VOL. IV, NO. 2 FALL, 2003

Welcometo the Fall, 2003 Edition of “Report from Counsel,” a Newsletter for the Firm’s clients and the other professionals who consult with the Firm, updating them on our practice as well as important new developments in the law.


The buzz words in land use and planning circles these days are “Smart Growth.” Not-for-profit business and civic organizations are promoting “Smart Growth”; federal, state and local government officials are publicly embracing it; and legislation has been introduced to study and fund it. But what exactly is “Smart Growth”?

Actually, there is no legal definition of “Smart Growth.” It is a loosely-defined concept used to describe land use and planning principles designed, among other things, to foster the revitalization of downtown main street areas and historic districts, encourage the re-use of existing, abandoned buildings and environmentally contaminated properties (brownfields), conserve open space, and strengthen existing public transportation. “Smart Growth” had its origins in planning circles in the late 1970’s and early 1980’s. It is the antithesis of post-WWII development patterns which encouraged suburban sprawl.

Recently, lawmakers have proposed initiatives to encourage “Smart Growth” principles. In January, 2000, Gov. George Pataki signed Executive Order No. 102, establishing the Quality Communities Interagency Task Force, which released a report issuing broad guidelines for municipalities to implement“Smart Growth” principles.

Since January, 2003, there have been seven different “Smart Growth” bills introduced in the State Legislature providing for the creation of smart growth regions, loans and indemnification for developers who implement Smart Growth principles, technical and financial assistance to local governments within the State to adopt Smart Growth principles, and the creation of community housing opportunity funds. While to date none of this legislation has been signed into law, it appears that momentum is building in New York to enact some “Smart Growth” legislation. For example, on September 16, 2003, the Senate passed Bill No. S05702 (Assembly companion No. A9120), enacting the Brownfields Cleanup Program. This Bill sponsored by Assemblyman Thomas DiNapoli and State Senator Carl L. Marcellino would provide, among other things, for financial assistance and tax credits for hazardous waste disposal and environmental restoration projects. The Bill was delivered to the Governor on September 25, 2003 and is awaiting his signature.

The development community should pay careful attention to these legislative initiatives and Smart Growth principles as they will impact existing proposals and offer creative, new opportunities for redevelopment in existing downtown areas and new projects in still undeveloped areas. We will continue to report on “Smart Growth” as these legislative initiatives are considered and enacted.


The Firm, with Daniel Baker serving as lead counsel, has successfully represented the Long Island franchise of Baja Fresh Mexican Grill, a nationwide upscale Mexican restaurant chain, in an application to allow a former retail space in the Lake Success Shopping Center to be used as its first restaurant on Long Island. The Firm is also coordinating all building and operational permits for the Baja Fresh restaurants at other Long Island locations. It is anticipated that there will be 16 Baja Restaurants built over the next several years on Long Island.

With Michael Sahn and Karen Roth serving as lead counsel, the Firm successfully closed a series of multi-million dollar financing transactions for a Long Island client that has expanded into the luxury housing market on Marco Island, on the West Coast of Florida. The first transaction was a $4 Million land acquisition loan for a parcel of land with dramatic water views that will feature nine luxury estate homes. The second transaction, a $5 Million land acquisition loan, was for the purchase of two lots that will contain a mixed-use development. The third transaction was a $7.8 Million building construction loan for the mixed-use development, which will offer sweeping views of Barfield Bay, Marco River and the Marco Island Skyline.

As counsel, Sahn & Ward negotiated the terms of the acquisition loans with the lender and lender’s counsel and the terms of the construction contract. Additionally, the Firm conferred with the client’s Florida counsel and lender’s counsel on all title insurance, local land use and permitting issues and transfer of title and closing of the building construction loans.

More locally, the Firm, again with Dan Baker as lead counsel, was instrumental in obtaining final site plan approval from the Town of Brookhaven Planning Board for the development of a new shopping center in Shirley. The Planning Board’s approval was the end product of many presentations to officials from the Planning Department and coordinated meetings with the Department of Law in order to incorporate principles of “Smart Growth” as discussed earlier in this Newsletter, into the development and design of the project. The shopping center will serve as the “linchpin” in the Town’s effort to revitalize the surrounding area and will be a model for future development in the immediate vicinity and for other downtown areas throughout the Town of Brookhaven and Long Island.

In a second project in the Town of Brookhaven, also under Dan Baker’s guidance, the Firm secured approvals for a residential waterfront subdivision overlooking Mt. Sinai Harbor. The approvals resulted from detailed and involved negotiations with the Town’s Planning Department and Department of Law to establish five luxury homes, including the restoration and improvement of an existing historic house which dates back to the late 1880’s. In addition to the subdivision approval and building permits obtained from the Town, the Firm coordinated compliance with the New York State Department of Environmental Conservation and Suffolk County Health Department, including tidal wetlands permits and wastewater management approval.


The Firm is very proud that Michael Sahn was featured as a member of a small group of twenty attorneys in a “Who’s Who in Law” special section of Long Island Business News. This group of attorneys was described as standing out from the crowd and reflecting the changing dynamics of the legal community on Long Island. The article referred to Mr. Sahn’s representation of a number of national business chains in various industries.

The New York Times contacted Michael Sahn for his expert commentary for two separate issues in the Real Estate Question and Answer section. In one, he was asked how to handle issues that arise concerning changing names on a deed in a complex ownership situation.

In the second, he addressed potential liabilities in granting an easement. The column explored how a co-op should obtain maximum protection before granting permission for a new building next door to have rear fire egress through the co-op’s property.

Jon Ward contributed an article for Real Estate Weekly on the rights of commercial tenants and landlords when the tenant wishes to sublet a lease to a subtenant or assign a lease to a new tenant. Mr. Ward examined the potential pitfalls and advised landlords to proceed cautiously when confronted by a tenant with a request to assign or sublet.

Jon Ward and Michael Sahn co-authored an article for The Nassau Lawyer, a publication of the Nassau County Bar Association, updating colleagues on judicial review of administrative decisions by higher courts, focusing on land-use determinations made by local zoning authorities. The article examined how several recent appellate court decisions send a strong message to applicants, making thorough preparation of zoning applications even more critical than in the past.

Michael Sahn was quoted in a Newsday article entitled “Buying Bricks and Mortar” on the trend by investors switching from buying stocks to purchasing homes to rent or sell. Sahn advised buyers to check with their local building department before buying a multi-family house because of the large number of illegal two-family homes on Long Island.


Allison B. Tomlinson, a third-year law student at Hofstra University, joined the firm as a summer associate and is continuing her employment while she completes law school. Allison, a Long Island native, is a recent graduate from Columbia University’s Graduate School of Architecture, Planning and Preservation, where she earned a Master’s degree in Urban Planning. She completed her undergraduate education at the University of California at Berkeley, where she received a Bachelor’s degree in Architecture with a minor in City and Regional Planning. Allison serves on the Board of Directors of the Columbia University Alumni Club of Nassau County, and is Chair of the Young Alumni Committee. She was also recently named Membership Chair for 2004-2005 of the Cal Alumni Club of New York and is on the Steering Committee.

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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