Posted On: May 27, 2010

District Court Ruled that Airmont Political Sign Law Violates Free Speech

The District Court ruled in Withers v. The Village of Airmont that the Village of Airmont sign ordinance violated a political candidate’s First Amendment right to free speech. There, plaintiff was a candidate running for office of the 12th Legislative District of the County of Rockland in the 2007 election and in connection with his campaign, he posted hundreds of signs. The Airmont deputy mayor and trustee Joseph Meyers was also a candidate for the same position. On August 14, 2007, another trustee Maureen Schwarz, who identified herself as campaign manager for “Friends of Joe Meyers,” sent plaintiff a letter requesting that he remove his signs from the Wal-Mart shopping center claiming that Meyers had the exclusive right to post signs there. Plaintiff also claimed that 60-70 signs were stolen and Plaintiff alleged that the Ramapo police department was directed by Meyers to remove the signs from the Wal-Mart property. On September 25, 2007, the Building code Enforcement Officer issued a violation notice to plaintiff on the basis that he had allegedly violated the Village Code by posting a political sign in excess of the size limitations.

The Court ruled that the Village Code was unconstitutional as it “impermissibly regulated speech based on content and was not narrowly tailored to serve a compelling government interest.” As a threshold matter the Court determined that the Village Code is content-based as political signs “are in their own section of the Code with different limitations than those that apply to other temporary signs.” As an example, the Court noted that other temporary signs (such as historical markers, flags, numbers, private for-sale signs, etc) were exempt from permit requirements. Thus, the Court ruled that since the Village Code was a content-based regulation, “strict scrutiny” applies.

Applying the strict scrutiny standard, the Court ruled that the durational limits on political signs while exempting other signs altogether, the size limitations on political signs and the requirement to post a security deposit (albeit a fully-refundable security deposit) for political signs did not serve a compelling state interest and therefore, the Village Code was unconstitutional.

Relying upon the United States Supreme Court case Monell v. Dep’t of Social Services, 426 U.S. 658 (1978), which held that a municipality may be liable in a § 1983 suit for unconstitutional or illegal policies, the Court found that the Village was liable under Monell for the unconstitutionality of its Code and its policy of content-based regulation.

Nonetheless, applying the doctrine of privileged immunity, the Court dismissed the claims against defendants Meyers and Schwarz arising from their actions as Village Board member in connection with upholding the current code as the Court ruled they were entitled to legislative immunity. But these defendants would not be entitled to legislative immunity for actions falling outside of their legislative activities – like for example, Schwarz’s threat while acting as campaign manager for Meyer to remove his signs from Wal-Mart. Thus, the Court did not dismiss these non-legislative action claims.

Finally, the Court ruled that the Code enforcement officer was entitled to qualified immunity and dismissed the action as against the Code enforcement officer.

By Katherine Zalantis

Posted On: May 23, 2010

Circuit Court Finds Boulder County Violated RLUIPA

Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church's proposed expansion.

Significantly, the County had a long standing comprehensive plan which sought to maintain the rural character of the County. The legislation which implemented the comprehensive plan required a special permit for any project with an occupancy of 100 or more people in an Agricultural District. The criteria for the special permit had both objective (height requirements) and subjective (compatibility) criteria. The proposed application met the threshold requirements for a special permit and ultimately sought "a 28,000 square foot gymnasium, a 6,500 square foot chapel, expanding the school building by 57,500 square feet, gallery space connecting the buildings,and an expansion of the main worship building’s seating capacity by 150 seats." The review by the County staff found compliance with the objective criteria but also found the project to be "incompatible with the surrounding area, an over-intensive use of the land, likely to cause undue traffic congestion, and likely detrimental to the welfare of the residents of Boulder County."

The Circuit Court found that the staff had modified its methodology for determining if a proposal was over-intensive. The usual criteria was based upon a calculation of whether the expansion resulted in 50% or more of the property being covered by buildings and parking. The Court noted, in this case the coverage was only 35%, yet there was a determination by staff that the proposal was "over-intensive." However, rather than using the coverage criteria, County staff determined the proposal was over-intensive because it doubled the church's square footage and significantly increased parking. In reciting the facts, the Circuit Court made a point of noting that one of the Commissioners greeted a consultant for the Church privately before the public hearing stating "you can bring in your Christians now." The final decision permitted the 150 seat expansion and 10,000 square foot building to replace the modular building but denied the balance of the application.

The Church sued under RLUIPA. A jury found for the Church on the substantial burden, equal terms and unreasonable limitations claims but failed to award any damages. The District Court then issued a permanent injunction directing issuance of the special permit.

The County appealed the decision, including the injunction and further argued that if the Court found the substantial burden provisions of RLUIPA had been violated that the law should be declared unconstitutional both on its face and as applied in this case.

On the issue of equal terms the County argued that evidence of a similar application of the Dawson School, which was approved, was not really a similar application. The Court however found that while the projects were not identical "the many substantial similarities allow for a reasonable jury to conclude that RMCC and Dawson School were similarly situated." The County argued in the alternative that it had an affirmative defense that "a generally applicable law that is rationally related to a legitimate governmental interest cannot violate the equal terms provision." The Court rejected that defense in this case and found: "evidence at trial was sufficient to demonstrate the County applied the zoning ordinance non-neutrally. As noted above, the Church was treated less favorably than Dawson School, a similarly situated comparator. Further, there was evidence the County singled out the Church for adverse treatment in “processing” and “determining” its application. For example, the County applied a less advantageous method to calculate whether the Church’s proposed use was over-intensive, and treated the Church’s application as a new application, even though it was an existing use. .... As a result, if an affirmative defense to the equal terms provision exists, only a strict scrutiny defense would apply here. The County has not argued that it should enjoy a strict scrutiny defense to the equal terms provision, and thus the argument is waived."

The Court then went on to review evidence as to whether the County placed unreasonable limitations on religious uses. Included in the evidence was information about other religious groups that either had been discouraged to not apply or, in one case, a group that ran out of money during the review process. The Court also found evidence of "disparate treatment" of the Church in the application process and concluded that there was adequate evidence to support the jury's verdict. The Court went on to decline to address the substantial burden issue in view of its findings upholding the determination on the basis of equal terms and unreasonable limitations.

The Court also found that the County had not adequately preserved its constitutional challenges on the issues of equal terms and unreasonable limitations. Therefore, the Court held it was not necessary to address the constitutional challenge to the substantial burden provisions of the statute, finding instead that the "district court based the permanent injunction on all three RLUIPA counts. Because the jury’s verdicts on the equal terms and unreasonable limitations claims are sufficient to support the injunction, we do not address the constitutionality of RLUIPA’s substantial burden provision."

Finally, the Court concluded that the permanent injunction granting the entire application was not overly broad. This is rather interesting because the proposal by the Church was based upon a projection of potential needs over the next twenty years and the County argued it was therefore not necessary to approve the entire application. Yet, the Court concluded that not granting the relief would require the Church to address its expansion in a "piecemeal fashion."

-Steven Silverberg

Posted On: May 21, 2010

N.Y. Court of Appeals Rules in Favor Of Cayuga Indian Nation On Failure To Collect Cigarette Sales Taxes

In an action brought to prevent prosecution of members of an Indian nation for failure to collect cigarette sales taxes on sale to non-members of the nation, the Court of Appeals issued judgment in favor of the plaintiffs. In Cayuga Indian Nation v. Cayuga County Sheriff, the court noted that Federal law precludes collection of cigarette sales taxes on sales by Indians to members of their own tribe on reservation lands. The court found that the two parcels in question were qualified reservation land.

Noting that the ultimate responsibility for payment of sales tax rests on the consumer, but that the practice has been for wholesalers to purchase tax stamps from the state and for the cost of those stamps to be passed up the chain to retailers and then consumers the court concluded:

"Thus, the issue in this case is not whether sales taxes are due when non-Indian consumers purchase cigarettes from Indian retailers — they are. The issue is whether Indian retailers can be criminally prosecuted for failing to collect the sales taxes from consumers and forward them to the Department. In the absence of a methodology developed by the State that respects the federally protected right to sell untaxed cigarettes to members of the Nation while at the same time providing for the calculation and collection of the tax relating to retail sales to non-Indian consumers, we answer this question in the negative".

Noting that the State Tax Law provision for collection of such taxes from the Indian Nations required implementation of regulations which were never put in place, the court held:

"restrictions that limit the state's efforts to collect cigarette taxes from Indian nations or their members in this context are derived from federal law and this prompted the Legislature to address the need for a specialized tax collection scheme by adopting Tax Law § 471-e. Since section 471-e was never operative, and no other comparable statutory or regulatory scheme has filled that gap, the Nation is entitled to declaratory relief."

-Steven Silverberg

Posted On: May 17, 2010

Court Upholds Denial Of Area Variance Based Upon Balancing Test

The appellate division found that a zoning board properly denied an area variance after engaging in the required balancing test. In Matter of Monroe Beach Inc. v. Zoning Board of Appeals of City of Long Beach the court determined that the zoning board had made findings that:

"the requested variances were substantial, would result in a detriment to nearby properties, and would have an adverse effect on the physical and environmental conditions in the surrounding neighborhood were supported by hearing testimony and documentary evidence .... Moreover, its finding that the alleged difficulty was self-created had a rational basis, as the applicable zoning regulations were in effect when the petitioner purchased the property."

Furthermore the court noted: "the petitioner's contention that the ZBA granted another area variance application for the construction of a nearby multistory residential building is insufficient to establish that the ZBA's conduct in denying its application was arbitrary and capricious, since the petitioner failed to demonstrate that the ZBA "reach[ed] a different result on essentially the same facts" (Matter of Arata v Morelli, 40 AD3d at 993 [citation and internal quotation marks omitted]; see Matter of Gallo v Rosell, 52 AD3d at 516)."

-Steven Silverberg

Posted On: May 15, 2010

Failure To Comply With Open Meetings Law Held Mere Negligence Not Requiring Remand

An appellate court held that a zoning board's failure to comply with the "precise requirements" of the open meetings law did not rise to a level which required that the matter be remanded for further action in public. In Matter of Cunney v. Board of Trustees of the Village of Grand View the lower court had found that the conditions imposed on the granting of an area variance were reasonable but that the zoning board had failed to comply with the open meetings law when it did not take its vote in public. Therefore the lower court found that the matter had to be remanded for "a formal decision in open session."

The Appellate Division reversed that portion of the judgment remanding the matter. While it agreed that "the ZBA violated the Open Meetings Law by failing to vote on the application in public session" the court went on to state that an action should only be voided for such a violation upon "good cause shown." The court held that the petitioner had failed to show good cause and anyway the violation was "mere negligence." The decision does not explain why the court determined this violation was negligence. However, it would appear that the court likely felt, since the conditions were found to be reasonable, that there was not much purpose in sending the matter back just to go through the formality of voting in public..

-Steven Silverberg

Posted On: May 5, 2010

Court Finds that 82 Year Old Filed Map Does Not Vest Rights to Subdivision

An attempt to circumvent planning board approval of a subdivision using a subdivision map filed in the county clerk’s office 1928 was rejected by the Appellate Division. In Matter of Atlantic Development LLC v. Town/Village of Harrison the court found that a 1923 provision of the local town code, still in effect in 1928, required town board approval for any subdivision and therefore the 1928 map, which had not received such approval, did not create a valid subdivision. The appellant had argued that the provisions of New York State Town Law section 276(2) grandfathered development of the 45 lot subdivision shown on the 1928 map. The cited provision permits continued development of a property which has at least 80% of a site developed and is shown on a subdivision map filed with the county clerk’s office prior to the appointment of a planning board by the town. Since the 1928 map predates the creation of a planning board in the Town/Village of Harrison, the appellant claimed the provisions of Town Law 276(2) applied and the property was exempt from the requirement of subdivision approval by the planning board.

In rejecting this argument, the court noted that the property was undeveloped and since 80% of the property was not improved the grandfathering provisions of Town Law section 276(2) did not apply. Further, in an interesting interpretation of the statute, the court also found that Town Law section 276(2) did not apply because in 1928 the town board was the "functional equivalent of a planning board." The court held:

“…while the 1928 Map was filed prior to the creation of the Planning Board, the 1923 Town Code, as previously noted, required Town Board approval of any subdivision plat. As of 1928, the Town Board was, for the purposes of the current version of Town Law § 276(2), also the functional equivalent of a planning board for the Town (see e.g. Matter of Russell Oaks, Inc. v Planning Bd. of Inc. Vil. of Russell Gardens, 28 AD2d 569, affd 21 NY2d 784), and the 1928 Map was filed at a time when approval was required by the functional equivalent of a planning board, that is, the Town Board.”

-Steven Silverberg