Frederick Eisenbud
Environmental and Land Use Practice Group
Campolo, Middleton & McCormick, LLP
4175 Veterans Memorial Highway
Suite 400
Ronkonkoma, New York 11779

1025 Old Country Road
Suite 405
Westbury, NY 11590

2495 Montauk Highway
P.O. Box 3046
Bridgehampton, NY 11932

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Telephone: 631-738-9100 x339
Fax: 631-738-0659
Email the Environmental and Land Use Practice Group

 

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Firm News

September, 2020: Unique issues raised in Glen Cove Planning Board public hearings on behalf of CMM clients concerned about procedural corners being cut: Following consideration of a SEQRA DEIS and FEIS, Glen Cove Development received approval for a bonus density for on-site parking from the Glen Cove City Council in December 2015, and site plan approval in April 2016 by the Planning Board for The Villa 176-unit condominium project. The developer assured the City and public that he needed no PILOTs or other financial assistance in order to build the project. In 2019, however, the Developer submitted an application to the Glen Cove IDA for tax relief for The Villa, which the developer advised would be converted to a 176-unit residential apartment project. Condominiums are not eligible for IDA assistance but rental apartment buildings are, and the developer acknowledged that the project could not be built without IDA assistance. Over the objection of our clients, who reside adjacent to the project, the Planning Board held public hearings on the proposed site plan for residential apartments on September 1 and 15, 2020 and then closed the hearing. Fred Eisenbud, Chair of CMM’s Environmental and Land Use Practice Group, submitted lengthy letters objecting to the hearings on factual and legal grounds, on August 31st and September 14th, and testified at each hearing. Issues presented included: the developer proposed building approximately half of its largest building on a lot purchased form the Boys & Girls Club next door in 2007 without the Club’s property being subdivided, which can be done under the City Code, but only if the buyer does not use the property for a specific purpose; the Planning Board was not barred from rejecting the use of the Boys Club lot now even though the Condominium Site Plan included significant construction on the lot because no building permit had issued or construction begun, the 2010 DEIS misrepresented that the lot had been subdivided from the Boys Club property, and municipalities cannot be stopped from enforcing their codes; the developer claimed that it was entitled to bonus densities granted to it pursuant to a zoning overlay zone ordinance in 2015, but CMM argued that the Planning Board lacked the power to assume that the City Council would award the same bonus densities for a different project with a significantly different parking scheme that required substantial additional excavation, and which improperly included parking, living units and recreational amenities on the lot acquired from the Boys & Girls Club; that the public hearings were premature because the Building Administrator, who is required to certify whether the site plan conformed to the City Code, had not yet done so and he would be unable to do so; and, despite holding off on public hearings as the SEQRA regulations required it do when the condominium project was being reviewed between 2007 and 2014 until after a DEIS and FEIS were approved, the Planning Board now was holding public hearings even though there had been no SEQRA compliance whatsoever. The developer’s position is that the Planning Board could simply amend its Finding Statement for the 2016 project without further SEQRA review. CMM showed this could not be done because site plans are deemed Type I SEQRA Actions by the City Code, the original DEIS in 2010 was based on traffic counts taken in 2007 and 2008, did not consider the adverse impact high density apartments would have on the spread of disease such as COVID-19, and did not consider the impact of the project on the availability of potable water in light of already existing water shortages in the City, and the SEQRA procedures had to be strictly complied with. Fred testified on September 15th that the letters submitted to the Planning Board by CMM should be posted on the Planning Board’s website along with Livingston Development’s documents because the purpose of public hearings is not only to educate the Planning Board (many of whose members were not on the Board in 2016), but the pubic as well so the public would be fully informed of major projects of concern. This is especially true when speakers at Planning Board meetings are restricted in how long they have to speak. Thus far the lengthy letters submitted by CMM have not been posted but they can be accessed by here (Letter 1, 8/31/2020  |  Letter 2, 9/14/2020) More to come on this project as the Planning Board considers what to do now that it has closed the public hearing.

September 20, 2019: CMM Helps Residents Preserve a Pristine Beach in Asharoken. The Honorable Sanford Neil Berland, Acting Justice of the Suffolk County Supreme Court, issued a nine-page decision (Akeson v. Village of Asharoken) denying an Article 78 Petition filed by two residents of Asharoken who desired to construct docks along a section of beach known as the Ida Smith Beach. A Village ordinance had been enacted to preserve the beauty of the Ida Smith Beach, and only three docks, located at opposite end of the otherwise pristine beach and built before the ordinance was adopted, were present when the applications were filed. CMM was retained by the Asharoken Bayside Association to intervene in hearings brought to consider the applications. At Fred’s request, the Association retained a wetlands expert and together they appeared and participated in seven public hearings held by the Environmental Review Board, which recommended that the Village Trustees deny the permit applications. The Village Board agreed, and the two homeowners commenced the Article 78 Petition to challenge the denial. Fred was permitted to intervene in the Article 78 on behalf of the Association. Justice Berland’s lengthy and well-reasoned decision dated September 20, 2019, contains a clear discussion of riparian rights, and concluded, in large part due to the law and science presented by Fred and the wetlands expert, that the docks, if authorized, would create a precedent that would destroy the magnificent beach the Village Code intended to preserve. Because there were many nearby locations where the applicants could keep their boats, they were not permitted to significantly alter the conditions that attracted their neighbors to the Ida Smith Beach.

September 11, 2019: CMM’s Environmental & Land Use Group Relies on Science to Achieve Desired Results from DEC. CMM’s Environmental & Land Use practice group, under the leadership of Chairman Frederick Eisenbud, was able to persuade the New York State Department of Environmental Conservation (NYS DEC) that our client should be permitted to keep the deck and dock he built without a tidal wetlands permit at his home – despite the fact that DEC demanded its removal for several years before CMM was retained. Our client’s deck, dock, and bulkhead were severely damaged by Hurricane Sandy. When the client sought a wetlands permit to rebuild exactly as the deck, dock, and bulkhead were when he purchased the house, DEC denied the application for the deck and dock because the prior owner built his deck and dock inconsistently with a tidal wetlands permit the prior owner obtained. When the client proceeded to build the deck and dock as they had been when he purchased the house without a tidal wetlands permit, the DEC demanded that he remove the deck and dock, which would have been extremely expensive. Fred directed the client to a wetlands specialist we frequently partner with, and the expert’s inspection revealed that no flora or fauna could be found on the water bottom, under the dock or outside of it, and that the area of the deck and dock over water was actually less than the area approved in the tidal wetlands permit granted to the prior owner. CMM knows from experience that when arguments to the DEC are based on science and the facts rather than emotion, the Department will listen. We successfully argued that our client’s construction created no adverse impact to the wetlands, and that what was built should be permitted to remain in place because the DEC would have granted the tidal wetlands permit for what was built had it been submitted with the information obtained by our expert. The DEC imposed a reasonable penalty upon our client for doing the work without a permit, but did not require that he remove any part of the deck or dock.

March 19, 2019: CMM Secures Dismissal of Frivolous Ethics Claim Against our Client. A builder, frustrated by opposition to his development by our client before she was elected to the local municipal council, filed an ethics complaint against her. He claimed that her actions to gather information about the developer’s activities following complaints made to her by the public about those activities abused her authority for her personal benefit. Fred Eisenbud, Chair of CMM’s Environmental and Land Use Practice Group, filed a response that included an analysis of the municipality’s ethics code and vigorous argument that everything our client did was within the scope of her powers. Less than one month later, upon consideration of our opposition to the ethics complaint, the Ethics Board found that there was no reasonable basis to believe that our client had violated the ethics code. CMM is pleased to have so efficiently disposed of this frivolous complaint without it becoming public. With this issue now behind her, our client can move forward with her work on the municipal council.

January 31, 2019: $11 Million Dollar SLAPP Suit dismissed on motion by CMM - Our clients (prior to CMM’s retention) filed Article 78 Petitions challenging approvals by the City of Glen Cove of a 176-unit condominium project adjacent to their home, which were dismissed in October, 2018. The builder filed an $11 million dollar defamation lawsuit against our clients. CMM persuaded the Court that the lawsuit fell within New York Civil Rights Law’s prohibition against Strategic Litigation Against Public Participation. Prior to adoption of the anti-SLAPP suit provision of New York’s Civil Rights law, it was common for builders to sue vocal opponents of their developments in order to deter them and others from further opposition, and to punish them for what they already had done. Typically the builders did not care if they won or lost because the cost of mounting a defense was sufficient to deter the exercise of constitutionally protected rights. CMM was retained to defend the clients, and successfully moved to dismiss the complaint in its entirety. Click here to review the decision by Nassau county Supreme Court Justice Mahon. The only remaining causes of action in the litigation now are anti-SLAPP law counterclaims for damages incurred by our clients. Disputes between CMM’s clients and the developer continued. See entries above for March 19, 2019 and September, 2020.

July 10, 2017: Fred Eisenbud quoted and pictured in Newsday article on “Zap to the Future – LIPA Gearing Up For Surge in Electric-Car Charging Stations.” As an environmental attorney with solar on his home roof that generates more electricity than he and his wife uses each year, and an all-electric car (a Tesla Model S), Fred was happy to contribute to the article by Mark Harrington and to encourage people to purchase all-electric vehicles.

June 16, 2017: Fred Eisenbud quoted in Newsday article entitled “Anger Over Plan For Rental Housing.” He represents a long established community group, Concerned Taxpayers of Wheatley Heights/Dix Hills, which has opposed proposals by Gustave Wade going back to 2001 to convert his farm in Wheatley Heights to high-density residential. Fred pointed out to the Town Board that, in 2004, the then-application failed to include any testing of soil or groundwater to determine the impact of many decades of pesticide and herbicide use, and that information is still lacking in the 2017 application. Thus the quote, “I feel a little like Yogi Berra; it’s dèjá vu all over again.”

November 17, 2016: Fred Eisenbud was the principal speaker at a meeting of the Long Island Association of Professional Geologists. The topic was: “So You Wanted To Be A Licensed Professional Geologist: What Does It Mean To Be a Professional and What Happens If You Fail To Act Like One?”. Fred’s PowerPoint presentation may be downloaded by clicking here.

October 14, 2016: Fred Eisenbud served as Co-Chair of the Fall Meeting of the Environmental Section of the New York State Bar Association in Cooperstown, New York. In addition, he spoke on ways attorneys can assist clients during and after the execution of an environmental criminal search warrant. A detailed article prepared by Fred on the subject can be downloaded by clicking here.

March 9, 2016: Fred Eisenbud was the speaker at the meeting of the Long Island Association of Professional Geologists. The topic was: "Exploring Environmental Liability Risks of Engineers and Geologists in New York State”. A detailed article prepared by Fred on the subject may be downloaded by clicking here.

August 24, 2015: Fred Eisenbud quoted in Newsday article on “Court to rehear request to block Shoreham solar farm.” He represents a community group challenging the determination of the Town of Brookhaven Planning Department that a 53% limit on lot coverage for commercial solar facilities does not require that 47% of the land be preserved as contiguous open space.

July 21, 2015: Fred Eisenbud quoted in Newsday article on “Owner of Central Islip property agrees to remove contaminated fill.” He represents the owner of property who was the victim of dumping of construction and demolition debris by a third party, and is working with the client and DEC to minimize the financial impact to the property owner.

March 30, 2015: Fred Eisenbud interviewed about environmental crimes on the The John Gomez show on LI Radio News, 103.9 FM.

March 26, 2015: Fred Eisenbud quoted in Newsday article on “Prosecuting Polluters is a Tough Task”. Fred, who started the first full-time environmental crimes bureau at the local level in the State of New York in 1984, was quoted in a Newsday article on the difficulty of prosecuting polluters.

March 2, 2015: Fred Eisenbud asks Suffolk County and the Towns of Brookhaven and Riverhead to File a Lawsuit to Compel LIPA to Conduct SEQRA Review When Considering Commercial Solar Projects.

February 25, 2015: Appellate Division, Second Department granted Firm’s appeal from the dismissal of an Article 78 Petition brought against the New York State Department of Environmental Conservation and the Town of Clarkstown. The challenge is to a decision by the DEC to permit the Town of Clarkstown to either cap an acre and a half of solid waste dumped on our client’s property without consent decades ago, or to remove the solid waste.. The Town selected the less expensive remedy of capping. The petition seeks to compel the Town to remove the waste from the property. The costs of the appeal were awarded to our client, and the case was remitted to the Supreme Court, Westchester County, for a determination on the merits. Riverso v. New York State Department of Environmental Conservation.

 


The Environmental and Land Use Practice Group of Campolo, Middleton & McCormick, LLP is located in Ronkonkoma, on Long Island, New York, and provides experienced environmental law representation for clients throughout Nassau County, Suffolk County, Westchester County and New York City.