FASNY, Index No. 51577/2018 (Sup. Ct. Westchester Cnty., Envtl. Claims Pt. Aug. 24, 2018) (Lefkowitz, J.).

A copy of the Decision and Order can be downloaded here.

Zarin & Steinmetz Welcomes New Associates

Z&S is pleased to announce the addition of Matthew Acocella to our roster. Matt joins Z&S from a Westchester County firm, where he focused on antitrust and securities litigation. He received his Juris Doctor in 2014 from the Georgetown University Law Center. Read more about Matt on our Meet Our Attorneys page.

David Steinmetz & Kate Roberts Secure Approvals for Renovations to Iona College’s Business School

David and Kate successfully received site plan approval and area variances from the City of New Rochelle for renovations and additions to Iona College’s Spellman Hall and Hagan Hall. The addition to Spellman Hall will become the home to the College’s new Hynes Institute for Entrepreneurship & Innovation. Hagan Hall currently houses the College’s school of business - the renovated building will more than double the academic space available to students and faculty, and will include a variety of high-tech learning spaces, state-of-the art classrooms and computer labs, case study and meeting spaces, faculty offices, lecture halls, a business career center, media suite, and expanded trading floor classroom. The College is set to break ground on the Business School in July 2018.

Helen Mauch & Kate Roberts Obtain a Certificate of Completion for EPR Properties

Helen Mauch & Kate Roberts recently obtained a Certificate of Completion (“COC”) under the Brownfield Cleanup Program from the New York State Department of Environmental Conservation for EPR Properties in connection with the development of EPR’s 1,700 acre site in the Town of Thompson. EPR’s property in Thompson, New York is home to Resorts World Catskills casino and hotel. When complete, the destination resort will also include a waterpark and hotel, renovated “Monster” golf course and Entertainment Village hotel with retail and restaurants. Working closely with a team of environmental consultants, Mauch and Roberts guided EPR through the Brownfield Cleanup Program, including the application process, Brownfield Cleanup Agreement, and Environmental Easements, before securing the COC for four (4) operable units on the site. Issuance of the COC allows EPR to benefit from brownfield tax credits, and also offers significant liability protection.

Helen Mauch & Kate Roberts Secure Approval for White Plains Hospital Expansion

Helen Mauch & Kate Roberts recently received another approval for White Plains Hospital’s medical offices located in the Wykagyl Shopping Center at 1296 North Avenue in the City of New Rochelle. Mauch secured the original approvals for 17,112 square feet of medical office space on behalf of White Plains Hospital in 2013. The recent approval allows the hospital to expand by an additional 3,190 square feet, which will allow White Plains Hospital to add more medical offices, and enhance its radiology practice within the existing facility.

Michael Zarin & Helen Mauch Attend Ribbon-Cutting Ceremony With EPR Properties For Resorts World Catskills Casino.

Michael and Helen attended a ribbon cutting ceremony in the Town of Thompson for the opening of Resorts World Catskills casino and hotel with client EPR Properties. EPR is a publicly traded REIT based in Kansas City, Missouri, which owns the 1,700 acre development site. Over the past five years, Z&S has worked closely with EPR and a team of engineers, planners, contractors, and governmental officials, to facilitate development of this comprehensive resort destination, which will also include an indoor waterpark and hotel, golf course and entertainment village. Z&S successfully navigated multi-faceted regulatory, land use and environmental processes, and served as the developer’s counsel in connection with the construction and funding of over $110,000,000 in public infrastructure essential to the project.

Learn more about this project on the Our Work page.

Jody T. Cross Named Partner at Zarin & Steinmetz

Zarin & Steinmetz is pleased to announce that Jody T. Cross has been promoted to partner, effective January 1, 2018.

Jody joined Z&S as an associate in 2003, and since 2014, held the position of Senior Counsel. Her practice includes litigation on behalf of private and municipal clients pertaining to complex land use and zoning matters, including challenging and defending municipal determinations, the New York State Environmental Quality Review Act (SEQRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Constitutional matters. She is a highly skilled litigator with extensive experience in both State and Federal Court, before the lower and appellate courts. Jody also leads the Firm’s Connecticut land development litigation practice.

Jody is admitted to practice in New York and Connecticut, and is also admitted to practice before the U.S. District Court for the Southern and Northern Districts of New York, and the U.S. Court of Appeals for the Second Circuit. She has been selected to the 2016 and 2017 New York Metro Super Lawyers list in the field of Land Use & Zoning.

Jody received her Juris Doctor, cum laude, and a Certificate in Environmental Law from the Pace University School of Law (now the Elisabeth Haub School of Law). While at Pace, she served as Editor-in-Chief of the Pace Environmental Law Review, and was a Senior Research Fellow and a Director of the Land Use Law Center. She holds a Bachelor of Arts in Psychology, with a concentration in Environmental Studies, from Muhlenberg College.

About Zarin & Steinmetz:

Zarin & Steinmetz is known throughout the New York metropolitan area, as well as the Hudson Valley, for its concentration in all aspects of land development. We represent private, institutional, and municipal clients in zoning and land use, environmental law (including SEQRA/NEPA), solid and hazardous waste, real estate and business transactions, eminent domain, and related litigation in state and federal courts. Since we opened our office in White Plains, New York in September 1997, we have remained a leader in these practice areas, and take great pride in the fact that our Firm is on the cutting edge of related legal developments. Our mission is to satisfy our clients’ demands through legal excellence, attorney accessibility and responsiveness, sound judgment, and cost efficiency. For more information about Zarin & Steinmetz, please visit our website at http://www.zarin-steinmetz.com.

David Steinmetz & Brad Schwartz To Conduct A Live Webinar On November 20, 2017

David and Brad will be speaking about “Property Redevelopment Due Diligence.” Click on the link below to learn about and register for this program, with a 50% discount.

http://www.lorman.com/training/property-redevelopment-due-diligence?discount_code=M1303150&p=15999

Michael Zarin, David Steinmetz & Jody Cross Named to 2017 New York Metro Super Lawyers List

Zarin & Steinmetz is pleased to announce that Michael, David and Jody have been selected to the 2017 New York Metro Super Lawyers list in the field of Land Use & Zoning.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Jody Cross Selected For Small-Midsize Law Firm Advisory Taskforce

Jody was selected by the Associate Dean of Admissions to serve on the Small-Midsize Law Firm Advisory Taskforce for the Elisabeth Haub School of Law at Pace University. Members of the alumni Task Force will serve as key partners to the Career Services office at Pace Law School, providing strategic guidance, feedback, and helping the students in a variety of ways.

David Steinmetz, Daniel Richmond & Katelyn Ciolino Secure Approval For Memory Care Assisted Living Residence In New Rochelle

David, Dan and Katelyn successfully received site plan approval for a 62-unit boutique memory care assisted living residence at the former site of the Cooper's Corners Nursery in the City of New Rochelle. The assisted living residence will serve those suffering from Alzheimer's, dementia and other memory-related illnesses and serve an unmet need for memory care senior housing in the community.

David Steinmetz, Daniel Richmond & Katelyn Ciolino Successfully Defend Against Challenge To Zoning Amendment

By Decision and Order, dated September 14, 2017, the Honorable Anne E. Minihan denied and dismissed a challenge to the New Rochelle City Council's zoning amendments to permit the construction of a memory care assisted living residence. The challenged zoning amendments allowed for senior citizen housing in single-family residential districts in the City of New Rochelle, including on the site of the proposed assisted living residence. Judge Minihan denied and dismissed the Petitioners' challenge on standing grounds, finding that the Petitioners did not live in close proximity to the site and citing the Petitioners' "speculative harm" and "overbroad allegations of negative impacts on neighborhood character" and property values. The Court also denied the Petitioenrs' motion to add two new parties to the action -- who live within 250 feet of the project site -- on standing an statute of limitations grounds.

The case is captioned Vasser, et al. v. City of New Rochelle, et al., Index No. 57315/2017 (Sup. Ct. Westchester Cnty. Sept. 14, 2017) (Minihan, J.).

A copy of the Decision & Order can be viewed here.

David Cooper Selected For Hudson Valley Pattern For Progress Board Of Directors

David Cooper has been selected to join the Board of Directors for the leading regional public policy research and advocacy organization Hudson Valley Pattern for Progress. Hudson Valley Pattern for Progress, based in Newburgh New York, is a not-for-profit organization committed to promoting regional, balanced and sustainable solutions that enhance the growth and vitality of the Hudson Valley. David joins an established Board consisting of business, non-profit, academic and government leaders from the nine counties in the Hudson Valley. The organization is currently working on numerous initiatives, including efforts to improve government efficiency, update the region’s infrastructure, and foster revitalization of its urban centers. In 20014-2015, David participated in the organization’s Fellowship Program, assisting in a three-year study of strategies to attract “millennials” to the Hudson Valley.

You can learn more about Hudson Valley Pattern for Progress’ work on its website: http://www.pattern-for-progress.org/

Daniel Richmond Granted Dismissal Of Article 78 Proceeding

Court upholds variances, site plan approval, and building permit for mixed-use project, finding that the challenge was barred by the statute of limitations and petitioners’ failure to exhaust their administrative remedies, and that relief requested by the petitioners violated the New York State Building Code.

By Decision and Order, dated July 26, 2017, the Honorable Judge Sherri L. Eisenpress granted Zarin & Steinmetz’s motion to dismiss an Article 78 Petition, allowing Zarin & Steinmetz’s client to complete construction of its mixed-use project.

The Court concurred that the petitioners were time-barred from alleging defective notice of the underlying proceedings before the Village Zoning Board of Appeals and Planning Board, holding that this claim was in essence a procedural challenge, and, accordingly, was governed by the statute of limitations applicable to Article 78 proceedings.

The Court also ruled that the petitioners failed to exhaust their administrative remedies in connection with the subject building permit, noting that “the photographic evidence and exhibits make clear that construction was open and obvious” well in advance of the subject Article 78 proceeding.

The Court also concurred that “the relief requested by Petitioners in their Petition contravenes the Building Code adopted by the State of New York.”

The case is captioned 35 No. Cole Ave., LLC & Collishaw v. Village of Spring Valley Planning Board, et al., Index No. 31450/2017 (Sup. Ct. Rockland Cnty.) (Eisenpress, J.)

A copy of the Decision & Order can be found here.

Michael Zarin & David Cooper Successfully Defend Country Club's Right To Hold Nonmember Events

Michael and David represent a premier private country club in lower Westchester.  In 2014, they assisted the club in obtaining a special permit to conduct nonmember events in its clubhouse and on its golf course. A group of neighbors subsequently filed an Article 78 Petition seeking to annul the special permit and enjoin the Club from holding future events.  The neighbors claimed that the events resulted in adverse noise and parking conditions in the neighborhood.  They also claimed that the club was a “sham” non-profit corporation, and was not entitled to a special permit. Z&S secured a decision from the Supreme Court, Westchester County, dismissing the neighbors’ petition.  The Supreme Court agreed with Michael and David that the Administrative Record they helped compile demonstrated the Club’s events would not result in any undesirable impacts upon the neighborhood, and it was entitled to the special permit.  The Supreme Court determined that the neighbors’ claims of noise and parking impacts constituted “generalized community opposition” unsupported by any evidence. In addition, the Supreme Court rejected the neighbors’ contention that the corporate structure of the club was illegal, again, due to the Administrative Record compiled by Michael and David demonstrating that the Club had complied with all state and local not-for-profit corporation laws.

The neighbors appealed the Supreme Court’s decision to the Appellate Division, Second Department. David Cooper presented the oral argument to the Second Department on May 8, 2017.  On July 26, 2017, the Second Department issued a Decision and Order upholding all aspects of the Supreme Court’s decision, recognizing that the neighbors presented “no reasonable grounds for denying the special use permit.”

A copy of the Decision and Order can be downloaded here.

Zarin & Steinmetz Welcomes New Associates

Z&S is pleased to announce the addition of Katelyn Ciolino and Edward (Ted) Teyber to our roster.

Katelyn joins Z&S from a commercial litigation firm where she represented clients in all aspects of complex commercial and business litigation. She is a 2014 graduate of Brooklyn Law School, where she received her Juris Doctor, cum laude.

Ted previously worked as an associate at a Westchester County boutique land use firm where he secured approvals from various boards throughout the region, and handled related commercial leasing and litigation matters. He received his Juris Doctor, cum laude, and Certificate in Environmental Law in 2014 from Pace Law School.

Read more about Katelyn and Ted on our Meet Our Attorneys page.

David Steinmetz & Jody Cross Successfully Defend Establishment Of Community Residence

By Decision & Judgment, dated March 29, 2017, the Appellate Division, Second Department, upheld a determination by Kerry A. Delaney, Acting Commissioner of the State of New York Office for People with Developmental Disabilities (“OPWDD”), permitting Ability Beyond Disability (“Ability Beyond”) to establish a six-person Community Residence for adults with developmental disabilities in the Village of Port Chester (the “Village”). On July 13, 2017, the Second Department denied the Village’s request to either reargue the case, or to appeal to the Court of Appeals. Ability Beyond first notified the Village pursuant to New York Mental Hygiene Law (“MHL”) Section 41.24 in December 2012 of its intent to establish the Community Residence on a property previously approved by the Village for a single-family home. Since its adoption in 1978, MHL Section 41.34, also known as the “Padavan Law” after its champion, Senator Frank Padavan, has permitted Community Residences for individuals with disabilities to be established in single-family neighborhoods, unless the municipality can demonstrate that the addition of such a Residence would result in an “overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area.” After numerous delays, in April 2015, the Village Board of Trustees voted unanimously to object to the location selected by Ability Beyond, and requested a Hearing before the OPWDD. Following the Hearing at which testimony was taken from representatives of the Village and Ability Beyond, in November 2015, the OPWDD issued a determination decisively rejecting the Village’s objection. The Village then challenged OPWDD’s determination in the Westchester County Supreme Court. The matter was then transferred to the Appellate Division, Second Department. In its Decision & Judgment, the Appellate Court upheld the determination of the OPWDD, declaring that “[t]he Village failed to meet its burden of adducing clear and convincing proof that the establishment of the subject community residential facility would result in an overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area.” The case is captioned Village of Port Chester, et al. v. Kerry A. Delaney, et al., Docket No. 2016-02957 (2d Dep’t).  A copy of the March 29, 2017 Decision & Judgment can be found here. The July 13, 2017 Decision & Order on Motion can be found here. Zarin & Steinmetz celebrates with Ability Beyond at its 2017 Annual Gala. From L to R: Brad Schwartz, Marsha Rubin Goldstein, Jody Cross, Zachary Mintz, and David Steinmetz.

Daniel Richmond & Michael Cunningham Successfully Defend Subdivision Approval From Article 78 Challenge

By Decision and Order, dated May 31, 2017, the Honorable Judge Sherri L. Eisenpress denied and dismissed a challenge to the conditional final subdivision approval granted by the Town of Ramapo Planning Board to enable Zarin & Steinmetz’s client to subdivide its property.

The Court first concurred that the Petitioner was time barred in its challenge to the environmental review conducted for the subdivision under the State Environmental Quality Review Act (SEQRA).  Judge Eisenpress held that a challenge to the subdivision’s SEQRA review should have occurred within 30 days of the Planning Board’s Sketch Plat Approval Project, and “that a challenge to the project based on SEQRA grounds [could] not be postponed until after final subdivision approval.”

Accordingly, Judge Eisenpress held that the “Court’s review is limited to discerning whether the Planning Board’s grant of final subdivision approval is supported by substantial evidence and is rational.”  Upon a thorough review of the record, the Court concurred that the final subdivision approval was “rational and based upon substantial evidence.”

The case is captioned Halpern v. Planning Board of Ramapo, et al., Index No. 001599/2016 (Sup. Ct. Rockland Cnty) (Eisenpress, J.). A copy of the Decision & Order can be downloaded here.

David Steinmetz & Kate Roberts Secure Approval for Restaurant In Iona College Residence Hall

David Steinmetz & Kate Roberts recently received an approval for a 24-hour restaurant and market in the new Iona College residence hall located on North Avenue in the City of New Rochelle at the former site of the Mirage Diner. The restaurant and market will be located on the first floor of the seven-story residence hall, and will be open to the public.

David Steinmetz Secures Approvals For Former AT&T Building

David Steinmetz recently received approvals for the adaptive re-use and re-purposing of the former AT&T 12-story office building in downtown White Plains for 245 residential rental units, with extensive amenities, in conjunction with a green grocer, coffee shop and on-site parking.

Jody Cross to Present at New York Planning Federation 2017 Annual Conference

On March 27, 2017, Jody Cross will take part in a panel discussion regarding RLUIPA Zoning Decisions at the New York Planning Federation 2017 Annual Conference in Saratoga Springs, New York. She will be discussing municipal regulation of religious uses under RLUIPA.

Jody will be presenting with Frank Fish, FAICP, of BFJ Planning, and James Staudt, Esq. of McCullough Goldberger & Staudt LLP.

For more information regarding the NYPF 2017 Annual Conference, click here.

Michael Zarin, Helen Mauch & Brad Schwartz hold 2017 Breakfast Program

Michael, Helen & Brad held a roundtable discussion regarding Transformative Real Estate Development Projects on March 23, 2017. The breakfast program focused on unique public infrastructure bond financing techniques used in two $1 Billion development projects that Zarin & Steinmetz clients are constructing. Developers, municipal representatives, financial professionals, and consultants participated in a lively discussion regarding the 1,700 acre Adelaar Project in Sullivan County, New York, and the Garvies Point Waterfront Redevelopment Project in Glen Cove. New York.    

David Cooper & Zachary Mintz Complete Eminent Domain Trial in Rockland County

Z&S continues to represent a Village in Rockland County in a series of eminent domain proceedings commenced in connection with a large-scale waterfront revitalization project. David and Zach handled the valuation trial concerning a former manufacturing site, one of the last parcels acquired by the Village in furtherance of the project. A central issue at trial was the potential number of multi-family residential units that could be built at the site, as well as the likely cost to construct these units. David and Zach presented a comprehensive development plan and opinion of probable cost through the testimony of various planning, engineering and real estate valuation experts. Testimony was completed in early March. David and Zach are currently working on the post-trial brief. A final decision from the Court on the valuation of the site is anticipated later this year.

David Steinmetz, Jody Cross & Matthew Pisciotta Successfully Defend Approvals Issued To Yorktown BJ's Wholesale Club

By Decision & Order, dated January 9, 2017, Judge Gretchen Walsh, presiding Judge of the Environmental Claims Part for the New York State Ninth Judicial District, upheld land use approvals granted by the Town of Yorktown to BJ’s Wholesale Club, which would allow BJ’s to construct a gasoline filling station as an amenity for its members at its existing location in the Staples Plaza, 3303 Crompond Road in Yorktown Heights. The challenged approvals rezoned a portion of the property and granted a Special Use Permit and site plan amendment for the gas service station.

The action was brought by local competitor gas stations, as well as Yorktown Smart Growth, which considers itself a “watchdog” regarding the implementation of the Town’s land use goals and policies. Judge Walsh, in her well-reasoned 79-page Decision, determined that the Town’s approvals were rational, consistent with the Town’s Comprehensive Plan and Zoning Code, and were not “arbitrary or capricious.” She also upheld the Town’s determination under the New York State Environmental Quality Review Act (“SEQRA”) that the gasoline filling station – which will be located in an underutilized section of the already existing parking lot – would not have the potential for any significant adverse environmental impacts.

The case is captioned Yorktown Smarth Growth, et al. v. Town of Yorktown, et al., Index No. 1880-15 (Sup. Ct. Westchester Cnty. Envtl. Claims Pt.) (Walsh, J.).

A copy of the Decision & Order can be viewed here.

David Steinmetz & David Cooper Secure Approvals In The Village Of Irvington For Townhouse Development

David Steinmetz and David Cooper assisted a local developer and its consultant team seeking to redevelop a property in the Village of Irvington with a 27-unit luxury townhouse community. The proposal included building 4 new affordable housing units, as well as adaptively reusing an historic single-family house with 2 additional affordable housing units. David and David worked with the Village Board to amend provisions of the Village Zoning Code regulating multi-family housing in order to facilitate modern townhouse-style development. Upon obtaining the necessary zoning text amendments, David and David, along with the consultant team, secured all approvals from the Village Planning Board and ARB. This process included addressing various visual, traffic and historic preservation issues. It also involved working with the Westchester County Planning Department to ensure that the developer’s proposed affordable housing units would comply with the County’s Affirmative Fair Housing Marketing Plan.

David Steinmetz and Brad Schwartz Attend Ground Breaking Ceremony for Cortlandt Crossing Shopping Center

David and Brad attended a ground breaking ceremony in the Town of Cortlandt for the Cortland Crossing Shopping Center after receiving a rezoning and site plan approval for this 130,000 square foot retail center. Z&S successfully navigated a complex rezoning, regulatory and environmental process on behalf of Acadia Realty Trust.

Michael Zarin, David Steinmetz & Jody Cross Named 2016 Super Lawyers

Michael, David and Jody were recently selected to the 2016 New York Super Lawyers list in the field of Land Use & Zoning. Only five percent of lawyers in the State are selected to this list annually.

*UPDATE* Second Circuit Upholds S.D.N.Y. Decision In Favor Of Villages Against Federal Claims

The United States Court of Appeals, Second Circuit, upheld the decision by U.S. Southern District of New York Judge Kenneth Karas, which dismissed on Summary Judgment various civil rights claims against four Villages within the Town of Ramapo. The Second Circuit held, inter alia, that “Plaintiffs failed to provide credible evidence that any of the purported comparable sites were similarly situated,” and that “Plaintiffs failed to offer evidence that the Villages Defendants were driven by discriminatory animus.” The Court further held that the Villages were motivated by a genuine concern that the “Town’s SEQRA analysis would result in adverse effects on the environment.”

Finally, the Second Circuit distinguished its holding in Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012). There, the Court held that a municipality could be found liable under RLUIPA where it misuses the SEQRA process. Unlike in Fortress Bible, the Villages here did not have jurisdiction over Plaintiffs’ property or project. They merely “filed a lawsuit to challenge some other municipality’s SEQRA review.” This distinction, the Court held, rendered Fortress Bible as inapposite. The Villages were represented by Michael Zarin and Jody Cross.

See Bernstein v. Vill. of Wesley Hills, 2016 WL 1129182 (2d Cir. Mar. 23, 2016)

[ORIGINAL STORY HERE]

SEQRA Findings and Preliminary Subdivision Approval in Cortlandt

David Steinmetz and Brad Schwartz guided our client through the full SEQRA and subdivision review processes for a 27-lot cluster subdivision in the Town of Cortlandt.  The Planning Board adopted SEQRA Findings and issued Preliminary Subdivision Approval at its September meeting.  The Project involved mitigating traffic concerns along Croton Avenue, creating open space parcels to preserve environmentally sensitive areas of the site, and working with neighbors to resolve tree removal and other issues.  David and Brad prepared the comprehensive SEQRA Findings Statement.  We are now helping our client form Town sewer and drainage districts, and otherwise advance towards final subdivision approval, including by securing outside agency approvals.

Michael Zarin & David Steinmetz Named 2015 Super Lawyers

Michael and David  were recently selected as 2015 Super Lawyers.

• Michael Zarin was recognized in the fields of Land Use/Zoning and Environmental Law.
• David Steinmetz was acknowledged in the area of Land Use/Zoning.

David Steinmetz was also recently chosen for inclusion in the 2015 edition of ALM’s Top Rated Lawyers in Land Use and Zoning. This nationally recognized publication’s 2015 edition includes top peer-rated, AV Preeminent attorneys from across the country in the fields of Land Use and Zoning.

Zarin & Steinmetz Successfully Defends Rockland County Villages Against Federal Claims

Michael Zarin and Jody Cross, representing the Villages of Wesley Hills, Chestnut Ridge, Montebello and Pomona, successfully obtained Summary Judgment in a highly publicized, Federal Court action. The nearly decade long litigation centered on an array of purported constitutional violations arising from those Villages' challenge (in a related State Court action) under the New York State Environmental Quality Review Act (SEQRA) relating to the development of Plaintiffs’ 60-unit multi-family adult student housing complex.

Plaintiffs claimed, among other things, that they were denied equal protection when the Villages brought the SEQRA suit in the Environmental Claims Part of the Westchester County Supreme Court. Z&S successfully argued that the Villages were simply advocating their legitimate planning and environmental concerns on behalf of their constituents.

In dismissing Plaintiffs' claims, which sought $100 million in damages against the Villages, U.S. Southern District of New York Judge Kenneth Karas held that Plaintiffs provided no evidence that they were denied equal protection, or that the Villages violated any of Plaintiffs constitutional rights. Judge Karas also held that Plaintiffs could not establish any violations under RLUIPA.

Rabbi James Bernstein, et al. v. Vill. of Wesley Hills, et al., 2015 WL 1399993 (S.D.N.Y. Mar. 27, 2015 )

Brad Schwartz Selected For JCC Hudson Board

The JCC on the Hudson in Tarrytown has selected Brad to serve on its Board of Governors. Brad is actively involved in all Board matters.  He is playing a key role, for example, in helping to advance progress on the JCC’s campus expansion, which is scheduled to begin construction this year.  “I joined the Board to help the JCC establish itself as a destination in the Rivertowns.  Our community will benefit tremendously from the new facility, and the variety of programs that will be offered.  This is an exciting time for the JCC and Rivertowns, and I am glad to be a part of it.” The JCC on the Hudson is a non-profit, non-sectarian community center, offering afterschool care, senior programs, preschool, camp, fitness, and programs for those with special needs.

EPR’s Adelaar Selected By NYS Gaming Facility Location Board

On December 17, 2014, the New York State Gaming Facility Location Board selected the Montreign Casino at Adelaar to apply for a Gaming License with the New York State Gaming Commission. Zarin & Steinmetz’s client, EPR Properties, owns the 1,700 acre development site, where EPR’s world class four-season destination resort, known as Adelaar, will be developed, along with Montreign Casino at Adelaar.  Michael Zarin and Helen Mauch continue to provide environmental, land use, regulatory and real estate counsel to EPR. Zarin & Steinmetz is also helping EPR create Special Districts under New York Law, structure bonds for financing and negotiate and prepare all Agreements associated with the Master Development. In addition, Zarin & Steinmetz successfully defended the environmental and land use approvals for this ambitious mixed-use redevelopment project, which will feature an indoor waterpark lodge and adventure park, Rees Jones designed Golf Course, an entertainment village, and premier retail, restaurants and entertainment.

David Steinmetz Secures 11 Variances For Senior Living Facility

After more than two years, David Steinmetz was successful in convincing the Town of Eastchester Zoning Board of Appeals to grant 11 area variances to facilitate a 92-unit, 5-story, age restricted (55 and over) rental building in Eastchester.  Helen Mauch and Jody Cross assisted David in this matter.  The need for variances from the ZBA arose when the Town Board decided not to pursue a legislative text amendment to the Town’s Senior Housing Law.  In addition, because the project has a subsurface parking garage structure, some of the variances were of the magnitude of 141%.  A critical turning point in this application was presenting a 3D computer generated graphic, which helped demonstrate to the Planning Board (as Lead Agency) that there was no adverse visual impact.  Z&S will continue to represent the applicant in the event of an Article 78 challenge.

Michael Zarin & Dan Richmond Obtain Special Permit for Religious Use

Michael Zarin and Dan Richmond overcame significant community opposition to obtain positive SEQRA Findings and Special Permit Approval from the New Castle Zoning Board of Appeals for the Upper Westchester Muslim Society (UWMS) for its proposed Masjid (mosque) and Islamic Center. These approvals were the culmination of a lengthy review process. Michael and Dan worked with the UWMS’s engineering and planning consultants to formulate creative mitigation measures, including with respect to wetland restoration and transportation management.

David Cooper Is Selected To The 2014-15 Hudson Valley Pattern For Progress Fellowship Program

David Cooper was selected to the 2014-15 Hudson Valley Pattern for Progress Fellowship Program.  Hudson Valley Pattern for Progress is a leading policy research and advocacy organization promoting regional solutions facilitating the growth and vitality of the Hudson Valley.  David will join a team of 25 planners, municipal officials and leaders from numerous industries in the Hudson Valley.  Members of the 2014-15 Fellowship Program will assist the organization in its recently announced three-year initiative to identify and implement strategies to attract “millennials” to Hudson Valley urban centers through sustainable redevelopment and revitalization of downtown areas.

David Steinmetz & Jody Cross Obtain Approvals To Redevelop Lumber Yard

David Steinmetz and Jody Cross successfully obtained Site Plan approval from the Town/Village of Harrison Planning Board, as well as necessary variances from the Harrison Zoning Board of Appeals, to redevelop a ½ acre site housing a nonconforming lumber yard as a 36-unit multifamily residential building with 4 stories of residential use, and an additional story of on grade parking.  The use was found by Harrison to be consistent with the adjoining residential uses.  In addition, the project’s close proximity to Harrison’s proposed transit oriented development and the Metro North Train Station makes the Project attractive to commuters.  David and Jody guided the development team in order to secure the necessary approvals in 12 months.

Dan Richmond Wins Motion To Dismiss A Challenge To Spring Valley Development

Dan successfully argued that a challenge to a 36-unit residential project in the Village of Spring Valley was barred by the doctrine of laches. The Court not only denied the petitioner’s motion for a preliminary injunction to enjoin construction, but also granted Zarin & Steinmetz’s motion to dismiss the litigation. The Court concurred that there was no excuse for petitioner’s delay in commencing the proceeding, where construction activities had taken place within view of petitioner’s property. A copy of the Decision and Order can be found here.

Glen Cove Grants Approvals For Phase One Of Waterfront Project

Brad Schwartz guided the Glen Cove Planning Board through the Site Plan and Subdivision process for Phase One of the Garvies Point Waterfront Redevelopment Project.  Phase One will include 387 multi-family rental units, 3,055 gsf of retail, parks/playgrounds, and other public amenities and open space.  The Planning Board voted unanimously to adopt the Resolution of Approval.  Brad worked closely with the Planning Board’s planning, engineering and open space consultants to prepare a comprehensive Resolution, which represents a major step towards construction of this long-awaited project.

Daniel Richmond Co-Authors Article On Koontz Decision

Dan co-authored an article, entitled “State Environmental Quality Review Act Through The ‘Koontz’ Prizm,” which was published in the New York Law Journal on September 16, 2013. The article discusses the interrelationship of the United States Supreme Court’s Decision in Koontz v. St. Johns River water Management District and the imposition of conditions through the State Environmental Quality Review Act (SEQRA).

A copy of the article can be found here.