Posted On: December 19, 2005

Court of Appeals Remands Adult Zoning Case

The Court of Appeals remanded a case involving New York City’s adult business zoning regulations for further hearings on whether so called 60/40 businesses should be regulated as adult businesses due to adverse secondary impacts on nearby properties and neighborhoods. The action by For the People Theatres of New York, Inc. challenged New York’s 2001 zoning amendments which attempted to control establishments which evaded the regulations on businesses that have a “substantial portion” of the business devoted to adult uses by maintaining so called 60/40 uses with 60 percent allegedly non-adult uses. The Court noted that the information submitted by the Plaintiff’s experts did not resolve the issue but merely shifted the burden to the City to prove secondary adverse impacts. The Court remanded the matter to provide the City with an opportunity to submit evidence of secondary impacts.

Posted On: December 12, 2005

Eminent Domain Case Remanded to District Court on Notice Issue

On December 5, 2005 the Second Circuit Court of Appeals remanded the case of Brody v. Village of Port Chester back to the District Court on the issue of whether Brody had actual notice of the proceedings and procedures under New York Eminent Domain Procedure Law (“EDPL”) before his property was condemned by the Village. In a case that has been bouncing between the District Court and Second Circuit Court of Appeals since the year 2000, the Second Circuit ruled that the EDPL’s procedure for determining whether a decision to condemn property for public use met constitutional muster. However, the Court determined that the notice provisions that existed prior to 2004 were flawed in that they failed to provide notice of the thirty day time limit for challenging a determination that the purpose of a condemnation was for a public use.

On its face the decision would appear to be limited to the facts of this case, as the Court noted the statute, as subsequently amended in 2004, now meets constitutional due process requirements. Yet, the decision of the Court raises interesting issues for other municipal land use determinations. The Court held “the notice sent to affected property owners must make some conspicuous mention of the commencement of the thirty-day review period to satisfy due process”. Does this mean that other land use determinations that implicate property rights must also contain notice of the commencement of a short statute of limitations in addition to the notice of decision required by statute?

Posted On: December 5, 2005

Jury Awards 1.6 Million for Rezoning of Property

A Long Island jury (Noghrey v. Town of Brookhaven) granted a verdict of 1.6 million dollars against the Town of Brookhaven as a result of the rezoning of two parcels of land. The property, which had been zoned to permit shopping center uses was rezoned and the owner claimed this resulted in a loss of value.

While the presiding judge had ruled that the property owner had not lost all economically viable use of his land, he allowed the jury to reach a verdict on the issue of a regulatory taking based upon a loss of investment backed expectations. The property owner had purchased the two parcels in order to develop the properties for retail uses. The court apparently instructed the jury that it needed to only find by a perponderance of the evidence that there had been a loss of investment backed expectations.

This descision seems to run contrary to a long standing rule in New York that a property owner has no vested right in the potential use of her property. Municipalities have been permited to rezone property as long as the land owner has not established that there has been a substantial expenditure in furtherance of the development of the property for a specific use. In Magee v. Town of Orangetown, which is perhaps the leading case on this issue, the property owner had invested millions in developing the property when its permits were revoked and the property was rezoned. In that case the New York Court of Appeals upheld a judgment against the town for a regulatory taking.

It will be interesting to see how the appellate courts respond to this case.

Posted On: December 2, 2005

When Does RLUIPA Prevent Review of Land Use Applications?

The Appellate Division of the State Supreme Court ruled this summer that the Legion of Christ, Inc., a religious organization that operates a private college, must comply with local zoning. The court held the Religious Land Use and Institutionialized Persons Act (RLUIPA) was not violated by requiring a religious organization, operating a private college, to follow the same land use application process as a secular organization.

This is similar to the issues being raised in the case presently being heard in the United States District Court for the Southern District of New York involving the Westchester Day School and the Village of Mamaroneck. The non-jury trial revolves around an application that has been pending for approximately four years to allow for the expansion of a day school operated by a religious group. The group claims that the failure to approve the expansion of the school substantially effects religious practice. The Village claims that the school seeks to enlarge in order to deliver secular classes and that these secular activities are not protected by RLUIPA.

Whatever the outcome the matter is likely to find its way to a higher court.

Posted On: December 1, 2005

Bar Association Creates Task Force to Study Eminent Domain

The President of the New York State Bar Association has established a task force to study New York’s Eminent Domain Law in the wake of the controversy created by the U.S. Supreme Court decision in Kelo v. New London this year. The holding by the Court that municipalities may use their eminent domain powers to take private property for economic development has prompted calls by members of the New York State Legislature to curb local authority to condemn property. In addition, members of Congress have suggested that projects with federal funding should be barred from using eminent domain powers.

What seems to be missing from the discussion is the fact that the Kelo case really did not break any new ground. Municipalities have been using eminent domain to build railroads, revitalize business districts or improve housing stock for about one hundred years. Following the end of World War II urban renewal became a major force for revitalization and condemnation was a significant tool for implementing these programs. It seems the Kelo decision has merely raised the collective consciousness about the use of eminent domain.

The thought that someone can have their home taken so that a private developer can build a supermarket or an office building has outraged many. Yet, the aim of these projects is to create jobs and improve the overall quality of life in these communities. Since the U.S. Constitution only requires that just compensation be paid, the actual rules governing the details of eminent domain powers are governed by state law. Therefore it will be up to the legislatures of States, such as New York, that permit broader use of condemnation authority to examine whether “public purpose” should continue to include the economic redevelopment of communities.