August, 2021: Frederick Eisenbud analyzes a new law which provides a virtually unlimited statute of limitations for Public Water Purveyors to sue for contamination of their water supply. In an article published in August 2021 in The New York Environmental Lawyer, a publication of the New York State Bar Association, Eisenbud concludes the new law will do more harm than good, and that a better alternative exists. Click here to read or download the article.
September 20, 2019: CMM Helps Residents Preserve a Pristine Beach in Asharoken. The Honorable Sanford Neil Berland, Acting Justice of the Suffolk County Supreme Court, issued a nine-page decision (Akeson v. Village of Asharoken) denying an Article 78 Petition filed by two residents of Asharoken who desired to construct docks along a section of beach known as the Ida Smith Beach. A Village ordinance had been enacted to preserve the beauty of the Ida Smith Beach, and only three docks, located at opposite end of the otherwise pristine beach and built before the ordinance was adopted, were present when the applications were filed. CMM was retained by the Asharoken Bayside Association to intervene in hearings brought to consider the applications. At Fred’s request, the Association retained a wetlands expert and together they appeared and participated in seven public hearings held by the Environmental Review Board, which recommended that the Village Trustees deny the permit applications. The Village Board agreed, and the two homeowners commenced the Article 78 Petition to challenge the denial. Fred was permitted to intervene in the Article 78 on behalf of the Association. Justice Berland’s lengthy and well-reasoned decision dated September 20, 2019, contains a clear discussion of riparian rights, and concluded, in large part due to the law and science presented by Fred and the wetlands expert, that the docks, if authorized, would create a precedent that would destroy the magnificent beach the Village Code intended to preserve. Because there were many nearby locations where the applicants could keep their boats, they were not permitted to significantly alter the conditions that attracted their neighbors to the Ida Smith Beach.
September 11, 2019: CMM’s Environmental & Land Use Group Relies on Science to Achieve Desired Results from DEC. CMM’s Environmental & Land Use practice group, under the leadership of Chairman Frederick Eisenbud, was able to persuade the New York State Department of Environmental Conservation (NYS DEC) that our client should be permitted to keep the deck and dock he built without a tidal wetlands permit at his home – despite the fact that DEC demanded its removal for several years before CMM was retained. Our client’s deck, dock, and bulkhead were severely damaged by Hurricane Sandy. When the client sought a wetlands permit to rebuild exactly as the deck, dock, and bulkhead were when he purchased the house, DEC denied the application for the deck and dock because the prior owner built his deck and dock inconsistently with a tidal wetlands permit the prior owner obtained. When the client proceeded to build the deck and dock as they had been when he purchased the house without a tidal wetlands permit, the DEC demanded that he remove the deck and dock, which would have been extremely expensive. Fred directed the client to a wetlands specialist we frequently partner with, and the expert’s inspection revealed that no flora or fauna could be found on the water bottom, under the dock or outside of it, and that the area of the deck and dock over water was actually less than the area approved in the tidal wetlands permit granted to the prior owner. CMM knows from experience that when arguments to the DEC are based on science and the facts rather than emotion, the Department will listen. We successfully argued that our client’s construction created no adverse impact to the wetlands, and that what was built should be permitted to remain in place because the DEC would have granted the tidal wetlands permit for what was built had it been submitted with the information obtained by our expert. The DEC imposed a reasonable penalty upon our client for doing the work without a permit, but did not require that he remove any part of the deck or dock.
March 19, 2019: CMM Secures Dismissal of Frivolous Ethics Claim Against our Client. A builder, frustrated by opposition to his development by our client before she was elected to the local municipal council, filed an ethics complaint against her. He claimed that her actions to gather information about the developer’s activities following complaints made to her by the public about those activities abused her authority for her personal benefit. Fred Eisenbud, Chair of CMM’s Environmental and Land Use Practice Group, filed a response that included an analysis of the municipality’s ethics code and vigorous argument that everything our client did was within the scope of her powers. Less than one month later, upon consideration of our opposition to the ethics complaint, the Ethics Board found that there was no reasonable basis to believe that our client had violated the ethics code. CMM is pleased to have so efficiently disposed of this frivolous complaint without it becoming public. With this issue now behind her, our client can move forward with her work on the municipal council.
January 31, 2019: $11 Million Dollar SLAPP Suit dismissed on motion by CMM - Our clients (prior to CMM’s retention) filed Article 78 Petitions challenging approvals by the City of Glen Cove of a 176-unit condominium project adjacent to their home, which were dismissed in October, 2018. The builder filed an $11 million dollar defamation lawsuit against our clients. CMM persuaded the Court that the lawsuit fell within New York Civil Rights Law’s prohibition against Strategic Litigation Against Public Participation. Prior to adoption of the anti-SLAPP suit provision of New York’s Civil Rights law, it was common for builders to sue vocal opponents of their developments in order to deter them and others from further opposition, and to punish them for what they already had done. Typically the builders did not care if they won or lost because the cost of mounting a defense was sufficient to deter the exercise of constitutionally protected rights. CMM was retained to defend the clients, and successfully moved to dismiss the complaint in its entirety. Click here to review the decision by Nassau county Supreme Court Justice Mahon. The only remaining causes of action in the litigation now are anti-SLAPP law counterclaims for damages incurred by our clients. Disputes between CMM’s clients and the developer continued. See entries above for March 19, 2019 and September, 2020.
July 10, 2017: Fred Eisenbud quoted and pictured in Newsday article on “Zap to the Future – LIPA Gearing Up For Surge in Electric-Car Charging Stations.” As an environmental attorney with solar on his home roof that generates more electricity than he and his wife uses each year, and an all-electric car (a Tesla Model S), Fred was happy to contribute to the article by Mark Harrington and to encourage people to purchase all-electric vehicles.
June 16, 2017: Fred Eisenbud quoted in Newsday article entitled “Anger Over Plan For Rental Housing.” He represents a long established community group, Concerned Taxpayers of Wheatley Heights/Dix Hills, which has opposed proposals by Gustave Wade going back to 2001 to convert his farm in Wheatley Heights to high-density residential. Fred pointed out to the Town Board that, in 2004, the then-application failed to include any testing of soil or groundwater to determine the impact of many decades of pesticide and herbicide use, and that information is still lacking in the 2017 application. Thus the quote, “I feel a little like Yogi Berra; it’s dèjá vu all over again.”
November 17, 2016: Fred Eisenbud was the principal speaker at a meeting of the Long Island Association of Professional Geologists. The topic was: “So You Wanted To Be A Licensed Professional Geologist: What Does It Mean To Be a Professional and What Happens If You Fail To Act Like One?”. Fred’s PowerPoint presentation may be downloaded by clicking here.
October 14, 2016: Fred Eisenbud served as Co-Chair of the Fall Meeting of the Environmental Section of the New York State Bar Association in Cooperstown, New York. In addition, he spoke on ways attorneys can assist clients during and after the execution of an environmental criminal search warrant. A detailed article prepared by Fred on the subject can be downloaded by clicking here.
March 9, 2016: Fred Eisenbud was the speaker at the meeting of the Long Island Association of Professional Geologists. The topic was: "Exploring Environmental Liability Risks of Engineers and Geologists in New York State”. A detailed article prepared by Fred on the subject may be downloaded by clicking here.
August 24, 2015: Fred Eisenbud quoted in Newsday article on “Court to rehear request to block Shoreham solar farm.” He represents a community group challenging the determination of the Town of Brookhaven Planning Department that a 53% limit on lot coverage for commercial solar facilities does not require that 47% of the land be preserved as contiguous open space.
July 21, 2015: Fred Eisenbud quoted in Newsday article on “Owner of Central Islip property agrees to remove contaminated fill.” He represents the owner of property who was the victim of dumping of construction and demolition debris by a third party, and is working with the client and DEC to minimize the financial impact to the property owner.
March 30, 2015: Fred Eisenbud interviewed about environmental crimes on the The John Gomez show on LI Radio News, 103.9 FM.
February 25, 2015: Appellate Division, Second Department granted Firm’s appeal from the dismissal of an Article 78 Petition brought against the New York State Department of Environmental Conservation and the Town of Clarkstown. The challenge is to a decision by the DEC to permit the Town of Clarkstown to either cap an acre and a half of solid waste dumped on our client’s property without consent decades ago, or to remove the solid waste.. The Town selected the less expensive remedy of capping. The petition seeks to compel the Town to remove the waste from the property. The costs of the appeal were awarded to our client, and the case was remitted to the Supreme Court, Westchester County, for a determination on the merits. Riverso v. New York State Department of Environmental Conservation.
