A Cure for the Plight of Blight – The Land Banks Community Revitalization Initiative

Land Use

The New York State Attorney General’s office is now accepting applications for $20 million in grants which will be made available to carry out a range of vital community development projects including the demolition of blighted, vacant, and abandoned properties statewide.  Funds are only available to legally designated Land Banks, formed under the New York State Land Banks Act of 2011 (the “Act”)

The Act was promulgated under a new article 16 to the not for profit corporation law and it allows municipalities to establish land banks for the purpose of acquiring real property that is tax delinquent, foreclosed, vacant, or abandoned.  Once a municipality has established a land bank, they can design, develop, construct, demolish, reconstruct, rehabilitate and otherwise improve upon banked real property.

As stated in the Act, “there is an overriding public need to confront the problems caused by vacant, abandoned and tax-delinquent properties,” that resulted in large measure from the mortgage foreclosure crisis.  Through the grants available from the Attorney General’s office, communities can use land banks as a tool to facilitate the return of vacant, abandoned, and tax-delinquent properties to productive use, which benefits the public and the State as a whole.

The massive spike in foreclosure filings in the wake of the mortgage crisis has left local municipalities footing the bill for maintaining deteriorating properties. When condemned buildings become so dilapidated that they endanger public safety, local Towns and Villages often bear substantial legal fees and demolition costs to raze them.  Municipalities dealing with these ballooning line items in their budgets should strongly consider applying to secure funds they can use to acquire abandoned, vacant and/or blighted properties and redevelop them in ways that benefit the surrounding community.

In total, the Community Revitalization Initiative will provide Land Banks in New York State with $33 million in grants to promote these community revitalization efforts.  Applications are now being accepted for the second round of funding, and must be submitted electronically to the Attorney General’s Office by 4 p.m. on September 19, 2014.

A mandatory conference call hosted by the Attorney General will be held for all applicants on August 20, 2014.  For more information on the application process click here.

For more information on the New York Land Bank’s Act click here.

 

Posted by Nick Cappadora

Landmark Preservation Commission Approves Park Avenue Historic District

Land Use

After lengthy public hearings on the proposed Park Avenue Historic District in Manhattan’s Upper East Side, an interesting coalition of supporters came together to preserve sixty-four (64) buildings in a district which  runs up Park Avenue from the northeast corner of 79th Street to 91st Street.  Among the likely supporters of the initiative were various preservationist and landmark conservation associations along with the American Institute of Architects, members of the New York City Council, Community Boards, and several religious organizations located within the district.

An unlikely proponent of the historic designation is Toll Brothers, a prominent real-estate development firm which recently demolished two pre Civil War era homes located within the Historic District to make way for a new development located at 1110 Park Avenue.  The razing of the two historic homes sparked outrage within the community and rallied bastions of support for the recently designated Park Avenue Historic District.  Rising from the rubble where the two historic homes once stood is Toll Brothers’ sixteen story building containing luxury condominiums which will reportedly fetch a total value asking price of $176 million.  Ironically, Tolls Brothers now stands to gain the most from the creation of the historic district.

Oddly enough, preservationists say that developers often come to embrace the creation of historic districts as long as their economic interests are secure.  Approximately 27.7% of Manhattan’s buildings are located within historic districts. Proposals to alter or develop buildings located within historic districts fall within the jurisdiction of the Landmark Preservation Commission (the “LPC”) and are subject to the LPC’s approval.  Once a building falls within a historic district, the LPC may impose restrictions and limitations to any proposed development or alteration.  This could seriously limit potential profits from development and can create uncertainty as to the future potential of existing buildings.

On the flip side, being located within a historic district could give recently completed developments, like 1110 Park Avenue, a massive leg up on the competition.  Future developments within the Park Avenue Historic District are subject to the LPC’s rules and approval, making it significantly more difficult to redevelop properties within the district.

Where and when the next historic district will be created in New York City is uncertain.  What is certain is that the historical designation of property affects its present and future values.

Follow our blog for updates on these matters and contact us if you would benefit from learning more about the zoning designation of your property.

 

Posted by Nick Cappadora

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