Every time someone asks me what I do for work and I tell him/her/them that I'm a land use attorney, my answer appears perplexing. I suppose very few people encounter such an elusive species of lawyer. After years of interactions like these, it finally occurred to me that I could create this blog to explain who we are and what we do - at least from my perspective.
Simply put, "land use" is exactly what it sounds like; it's the laws, rules, codes, regulations, and practices promulgated by jurisdictions to govern how people use land, and navigating this complex - and sometimes counterintuitive - framework to legalize the use of property. Less sophisticated matters might involve building a pool in your backyard or an extension for your home. More sophisticated matters might involve herculean efforts to redefine an entire area to construct a mixed-use development with commercial, retail, and residential uses, which proposal could include the following: enacting local laws to create a particular zoning district; rezoning parcels; merging or dividing parcels; addressing environmental concerns (like sanitary flow or traffic); and, seeking special permits and variances. Such a complex project most likely would also require financing and tax incentives.
Believe it or not, sometimes the proposals that seem "easy" can be very challenging and vice-versa. I designed this first blog post to be a broad-strokes, general overview of how someone might encounter the world of land use and zoning.
The "non-developers" out there might encounter land use issues when buying a home. Typically, buying a home requires obtaining a title report. The title report will include a "municipal search" that shows whether the home and other structures on the property were built in conformance with applicable law. In short - does the seller-owner have the certificate(s) of occupancy or completion. Sometimes, a seller-owner makes improvements without obtaining a building permit or, perhaps more often, does not "close-out" the permit by obtaining the certificate of occupancy or compliance. In this situation, the seller-owner generally must obtain the certificate to "clear title." If the improvement is too close to the property line, for example, then the seller-owner must, among other things, obtain an area variance from the local zoning board. The process requires a researching and analyzing the ordinance, preparing and making a formal application, notifying neighbors about a hearing on the application, presenting the application at the hearing, and a favorable determination from the zoning board.
Developers might encounter more complex situations requiring multiple applications and hearings to obtain the requisite approvals for a project. For example, to construct a commercial building to host a coffee-shop with a drive-thru, retail space, and office space, the developer must ensure the proposed site is within a zoning district that allows the uses, or seek to change the zoning. Even where the uses are permitted, some uses require "special permits" from specific municipal bodies (e.g. Town Board or Planning Board). Special permits require that additional criteria are met (e.g. cannot be too close to residences). Other aspects of such a proposal likely include Suffolk County Health Department approval (for sanitary flow), a traffic impact study, and site plan approval (site plans show, among other things, structural configurations, grading and drainage, and landscaping). Public notice and a hearing are generally required for each application. Even more complex projects require comprehensive environmental review in conformance with the New York State Environmental Review Act (SEQRA "seek-ruh" or SEQR "seek-er").
Long Island is known as the land of "NIMBY" - Not In My Backyard. Inevitably, with most large projects, neighbors sue to challenge approvals, and the like. Some land use lawyers, like myself, are particularly adept in the practice of land use litigation. Land use litigators must understand the procedural and substantive issues relative to a particular matter and advocate for retaining project approvals or entitlements. Very often, even where a developer is successful on the initial challenge before the trial/motion Court, neighbors appeal, and the land use lawyer must be prepared to handle the appeals process at the Appellate Division.
Land use attorneys, more or less, "quarterback" these land use application or "entitlement" processes, and handle any concomitant litigation. Lawyers are not engineers or architects, and will defer to the experts on the issues. But, someone has to try to maintain an eye on the 30,000-foot view and ensure consistency and timeliness across all deliverable sources, and that someone is the land use lawyer.
I am trying to stay out of the weeds with this inaugural post, so I will leave it here for now. I anticipate subsequent posts will address particular aspects of land use and zoning, as well as significant updates, changes, or judicial decisions that impact this area of the law.
Thank you for reading and I hope you return for more!
Comments