Tell us what is involved in the land entitlement process generally. Are there common principals applicable from project to project? We could devote this whole magazine to describing the good, the bad and the ugly that’s involved in the land use entitlement process in New York. Just when we think we’ve seen it all—from arrests at public hearings to tin foil hats worn in opposition to a wireless telecommunication application—another wild thing happens at a local board meeting. Suffice it to say that the fundamental goals applicable to all projects are to secure the entitlements in a timely, cost effective manner that satisfies all substantive and procedural legal requirements with a record that will withstand legal challenge. The manner in which this is accomplished varies from jurisdiction to jurisdiction, but the same principals apply.
Does this work differ significantly from municipality to municipality, or jurisdiction to jurisdiction? Even though the fundamental goals remain unchanged from project to project there are wide ranging differences in the manner in which an application is processed in each municipality. Every municipality has its own unique application submission requirements, some require pre-application meetings with municipal staff, some utilize the planning board secretary as the point of contact for an application, while others utilize the planning board chairperson, municipal attorney, building inspector, or other municipal staff. Boards themselves each have their own unique procedures for processing an application. Some have strict protocols to follow during meetings, while others prefer a more informal discourse. Some have particular subjects on which they focus their attention, such as stormwater impacts in communities that experience frequent flooding. Understanding these nuances and establishing relationships with municipal officials and staff in the communities in which you are processing applications is an important part of our job as local land use attorneys. One aspect of the practice that remains the same in most jurisdictions (except, perhaps, Long Island) is the late-night meetings! We sometimes joke amongst our land use colleagues that by traveling from municipality to municipality each night for board meetings we’re following the tradition of our judicial forefathers who “rode the circuit.”
Nicholas, you handled the environmental due diligence work for Frito-Lay’s acquisition of the land for the project. Can you describe what that entailed? The environmental due diligence work for this site had several layers. We worked with the NYS Department of Environmental Conservation to
Jennifer L. Gray ’06
Nicholas M. Ward-Willis ’93
process Frito-Lay’s request to remove the site from the scope of a RCRA permit which covers remaining portions of the former IBM East Campus. The site is also governed by a Declaration by which IBM put certain restrictions on the future use of the former IBM East Campus. Part of our work involved interfacing with the General Counsel’s office at IBM to confirm compliance with these private restrictions. I regularly worked with FritoLay’s environmental consulting firm, Frito-Lay’s transactional counsel and the seller’s agents to identify and investigate liabilities or risks to the client and then work to reduce or eliminate those risks. Part of the risk mitigation efforts involved securing environmental insurance for the client upon favorable terms. At the end, we were able to offer the client the advice needed to allow it to close on the land acquisition on-schedule before the close of its fiscal year.
Jennifer, you have collaborated with Pace’s Land Use Law Center—can you talk about that? Jessica Bacher and Tiffany Zezula of the Land Use Law Center have been kind enough to invite me to join them in presenting several training seminars offered to planning boards and zoning boards throughout New York State. Typically, my role has been to discuss a board’s responsibilities under the New York State Environmental Quality Review Act (SEQRA). Review of the environmental impacts of a project pursuant to the requirements of SEQRA is an important step in the board’s procedures. Unfortunately, many times project opponents use SEQRA as a weapon against a project. The Land Use Law Center does a great job in empowering boards
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