Posted On: April 29, 2006

Changed Circumstances Warrant Area Variance Rehearing Before Zoning Board

An appellate court found a zoning board was arbitrary when it refused to hear an area variance application for the same property which had been denied an area variance nearly twenty years earlier. On April 25, 2006 the Appellate Division Second Department, in Matter of Moore v. Town of Islip Board of Appeals, held that while a zoning board may decline to rehear an application in the absence of new facts, it may not refuse to hear an application where there has been a substantial change in circumstances.

In this case there was an application to build a house on a substandard lot and a similar application had been denied previously. Yet, there was a new property owner and more importantly the application sought fewer variances and eliminated a proposed two car garage. The Court remitted the matter to the zoning board for reconsideration in view of the Court’s findings.

Interestingly the Court did not point out that when the original application was made the legal criteria for granting an area variance was much more stringent than the present criteria. Perhaps this factor by itself is a sufficient change in circumstances to warrant a rehearing?

Posted On: April 13, 2006

Court Finds New York City Towing Regulations Unconstitutional

A Federal Court has determined that the City of New York’s licensing provisions for tow truck operators violates the interstate commerce clause of the United States Constitution. In the case of Automobile Club of New York, Inc. v. Dykstra, Judge Owen of the United States District Court for the Southern District of New York found that the City failed to provide any statistics or other proof that it actually achieved its goal of increased owner safety through its licensing requirements for operators from outside the City.

For almost two decades, New York City has enjoyed an informal reciprocal agreement with other States and surrounding counties within New York State which allowed a tow truck operator from outside the City to operate within the City. On March 31, 2004, this changed when New York City seized 21 tow trucks from other States or New York Counties. New York City seized these trucks on the sole ground that they were not properly licensed to operate within the City limits. The Federal Court found that these seizures impeded both interstate and intrastate commerce, and therefore were prohibited by the Commerce Clause of the Constitution.

Upon review of New York City’s licensing procedure, the Court invalidated the withholding of licenses based upon a required criminal background check of an out of City operator’s individual drivers. New York City justified the seizures by claiming that this criminal background check was necessary to provide increased safety for automobile owners but failed to provide statistical evidence supporting this rationale. Therefore, the Court ruled that New York City cannot preclude an otherwise qualified driver from another state or county from operating within the city.

The City also seized some trucks on the basis that they did not fit within the City’s definition of towing. New York City regulations drastically reduced the activities that constitute towing and the vehicles that can carry out such activities from those defined in New York State Vehicle and Traffic Law § 107-b. New York City defined towing as “the driving of a tow truck.” Utilizing this definition, the City seized vehicles that did not fit this description. Through Vehicle and Traffic Law § 1600, State law preempts any local legislation in the area. The Court found that the City of New York may vary from the New York State requirements for towing in limited areas, but does not have the power to redefine towing, which is already defined in the State Vehicle and Traffic Law. With this decision, the Court has limited municipal restrictions of commercial activity otherwise permitted by State law.

Posted On: April 8, 2006

Court of Appeals Bars Attempt to Block Eminent Domain Action

The New York Court of Appeals held that a property owner’s challenge to condemnation of property by the City of New York was untimely when it was not raised within four months of a finding by the City Planning Commission that the condemnation should proceed. In the April 4, 2006 decision in the Matter of City of New York (Third Water Tunnel Shaft 30B) the Court noted that under the Eminent Domain Procedure Law (EDPL) there is a two part process in completing condemnation (1) determining that a property should be taken for a public purpose and (2) commencing a judicial vesting proceeding to acquire title to the property. The Court held that once the City determined through an appropriate hearing process that the property should be condemned the owner’s challenge to the extent of the proposed condemnation had to be commenced within four months, even though no judicial proceeding was commenced by the City until approximately six months after the City determined to condemn the property.

In order to build a water tunnel the City determined to acquire the entire property even though once the shaft for the tunnel was dug only a portion of the property above ground would be used to vent and access the shaft. Six months after determining to condemn the property the City started a judicial vesting action. The property owner conceded the public purpose but raised, as a defense to the vesting action, a claim that acquiring the entire property would be excessive. The City moved to dismiss the defense and counter claim stating that this issue should have been raised in a separate Article 78 proceeding challenging the administrative determination to acquire the property, within four months of that determination. The Court of Appeals agreed.

The Court of Appeals noted that the general rule is that a challenge to an administrative action (Article 78 proceeding) must be commenced within four months of the date on which the administrative action becomes final and binding (there are specific exceptions that are shorter). While the owner argued that the action became final when the Mayor approved the capital budget proposal for the water tunnel, the Court found that the action became final when the City Planning Commission made its final determination to proceed with the acquisition and the City Council failed to exercise its right to review that determination. This case again demonstrates that when an administrative process has multiple steps it is always safer to challenge the earliest action, unless the courts have previously held that a challenge to that particular action can be brought later in the process.