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MEMORANDUM
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.
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