Mr. Fogel’s practice focuses on the areas of environmental law, land use, zoning, real estate development, and litigation.
Mr. Fogel represents clients throughout New York State in connection with securing the federal, state and local municipal approvals necessary to develop property into industrial, commercial and residential uses. This development work regularly involves matters involving compliance with the State Environmental Quality Review Act (SEQRA), the Mined Land Reclamation Law (MLRL), National Environmental Protection Act, Clean Water Act, Clean Air Act, Endangered Species Act and other federal and state environmental laws and regulations. In connection with this work, Mr. Fogel regularly represents clients before administrative agencies, including the New York State Department of Environmental Conservation (DEC), the Army Corps of Engineers, the New York State Department of Transportation, and before municipal boards throughout New York State.
Mr. Fogel’s litigation practice generally involves complex environmental litigation, often involving defending or challenging compliance with SEQRA in connection with project approvals or denials, and challenging other agency determinations through Article 78 proceedings. His litigation experience also involves defending and prosecuting cost recovery actions in federal court actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), recently obtaining dismissal on summary judgment of a several million dollar CERCLA action brought against a developer client. Mr. Fogel’s litigation experience also extends to commercial litigation, including defense and prosecution of breach of contract claims. Mr. Fogel also regularly represents clients in real property tax certiorari matters and tax foreclosure matters.
Mr. Fogel also has experience representing clients before Industrial Development Agencies to obtain financial benefits necessary for project development. Such representation includes preparation and prosecution of applications for financial benefits, including sales and use tax exemptions, Payment in Lieu of Tax Agreements (PILOTs) and mortgage recording tax exemptions.
Mr. Fogel regularly represents clients in the mining and commercial aggregate industries, developing strategies for siting and permitting of mining operations, commercial aggregate, hot-mix asphalt and ready-mix concrete facilities. He has substantial experience working with the New York State Department of Environmental Conservation’s Division of Mineral Resources, and local municipalities in obtaining the required State and local permits and approvals for numerous mining clients. Mr. Fogel’s work with the mining industry has resulted in successfully permitting thousands of acres of land in New York State for commercial mining.
Mr. Fogel also represents mining companies in connection with investigations and enforcement actions involving the Mine Safety and Health Administration (MSHA).
In addition to his practice, Mr. Fogel is a frequent lecturer and writer on environmental, land use, zoning and other real estate development issues.
Prior to entering private practice, Mr. Fogel was the principal law clerk to the Honorable Fred H. Kumpf, J.S.C. for the New Jersey Superior Court, Civil Division.
Representative Experience
Litigation
Successfully represented developer against CERCLA lawsuit seeking reimbursement of several million dollars of remediation costs. On summary judgment, the Federal District Court for the Northern District of New York ruled in our client’s favor and dismissed Plaintiff’s CERCLA claims. See, Robert H. Law, Inc. v. Woodbine Business Park, Inc., et al., 2019 WL 1130121 (NDNY, March 12, 2019).
Successfully represented multiple defendants in defense of $95 million dollar CERCLA action related to Ley Creek cleanup. The Federal District Court for the Northern District of New York rule in our clients’ favor and dismissed Plaintiff’s claims. See, RACER Trust, et al. v. National Grid USA, et al., 2020 WL 2404770 (NDNY, May 12, 2020).
Successfully represented developer against an Article 78 proceeding and Declaratory Judgment action brought by project opponents seeking to overturn site plan, special use permit and subdivision approvals for mixed-use development in the Village of Cazenovia. After a hearing, Supreme Court, Madison County, dismissed the project opponents' claims.
Successfully represented company against a lawsuit brought by a community group and neighboring residents seeking to halt the ongoing clean-up of one of the largest Superfund sites in the United States. After an evidentiary hearing, the company prevailed against Plaintiffs’ motion for a preliminary injunction to halt the clean-up, and obtained dismissal of Plaintiffs’ claims for injunctive relief.
Defended Niagara County against a lawsuit by neighboring residents seeking money damages and to halt on-going construction of a telecommunications tower that was part of cellular tower network necessary to facilitate county-wide emergency communications for first responders. After an evidentiary hearing, the Supreme Court, Niagara County, denied Plaintiffs’ motion for preliminary injunction and dismissed Plaintiffs’ claims.
Successfully defended Cayuga County against a lawsuit challenging the siting and construction of one of the county’s proposed emergency communications towers on the grounds that the county was exempt from local zoning.
Secured dismissal of lawsuit brought by competitor seeking to overturn comprehensive SEQRA process, land use approvals and zone change obtained by developer client necessary to facilitate redevelopment of 1,600 acre property to include casino, hotel, golf course, residential and retail development.
Successfully represented developer in lawsuit against City of Syracuse Planning Commission challenging denial of project site plan approval and parking waiver in connection with project development of residential re-entry center for federal prisoners.
Represented mining operators in lawsuits against municipalities and obtained declaratory judgment that zoning restrictions preventing below-water table mining and imposing setback restrictions was superseded by the New York State Mined Land Reclamation Law.
Obtained temporary restraining order preventing municipality from enforcing zoning ordinance against short-term rental operator.
Successfully represented mining operator against claims by municipality that mining operator excavated below approved depth.
Environmental, Land Use, Zoning and Real Estate Development
Land use and environmental counsel to a New York State licensed casino developer. Representation includes all aspects of project development, including advising on environmental review process, negotiating water and sewer agreements, prosecuting various federal and state wetlands permits, amending local laws to enable a comprehensive master planned destination resort zoning district and obtaining various local land use approvals, including site plan and subdivision approvals.
Represented automobile dealership in connection with securing site plan approval, special use permit and area variances necessary to facilitate development of new dealership in the Village of Fayetteville.
Represented national retailer in connection with securing local approvals for development of new retail store in the Town of Onondaga, New York.
Outside counsel for one of the largest solar developers in New York State. Representation includes state, federal and local environmental permitting, land use and zoning issues necessary for state-wide portfolio of solar array developments.
Land use and environmental counsel for the redevelopment of a world class golf course in Sullivan County, New York. Representation includes SEQRA compliance, obtaining site plan and subdivision approvals, obtaining state and federal wetlands approvals to enable redevelopment, and obtaining local financial benefits for the project (sales and use tax exemption, PILOT agreement, etc.) from the County of Sullivan Industrial Development Agency.
Represented major food and beverage company in connection with modification to its industrial State Pollutant Discharge Elimination System (SPDES) permit.
Obtained Army Corps of Engineers and New York State wetlands permits and related approvals for development of ground mounted 2 MW solar array.
Obtained necessary state and local approvals for digital billboard development.
Obtained town special use permit allowing for continuation of established mining operation.
Secured zone change and special use permit to facilitate development of hot-mix asphalt facility.
Represented several New York counties in connection with comprehensive State Environmental Quality Review Act process and applications for related approvals necessary for construction of county-wide telecommunications towers as part of emergency communications system for first responders.
Successfully lead efforts on behalf of property developers to decertify zoning protest petitions filed by neighboring residents which resulted in town enactment of professional and office development overlay zoning district.
Represented school district in connection with cleanup and remediation of ethanol spill on school property, including negotiation of consent order with New York State Department of Environmental Conservation.
Represented mining company in connection with environmental due diligence performed as part of acquisition.
Negotiated environmental easement with New York State Department of Environmental Conservation on behalf of client participating in New York State Brownfields Program.
Represented major pipeline company in connection with application for major site plan approval, and related approvals, necessary to upgrade and expand existing terminal.
Economic Development
Represented developer before Industrial Development Agency in negotiations for Payment in Lieu of Tax Agreement (PILOT) and related project documents in connection with development of casino project.
Represented developer in connection with application to Industrial Development Agency for economic benefits for development of golf course, including sales and use tax exemptions and PILOT.
Applied for and obtained tax exemptions and related project benefits from multiple Industrial Development Agencies, on behalf of a Real Estate Investment Trust (REIT), for several properties within its 300-plus property portfolio.
Represented a major power producer in its negotiations with Industrial Development Agency to secure and maintain financial benefits under the County’s uniform tax exemption policy, including PILOT and mortgage recording tax.
Represented developer in connection with application to Industrial Development Agency seeking consent to sale transaction under applicable Lease/Leaseback Agreement.
Education
J.D., magna cum laude, Syracuse University College of Law
B.A., Binghamton University
Admissions
New York
U.S. District Court, Northern District of New York
U.S. Court of Appeals, Second Circuit
Honors and Affiliations
2015 Central New York Business Journal 40 under Forty Award Winner
New York Super Lawyers Rising Stars – Environmental Law
Syracuse University Law Alumni Association, Board of Directors
New York Construction Materials Association, Inc., Board of Directors
LiteracyCNY, Board of Directors, Executive Committee
Onondaga County Bar Association, Co-Chair, Environmental Law and Land Use Section
Binghamton University, Harpur Edge Mentoring Program
East Syracuse-Minoa Little League, Board of Directors
Lorman Education Services, 2017 Platinum Distinguished Faculty
Order of the Coif
Justinian Honorary Law Society
New York State Bar Association, Environmental and Energy Law Section
Member, Committee on Mining and Oil & Gas Exploration
Member, Committee on Legislation
Member, Committee on Global Climate Change
Member, Committee on Energy Law
National Stone, Sand & Gravel Association
Member, Young Leaders Steering Committee
Member, Legal Affairs Committee
Member, Environmental Committee
New York State Construction Materials Association
Associate Member
Member, Environmental Committee
Member, Associates Committee
Representative Speaking Engagements
Onondaga County Bar Association, Important Developments in the Clean Water Act: The Navigable Waters Protection Rule and County of Maui v. Hawaii Wildlife Fund
Onondaga County Bar Association, Eminent Domain and I-81: What does this road ahead look like?
New York Construction Materials Association Operations Workshop, Important Developments in the Clean Water Act
National Business Institute, Land Use and Zoning from Start to Finish
Erie-Niagara Chapter of the New York State Society of Professional Engineers, E-Week Seminar Series, New York State Brownfields Cleanup Program Overview and Updates
Lorman Education Services, Current Issues in SEQRA
Lorman Education Services, Brownfields in New York
Lorman Education Services, Environmental Liabilities in Real Estate Transactions
Lorman Education Services, Ethics in Environmental Law
New York Construction Materials Association, Environmental Forum, Current Status of Federal Waters of the United States - New Rules and Court Challenges
New York State Bar Association, Environmental Law Section Meeting, Current Developments in New York's Oil & Gas Activities
New York Construction Materials Association, Spring Meeting, Environmental 101
Erie-Niagara Chapter of The New York State Society of Professional Engineers, E-Week Seminar Series, SEQRA Update
National Business Institute, Practical Guide to Zoning and Land Use Law
The County Attorneys’ Association of the State of New York, SEQRA Refresher
The County Attorneys’ Association of the State of New York, Public Safety Radio and Rebanding Legal Update
New York Construction Materials Association, Annual Meeting, Legal Update
Air & Waste Management Association of Central New York, Legal and Regulatory Update
Representative Publications
New York Real Estate Journal, The New Stormwater Regulations for Industrial Facilities in New York State
Material Matters, a publication of the New York Construction Materials Association, Legal and Regulatory Update