June 2000 - Park Demands a Moratorium on Building

MEMORANDUM

TO: Gerard Stoddard

FROM: Lawrence R. Liebensman, Mark M. Viani

DATE: June 5, 2000

RE: Coastal Zone Development Moratorium Proposed

This memo addresses the Department of Interior’s (“DOI”) demand for a development moratorium in its February 29, 2000 letter to the U.S. Army Corps of Engineers (“USACE”).


DOI demands, as a precondition to any beach replenishment actions, that USACE require “that an enforceable building moratorium be in place prior to any beach replenishment actions.” (DOI 2/29/00 letter at p.10). DOI’s primary focus is on the 35 in-fill lots identified in the DEIS but DOI also seems very concerned about preventing rebuilding of lanes that may be damaged or destroyed in future storms.

Driving DOI’s demand is its fear that: 1) permitting the development of these lots is “the tip of the iceberg” opening the door for larger residential development in the Dune District; 2) that the additional residences will add to the erosion and dune degradation; and 3) that they will add to a “psychological” acceptance of future development and increase demand for repeated beach replenishment.

To support call for a development moratoriums, DOI states:

New York court cases have upheld the use of moratoria to preserve the status quo while comprehensive planning efforts, publicly financed infrastructure improvements or new regulations have been developed. Moratoria of up to 18 years have been upheld, although most have been for shorter periods of time. As long as the purposes of the moratorium is clear, and the duration set for a specific time or event, the New York courts have supported them; moratoria have not been upheld when the time period was unspecified or short term moratoria were repeatedly renewed. (DOI 2/29/2000 Letter p. 17)

DOI misapplies New York law.

New York Law

Coastal Zone areas are regulated by New York Department of Environmental Conservation and participating local governments. ECL Article 34. Article 34 outlines the findings of the New York Legislature and its declarations of policy. Article 34 mandates local, county and DEC regulation of coastal erosion zone hazard areas. These local, county and DEC regulations must conform to the standards outlined in Article 34. This regulation addresses all construction, modification , restoration of structures excavation or earth movement in the regulated coastal areas, through a “coastal erosion management permit” process. Notably, Article 34 does not appear to delegate to any of the regulatory bodies the power to enact a moratorium. Similarly, no such power or provisions can be found in the coastal erosion management regulations. See 6 NYCRR Park 505. Consequently, the regulatory powers conferred upon local governments and the DEC do not include the power enact a moratorium. Additionally, 6 NYCCR Part 505.13, of the implementing regulations, outlines a variance process where strict application of the law results in “practical difficulty” or “unnecessary hardship” and were certain additional criteria are met.

The 18-year moratorium case to which DOI alludes is apparently Golden v. Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138 (1972). In Ramapo, the New York Court of Appeals upheld a phased-growth program which limited residential development to corresponding improvements in public infrastructure set out in the town’s 18 year capital plan essentially an adequate public facilities regulation. Notably, these limitations restricted residential development only. Property owners could still utilize their land for commercial, industrial, institutional and government uses. By contrast, in the Dune District, only residential uses are permitted. Thus, DOI’s proposal effectively deprives the owners of these “in-fill” 35 lots of all beneficial use of their property. Further, under DOI’s proposal, the towns of Brookhaven (that administers Article 34) and Islip (that does not) would be required to impose stricter land use restrictions in the Coastal Erosion Hazard Area, (for which Article 34 was enacted) which exceed the requirements of Article 34 without any variance process “safety valve.”

Other New York State cases indicate that municipalities may declare moratoriums upon land development where such an act is a valid stop-gap measure reasonably designed to temporarily halt development while the municipality addresses some legitimate public concern i.e. comprehensive planning or zoning changes, etc. The key to validity is whether the moratorium is for a reasonable purpose and a reasonable period of time. Courts look at both the scope of the overall prohibition (i.e. total ban vs. partial ban) and the duration (i.e. reasonable to address the public concern). See Cellular Telephone Company v. Village of Terrytown, 209 A.D.2d 57, 66, 624 N.Y.S. 2d 170, 176 (1995) (upholding three-month cellular antenna moratorium to permit development of new regulations); 119 Development Associates v. Village Irvington, 171 A.D.2d 656, 657, 566 N.Y.S. 2d 954, 955 (1991) (upholding “temporary building moratorium” of undetermined length to permit consideration of comprehensive zoning changes.); Noghrey v. Acampora, 152 A.D.2d 660, 660-61, 543 N.Y.S. 2d, 530, 531 (1989) (upholding six-month development moratorium to permit consideration of comprehensive zoning changes.); Dune Associates, Inc. v. Anderson, 119 A.D.2d 574, 575, 500 N.Y.S. 2d, 741, 742-43 (1986) (upholding 90-day moratorium while town considered comprehensive zoning changes); New York Housing Authority v. Department of Environmental Conservation, 83 Misc. 2d 89, 94, 372 N.Y.S. 2d, 146, 151 (1975) (upholding two-year moratorium on development in tidal flats to permit the State of New York to complete its inventory of tidal wetlands). By contrast, courts have not hesitated to strike down moratoriums which they found were not reasonable in scope or duration or where the enacting municipality had failed to act diligently to address the public concern motivating the moratorium. See Mitchell v. Kemp, 176 A.D.2d, 859, 860, 575 N.Y.S. 2d 337, 338 (1991) (striking down a series of moratoriums enacted over five years where the enacting municipality failed to enact a zoning ordinance); Lakeview Apartments v. Town of Stanford, A.D.2d 914, 485, N.Y.S. 2d 801 (1985) (striking down a series of moratoriums re-enacted over seven years where a municipality failed to enact zoning ordinance); Duke v. Town of Huntington, 153 Misc. 2d 521, 524, 581 N.Y.S. 2d 978, 980 (1991) (striking down a series of bans on dock construction enacted over two years where the town had been planning to develop a “local waterfront revitalization plan” for over seven years but had yet to adopt it).

Here, DOI seeks to force State and local authorities to impose a moratorium that will completely deprive property-owners of the 35 in fill lots of all beneficial use of their property for the six years of the FIIP. However, DOI fails to establish a reasonable nexus between the need for a moratorium and the adverse consequences it fears will arise from permitting 35 property owners to build on their land. Indeed, the DEIS supports the view that no such nexus can be demonstrated. The DEIS references NYDEC’s letter making it clear the FIIP will not open up previously undeveloped lots beyond the 35 lots that could theoretically be developed without the project because the project will not result in moving the CEHA line (11/30/99 letter from W. Daley). The DEIS indicates that the total number of “in fill” lots that could be developed is 35, which is less that 1% of the total lots on Fire Island. The DEIS notes that, even assuming the worst case of a 50% increase in new construction, by the end of the FIIP’s temporary life, only 22 units would be developed (DEIS 4-41). Further, the Corps estimates that 15 units would be built in 6 years even without the project. In short, the potential new development would amount to 7 or 8 more lots than the no action alternative—or only 0.2% of the total number of lots on Fire Island. Thus, the data supports the Corps conclusion that “in the unlikely event that an increase in demand for new construction would result from the preferred alternative, the effect would not be significant.” Id.

Further, the Local jurisdictions of Brookhaven and Islip can regulate any additional development beyond these 35 lots through their normal land use powers. Thus, DOI’s concerns over erosion, dune degradation and the alleged “psychological” encouragement to build do not justify an absolute freeze on development for 6 years.

As the moratorium itself is not reasonably related to DOI’s concerns, it is difficult to see how the six-year moratorium demand is reasonable. Indeed, New York case law appears to contain no instance where a complete development moratorium lastly six years has been upheld. Compare, Mitchell v. Kemp, 176 A.D.2d at 860, 575 N.Y.S. 2d at 338; Lakeview Apartments v. Town of Stanford, A.D.2d 914, 485, N.Y.S. 2d 801; Duke v. Town of Huntington, 153 Misc. 2d at 524, 581 N.Y.S. 2d at 980.