Archive for the ‘Land Use’ category

EPA Grant Money Available for Environmental Justice Projects

October 14, 2014

Up to $30,000 in Grants Available to Community-Based Projects Combatting Local Climate Change Issues through the EPA Environmental Justice Small Grants Program

Environmental catastrophes and public health epidemics can happen anywhere – from world-class cities, to small towns, and even in your own back yard.  Unfortunately, they’re often preventable.  Community-based organizations are typically best-suited to raise awareness about and craft preventive and responsive solutions to these issues.  Recognizing the pivotal role that community-based organizations play, in 1994, the Environmental Protection Agency (EPA), Office of Environmental Justice (OEJ) created the Environmental Justice (EJ) Small Grants Program.  Since then, over the past twenty years, the EJ Small Grants Program has provided over $24 million to more than 1400 community-based organizations and local and tribal organizations working with local communities to solve environmental and public health issues, including land and water contamination, air pollution, energy efficiency, and brownfield restoration and redevelopment.  Past EJ Small Grant Awardees in New York state include:

clean airSt. Regis Mohawk Tribe, Akwesasne, New York

In 2013, the EPA awarded an EJ Small Grant to the St. Regis Mohawk Tribe in Akwesane, New York, for its project aimed at educating the Akwesasne tribal community on indoor environmental asthma triggers. Members of the St. Regis Mohawk Tribe suffered from above-average incidences of asthma and respiratory diseases which were linked to high exposure to indoor environmental toxins like radon, mold, household chemicals and smoke. With a grant from the EJ Small Grant Program, program coordinators disseminated vital information to the tribal community, provided audits of each home, and gave tailored solutions to improving air quality and lowering exposure to indoor environmental hazards.

Clean Air Coalition of Western New York, Buffalo, New York

In 2012, the Clean Air Coalition of Western New York won an EJ Small Grant for its project, “Building Community Capacity to Reduce Air Pollution.”  Buffalo is a major hub for local and cross-country freight, and consequently, the local community is disproportionately affected by air pollution caused by freight diesel exhaust.  This project sought to inform and encourage local leaders to advocate for solutions to community exposure to diesel exhaust, particularly for the city’s low-income residents who live closest to the freight transport hubs.

Onondaga Environmental Institute, Syracuse, New York

In 2011, the EPA awarded an EJ Small Grant to the Onondaga Environmental Institute for its project, “Our Water, Our Lives.”  This project educated local high school students about various water pollutants and contaminants that affect human health and the local ecosystem.  Onondaga Environmental Institute also partnered with another local organization, Orenda Springs, to provide students with the hands-on experience and advocacy skills necessary to become leaders in their community’s  environmental justice movement.

Citizens’ Environmental Coalition, Geneva, New York

In 2010, the Citizens’ Environmental Coalition partnered with the Citizens of Seneca County and Finger Lakes Zero Waste Coalition to develop the EJ Small Grant Project, “Training Mega-Landfill Neighborhoods to Lead Themselves in Air Quality Awareness and Environmental Stewardship, including Climate Change.”  This project disseminated information to the local community about the environmental, health, and climate change impact of landfills, specifically, the Seneca Meadows Landfill in Geneva, NY.  It also promoted community involvement, encouraging citizens, students, teachers, and community activists to work together to develop solutions to control, reduce, or eliminate air quality and land contamination hazards caused by the landfill.

For more information about these or other past EJ Small Grant Program awardees, visit the EJ Small Grants Program website.


This year, the EPA is targeting its support towards community-led initiatives aimed at combatting the risk and impact of climate change.  The agency explains: “this year’s program will have a special emphasis on proposals supporting community-based preparedness and resilience efforts (community climate resiliency).”  The EPA also announced a new commitment to awarding grants to organizations who have never before received a grant from the agency.  For fiscal year 2015, the EJ Small Grant Program has been allocated $1.2 million, and plans to award a total of 40 grants (four grants in each of the ten EPA regions), in the amount of up to $30,000 each, for community organizations with compelling two-year project plans.

If you or someone you know is part of a community-based organization interested in developing a project to promote preparedness for or combat the negative effects of climate change in our community, encourage them to apply for the EPA Environmental Justice Small Grant Program.   The EPA has also published this informational brochure aimed at helping local organization develop projects appropriate for the EJ Small Grant Program, and is offering pre-application assistance via phone on the following dates and times: Wednesday, October 15, 2014: 4:00 – 5:30 p.m. EST; Saturday, November 1, 2014: 1:00 – 2:30 p.m. EST; and Tuesday, November 18, 2014: 7:00 – 8:30 p.m. EST. To join the pre-application assistance call, dial 1-866-299-3188 and enter the code 202-564-1771 when prompted.  Interested organizations, save the date: applications must be submitted by December 15, 2014.


Flooded by Flood Cases

December 7, 2012

Maybe it’s a result of overdevelopment, global warming, unusual weather or coincidence.  But we’ve seen an unusually high number of flooding cases this year.  And this week’s Supreme Court decision will make them easier to litigate.

The “Takings Clause” of the United States Constitution states that the government cannot to take private property for public use unless it pays just compensation to the property owner.  On December 4, 2012 the Supreme Court decided that government conduct that results in temporary or intermittent flooding which interferes with private property can constitute a “taking.”

Arkansas Game and Fish Commission v. United States, 568 US ___ ,2012 WL 6012490 (Dec. 4, 2012) involved a 2300 acre wildlife management area that was forested with multiple hardwood oak species and served as a venue for recreation and hunting.  The Army Corps of Engineers constructed a dam upstream from the wildlife area and manipulated release of water from the Dam to benefit other downstream farmers.  The intentional flooding during tree-growing season destroyed timber and substantially changed the character of the terrain, necessitating costly reclamation measures.

In finding that a compensable taking occurred, the court considered the flood duration, whether the flooding was a foreseeable result of government action, the character of the land at issue and the property owner’s “reasonable-investment based expectation” regarding the land’s use.

With private development reducing permeable land and government maintenance and control over many drainage ways, this case will likely open the floodgates of litigation over downstream impacts and may result in positive changes to how we manage surface water runoff.  Now, more than ever, property owners will want to consider whether government action caused flooding of their property.


April 19, 2012

The United States District Court in Syracuse has issued a preliminary injunction against Oswego County to prohibit it from enforcing the 2011 Flow Control Law against JWJ Industries, Inc. and Jeff Holbook.

The Court found that JWJ was likely to win its claim that Oswego County’s 2011 Flow Control Law was unconstitutionally vague and, if enforced, would put JWJ out of business, favor one of its competitors and result in an unconstitutional taking without just compensation.

This decision means a transfer station in the county will not be subject to the county’s waste disposal monopoly until the lawsuit concludes, and will help a small private company stay in business.

The Court’s decision stops enforcement of a law adopted by the County on December 15, 2011, before plaintiffs had an opportunity to view it.  The law was to become effective on January 1, 2012.  Not until December 27, 2011, at 3:26 p.m. was the law sent to JWJ’s attorneys.  The Court expressed disapproval of how the County handled the 2011 amendment:

Upon finding the 2008 flow control law unconstitutionally vague, the Court ordered the County to revisit its flow control law and clarify the language, to allow plaintiffs and potential similarly situated parties to know exactly what was expected and required of them to conform to the waste management laws of the County.   The Court, perhaps too optimistically, expected the parties to confer in good faith to reach a consensus and arrive at a law that would be clear, unambiguous and would avoid the need to reopen this case.   That did not happen.

For the past sixteen (16) years, Jeffrey Holbrook has operated the JWJ Transfer Station in Oswego County under a permit from the New York State Department of Environmental Conservation (“DEC”).  The JWJ Transfer Station accepts construction and demolition waste that is generated both in and out of Oswego County pursuant to the DEC Permit.

This is the U.S. District Court’s second recent decision regarding Oswego County’s laws that seek to restrict businesses in Oswego County who are involved in the transport and processing of construction and demolition debris.  The first of these “Flow Control” laws was enacted on October 13, 2008

In a previous decision made on June 13, 2011 regarding the 2008 “Flow Control” provisions, the district court granted plaintiffs’ motion for judgment on the pleadings and struck the law as unconstitutionally vague.

The Court found that “Scrutiny of the letters and directives from the County and its director of solid waste reveals that not only does the Flow Control Law in question authorize and encourage arbitrary and discriminatory enforcement, such arbitrary enforcement is manifest here.”  It concluded that “the inadequately drafted Oswego County Flow Control Law is unconstitutional for vagueness as written.  The Court also finds that the Flow Control Law is unconstitutional as applied to JWJ, and foreseeably to any other entity that would deem to own and operate a waste management facility in the County, however unlikely this scenario might be under the County’s existing waste management penumbra.”

Jeff Holbrook, JWJ’s owner and a resident of Oswego County for 48 years, is pleased with the recent decision.  JWJ and Holbrook are represented by Mindy Zoghlin, a partner in Bansbach Zoghlin P.C. in Rochester.

Zoning Out Fast Food Restaurants

January 4, 2012

Towns typically use zoning laws to ensure that their communities develop in well-thought –out and perhaps even sustainable ways. Like uses are grouped together.  Buffers are placed between high density and low density uses.  Space is set aside for recreation, industry, natural resource extraction.  Uses that trigger special concerns, like adult book stores, are kept a minimum distance away from schools.

So how does fast food zoning fit into all this?  The Ontario County Supreme Court addressed this issue in Mead Square Commons LLC v. Village of Victor.  Mead Square Commons  bought commercial property on Main Street in the historic Village of Victor and proposed to replace the existing building with  a mixed use building featuring commercial uses downstairs and upscale residential upstairs.   One of the proposed downstairs tenants was a Subway restaurant.

The Village Zoning Code prohibits “Formula Fast Food Restaurants” in the Central Business District.  It defines a Formula Fast Food Restaurant as “any establishment, required by contract, franchise or other arrangements, to offer two or more of the following:

[i] Standardized menus, ingredients, food preparation and/or uniforms.

[ii] Prepared food in ready to consume state.

[iii] Food sold over the counter in disposable containers and wrappers.

[iv] Food selected from a limited menu.

[v] Food sold for immediate consumption on or off premises.

[vi] Where customer pays before eating.”

Mead Square Commons challenged the “Fast Food Ban” as illegal and unconstitutional under New York state law and the United States Constitution. Ontario County Supreme Court disagreed.

The Court first noted that the Fast Food Ban was a Village law entitled to a presumption of constitutionality. The Court did not articulate what compelling public purpose it advanced.   Reading between the lines, it appears the Court agreed with the Village’s claim that §170-13 had a legitimate purpose “to maintain the unique village character and vitality of the commercial district.”   However, the Court did not connect the dots as to how an absolute Fast Food Ban advanced this purpose. Many communities address this concern through the site plan review process.

The Court disagreed with Mead’s argument that the Fast Food Ban illegally zoned based on property ownership, not use because it found that the Fast Food Ban treated all Fast Food owners the same and was based on “neutral planning and zoning principles.”

Finally, the Court rejected Mead’s claim that the Fast Food Ban was an invalid over-regulation of business operation detail because such restaurants were prohibited, not micro-managed.

New York’s Land Bank Law – A Powerful Tool to Fight Blight

December 24, 2011

Many New York municipalities now have a powerful new tool to fight blight within their borders.  The recently enacted “Land Banks Act” lets governmental entities with the power to foreclose on tax liens create a not-for-profit corporation to facilitate the return of vacant, abandoned, and tax delinquent properties to productive use.  They cannot force the sale of property under NY’s eminent domain law.

The Land Bank Act was established under Article 16 of the New York State Not-for-Profit Corporation Law (the “Act”).  To be considered for approval as a Land Bank, the municipality must meet the following requirements:

1. The applicant must be a Foreclosing Government Unit (“FGU”).

2. The applicant must have adopted a local law, ordinance or resolution which specifies:

i. the name of the land bank;

ii. the number of members of the board of directors, which shall consist of an odd number of members, and shall be not less than five members nor more than eleven members;

iii. the initial individuals to serve as members of the board of directors, and the length of terms for which they are to serve;

iv. the articles of incorporation for the land bank, which shall be filed with the secretary of state in accordance with the provisions of the Act.

3. If two or more FGUs and/or municipalities agree to create a single land bank, they must execute an intergovernmental cooperation agreement which includes provisions for dissolution of the land bank.

4. If a school district participates in a land bank, it must execute an intergovernmental cooperation agreement with the FGU(s).

5. The composition and activities of the land bank’s board must comply with Section 1605 of the Act.

There are a couple of significant limitations:

  • Only ten land banks can be formed within the state.
  • The Land Bank must be approved the New York State Urban Development Corporation, dba Empire State Development.
  • March 30, 2012 is the deadline to submit an application for approval to form a land bank.