Rain, Surface Water Runoff and Drainage – The Big Picture

There is no ignoring the issue of surface water runoff  in the northeast US, especially during the spring season, which comprises snow melts followed by lots of rain. Speaking of which, we have had it pretty badly during the past six months here in upstate New York – shivering through what seemed to be the coldest, snowiest and longest winter in a long time, followed by one of the wettest spring seasons I can remember.

For homeowners in northeast U.S., the spring season means soggy, muddy backyards dotted with puddles of stagnant water, and sometimes much worse – flooded basements, a new stream through the front yard, or the washing away of thousands of dollars of landscaping. As one might imagine, this also means lots and lots of calls from concerned citizens to local municipalities.

But even after all the headaches we have and will continue to have with these drainage issues in the northeast US, when I compare them to the water issues further west, I can’t really complain. While the problems in the northeast deal with too much water and where to put it, further west, the problem is not enough water, and how to conserve it.

For example, large municipalities out west are spending millions on plastic balls which are dumped over water bodies to slow evaporation and conserve water. In Phoenix, the lack of water is so pervasive that it has fundamentally changed the ground upon which the City sits so that the City itself is actually sinking, by some calculations at a rate of .75 inches per year. That’s terrifying.

Nonetheless, it’s clear that properly addressing surface water runoff, or “drainage,” is an important topic, at least in the northeast U.S. A key element of solving the drainage problem begins at the time of application for new development. Whether a local Village Board is handling a major rezoning request, a Town Planning Board is considering a 30 home residential subdivision or a Zoning Board is addressing a variance for a larger driveway, problems resulting from drainage can be greatly minimized when our local municipal boards properly plan for and implement measures to deal with surface water.

During application review, local municipal boards should work with their engineer to ensure it fully considers the drainage implications of a proposed project. Even something as minor as the widening of a driveway (which often means replacing grass lawn that absorbs water with impervious pavement that generates surface water runoff) can generate enough surface water runoff to damage a neighbor’s lawn, drown their newly planted bushes or possibly flood a basement. Mitigation measures ranging from implementing drainage swales (i.e., “ditches”), properly grading a driveway, hooking into municipal storm water systems or even properly directing the outflow of gutter discharge can have substantial effects on potential drainage issues.

Other strategies outside of application review may also prove useful, including establishing and ensuring compliance with maximum developable area standards to limit impervious areas, creating and maintaining a drainage district, and ensuring Stormwater Pollution Prevention Plans (“SWPPPs”) are carefully monitored and complied with.

Let us be grateful that we have so much water that we must be careful about where we direct and drain it. Let us be thoughtful about where we put it and how it gets there. But, also, let us not forget that we could face a much more dire problem – not having enough water. After all, we could face the same tough choice as Tom Selleck – hijack municipal water for our garden or watch our gardens slowly wither away. 


It’s Almost Election Season – Are You Ready For A Few Political Signs?

Is this a legitimate part of the political process, or just a legitimate mess?

From a practical standpoint, local sign codes are very, very important . . . yet many municipalities get them wrong. For example, this summer the U.S. Supreme Court determined that a town’s sign code was unconstitutional. The journey of this case all the way up to the U.S. Supreme Court demonstrates the complicated legal balancing act between free speech and a government’s authority to regulate signage.

One particular area where sign codes often go wrong is dealing with political signage. It won’t be long now before political candidates around the nation start planting their signs  . . . EVERYWHERE. Once you see the first one, you know the onslaught of them will quickly follow – on every  corner, in your neighbors’ front yard, and every 10 feet all along the road you traverse on the way to work in the morning. While many of us recognize the importance of the political process, we grow tired of seeing so many of these signs.

Some municipalities have adopted sign codes which regulate and attempt to limit the number and density of political signs. Often, however, these provisions are technically unlawful and, like the case above, would fail if challenged in court.

Before we talk more about sign codes, I want to remind us all that as a matter of general property law (Town, Village and City Codes aside), a sign may only be placed upon property with the permission of the owner. This means that signs cannot be placed upon that highly visible, vacant, undeveloped parcel on the corner (which is actually owned by somebody), within the grassy right-of-way abutting a public roadway or, oftentimes, even at the entrance to the Town Park without permission of the owner (whether the owner is a private person, a corporation, or a municipality).  Many of those signs you see along the roadway are actually within the public right-of-way (which usually extends beyond the pavement of the road well into the grass) and, based upon that municipality’s zoning laws, may be properly be removed by the local municipality.

My second comment on political signs, and sign codes in general, is that per the 1st Amendment, signs may not be regulated on the basis of content or message, but may be regulated on the basis of a number of other things unrelated to message or content(such as size, location, shape, etc.). Therefore, where a sign code singles out and addresses political signs (as many do), that sign code is almost always unconstitutional because it is regulating the message or content of the sign (politics). What, then, are we to do about the impending barrage of political signs?

There is a strategy municipalities can use to address many political signs while still respecting the 1st Amendment –  address them based upon the physical sign structure itself, and not in relation to the political message or content on the sign.  Political signs during election season almost all share a common characteristic that has nothing to do with the message on the sign itself –  structurally, they are temporary signs, comprised of a vinyl or coated cardboard sign face wrapped around metal wire legs. They are designed to go up before the election and to come down thereafter.

Regulations which address temporary signs will most certainly capture most political signs during election season (since they are often temporary signs), allowing a municipality to address the number of temporary signs permitted on a  property, the size of those signs, and how long they may remain before they must be removed, for example.

While targeting political signs is unconstitutional, regulating  signage based upon the physical structure of sign itself (i.e., a sign designed/constructed to be temporary only) that happens to include many political signs is perfectly permissible. Be sure to get your sign code into shape as this election season quickly approaches!

The Proposed Lago Casino in Tyre, NY – A Lesson on Proper Environmental Review

A rendering of the proposed Lago Casino in Tyre, NY.
The proposed Lago Casino in Tyre, New York is a big deal.

Most would agree that a casino is the kind of development that can dramatically reshape the very nature and character of a community. The potential impacts of a casino stretch far beyond the immediate vicinity where the casino is ultimately located, likely across the entire Town and greater region.

These likely impacts highlight the need for the Town to be careful and precise during is local review and permitting process. However, it appears that the Town of Tyre made at least one critical mistake during its environmental review (pursuant to the State Environmental Quality Review Act, or SEQR) of the proposed Casino, resulting in a Court voiding the Town’s approvals. In sum, it appears the Town failed to adopt a written explanation (a “Part 3”) for its determination that the Casino would not have any significant adverse environmental impacts (i.e., a “Negative Declaration”).

Not only does this mean that the Town’s approvals are undone and thus must be completed anew, but now the construction of the Casino (which had already commenced) must be halted and, in some respects, rolled back so that the site remains safe while the Town considers approval of the project . . . again.

The court decision is a costly setback for both the Town and the developer, which both must spend additional time and money to re-navigate the local approval process. This matter should serve as a reminder to local New York municipalities to carefully and completely address SEQR, particularly when dealing with substantial, controversial projects.