Special Permits May Be Required for Self-Storage Facilities in Industrial Business Zones

Municipal Law

The Department of City Planning has proposed an amendment to the New York City Zoning Resolution that would require a new special permit for self-storage facilities primarily within manufacturing zoning districts in the City’s Industrial Business Zones (IBZs).

According to the Department of City Planning, the special permit will facilitate a case-by-case, site-specific review to ensure that the development of self-storage does not diminish future siting opportunities for industrial, more job-intensive businesses. In order to grant the proposed special permit, the City Planning Commission would have to find that the lot or building would not be optimal for conforming, modern-day industrial uses, and that the proposed self-storage development will not represent a lost opportunity for the future siting of a more job-intensive industrial business.

The proposed special permit follows a November 2015 ten-point Industrial Action Plan, which, among other things, focused on reinforcing the City’s core industrial areas, including IBZs, and recommended that “space in our core industrial areas remains available for industrial and manufacturing businesses that create a density of quality, middle-class jobs for all New Yorkers.” As IBZs are the most active industrial areas in the City, they are the City’s primary focus for creating substantial industrial and manufacturing sector jobs, and promoting industrial innovation. According to City Planning, self-storage facilities are seen as a low job-generating use that primarily serves household rather than business needs, and undermine the City’s goals for the IBZs.

It is critical that any developer of a self-storage facility in New York City carefully analyze whether the development site may be within the areas designated for this new special permit. Sahn Ward has several clients developing self-storage facilities in New York City and has been providing such guidance.

 

Posted by Daniel Braff

When Technical Expertise is Required to Respond to A Freedom of Information Law Request

Municipal Law

A municipality or public agency’s lack of technical expertise is not a valid reason for denying of a Freedom of Information Law request.  Instead, such municipality or agency is required to seek the services of a third party having such expertise in order to produce a response.  See  Matter of County of Suffolk v. Long Island Power Authority, 2014 NY Slip Op 05540 (2d Dept.).  This principle comports with the public policy behind Freedom of Information Law (Public Officers Law Art.6; hereinafter “FOIL”)  that ”‘government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article’ [citations omitted].”  Suffolk v. LIPA, 2014 NY Slip Op 05540.

In 2011, Suffolk County filed a FOIL Request with Long Island Power Authority (LIPA) seeking certain electronically stored documents and records.  Id. LIPA denied the request, stating that “to the extent that any relevant records existed, they could not be accessed with reasonable effort, as LIPA no longer had the technology to retrieve them.”  Id.

Thereafter, Suffolk County commenced an Article 78 Proceeding to review LIPA’s denial of its request.  In that proceeding, LIPA asserted that “the requested documents were stored on back-up tapes that had been created using now-outdated technology . . . [;] [and further,] that restoration of the documents would entail a long and tedious process that could potentially close down LIPA’s computer operations.”  Id. In response, Suffolk County stated that “technology existed to retrieve the requested documents, and that outside service providers could be hired to perform the task if LIPA did not have the technical ability to do so.”  Id. Agreeing that LIPA’s denial of the request was proper, the Supreme Court dismissed the petition.

On appeal, the Appellate Division found that “[while] FOIL does not ‘require any entity to prepare any record not possessed or maintained by such entity’ [citations omitted] . . . , ‘[a]ny programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record’ (Public Officers Law § 89[3][a]).”  Suffolk v. LIPA, 2014 NY Slip Op 05540.  Further, the Court stated that “[a]n agency may not deny a request because it was too voluminous or burdensome if the request could be satisfied by engaging an outside service (see Public Officers Law § 89[3][a])[emphasis added]. Moreover, an agency may recover the costs of engaging an outside service from the person or entity making such a request (see Public Officers Law § 89[3][a]).”  Suffolk v. LIPA, 2014 NY Slip Op 05540.

Based on this analysis, the Appellate Division reversed the Supreme Court’s dismissal of the petition, holding that further proceedings were required to resolve the factual issues of “whether the petitioner requested data or records that could be retrieved or extracted with reasonable effort, whether the requests required the creation of new records, and whether the cost of the retrieval could be passed on to the petitioner.”  Id.

In practice, when a municipality receives a FOIL request, it must make diligent efforts to locate and produce the requested documents.  Even if a municipality lacks the technical expertise to respond to a FOIL request, it is required to make a reasonable effort to locate an outside service that could produce the requested information.  If a municipality does deny a FOIL Request, and that denial is challenged in court, the burden of proving that such denial was proper rests solely on the municipality.  As a cautionary note, if a court finds that a municipality improperly denied a FOIL request, the law provides that municipality may be ordered to pay the costs and attorney’s fees of the individual or entity that made the request.  See Public Officers Law § 89(4)(b).

 

Posted by John Christopher

Village Code Provision Regulating the Issuance of Residential Rental Permits is Unconstitutional when Conditioned upon a Mandatory Inspection of the Premises Sought to be Rented

Municipal Law

In the first group of decisions to be issued in the New Year, the Second Department begins with a lesson in constitutional law.  In ATM One, LLC v. Incorporated Vil. of Hempstead, 2012 NY Slip. Op. 00173 (2d Dept. 2012), the Court held that a provision of the Village Code of the Village of Hempstead was unconstitutional on its face.  The Code provision in question conditioned the issuance of residential rental permits on a mandatory inspection of the rental unit by the Village Building Department.  The Court found that the Village could not use the issuance of a rental permit to coerce a property owner to submit to a warrantless inspection in violations of the rights guaranteed to him or her under the Constitution.  Read the rest of this entry »

Posted by John Christopher

New York Appellate Court Finds that a Town of Hempstead Zoning Code Provision Adopted to Regulate the Location of Check Cashing Establishments is Preempted by State Law and Invalid

Land Use, Municipal Law

Recently, in Sunrise Check Cashing & Payroll Servs., Inc. v Town of Hempstead, 2011 NY Slip Op 08745 (Decided Nov. 29, 2011), the Appellate Division, Second Department, issued an opinion on whether a section of the Town of Hempstead Zoning Code enacted to regulate the location of Check Cashing establishments was preempted by New York State Banking Law and, therefore, invalid and unenforceable.  The Town of Hempstead Code provision at issue was Section 302(K) of Article XXXI of the Building Zone Ordinance.  Section 302(K) prohibited check-cashing establishments within the Town in any zoning districts other than industrial and light manufacturing districts.  Further, Section 302(K) provided a five year amortization period, requiring that any check cashing establishments located outside the permitted districts must close or relocate to a permitted location within such time.  The Court held, that based on the doctrine of conflict preemption, the Town Ordinance at issue was preempted by New York State Banking Law, and therefore, invalid.  Read the rest of this entry »

Posted by John Christopher

NYC Department of City Planning Unveils “ZoLa” – a Web-Based Land Use Application

Land Use, Municipal Law

 

On August 25, 2011, the New York City Department of Planning unveiled “ZoLa,” a web based application intended to provide property owners with information regarding NYC Zoning and Land Use regulations.  See Katherine Clarke’s article: City Planning launches all-in-one app to access zoning and land use information, at http://therealdeal.com/newyork/articles/city-planning-and-department-of-information-technology-launch-all-in-one-app-to-access-zoning-land-use-information.

Read the rest of this entry »

Posted by John Christopher

Lapse of Time Does Not Extinguish an Offer of Dedication

Land Use, Municipal Law

Recently, in Underhill Ave. Corp. v Village of Croton-on-Hudson, 2011 NY Slip Op 01998 (2d Dept. 2011), the Appellate Division, Second Department, was asked to decide upon the validity of an offer of dedication that was over fifty years old.  The offer in question was a building lot that was dedicated to the Village of Croton-on-Hudson as a playground area pursuant to a condition of the original subdivision approval.  Read the rest of this entry »

Posted by John Christopher