East 91st St. Marine Waste Transfer Station. Image Credit: Geoffrey Croft/NYC Park Advocates.

A federal judge has dismissed an action brought by New York City residents challenging the re-development of a marine waste transfer station. On July 10, 2014, U.S. District Court Judge Paul A. Crotty (S.D.N.Y.) dismissed claims against the City and the U.S. Army Corps of Engineers, clearing the way for development of a marine waste transfer station at 91st Street and the FDR Drive. (more…)

City claimed that 97,000 sq.ft. property taken through eminent domain had no value. Cassino Contracting owned a 97,000 sq.ft. parcel in Staten Island, located at the southeast corner of Woodrow Road and Grantwood Avenue. The City later acquired title to the property, at which time the property was vacant and restricted by a declaration that the property would only be used as a storm water retention basin unless the City constructed a storm sewer.

During condemnation proceedings, the City moved to dismiss Cassino’s fee claim on the ground that Cassino’s appraisal report was invalid. The City argued that the property had no value. Since a storm sewer had not been built as of the vesting date, the City claimed the property should be valued as if the restrictive declaration was permanent. The City further argued that it was improper for Cassino’s appraiser to opine that the highest and best use for the site was as a speculative investment. The City also took issue with the appraiser’s valuation method, which discounted the unregulated use by 85 percent.

Justice Saitta denied the City’s motion, ruling that the City had failed to prove the land had no value. The City also failed to prove that no investor would purchase the property as a speculative investment on the expectation that the restrictions would be lifted in the future. And since Cassino’s and the City’s appraisal reports conflicted, further development of the record through a trial was necessary.

Cassino Contracting Corp. v. City of New York, 2011 N.Y. Slip Op. 21319 (Richmond Cty. Sup. Ct. Sept. 7, 2011) (Saitta, J.) (Attorneys: Michael Rikon, for Cassino; Michael A. Cardozo, Holly Gerstenfeld, for NYC).

Buildings vacated apartment building’s occupants before MTA started construction work nearby on the Second Avenue subway line. The Metropolitan Transportation Authority, before performing certain construction work on the Second Avenue subway line, contacted Buildings regarding the building located at 1766 Second Avenue. MTA was concerned that drilling, excavation, and/or blasting for the new subway line could cause the already-leaning building to become unstable. Buildings declared the building “unsafe and an imminent peril,” and later issued an emergency declaration stating that the building needed to be stabilized by bracing and shoring.

Three weeks after the emergency declaration, Buildings issued a peremptory vacate order and allegedly vacated the building of occupants, locked it, and erected scaffolding around it. The property owner brought various claims against the City and MTA, one of which alleged that its property was taken, without payment of fair consideration, in order to facilitate subway construction. The City moved to be dismissed from the case. (more…)

DOT paved over portion of Staten Island property owner’s land. Foxwood Forest Lenca LLC owned a 15,700 sq.ft. parcel of land abutting Forest Hill Road on Staten Island. The land was undeveloped, and the portion along Forest Hill Road consisted primarily of grass and other vegetation. In 2008, the Department of Transportation entered Foxwood’s property and paved over this grassy area. According to DOT’s borough commissioner, the paving was done to address unsafe roadway conditions on Forest Hill Road.

Foxwood sued the City, claiming that the City’s actions constituted a de facto taking of its land even if performed to remedy alleged safety concerns. Foxwood also claimed that drivers traversed and parked on the paved portion of its land as if it were part of Forest Hill Road. The City countered that it did not deprive Foxwood of its use and enjoyment of its land, arguing that Foxwood could still enter and leave its property and implying that Foxwood had a duty to clearly mark the lot line of its property. (more…)

Zoning restrictions against adult businesses survive trial on adequacy of prior study. The Department of City Planning conducted a study on the negative secondary effects of adult businesses in the City, and concluded in 1993 that such businesses increased crime and lowered property values. Based on this study, the City in 1995 amended the zoning resolution to restrict the location of adult businesses in certain areas, banned the enlargement of existing adult uses, and prohibited the change of any use to an adult use. The amendment also defined “adult establishment” as a commercial establishment where a substantial portion (40 percent or more of accessible floor area) of the establishment included adult uses. Some adult businesses closed, but others remained legal by keeping their adult material within less than 40 percent of their accessible floor areas.

The City believed these 60/40 percent businesses were in sham compliance based on actual adult versus non-adult material sales receipts. In 2001, the City amended the zoning resolution again in 2001 to prevent stores which focused on providing adult material from avoiding the adult establishment restrictions. Adult businesses challenged the constitutionality of the amendments and sought a preliminary injunction. (more…)