Development

Air Stripper in Park

Matter of Brummel v. Town of North Hempstead
NYLJ 12/23/16, p. 33, col. 5 AppDiv, Second Dept. (memorandum opinion)

In an article 78 proceeding brought by neighbors challenging location of an air stripper in a wooded area of a park, the neighbors appealed from Supreme Court's dismissal of the petition for lack of standing. The Appellate Division affirmed, holding that neighbors had not established that they use the affected portion of the park more than most other members of the public.

When the Roslyn Water District discovered that one of its wells was contaminated with Freon, making the water undrinkable, the town decided to use an aerating tower, or air stripper, to filter out the Freon. Community opposition led the District to refrain from locating the air stripper in a residential district, so the District applied to the town and county for permission to locate it in a wooded area of a park. A group of neighbors who use the wooded area of the park then brought this article 78 proceeding challenging the various government determinations with regard to placing the air stripper in the park. They contended that the government entities had failed to comply with the State Environmental Quality Review Act (SEQRA). Supreme Court dismissed the proceeding for lack of standing.

In affirming, the Appellate Division noted that to establish standing under SEQRA, a petitioner must show an environmental injury different from that suffered by the public at large, and must also show that the injury falls within the zone of interests sought to be protected by SEQRA. In this case, the court concluded that the petitioners had failed to demonstrate that they used and enjoyed the portion of the park near the proposed air stripper more than most other members of the public. As a result, Supreme Court correctly dismissed for lack of standing.

Failure to Maintain Landmarked Building

New York City v. Seguine Bay Estates
NYLJ 1/9/17 Supreme Ct., Richmond Cty. (Straniere, J.)

In the city's action to compel landowner to comply with a Landmarks Commission order to maintain a building in good repair, the case went to trial. The court held that the city was entitled to a judgment in the amount of $8,550,000 as a result of owners' failure to maintain the building in accordance with the Landmarks Commission order.

The Manee-Seguine Homestead was built in about 1680. In 1984, the city Landmarks Preservation Commission (LPC) designated the homestead as a landmark. In 2009, the city Department of Buildings (DOB) issued a demolition order on a finding that the building was unsafe. DOB withdrew its order after intervention by LPC, and required only that the windows be sealed and a chain-link fence installed around the perimeter. In 2009, Intrepid Construction purchased the premises for $465,000, and on the same day transferred the premises to the current owner for no consideration. Owner sought to demolish the building and to redevelop for residential use. In 2013, DOB issued an order to correct violations, followed by an emergency declaration requiring various repairs. Owner took no steps to comply. The city commenced this action to compel landowner to maintain the premises as required by the Landmarks Preservation law. Owner answered, contending that it intended to make a hardship application establishing that it was not feasible to maintain the premises as a landmark. Owner, however, never filed such an application.

In awarding judgment to the city, the court emphasized that if owner believed that maintenance of the premises was unfeasible, owner's remedy was to make a hardship application before LPC. Owner could not, however, raise hardship as a defense to the city's action to enforce statutory duties imposed on owner. As a result, owner was liable for the statutory penalty of $5,000 a day, which now amounted to $8,550,000. The court observed, however, that the maximum penalty is the market value of the premises. As a result, the court set a date for a hearing to determine the property's value.

Air Stripper in Park

Matter of Brummel v. Town of North Hempstead
NYLJ 12/23/16, p. 33, col. 5 AppDiv, Second Dept. (memorandum opinion)

In an article 78 proceeding brought by neighbors challenging location of an air stripper in a wooded area of a park, the neighbors appealed from Supreme Court's dismissal of the petition for lack of standing. The Appellate Division affirmed, holding that neighbors had not established that they use the affected portion of the park more than most other members of the public.

When the Roslyn Water District discovered that one of its wells was contaminated with Freon, making the water undrinkable, the town decided to use an aerating tower, or air stripper, to filter out the Freon. Community opposition led the District to refrain from locating the air stripper in a residential district, so the District applied to the town and county for permission to locate it in a wooded area of a park. A group of neighbors who use the wooded area of the park then brought this article 78 proceeding challenging the various government determinations with regard to placing the air stripper in the park. They contended that the government entities had failed to comply with the State Environmental Quality Review Act (SEQRA). Supreme Court dismissed the proceeding for lack of standing.

In affirming, the Appellate Division noted that to establish standing under SEQRA, a petitioner must show an environmental injury different from that suffered by the public at large, and must also show that the injury falls within the zone of interests sought to be protected by SEQRA. In this case, the court concluded that the petitioners had failed to demonstrate that they used and enjoyed the portion of the park near the proposed air stripper more than most other members of the public. As a result, Supreme Court correctly dismissed for lack of standing.

Failure to Maintain Landmarked Building

New York City v. Seguine Bay Estates
NYLJ 1/9/17 Supreme Ct., Richmond Cty. (Straniere, J.)

In the city's action to compel landowner to comply with a Landmarks Commission order to maintain a building in good repair, the case went to trial. The court held that the city was entitled to a judgment in the amount of $8,550,000 as a result of owners' failure to maintain the building in accordance with the Landmarks Commission order.

The Manee-Seguine Homestead was built in about 1680. In 1984, the city Landmarks Preservation Commission (LPC) designated the homestead as a landmark. In 2009, the city Department of Buildings (DOB) issued a demolition order on a finding that the building was unsafe. DOB withdrew its order after intervention by LPC, and required only that the windows be sealed and a chain-link fence installed around the perimeter. In 2009, Intrepid Construction purchased the premises for $465,000, and on the same day transferred the premises to the current owner for no consideration. Owner sought to demolish the building and to redevelop for residential use. In 2013, DOB issued an order to correct violations, followed by an emergency declaration requiring various repairs. Owner took no steps to comply. The city commenced this action to compel landowner to maintain the premises as required by the Landmarks Preservation law. Owner answered, contending that it intended to make a hardship application establishing that it was not feasible to maintain the premises as a landmark. Owner, however, never filed such an application.

In awarding judgment to the city, the court emphasized that if owner believed that maintenance of the premises was unfeasible, owner's remedy was to make a hardship application before LPC. Owner could not, however, raise hardship as a defense to the city's action to enforce statutory duties imposed on owner. As a result, owner was liable for the statutory penalty of $5,000 a day, which now amounted to $8,550,000. The court observed, however, that the maximum penalty is the market value of the premises. As a result, the court set a date for a hearing to determine the property's value.