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.

The court held the findings of the zoning board that the "requested variance was substantial and would produce an undesirable change in the character of the neighborhood, and that the hardship to the petitioner was self-created, were supported by testimony of several local residents and objective and factual documentary evidence. Moreover, evidence was adduced that construction on the subject property might adversely affect protected wetlands and cause drainage problems. Contrary to the petitioner's contentions, the Board's determination was not illegal, had a rational basis, and was not arbitrary or capricious."

The court found that the Town Board “properly noted that when conflicting expert reports are submitted ‘deference must be given to the discretion and commonsense judgments of the board.’” Yet, the court noted that the Town’s outside consultant did not render an opinion about the impacts of the proposed activities but instead stated “it did not know what the impact would be.” The court held that this and other reports and recommendations either not addressing the impacts of the proposal or expressing “concerns” about the proposal were “devoid of scientific data or analysis” and were therefore “insufficient to counter petitioners’ expert’s report and testimony…”

The court did uphold the right of the town to retain an outside consultant and charge the consultant’s fees to the applicant, where the need for the consultant met the criteria of the town’s code for “independent technical professional assistance.”

The local zoning code specifically states that animal hospitals are not permitted in residential districts and that any use not specifically listed as a permitted use is not permitted. The court held that nonconforming uses “may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance” and therefore “the Zoning Board was not estopped from enforcing the zoning code…by the Town’s apparent acquiescence over a period of approximately 13 years.” In addition, the court noted that comments made at a Town Board meeting by the supervisor and town attorney concerning the operation (apparently supporting the petitioner’s contentions) were outside the record of the zoning board and therefore those comments could neither be considered nor used to prevent the Zoning Board from enforcing the code.

The court held that the owner had proven hardship in “dollars and cents form” by demonstrating that the “property had been substantially vacant for 30 years” that “only 10% to 15% of the space was occupied at the time of the applications and the prospects for expanding occupancy and generating sufficient revenue to cover necessary maintenance, repairs and improvements were marginal.” The court also found that the variance would not “alter the essential character of the neighborhood”, as similar uses “exist in proximity to the property” and the zoning board properly found the hardship was not self created.

Thanks to Alan J. Bozer, Esq. of the Buffalo Office of Phillips Lytle LLP who brought this case to our attention.

The court noted that prior to adoption of its zoning ordinance the Town prohibited mining, absent a special permit. The plaintiff had obtained a mining permit from the DEC, hauled out 40 truck loads of material for testing, cleared the property of trees and performed a number of other activities.

However, the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.

The court also noted that a directed verdict should have issued finding that the plaintiff did not have a vested right in the mining operation. "In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development" (Town of Orangetown v Magee, 88 NY2d 41, 47 [1996]; see Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]).”

Here the testimony was that a total of $800,000 was spent on the project but that $750,000 of that was to acquire the land and obtain the DEC permit. Therefore, the court found that there was not a substantial expenditure in reliance on the permit. Further, since the paving of the road and construction of a bridge necessary to conduct mining operations had not taken place, plaintiff also failed to prove that it had “effected substantial changes…to further development pursuant to a legally issued permit.”

Absent from the analysis is whether the mining permit from the DEC was the same as the "special permit" required by the town and therefore would have been sufficient to create a legal non-conformity, if the other tests of substantial expenditure and substantial change had been met.

The Town had an environmental review committee (TEQR Commission) review the proposal and issue findings under SEQRA recommending approval of the 860,000 square foot mall. The Town Board subsequently directed the TEQR Commission to rescind its findings which was done. Thereafter new SEQRA findings were issued and the application was denied. On appeal the courts remanded the matter for further consideration of a proposal to reduce the mall to 750,000 square feet. The Town then undertook the additional review and, based upon information it identified post-FEIS, directed the applicant to prepare a SEIS and submit plans for a 750,000 square foot mall. Instead the petitioner sued to compel the Town to adopt the original favorable TEQR findings.

In this most recent incarnation, the Appellate Division upheld the Town’s actions noting: “the Town Board properly identified the post-FEIS submissions which supported its deviation from the TEQR Commission's SEQRA findings. The Town Board demonstrated that the post-FEIS submissions identified areas such as traffic impacts, impacts on existing retail facilities, and impacts on residential real estate values in the surrounding area which supported its determination.“ Further holding that “the Supreme Court erred in determining that the Town Board's request that the petitioners prepare an SEIS was arbitrary and capricious. The Town Board, as the lead agency, "may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; or (b) newly discovered information; or (c) a change in circumstances related to the project" (6 NYCRR 617.9 [a] [7] [i]; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 231).”

Here the Court found that the purpose of acquiring the petitioner's property was to facilitate road improvements in order to resolve traffic congestion in the City. Petitioner argued that the taking served no public purpose but was for the private benefit of commercial traffic. The court held: "[p]utting aside the fact that commercial use of public highways has obvious public benefits, there can be no doubt but that where an intersection of two public roadways is constructed in such a way that some vehicles cannot safely negotiate it, all vehicular traffic that utilizes the area is obviously affected. This project, as designed, seeks to address such a concern and, as such, has a public purpose."

The Village had sold a parcel of municipal property for $275,000 with payment deferred over fifteen years, with interest at 5% and took back a mortgage to secure the payments. The Petitioners challenged the action claiming it violated Article VIII of the State Constitution which provides: ""[n]o county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking ..." (NY Const art VIII, § 1)."

The Court disagreed finding that there was no violation of the Constitutional provision. Citing an earlier decision the Court noted:
"In Mandelino v Fribourg, this Court answered the question of "whether a purchase money mortgage is to be regarded in law as a loan" in the negative (23 NY2d 145, 147 [1968]). Although decided in the context of the usury laws, the rationale is equally applicable in this case. "A contract which provides for [payment of interest] ... upon a deferred payment ... constitutes the consideration for the sale ... " (id. at 151) and such a transaction is not the type contemplated by the Gift or Loan clause (see Sun Print & Publ Assn v Mayor of the City of New York, 152 NY 257, 268-269 [1897])."

In the Devita case, Verizon sought to enjoin both the Village of Laurel Hollow and the Town of Hempstead from releasing the quarterly reports in response to a FOIL request from Cablevision. Due to the procedural history of the two claims the Court remitted the matter to the municipalities for a determination. In the Mills case, which involves the Village of Elmsford, the Village had actually determined to release the information to Cablevision. The court's decision in Mills not only mirrored the determination in the Devita case, also remitting the matter, but it expanded upon the analysis.

In the Mills case the Village sent a letter to Verizon advising it intended to release the information stating the Village ""did not intend to become an arbiter of pending disputes between Verizon and Cablevision" and Verizon sued to block the release.

The court noted Public Officers Law § 87(2)(d) "allows an agency to deny access to records submitted by a commercial enterprise 'which if disclosed would cause substantial injury to the competitive position of the subject enterprise'." It further found that "Verizon met its burden of demonstrating that its franchise reports fell squarely within the statutory exemption to FOIL disclosure under Public Officers Law § 87(2)(d) for records 'which if disclosed would cause substantial injury to the competitive position of the subject enterprise.' Moreover, Verizon offered the required 'particularized and specific' justification for the denial of Cablevision's request'."

But the Court also found that the exemptions should be "narrowly interpreted" and therefore it is a matter of discretion as to whether the information should actually be released. Although the Village had originally decided to release the information, the Court went on to hold that merely being unwilling to be the "arbiter of pending disputes" was not a valid reason for the Village to grant access and remitted the matter so that the Village could issue a reasoned decision demonstrating that it had considered "the facts underlying Cablevision's FOIL request and Verizon's opposition to it."

No doubt there will be further litigation over this issue.

When a private ferry service between Rochester and Toronto was a discontinued the City formed a limited liability company, the Rochester Ferry Company LLC (RFC) owned solely by the City, for the purpose of acquiring and operating the ferry. In 2005, the City entered into a guarantee and indemnity agreement (guarantee) with a third party, Export Finance, in order to guarantee the issuance of a mortgage for RFC to purchase the ferry. In 2006, the new Mayor discontinued the service and the City assumed the debt of RFC, dissolved RFC and sold the ferry leaving a debt to Export Finance of 19.4 million dollars.

Plaintiff, who was originally a proponent of the ferry service, then commenced this action seeking to prevent the City from paying the debt on the grounds that to do so would violate Article VIII section 1 of the N.Y. Constitution which prohibits a municipality from loaning "its credit to or in aid of any individual, or public or private corporation or association, or private undertaking." Alternatively, Plaintiff claimed the agreement violated the Constitution Article VIII section 2 and Local Finance Law section 11.00 by contracting indebtedness for longer than the period of probable usefulness and Constitution Article X section 5, because the City did not obtain a special act of the State Legislature before forming RFC.

Initially, the court held that the claims are barred by the doctrine of laches. Noting that the Plaintiff was aware of and was actually a proponent of the City operating the ferry service in January, 2005, the court found that the Plaintiff delayed until August, 2007 to commence the action. The court held that the City established it would be harmed by not carrying out the agreement to pay the loan as its only choice would then be to default in paying the loan, resulting in damage to the City's credit. But after reaching the conclusion that the case should be dismissed, the court took the somewhat unusual step of analyzing the underlying legal issues.

The Court concluded that there was no violation of the Constitution or the Local Finance Law. It found that as "the City was the sole member of RFC, it did not lend its credit to others in violation of that constitutional provision." It further held that the loan was for a period well within the useful life of the ferry. Finally, the Court determined that a special act of the legislature was not required, stating instead that public corporations must be created by special act of the legislature but there is "nothing in the Limited Liability Company Law prohibiting municipalities from creating an LLC...". Thus, it appears the Court has created a loophole in the constitutional requirement that municipalities must obtain authorization from the State Legislature to create a public corporation.

Petitioner had a permit to construct a six story building but upon audit by the Department of Buildings (DOB) a number of objections to the construction were noted and a notice was sent to Petitioner by DOB. Thereafter, the property was rezoned and the DOB revoked the permit for failure to address two of its objections. Petitioner applied for an extension of the permit in order to complete construction. Before the BSA hearing was held, the DOB restored the permit on the grounds that the objections had been cured. However, upon hearing the application of Petitioner the BSA found that the permit was not valid on the effective date of the rezoning and therefore it could not issue a renewal.

The court found the BSA ruling was inconsistent with previous findings and that the lower court was correct in holding "the BSA's determination was arbitrary and capricious because it treated similarly-situated parties in a nonuniform manner." The court went on to note: "the BSA failed to adhere to its own precedent and to properly distinguish its prior determinations in which it had found that permits were valid on essentially the same facts...".