VOL. III, NO. 2 SUMMER, 2002
Welcome to the Summer, 2002 Edition of “Report from Counsel,” a Newsletter for the Firm’s clients and the other professionals who consult with the Firm, updating them on our practice as well as important new developments in the law.
NEW DEVELOPMENTS AT THE FIRM
New Associate: We are pleased to welcome Karen L. Roth as an associate. Karen joined us in March. She has a special interest in land use planning, architecture and the preservation of historic structures. In addition to practicing law, Karen is currently pursuing a Masters of Science Degree in Building Conservation at Rensselear Polytechnic Institute. Karen began her legal career in the New York State Legislature where she served as a public policy analyst and legislative aide for New York State Senator Kemp Hannon from 1999-2001. Thereafter, Karen was associated with a general practice law firm in Albany. Karen has already made significant contributions to our practice and her talents and knowledge have greatly benefited our clients.
Web Site Additions: We have recently enhanced our web site at www.SahnWard.com by adding a new area called Press Center. This area includes recent articles appearing in the press concerning matters handled by the Firm. We have also added a link to www.thelaborsite.com to enhance the Firm’s practice in labor and employee relations. We hope you visit us on the web, and send us your comments and e-mail.
MATTERS RECENTLY CONCLUDED BY THE FIRM
The Firm successfully represented an applicant before various Boards of the Village of East Hills to obtain approvals to subdivide a parcel of 5.35 acres into five building lots. Building in Nassau County always requires navigating through a complex web of agencies and regulations, and this transaction was no exception. Gaining the approvals involved successfully coordinating the requirements of Village and County governmental agencies, along with school and water districts and the local fire company.
The Firm represented a gasoline service station owner in an application before a Village zoning board to modernize an existing Amoco facility and add a convenience store. The request was denied by the Village, but the Firm commenced an Article 78 proceeding in Supreme Court. The Court ruled that the Board’s denial was arbitrary. The Court found that the testimony at the hearing provided by an expert witness supported the approval of the application. The Court’s decision illustrates the “substantial evidence” rule, meaning that a zoning board must base its decisions on substantial evidence in the record, and not speculation or hypothetical concerns. We discuss the “substantial evidence” rule later in this Newsletter, under the heading Recent Developments in the Law.
The Firm represented a major restaurant chain in gaining zoning and building approvals for its first Long Island restaurant. Our efforts resulted in reducing a typically lengthy process to meet the client’s time requirements.
The Firm successfully represented a New York City Police Officer in an administrative hearing before the Civil Service Commission to overturn a denial of our client’s application to be certified for duty as a New York City Firefighter. The hearing panel relied on the medical testimony that the Firm produced for our client certifying his fitness for duty.
NEW AND ONGOING MATTERS BEING HANDLED BY THE FIRM
The Firm is representing a multi-national business in a complex transaction involving both the refinancing of the client’s existing mortgages and new building loans in order to provide the necessary capital to accomplish the construction of an addition to a major industrial and office facility. As part of the transaction, the Firm is working closely with the Nassau County Industrial Development Agency and the Long Island Development Corporation in the financing arrangements.
The Firm continues to represent its clients in a variety of land use related matters. These cases include an application for approvals to allow for the continued use and expansion of facilities at a commercial horse farm on a large parcel on the North Shore of Nassau County. The Firm is also representing a Golf Club in protecting its rights in connection with the proposed adoption of a master plan for the area in which the Club is located. The proposed plan would substantially impact the existing zoning and use of the Club’s property.
The Firm is representing clients in litigated matters involving the rights of parties in substantial leasehold interests and the obligations of respective property owners affected by declarations of covenants and restrictions recorded against their properties. Other litigated matters involve determining the rights of debtors and creditors in unsecured transactions as well as transactions secured by mortgages.
RECENT DEVELOPMENTS IN THE LAW
Nassau County Real Property Revaluation: For those who own residential or commercial real property within Nassau County, be aware of the County-wide reassessment of property values which has been undertaken as a result of a lawsuit brought by homeowners in Roosevelt. The settlement of the lawsuit, which was based on the alleged inequities of the County’s assessment system, has resulted in Nassau County’s retention of the Ohio- based consultant firm of Cole Layer Trumble to perform the task of determining the value of each and every property within the County. The result of the Cole Layer Trumble revaluation will be reflected in notices sent to the owners of residential and commercial properties. It is important to note that the notices will come directly from Cole Layer Trumble and not on Nassau County letterhead.
Notices to residential property owners will be sent out in mid- July and continue through September. Commercial properties will not begin to receive their notices until mid- to late August and continue through the end of September. The new assessments are to be set at 1% of a property’s estimated market value as determined by Cole Layer Trumble. These new assessments will be finalized in January, 2003, and will be reflected for the first time on the school tax bills due in October, 2003.
Both residential and commercial property owners will have the ability to contest the proposed reassessments by scheduling a conference with representatives of Cole Layer Trumble. Conferences will be held at 1100 Prospect Avenue, Westbury, New York. These conferences will begin on or about September 1, 2002, and run through on or about November 20, 2002. Conferences can be attended by the property owner or duly authorized representative.
While it is unclear as to the exact trends of how the property assessments will increase, decrease or stay the same, it is important for all owners of real property in Nassau County to be alert for a letter from Cole Layer Trumble and then to compare the proposed reassessment with the property’s old assessment. If, in fact, a property’s assessment has been increased, it is in the property owner’s best interest to schedule an appointment to meet with the representatives of Cole Layer Trumble. This will give the property owner the ability to attempt to reduce an overassessment of the property before the final assessment is set in January, 2003, and reflected on the School Tax Bill due in October, 2003. Those of you who are property owners in Nassau County, upon receipt of the Cole Layer Trumble notice, should call us to discuss any change in assessment and estimated value of the property, as well as to discuss the import of scheduling a conference with Cole Layer Trumble.
The “Substantial Evidence” Rule in Zoning Cases. On July 1, 2002, the New York Court of Appeals decided three zoning cases, Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, Ifrah v. Utschig, and P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the Town of Pleasantville. In each of these cases the Court of Appeals reversed the Appellate Division, Second Department, and reinstated local zoning board determinations, each of which in turn had denied valuable development permits to private property owners.
In all three cases, the Court of Appeals reminded the lower courts in this State that they must exercise judicial restraint when reviewing determinations of local zoning boards. According to the Court of Appeals, when a determination of a local zoning board is supported by substantial evidence in the record, the courts must sustain it, even if there is also substantial evidence in the record to support a contrary result by the board. Basically, when a zoning decision is a “close call”, the courts must defer to the judgments of local zoning boards and not substitute their judgment for that of the boards’.
The big winners in these cases were the local zoning boards. The courts were told to be more deferential to them. The big losers were those who are aggrieved by local zoning determinations, in these cases property owners who were denied development permits by zoning boards. The latter are now more likely to find it somewhat more difficult to obtain redress from adverse zoning board decisions in the courts.
SAHN WARD & BAKER, PLLC’s “Report from Counsel” is published with the intent to inform readers of recent developments at the Firm and in the law. It is not intended, nor should it be used, as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.