Posted On: January 18, 2008

Westchester Creates New Municipal Planning Tool

The Westchester County Planning Department has posted a new Web Page which it hopes will be a planning tool for local communities and assist in regional planning. The site states: "[w]hether you are a planner or a concerned resident, you will find tools on these web pages that assist in understanding your community, defining its character and envisioning the future."

The site ( contains links to all 43 Westchester municipalities and data on each municipality, with the intention that additional information will be added. Claimed to be the first site of its kind in the State of New York, it will be interesting to see if it is utilized and its impact on planning in the County.

Posted On: January 15, 2008

Village Settles RLUIPA Case With Westchester Day School

After a five year struggle in the Courts, the Village of Mamaroneck settled the RLUIPA claim of the Westchester Day School by agreeing to pay 4.75 million dollars in three installments. After the Village lost in the Second Circuit Court of Appeals this law firm was brought in to handle the case and evaluate the claim by the Day School for an estimated 22 million dollars in damages, including over three million dollars in attorneys fees. The Village Board voted last night to settle the case and approval of the settlement by the Day School Board is expected later this week. See our earlier Blogs about the decisions in the case under the topic heading RLUIPA.

For what others think about the case and the settlement see:

Posted On: January 8, 2008

Civil Rights Action Barred When Article 78 Proceeding Provides Adequate Remedy

An action under 42 USC §1983 may not be maintained when the plaintiff had other meaningful remedies. The Appellate Division, Third Department affirmed the lower court’s granting of summary judgment to the defendants in Hughes Village Restaurant, Inc. v. Village of Castleton-On-Hudson. The Court found that the plaintiff could have brought a CPLR article 78 proceeding against the officials who forced plaintiff to vacate an apartment house as a result of certain building and fire code violations.

The plaintiff claimed that by requiring that the building be vacated the municipal officials caused a situation which resulted in pipes freezing and the destruction of the property. If the damages resulted from established procedure due process requires that there be a hearing procedure available before deprivation of property rights. The Court found that the closure resulted from random unauthorized acts rather than established municipal procedure. Therefore, it concluded the question for the Court is whether there was a “meaningful post deprivation remedy” for the plaintiff. The Court held a CPLR article 78 proceeding provides such a remedy as “a CPLR article 78 proceeding could have challenged the alleged wrongful closure of plaintiff’s building, incidental to which it could have claimed damages for the destruction that allegedly resulted….” Finally, the Court found that the failure of the plaintiff to bring such a proceeding “does not undermine our determination.”

Posted On: January 7, 2008

Agency Has the Burden of Proving Exemption for FOIL Request

The New York Court of Appeals held that the Freedom of Information Law carries the presumption of access to records. In reversing the holding of the Appellate Division and remitting the matter for a factual determination, the Court held in Matter of Data Tree, LLC v. Romaine that the Suffolk County Clerk, which claimed the requested documents were exempt from disclosure, “carries the burden of demonstrating that the exemption applies to the FOIL request.”

Data Tree is in the business of providing property records electronically and had requested that the County Clerk supply copies of various public land records from 1983 to the present, in an electronic format. When the Clerk failed to respond within five days, Data Tree treated this as a de facto denial and made an administrative appeal. The County Attorney denied the appeal citing three grounds (1) the request would require rewriting data which the Clerk is not required to do, (2) there would be an unwarranted invasion of personal privacy due to the volume and commercial nature of the request and (3) the records are otherwise available for copying individually in the Clerk’s Office. The determination was upheld by the Supreme Court and the Appellate Division.

The Court held that unless a specific exemption applies the records must be made available. After noting that the exemptions must be “narrowly interpreted” the Court agreed that the Appellate Division had engaged in improper burden shifting. It found that the burden is on the Clerk to prove an exemption applies not upon the applicant to prove an exemption does not apply.

Finding that the exemption under Public Officers Law section 87 (2)(b)(iii) for sale of mailing lists used for commercial or fund raising purposes did not apply, the Court remitted the matter for findings of fact on the other issues. The Court noted that questions existed as to whether the privacy exemption might apply because some records may contain personal information. In addition, the Court held that “an agency has no obligation to accommodate a request to compile data in a preferable commercial electronic format when the agency does not maintain records in such a manner.” Conflicting affidavits raised the question of whether the current records could be transferred electronically. Yet, the Court also held that “simple manipulation of the computer necessary to transfer exiting records should not, if it does not involve significant time or expense, be treated as creation of a new document.”

Posted On: January 6, 2008

Denial of Area Variance Due to Community Pressure Reversed

Finding that a zoning board had “improperly succumbed to community pressure,” the Appellate Division, Second Department affirmed the lower court’s reversal of the denial of an area variance. In the case of Schumacher v. Town of East Hampton Zoning Board of Appeals, the Court noted the limited nature of judicial review of zoning board decisions but found that the zoning board’s actions were arbitrary.

In reversing the zoning board, the Court found that the proposed reconstruction of the applicant’s home would actually be an increase of the existing setback from the wetlands at issue and that all of the lots surrounding the property were “nonconforming in terms of the applicable requirements for setbacks from wetlands.” The court concluded that the zoning board’s determination that the house should be decreased in size was “irrational.”