Posted On: June 27, 2009

Town May Prohibit Use of Land Solely for Access to Abutting Parcel

The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use.

The petitioner argued "the "entranceway" or "access road" was not a principal use, an accessory use, or a "driveway;" rather, it was an "infrastructure improvement" pursuant to Town of Kent Zoning Code former § 77-6(F)." On the basis of that interpretation, the petitioner claimed that the zoning board should be reversed.

While the matter was pending the Town amended its zoning ordinance to specifically address this issue and argued that the court should apply the rule which requires that in making its decision a court must apply the law as it exists on the date of the court's decision. The petitioner argued that the so called "special facts exception" should apply and the law in effect at the time of the application should be applied. The court noted that the special facts exception "may be applied if the municipality unduly delayed proceedings and acted in bad faith." However, the court declined to reach that issue.

Instead, the court upheld the zoning board based upon its interpretation of the law in effect at the time the zoning board rendered its decision. The court noted the zoning board had determined the improvement at issue was an infrastructure improvement and that part of its decision was not challenged. In addition, the zoning board determined such an improvement was not a permitted use.

The court explained that generally "[u]se of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they had been located in the first zoning district" but "this principle would not apply to a public way. The general rule is that the use of a public way is not restricted by local zoning regulations." However, "in the instant case, since the proposed road is not a mapped street and was never approved by the Town of Kent Planning Board, it cannot be considered a public way. Therefore, the proposed road is subject to local zoning regulations."

The court therefore concluded the decision of the zoning board was not arbitrary.

Posted On: June 9, 2009

Rochester Curfew Law Unconstitutional

The New York Court of Appeals declared a law adopted by the City of Rochester fixing a curfew on minors unconstitutional. In Jiovon Anonymous v. City of Rochester the Court held "we conclude that the crime statistics produced by defendants do not support the objectives of Rochester's nocturnal curfew."

After engaging in an analysis of the different levels of scrutiny that may be utilized in evaluating such regulations, as well as appropriate limitations upon the rights of minors, as opposed to those of adults, the court concluded "minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that no effort . . . [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized."

In addition to violating the rights of minors, the Court found the law violated the substantive due process rights of parents noting "an exception allowing for parental consent to the activities of minors during curfew hours is of paramount importance to the due process rights of parents." While the law allowed parents to permit their minor children to be out after curfew, it also required that the parent accompany the minor child.The Court stated that if "a parental consent exception were included in this curfew, it would be a closer case — courts have upheld curfews having, among other things, such an exception as only minimally intrusive upon the parent's due process rights". Yet, the Court found that parental consent which also requires parental custody is more of an intrusion upon parental rights than is permissible.