Posted On: November 29, 2010

Court of Appeals Finds Release of Names Exempt From FOIL

The Court of Appeals reversed the Appellate Division and denied access, under the Freedom of Information Law (FOIL), to the names of teachers working at a charter school. In Matter of New York State United Teachers v. Brighter Choice Charter School, the Court of Appeals, after noting that charter schools are subject to FOIL, concluded that the release of the names of teachers would be an unwarranted invasion of privacy.

The school had already agreed to release the titles and salaries of teachers but objected to the original request for names and addresses. Subsequently, the Union modified the request and asked only for the names but not the addresses. The Court noted "an entity subject to FOIL may deny access to records that "if disclosed would constitute an unwarranted invasion of personal privacy," which, as relevant here, includes the "sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes" (Public Officers Law § 89 [2][b][iii])."

After noting that during oral argument the Union's counsel conceded that the names would be used to expand membership and collect dues, the Court concluded the release of names, for what was in effect fund raising purposes, would serve no public purpose. The Court therefore found that the privacy exemption overrides other considerations and "because charter schools must afford employee organizations access under the Education Law, it does not follow that the employee organizations may circumvent the FOIL exemptions in achieving those ends."

Therefore, the Court reversed the Appellate Division and determined, under the circumstances, that the privacy exemption of Public Officers Law precluded the release of the teachers names.

-Steven Silverberg

Posted On: November 28, 2010

Zoning Board Properly Applied Balancing Test In Denying Area Variance

The Appellate Division found that a request for an area variance to park in the front yard of the petitioner's property would produce an undesirable change in the neighborhood and therefore the zoning board properly denied the requested variance. In Matter of Russo v. City of Albany Zoning Board, the Appellate Division Third Department held that the zoning board had properly applied the statutory balancing test (Town Law 267-b(3)) in reviewing the area variance application and therefore the decision should not be overturned.

The petitioner initially claimed that he was parking in his front yard pursuant to a previously issued variance or permit. The City could find no record of any such permit or variance and since petitioner began using the space after the zoning ordinance prohibited parking in the front yard it could not be a legal non-conforming use.

As for the requested variance, the court found that "although other houses in the surrounding area had front-yard parking, this constituted the overwhelming minority of the properties. Furthermore, ...compared to those few properties, petitioner's use drastically differed in that his parking area is in the very middle of the lot, as opposed to on the side of the residence, and caused his vehicle to be parked over the City sidewalk." The court noted that parking over the sidewalk created a public safety hazard. These factors, coupled with the finding that the petitioner had available alternatives and that the condition was self created as "petitioner constructed a driveway on his front lawn and began parking there with full awareness of the applicable zoning regulations prohibiting such use," the court found the actions of the zoning board were reasonable.

-Steven Silverberg

Posted On: November 21, 2010

Challenge Brought In 2009 To Claimed Improper Use Of Parkland Which Started In 1946 Is Not Time Barred

Citing the public trust doctrine, the Appellate Division sustained the issuance of a preliminary injunction against the non-park use of alleged parkland, despite the fact that the use of the property for non-park purposes dates to 1946. In Capruso v. Village of Kings Point, the Second Department upheld the issuance of a preliminary injunction by the lower court and agreed that this 2009 action was not time barred.

Plaintiffs commenced this action seeking a declaration that the current and proposed use of certain Village property for non-park purposes, without permission of the State Legislature, violates the public trust doctrine. The lower court granted a preliminary injunction against continued non-park use and denied the defendant's motion to dismiss. But plaintiffs were unable to post the required bond. Thereafter, the State commenced a second action on essentially the same grounds and was granted a preliminary injunction, while the court again denied a cross motion to dismiss.

On appeal, the Appellate Division sustained denial of the motion to dismiss and the granting of the preliminary injunctions.

"Contrary to the appellants' contention, the statute of limitations did not bar the subject actions. A municipality's current and ongoing use of dedicated parkland for nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine is a continuing wrong that the municipality has the ability to control and abate.... insofar as the plaintiffs' second cause of action seeks declaratory and injunctive relief predicated on allegations of the Village's current and ongoing use of the alleged parkland for certain nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine, the plaintiffs' second cause of action is not time-barred.... Moreover, insofar as the plaintiffs' first cause of action and the State's first and second causes of action seek declaratory and injunctive relief based on the public trust doctrine to prevent the Village's proposed use of the alleged parkland for certain nonpark purposes without State Legislative approval pursuant to a plan first publicly announced by the Village in November 2008, those causes of action also are not time-barred...."

-Steven Silverberg.

Posted On: November 18, 2010

Town Entitled to Injunction To Enforce Zoning

A court granted summary judgment to the Town of Southold enjoining continued violation of the local zoning ordinance. In Town of Southold v. Estate of Edson, the court restated several basic principles relating to enforcement of local zoning:

"plaintiff was entitled to injunctive relief to enforce its zoning laws...and estoppel is generally unavailable to prevent a municipality from discharging its statutory duties... Moreover, a building permit issued due to a misrepresentation by the applicant or an error by the municipal agency cannot confer rights in contravention of the zoning laws, and is subject to corrective action, even where the results may be harsh (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 282; Town of Putnam Val. v Sacramone, 16 AD3d 669, 670; McGannon v Board of Trustees for Vil. of Pomona, 239 AD2d 392, 393; Baris Shoe Co. v Town of Oyster Bay, 234 AD2d 245; Welland Estates v Smith, 109 AD2d 193, 196, affd 67 NY2d 789)."

-Steven Silverberg

Posted On: November 6, 2010

Eighty Year Old Attempted Subdivision Did Not Create Second Lot

The determination by the local building inspector that a 1928 "subdivision" did not create two lots was upheld by the Appellate Division. In Matter of Rusciano v. Ross the court noted that the lot in question was originally a single lot but in 1928 the then owner sold off a portion of the property. However, a subdivision map was never filed and the lots created in 1928 were not zoning compliant.

The court found that by 1948 the two lots, known as 6 and 6A, were again in single ownership. The petitioner then acquired the lots by deed with a single description in 1971, but the deed also referred to lots 6 and 6A. Although, the lots continued to be designated as lot 6 and lot 6A and they were taxed separately by the assessor, they continued in single ownership with lot 6 containing a house and lot 6A containing an accessory storage shed. The court upheld the determination that the lots were merged, finding that there was a rational basis for the determination of the zoning board in upholding the building inspector's interpretation.

-Steven Silverberg