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SWC NEWSLETTERS

Welcome to the Spring, 2004 Edition of “Report from Counsel,” a newsletter for the Firm’s clients and professionals who consult with the Firm, updating them on our practice as well as important new developments in the law.

NEW DEVELOPMENTS AT THE FIRM

We are pleased and proud to announce that as of January 1, 2004, our firm changed its name to Sahn Ward & Baker, PLLC. The change was made to reflect the contributions made by our partner, Daniel J. Baker, to the Firm’s growth and success.

In addition to his practice in real estate law and transactions, zoning and land use planning and real estate tax certiorari and condemnation, Dan also represents clients in corporate and commercial law and litigation and criminal defense matters.

Mr. Baker contributes a substantial amount of his time to the Long Island community. He is a member of the Board of Trustees of the Long Island Chapter of the Leukemia & Lymphoma Society and was recently appointed as a member of the State of New York Commission on Quality of Care for the Mentally Disabled’s Surrogate Decision Making Committee (SDMC) Program. Mr. Baker is also an active member of the Touro Law Center Alumni Association.

We know that you join us all in extending congratulations to Dan.

We are equally pleased to note that on January 15, 2004, the Firm marked its fifth year anniversary. We have achieved this milestone because of our extraordinary clients and friends who have allowed us to be part of their own success and growth.

MATTERS RECENTLY CONCLUDED BY THE FIRM

With the closing on the sale of an undeveloped parcel of waterfront property, the final chapter has been written for a client whose property was caught in a tug-of-war between the DEC and a local zoning board. In order to develop this property, the DEC required that any structure be located as far away from the nearby water as possible; in this case, four feet from the nearest road. The location of the house as required by the DEC triggered a need for a zoning variance from the Town. But the nearest street, and the one used by the DEC as its reference point, was shown on a subdivision map dating back to 1890. The street was mapped, but never built. The Town denied the request for the variance and this might have made it impossible to ever build a home on the site. However, the Firm took the case through the process of applications for zoning variances, hearings and legal appeals, through the Supreme Court of Nassau County and up to the Appellate Division, Second Department, which reversed the Town’s decision to deny the variance. The owner has sold her property and is now enjoying her golden years.

The Firm continues to represent the local franchisee of the national restaurant chain of Baja Fresh Mexican Grill in applications for building and use approvals as they prepare to open locations on Long Island. Restaurants have already successfully opened in Lake Success and Syosset. Additional locations are planned for Oceanside and on Route 110 in Melville.

Zoning and land use approvals have been completed on behalf of King Kullen and the owner of a shopping center in Bethpage for expansion of the existing supermarket and renovations and improvements to the entire shopping center. The overall project required variances and site plan approval from the Town of Oyster Bay, with additional reviews from Nassau County agencies.

The Firm successfully represented ExxonMobil Corporation before the Town Board of the Town of Brookhaven and won approval for construction of a renovated service station and a new convenience store, to be built in a colonial architectural style, at the intersection of Eastport Manor Road and the Long Island Expressway at Exit 71. Most travelers to the East End of Long Island will recognize this service station from its location on a primary route to the Hamptons. The approval process involved a complex re-zoning proposal in order to construct the proposed store.

NEW AND ONGOING MATTERS BEING HANDLED BY THE FIRM

The Firm has been re-appointed as Special Counsel to the Metropolitan Transportation Authority. Services for the MTA include a variety of matters involving real estate transactions, landlord/tenant proceedings and leasing issues.

The Firm has been retained to represent a franchisee of a major steak house chain as it prepares to open its third location on Long Island. Charlie Brown’s Steak House joins several other national franchise chain restaurants that rely on the Firm’s representation in land use matters.

A major Long Island supermarket retailer has retained the Firm to represent it in connection with the re-zoning of its waterfront property from commercial to a residential use district. This action is representative of a growing trend on Long Island to re-zone properties situated along the waterfront. In a future newsletter, we will explore the implications of this trend of waterfront re-zoning in detail.

The firm is representing Habitat for Humanity in an application to construct a new house in the Town of Hempstead. We are proud to serve as counsel for this important not-for-profit organization, and help further its worthy goals.

RECENT DEVELOPMENTS IN THE LAW – THE INCREASINGLY DIFFICULT TASK OF DETERMINING WHEN THE STATUTE OF LIMITATIONS BEGINS TO RUN TO SUE GOVERNMENTAL AGENCIES TO CHALLENGE ADMINISTRATIVE DECISIONS

The time frame for challenging administrative decisions and governmental actions is not always easy to pinpoint with exact certainty. All of us are generally familiar with the purpose of statutes of limitation which limit the time to commence an action or proceeding. If the action or proceeding is not commenced within the time provided by the statute of limitations, the right to assert the claim is lost. However, it is sometimes difficult to determine what the applicable time period is and when the period begins to run. This is particularly true in challenges to governmental decisions made under environmental laws and public works projects.

Generally, proceedings to challenge governmental decision making fall under Article 78 of the Civil Practice Law and Rules (the “CPLR”). CPLR Section 217 states the general rule that Article 78 proceedings must be commenced within four months of the date the decision becomes “final”. Special provisions of other laws decrease or shorten this general time limit. For instance, actions to challenge Town zoning board decisions must be brought within 30 days (Town Law 267-c), and proceedings to contest certain decisions under the Environmental Conservation Law (ECL) must be brought within two months. But, the challenger still has to determine when the statute begins to run, meaning, when did the right to sue “accrue”.

In a case recently decided by the Court of Appeals, the petitioner wanted to challenge the approval of a project that would allow a power generator to be installed on a floating barge in Brooklyn. The Court determined that the challenger’s claim accrued when the Department of Environmental Conservation issued a “Conditional Negative Declaration” (CND) concluding that the project posed no significant adverse environmental impact even though the actual permit for the project was not issued until many months later. The Court reasoned that when the CND was issued the agency had reached a definitive position on the issue and this inflicted an actual, concrete injury. Thus, the Court upheld the dismissal of the proceeding on the basis that it was not commenced timely.

While this ruling may help project supporters and sponsors feel secure that their projects are not subject to judicial attack, it puts the burden squarely on challengers to decide when a governmental decision maker has taken a definitive position that inflicts injury. When doubt exists, the challenger must start the proceeding or risk never being heard by the Court.

A different but equally difficult quandary is presented by the recent decision of the Appellate Division, Second Department, in the case brought to challenge the Department of Transportation's decision to construct a sound barrier on the Long Island Expressway Service Road. The Court ruled that the statute of limitations began to run when advertisements for bids from contractors to construct the project were published in a DOT bid solicitation booklet in Albany. Of course, the challengers would never know about the advertisements unless they monitored such publications on a weekly basis from the time the DOT began considering the project, a totally implausible scenario. Thus, under this rule, if it stands, challengers may lose access to the Courts without any reasonable possibility of ever knowing that their claim accrued and the clock was running against them to start a proceeding to challenge the project.

In a related area of challenges to zoning board actions, the State Legislature recently enacted an amendment to the statute concerning Town zoning board decisions that presents yet another interesting problem. Under the prior law, a Town zoning board was required to render a decision on an application within 62 days of the close of the hearing. But, if the board did not render the decision within the 62 day time period, there were no consequences under the statute and the applicant had to start a proceeding to force the Board to make a decision. However, in July, 2003, the Legislature amended Town Law Section 267-a to provide that if the Board did not file its decision within 62 days, the application was deemed denied, i.e., a “default denial”. So, applicants must now closely monitor the decision making process because otherwise, the 62 day period may pass resulting in a “default denial”, and starting the 30 day time frame to challenge this “default” denial. Thus, an applicant may be obligated to start a proceeding or lose the right to challenge even though the Board never actually rendered a decision on the record by its affirmative vote. No cases have yet to be reported discussing this scenario, but most certainly they will arise and provide important guidelines to follow.

OUT AND ABOUT

Michael Sahn was featured prominently in an article in Newsday concerning the pitfalls and risks in purchasing undeveloped parcels of land by inexperienced purchasers or developers. He advises purchasers to have a substantial due diligence investigation period written into the sales contract, assemble an experienced team of expert consultants that includes an attorney, architect, builder, surveyor and environmental expert to conduct a thorough due diligence investigation, and to develop a checklist of requirements so that the Purchaser is assured that the property can be developed for its intended purposes.

Dan Baker has recently been appointed as a member of the State of New York Commission on Quality of Care for the Mentally Disabled’s Surrogate Decision Making Committee (SDMC) Program. This program is an award-winning, quasi-judicial alternative to the court system to obtain informed consent or refusal for non-emergency major medical treatment on behalf of persons living in a residential mental hygiene facility or program operated, funded or licensed by New York State who do not have capacity and do not have a legally authorized surrogate.

Michael Sahn co-chaired a day long seminar for attorneys and other professionals on land use and zoning issues. The Seminar, held in December, was sponsored by the National Business Institute (NBI).

UP CLOSE AND PERSONAL

As the Firm celebrates its Fifth Anniversary, it is time to recognize with great appreciation the diligence of Leslie Carr, our office manager and legal assistant. Leslie has been with the firm from the beginning and almost all of you have spoken with her or met her in person. Leslie keeps the Firm running smoothly, and we applaud her devotion to the firm and most importantly, her dedication to our clients


SAHN WARD & BAKER, PLLC’s “Report from Counsel” is published with the intent to inform readers of recent developments at the Firm and in the law. It is not intended, nor should it be used, as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.

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