Development

Shopping Center Did Not Trigger Historical Resource Review

Business and Residents Alliance of East Harlem v. Martinez

NYLJ 6/22/04, p. 21, col. 5

U.S. Dist. Ct., SDNY

(Keenan, J.)

In an action to enjoin demolition of a factory until the federal departments of Housing and Urban Development and Health and Human Services conduct a review of the project's impact on historical resources, plaintiff community association sought a preliminary injunction. The court denied the injunction, concluding that the project did not require federal approval triggering historical resource review.

The landowner seeks to develop a shopping center on the FDR Drive between 116th and 119th Streets in East Harlem. The shopping center is to be built with city and state assistance. In addition, the federal department of Health and Human Services (HHS) provides block grants to the Empire State Development Corporation (ESDC), a state agency involved with the shopping center project. The project requires demolition of a former wire factory. The community association contends that proximity of the project to a resource listed on the National Register of Historic Places and three other potential historic resources requires HHS and HUD to conduct a review pursuant to section 106 of the National Historic Preservation Act (NHPA). The federal defendants contend that they have not exercised sufficient control to subject the project to review under section 106.

In awarding summary judgment to the defendants, the court noted that the statute provides that a federal agency with jurisdiction over a “federal or federally assisted undertaking” must “take into account the effect of the undertaking on any … site … included in or eligible for inclusion in the National Register.” But the court then went on to recognize that courts have held that federal funding alone is insufficient to trigger the statutory mandate. Instead, there must be a degree of federal approval, supervision, control or consultation over the expenditure of the federal funds; otherwise, the project is outside the scope of the act. Here, the possible expenditure of $5 million attributable to a block grant is not sufficient to warrant review pursuant to section 106. As a result, the community association failed to prove that a material issue of fact exists, and the court granted summary judgment to the various defendants.

Zoning Board Must Consider Corporation Counsel's Power to Bind

Haberman v. Zoning Board of Appeals

NYLJ 6/8/04, p. 19, col. 1

Supreme Ct., Nassau Cty

(Davis, J.)

Landowner brought an article 78 proceeding to annul revocation of a building permit. The court granted the petition and remanded to the zoning board of appeals to consider whether the city's corporation counsel had authority to bind the zoning board of appeals.

In the 1980s, landowner obtained a variance to build four ten-story coop/condominium towers on Shore Road in Long Beach. Landowner began construction of the first tower, but while building permit applications were pending for the other three towers, the city amended its zoning ordinance to reduce to seven stories the permissible height of buildings in the area. The landowner then brought an article 78 proceeding, contending that the landowner had acquired a vested right to build pursuant to the variance. That litigation was resolved by a 1989 stipulation of settlement, which permitted the landowner to build three of the four ten-story towers, with the fourth tower limited to seven stories. The stipulation provided that landowner would apply for a building permit for the next tower within 60 months of Aug. 3, 1989. The landowner paid a required $200,000 dedication to the city. Three years later, the parties agreed to extend, without limit, the time during which the stipulation required the city to complete installation of underground utilities and other public improvements. The landowner's time to apply for building permits would be tolled until the city completed the improvements. The agreement was “so ordered” by the Supreme Court, but was never submitted to the zoning board of appeals.

In 2002, the landowner applied for a building permit to begin construction on a second tower. Although the city issued the permit, the Zoning Board of Appeals revoked the permit in December 2003, contending that the extension agreement was unenforceable for lack of a public hearing. Landowner then brought this article 78 proceeding.

In granting the petition, the court emphasized that the board itself had failed to address directly the issue that one of its members had deemed paramount: Did the city have power to bind the zoning board of appeals to the extension of the 60-month period? Accordingly, the court annulled the revocation, and remanded to the zoning board of appeals for consideration of that issue.

Shopping Center Did Not Trigger Historical Resource Review

Business and Residents Alliance of East Harlem v. Martinez

NYLJ 6/22/04, p. 21, col. 5

U.S. Dist. Ct., SDNY

(Keenan, J.)

In an action to enjoin demolition of a factory until the federal departments of Housing and Urban Development and Health and Human Services conduct a review of the project's impact on historical resources, plaintiff community association sought a preliminary injunction. The court denied the injunction, concluding that the project did not require federal approval triggering historical resource review.

The landowner seeks to develop a shopping center on the FDR Drive between 116th and 119th Streets in East Harlem. The shopping center is to be built with city and state assistance. In addition, the federal department of Health and Human Services (HHS) provides block grants to the Empire State Development Corporation (ESDC), a state agency involved with the shopping center project. The project requires demolition of a former wire factory. The community association contends that proximity of the project to a resource listed on the National Register of Historic Places and three other potential historic resources requires HHS and HUD to conduct a review pursuant to section 106 of the National Historic Preservation Act (NHPA). The federal defendants contend that they have not exercised sufficient control to subject the project to review under section 106.

In awarding summary judgment to the defendants, the court noted that the statute provides that a federal agency with jurisdiction over a “federal or federally assisted undertaking” must “take into account the effect of the undertaking on any … site … included in or eligible for inclusion in the National Register.” But the court then went on to recognize that courts have held that federal funding alone is insufficient to trigger the statutory mandate. Instead, there must be a degree of federal approval, supervision, control or consultation over the expenditure of the federal funds; otherwise, the project is outside the scope of the act. Here, the possible expenditure of $5 million attributable to a block grant is not sufficient to warrant review pursuant to section 106. As a result, the community association failed to prove that a material issue of fact exists, and the court granted summary judgment to the various defendants.

Zoning Board Must Consider Corporation Counsel's Power to Bind

Haberman v. Zoning Board of Appeals

NYLJ 6/8/04, p. 19, col. 1

Supreme Ct., Nassau Cty

(Davis, J.)

Landowner brought an article 78 proceeding to annul revocation of a building permit. The court granted the petition and remanded to the zoning board of appeals to consider whether the city's corporation counsel had authority to bind the zoning board of appeals.

In the 1980s, landowner obtained a variance to build four ten-story coop/condominium towers on Shore Road in Long Beach. Landowner began construction of the first tower, but while building permit applications were pending for the other three towers, the city amended its zoning ordinance to reduce to seven stories the permissible height of buildings in the area. The landowner then brought an article 78 proceeding, contending that the landowner had acquired a vested right to build pursuant to the variance. That litigation was resolved by a 1989 stipulation of settlement, which permitted the landowner to build three of the four ten-story towers, with the fourth tower limited to seven stories. The stipulation provided that landowner would apply for a building permit for the next tower within 60 months of Aug. 3, 1989. The landowner paid a required $200,000 dedication to the city. Three years later, the parties agreed to extend, without limit, the time during which the stipulation required the city to complete installation of underground utilities and other public improvements. The landowner's time to apply for building permits would be tolled until the city completed the improvements. The agreement was “so ordered” by the Supreme Court, but was never submitted to the zoning board of appeals.

In 2002, the landowner applied for a building permit to begin construction on a second tower. Although the city issued the permit, the Zoning Board of Appeals revoked the permit in December 2003, contending that the extension agreement was unenforceable for lack of a public hearing. Landowner then brought this article 78 proceeding.

In granting the petition, the court emphasized that the board itself had failed to address directly the issue that one of its members had deemed paramount: Did the city have power to bind the zoning board of appeals to the extension of the 60-month period? Accordingly, the court annulled the revocation, and remanded to the zoning board of appeals for consideration of that issue.