Development

Regulation of Substance Abuse Recovery Houses Violates Fair Housing Act

Human Resource Research and Management Group v. County of Suffolk

NYLJ 2/24/10, p. 42, col. 1

U.S. Dist. Ct., E.D.N.Y.

(Bianco, J.)

In two actions, plaintiffs challenged a Suffolk County law regulating substance abuse recovery houses. The court invalidated, the law, concluding that its provisions violated the federal Fair Housing Act.

Suffolk County Code section 450 imposes a number of restrictions on residential facilities for persons receiving treatment to recover from alcohol or substance abuse. The code provision establishes a site selection process under which a local municipality would be entitled to object to a chosen site, and if the parties could not resolve the objections, the matter would go to a hearing examiner for review. The code also requires that each house have a certified site manager who lives on the site 24 hours a day, seven days a week. No facility covered by the statute may have more than six individual receiving treatment for substance abuse services. Finally, the code includes a licensing requirement.

Oxford House established a residence in East Farmingdale in 1991. In 2003, the county enacted the local law in response to community complaints about conditions in substance abuse houses. Oxford House and individuals who have participated in substance abuse recovery programs brought this action challenging the local law as violative of the various constitutional and statutory provisions.

In holding that the local law violates the Fair Housing Act, the court first noted that the parties agreed that the Suffolk County law was discriminatory on its face because it imposed restrictions on a class of disabled individuals that are not imposed on others. The court then concluded that heightened scrutiny, not rational basis scrutiny, applies to Fair Housing Act claims. The court then turned to examine the county's justifications for the various discriminatory provisions and found those justifications inadequate. The court noted that the evidence submitted to support the need for the site selection provisions constituted largely of anecdotal testimony regarding the proliferation of substance abuse homes in a particular community.

Even if this evidence were sufficient to establish an interest in dispersal of homes, the court concluded that the code's provision was not narrowly tailored to serve that interest. The court then turned to the requirement of an onsite manager, and noted that the plaintiffs had introduced evidence that an on-site authority figure would be potentially detrimental to recovery, and would add significantly to the cost of running a facility, while the county had no come forward with evidence for why an on-site manager was necessary. As a result, the court held that the requirement violated the statute. Similarly, the court found no evidentiary support for the code's six-person limitation. Finally, the court concluded that the county had not provided evidence that potential residents of substance abuse facilities are so vulnerable to predatory or unscrupulous landlords that a licensing requirement was necessary for their protection. The court therefore held that the entire code provision was invalid on its face.

Statute Entitles Landowner To Participate in Brownfield Cleanup Program

Matter of Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation

NYLJ 2/19/10, p. 42, col. 3

Court of Appeals

(Opinion by Read, J.)

In landowner's article 78 proceeding challenging a denial by the state Department of Environmental Conservation (DEC) of landowner's request to have its property included in the Brownfield Cleanup Program (BCP), landowner appealed from the Appellate Division's reversal of Supreme Court's grant of the petition. The Court of Appeals reversed and granted the petition, holding that landowner had established a right to participate in the program.

Landowner seeks to develop land along the Genesee River into a $250 million mixed-use waterfront development. Much of the site is located in what used to be a city landfill, which served as a repository for a variety of industrial waste, construction debris, sewage sludge, and other material. In 2006, landowner filed requests with DEC for acceptance of portions of its parcel into the BCP. The BCP provides participating landowners with a tax credit for various site preparation and redevelopment costs. A parcel qualifies as a brownfield site eligible for participation in the program when the property's redevelopment or reuse “may be complicated by the presence or potential presence of a contaminant.” (ECL section 27-1405[2]). The statute defines contaminant by reference to provisions in other statutes. The DEC ultimately denied landowner's requests for participation in the program, concluding that landowners parcels were not brownfield sites. DEC acknowledged that methane gas, odors, leachate seeps, and soil stability complicated future development, but concluded that those factors were typical of solid waste landfills, and not specific sources of hazardous waste or petroleum contamination. Landowner then brought this article 78 proceeding, supported both by various municipalities and Monroe County. Supreme Court granted the petition, concluding that there was no rational basis for concluding that the levels of contamination were minimal, and holding that landowner had met the low threshold of contamination set by the statute. A divided Appellate Division reversed, concluding that courts should not substitute their judgment for that of DEC. Landowner appealed.

In reversing, the Court of Appeals emphasized that on the issues in this case, deference to the DEC was inappropriate because the critical issue was a pure question of statutory reading: what is the meaning of the term “brownfield site” within the statute. The court indicated that there were two statutory issues: what constitutes presence of a contaminant, and does the contaminant complicate redevelopment or reuse of the property. The court emphasized that in this case, the presence of contaminants, and the inability of DEC to provide a waiver of liability to landowner without landowner's participation in the BCP, led inevitably to the conclusion that contaminants had complicated redevelopment or reuse of the property. The court note that lenders had been reluctant to finance development out of fear that the government might later conclude that the property was contaminated. In these circumstances, the court concluded that landowner was eligible for acceptance into the BCP.

'Class of One' Equal Protection Claim Dismissed

Toussie v. Town Board of the Town of East Hampton

NYLJ 2/25/10, p. 31, col. 1

U.S. Dist. Ct., EDNY

(Hurley, J.)

In an action by landowners asserting a “class of one” equal protection claim against the town board, the town moved to dismiss. The court granted the motion, holding that landowners had not alleged facts sufficient to support the equal protection claim.

Landowners own a 15-acre parcel in the Town of East Hampton that had previously been zoned to permit residential development with a minimum lot size of two acres. The town subsequently upzoned the land to require a minimum lot size of five acres. At the same time, the town upzoned a neighboring parcel, which had previously been subject to the same two-acre minimum, to require a three-acre minimum. Landowners contended that this disparity in treatment was motivated by malice because landowner had refused to sell their parcel to the town. The town moved to dismiss.

In granting the town's motion, the court emphasized the distinctly different development history of landowners' parcel and the neighboring parcel. In particular, the court noted that the owners of the neighboring parcel had previously reduced the residential build-out on his land with the understanding that the owner would subsequently be entitled to subdivide the recently upzoned land. Based on this difference, the court concluded that the town had a rational basis for applying different zoning minimums to the two parcels. The court then held that the allegation of malice, based solely on landowners' refusal to sell the town land for its open space program, did not state a plausible claim in light of other, reasonable, explanations for the town's action. Because the court dismissed the only federal claims, the court declined to assert jurisdiction over the state law claims alleged in landowners' complaint.

Town Had Jurisdiction to Regulate Wetlands Not Covered by Freshwater
Wetlands Act

Matter of Pletenik v. Town of Brookhaven

NYLJ 2/23/10, p. 38, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the town board's denial of a wetlands permit, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed, holding that the town had jurisdiction to regulate the wetlands and had not acted arbitrarily in denying the permit.

Landowner applied to the town board for a wetlands permit to build on an 8,000 square-foot parcel. In his application, landowner included a letter from the state Department of Environmental Conservation (DEC) indicating that the parcel was more than 100 feet from regulated freshwater wetlands, and therefore beyond the jurisdiction of the freshwater wetlands act. The town board nevertheless concluded that the property was freshwater wetlands, and denied the permit. Landlord then brought this article 78 proceeding, and Supreme Court granted the petition, ordering the town board to issue the permit. The town appealed.

In reversing, the Appellate Division noted that the freshwater wetlands act requires DEC to map wetlands with an area of at least 12.4 acres and smaller wetlands with “unusual local importance.” The statute empowers the DEC to impose strict regulation on those wetlands. At the same time, however, the statute empowers towns, villages, and cities to regulate areas that would qualify as freshwater wetlands, except that they are smaller than 12.4 acres and do not have unusual local importance. The town exercised that authority by enacting a code provision prohibiting building within wetlands without a permit. In light of this regulatory structure, the Appellate Division concluded that ' contrary to Supreme Court's determination ' the town had jurisdiction to regulate landowner's parcel as wetlands. The court then held that evidence at the public hearings was sufficient to support the town board's findings in denying the permit. As a result, the board's decision was not arbitrary and capricious.

Court Rejects Claim That ZBA Failed to Follow Precedent

Matter of Moore v. Town of Islip Zoning Board of Appeals

NYLJ 2/23/10, p. 38, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that landowner had not demonstrated a failure by the zoning board of appeals (ZBA) to follow its own precedent.

The ZBA applied the statutory balancing factors in denying landowner's area variance. Landowner contended, however, that the ZBA had previously granted area variances on essentially the same facts, and that its denial in this case was therefore arbitrary and capricious. In affirming Supreme Court's rejection of this argument, the Appellate Division indicated that landowner had failed to demonstrate the existence of prior ZBA determination sufficiently similar to warrant an explanation of any difference in result.

Regulation of Substance Abuse Recovery Houses Violates Fair Housing Act

Human Resource Research and Management Group v. County of Suffolk

NYLJ 2/24/10, p. 42, col. 1

U.S. Dist. Ct., E.D.N.Y.

(Bianco, J.)

In two actions, plaintiffs challenged a Suffolk County law regulating substance abuse recovery houses. The court invalidated, the law, concluding that its provisions violated the federal Fair Housing Act.

Suffolk County Code section 450 imposes a number of restrictions on residential facilities for persons receiving treatment to recover from alcohol or substance abuse. The code provision establishes a site selection process under which a local municipality would be entitled to object to a chosen site, and if the parties could not resolve the objections, the matter would go to a hearing examiner for review. The code also requires that each house have a certified site manager who lives on the site 24 hours a day, seven days a week. No facility covered by the statute may have more than six individual receiving treatment for substance abuse services. Finally, the code includes a licensing requirement.

Oxford House established a residence in East Farmingdale in 1991. In 2003, the county enacted the local law in response to community complaints about conditions in substance abuse houses. Oxford House and individuals who have participated in substance abuse recovery programs brought this action challenging the local law as violative of the various constitutional and statutory provisions.

In holding that the local law violates the Fair Housing Act, the court first noted that the parties agreed that the Suffolk County law was discriminatory on its face because it imposed restrictions on a class of disabled individuals that are not imposed on others. The court then concluded that heightened scrutiny, not rational basis scrutiny, applies to Fair Housing Act claims. The court then turned to examine the county's justifications for the various discriminatory provisions and found those justifications inadequate. The court noted that the evidence submitted to support the need for the site selection provisions constituted largely of anecdotal testimony regarding the proliferation of substance abuse homes in a particular community.

Even if this evidence were sufficient to establish an interest in dispersal of homes, the court concluded that the code's provision was not narrowly tailored to serve that interest. The court then turned to the requirement of an onsite manager, and noted that the plaintiffs had introduced evidence that an on-site authority figure would be potentially detrimental to recovery, and would add significantly to the cost of running a facility, while the county had no come forward with evidence for why an on-site manager was necessary. As a result, the court held that the requirement violated the statute. Similarly, the court found no evidentiary support for the code's six-person limitation. Finally, the court concluded that the county had not provided evidence that potential residents of substance abuse facilities are so vulnerable to predatory or unscrupulous landlords that a licensing requirement was necessary for their protection. The court therefore held that the entire code provision was invalid on its face.

Statute Entitles Landowner To Participate in Brownfield Cleanup Program

Matter of Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation

NYLJ 2/19/10, p. 42, col. 3

Court of Appeals

(Opinion by Read, J.)

In landowner's article 78 proceeding challenging a denial by the state Department of Environmental Conservation (DEC) of landowner's request to have its property included in the Brownfield Cleanup Program (BCP), landowner appealed from the Appellate Division's reversal of Supreme Court's grant of the petition. The Court of Appeals reversed and granted the petition, holding that landowner had established a right to participate in the program.

Landowner seeks to develop land along the Genesee River into a $250 million mixed-use waterfront development. Much of the site is located in what used to be a city landfill, which served as a repository for a variety of industrial waste, construction debris, sewage sludge, and other material. In 2006, landowner filed requests with DEC for acceptance of portions of its parcel into the BCP. The BCP provides participating landowners with a tax credit for various site preparation and redevelopment costs. A parcel qualifies as a brownfield site eligible for participation in the program when the property's redevelopment or reuse “may be complicated by the presence or potential presence of a contaminant.” (ECL section 27-1405[2]). The statute defines contaminant by reference to provisions in other statutes. The DEC ultimately denied landowner's requests for participation in the program, concluding that landowners parcels were not brownfield sites. DEC acknowledged that methane gas, odors, leachate seeps, and soil stability complicated future development, but concluded that those factors were typical of solid waste landfills, and not specific sources of hazardous waste or petroleum contamination. Landowner then brought this article 78 proceeding, supported both by various municipalities and Monroe County. Supreme Court granted the petition, concluding that there was no rational basis for concluding that the levels of contamination were minimal, and holding that landowner had met the low threshold of contamination set by the statute. A divided Appellate Division reversed, concluding that courts should not substitute their judgment for that of DEC. Landowner appealed.

In reversing, the Court of Appeals emphasized that on the issues in this case, deference to the DEC was inappropriate because the critical issue was a pure question of statutory reading: what is the meaning of the term “brownfield site” within the statute. The court indicated that there were two statutory issues: what constitutes presence of a contaminant, and does the contaminant complicate redevelopment or reuse of the property. The court emphasized that in this case, the presence of contaminants, and the inability of DEC to provide a waiver of liability to landowner without landowner's participation in the BCP, led inevitably to the conclusion that contaminants had complicated redevelopment or reuse of the property. The court note that lenders had been reluctant to finance development out of fear that the government might later conclude that the property was contaminated. In these circumstances, the court concluded that landowner was eligible for acceptance into the BCP.

'Class of One' Equal Protection Claim Dismissed

Toussie v. Town Board of the Town of East Hampton

NYLJ 2/25/10, p. 31, col. 1

U.S. Dist. Ct., EDNY

(Hurley, J.)

In an action by landowners asserting a “class of one” equal protection claim against the town board, the town moved to dismiss. The court granted the motion, holding that landowners had not alleged facts sufficient to support the equal protection claim.

Landowners own a 15-acre parcel in the Town of East Hampton that had previously been zoned to permit residential development with a minimum lot size of two acres. The town subsequently upzoned the land to require a minimum lot size of five acres. At the same time, the town upzoned a neighboring parcel, which had previously been subject to the same two-acre minimum, to require a three-acre minimum. Landowners contended that this disparity in treatment was motivated by malice because landowner had refused to sell their parcel to the town. The town moved to dismiss.

In granting the town's motion, the court emphasized the distinctly different development history of landowners' parcel and the neighboring parcel. In particular, the court noted that the owners of the neighboring parcel had previously reduced the residential build-out on his land with the understanding that the owner would subsequently be entitled to subdivide the recently upzoned land. Based on this difference, the court concluded that the town had a rational basis for applying different zoning minimums to the two parcels. The court then held that the allegation of malice, based solely on landowners' refusal to sell the town land for its open space program, did not state a plausible claim in light of other, reasonable, explanations for the town's action. Because the court dismissed the only federal claims, the court declined to assert jurisdiction over the state law claims alleged in landowners' complaint.

Town Had Jurisdiction to Regulate Wetlands Not Covered by Freshwater
Wetlands Act

Matter of Pletenik v. Town of Brookhaven

NYLJ 2/23/10, p. 38, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the town board's denial of a wetlands permit, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed, holding that the town had jurisdiction to regulate the wetlands and had not acted arbitrarily in denying the permit.

Landowner applied to the town board for a wetlands permit to build on an 8,000 square-foot parcel. In his application, landowner included a letter from the state Department of Environmental Conservation (DEC) indicating that the parcel was more than 100 feet from regulated freshwater wetlands, and therefore beyond the jurisdiction of the freshwater wetlands act. The town board nevertheless concluded that the property was freshwater wetlands, and denied the permit. Landlord then brought this article 78 proceeding, and Supreme Court granted the petition, ordering the town board to issue the permit. The town appealed.

In reversing, the Appellate Division noted that the freshwater wetlands act requires DEC to map wetlands with an area of at least 12.4 acres and smaller wetlands with “unusual local importance.” The statute empowers the DEC to impose strict regulation on those wetlands. At the same time, however, the statute empowers towns, villages, and cities to regulate areas that would qualify as freshwater wetlands, except that they are smaller than 12.4 acres and do not have unusual local importance. The town exercised that authority by enacting a code provision prohibiting building within wetlands without a permit. In light of this regulatory structure, the Appellate Division concluded that ' contrary to Supreme Court's determination ' the town had jurisdiction to regulate landowner's parcel as wetlands. The court then held that evidence at the public hearings was sufficient to support the town board's findings in denying the permit. As a result, the board's decision was not arbitrary and capricious.

Court Rejects Claim That ZBA Failed to Follow Precedent

Matter of Moore v. Town of Islip Zoning Board of Appeals

NYLJ 2/23/10, p. 38, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that landowner had not demonstrated a failure by the zoning board of appeals (ZBA) to follow its own precedent.

The ZBA applied the statutory balancing factors in denying landowner's area variance. Landowner contended, however, that the ZBA had previously granted area variances on essentially the same facts, and that its denial in this case was therefore arbitrary and capricious. In affirming Supreme Court's rejection of this argument, the Appellate Division indicated that landowner had failed to demonstrate the existence of prior ZBA determination sufficiently similar to warrant an explanation of any difference in result.