Articles Posted in Municipal Law

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On May 2. 2022, the U.S. Supreme Court ruled on the refusal of the City of Boston to permit the flying of a Christian flag, on a flag pole located at Boston’s City Hall Plaza. In Shurtleff v City of Boston Massachusetts, the Court ruled that the City had violated the First Amendment right of free speech in denying permission to fly the flag at issue.

The Boston City Hall Plaza has been used for various public events and the City has acknowledged the space is a “public forum”. The Plaza contains three flag poles, one flying the American Flag, one flying the flag of the Commonwealth of Massachusetts and the third either flying the Boston Flag or, with permission from the City, the flag of a group holding a ceremony in the plaza. Between 2005 and 2017, 284 ceremonies, flying 50 different flags were held in the Plaza.

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The New York Court of Appeals held, the legislation permitting the development of Shea Stadium and related facilities on park land does not extend to development of retail businesses and other uses not related to a stadium. In Matter of Avella v. City of New York, the Court strictly construed the legislation permitting the stadium and found that the proposal, to construct a retail mall on the parking field that formerly held the stadium, would violate the public trust doctrine against alienation of parkland.

“Summarizing the longstanding history of the public trust doctrine in Friends of Van Cortlandt Park v City of New York, we explained that ‘our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes’ (95 NY2d 623, 630 [2001]).”

The area of New York City known as Willets Point was found to be in need of redevelopment. As part of a redevelopment plan, the developer proposed construction of a large-scale retail complex on a part of the parkland, which it labeld Willets West. The theory was that “the creation of a retail and entertainment center at Willets West w[ould] spur a critical perception change of Willets Point, establishing a sense of place and making it a destination where people want to live, work, and visit.”

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The Appellate Division upheld a Supreme Court determination granting summary judgment against a not for profit religious corporation seeking a real property tax exemption on property it owns and uses for religious purposes. In Congregation Ateres Yisroel v. Town of Ramapo, the Court held that the failure of the religious corporation to obtain permits for the occupancy of structures on the property precluded the granting of a tax exemption.

The property at issue was originally granted a certificate of occupancy as a single family residence in 1954. Sometime thereafter, the property was acquired by the not for profit religious corporation. From 2008 through 2011 the property was granted a real estate tax exemption by the Town. The decision does not explain why the exemption was issued or exactly what changed. However, in 2012 when an application for renewal of the exemption was submitted, the Town denied the renewal of the tax exemption. The Corporation commenced this action challenging the denial and the Supreme Court granted the Town’s motion for summary judgment dismissing the claim.

In upholding the decision of the lower court, the Appellate Division determined, despite the fact that the Corporation met the criteria for a not for profit religious corporation and owned the property at issue, the lack of zoning compliance precludes a tax exemption.

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The Appellate Division determined that the names and email addresses of those who subscribe to an email alert system of updates to a  Town Website are subject to the Freedom of Information Law (FOIL). In Matter of Livson v. Town of Greenburgh, the Court affirmed the lower court determination that the Petitioner, who is the president of a local civic association, is entitled to the names and email addresses of those subscribing to the alert system maintained by the Town (gblist). The Court found the list was not, as the Town claimed, protected by any of the exemptions from disclosure contained in the FOIL statute.

Prior to the commencement of the Article 78 proceeding, The Town had claimed ” [t]here is neither a print or extract function on the software that can reasonably create a list of email addresses.” Yet, it was determined that the Town’s vendor could provide such a list.  As a result, the lower court determined that the request for an electronic version of the list could be made available provided the recipient did “not reproduce, redistribute or circulate the gblist or use the information contained therein for solicitation, fund-raising or any commercial purpose.”  The Town filed an appeal claiming that the list was exempt from disclosure.

In affirming the lower court, the Appellate Division noted:

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     The  Second Circuit Court of Appeals partially reversed the dismissal of a Fair Housing Act (FHA) claim which arose when a Town granted permission to modify a property in order to accommodate a disabled child, with the requirement that the property be restored when the child no longer resided there.  In Austin v. Town of Farmington, the Court held that the district court had improperly dismissed the claim of of violation of the FHA, as on its face the complaint raised issues that could only be determined by a further review of the evidence.
     The Plaintiffs had purchased a home in a location which did not permit fences or pools. They sought an accommodation from the Town. for their disabled child, to allow a fence for reasons of safety and an above ground pool and deck, which would provide certain health benefits.  The Town granted what is referred to in the decision as a variance, but was issued by the Town Board rather than a zoning board of appeals. The “variance” required that at such time as the child no longer resided in the house, the fence, deck and pool would have to be removed.  This provision referred to by the Court as the “Restoration Provision” would ultimately cost an amount estimated as exceeding $6,000.

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The decision in Reed v. Town of Gilbert, in which the Supreme Court applied a strict scrutiny test to local sign laws, initially drew little notice but it is already having far reaching implications. Sandwiched between high profile decisions on gay marriage and Obamacare in late June, in the case of Reed v. Town of Gilbert the Supreme Court found a local sign law setting different standards for different types of signs was subject to strict scrutiny, could not be justified and therefore the particular ordinance was unconstitutional. The Court held:

“…the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech….”

In the two months since that decision, it has already spawned several cases that have expanded its application to other areas of regulation.

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The New York Court of Appeals held that the use of certain lands for park purposes under a memorandum of agreement or license/lease was not an implied permanent dedication for park purposes. In Matter of Glick v. Harvey the Court rejected the challenge to the City’s granting permission to utilize portions of certain playgrounds for other than park purposes, finding that there was no implied dedication of those spaces as parkland.

The Court noted that each of the spaces at issue was operated by the Department of Parks and Recreation (DPR) pursuant to a reservation of ownership/control by other City departments.

“In support of their appeal, petitioners again advance their argument that the City’s actions manifest its intent to impliedly dedicate the parcels as parkland. Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the Legislature …. A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that: (1) ‘[t]he acts and declarations by the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication’ and (2) that the public has accepted the land as dedicated to a public use (Niagara Falls Suspension Bridge Co. v Bachman, 66 NY 261, 269 [1876]; see also Holdane v Trustees of Vil. of Cold Spring, 21 NY 474, 477 [1860][‘The owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use’]; Flack v Village of Green Island, 122 NY 107, 113 [1890]; Powell v City of New York, 85 AD3d 429, 431 [1st Dept 2011]).

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The New York Court of Appeals held that a license to operate a restaurant in New York’s Union Square Park does not constitute an improper alienation of parkland in violation of the public trust doctrine. In Union Sq. Park Community Coalition, Inc.v. New York City Department of Parks and Recreation, the Court noted that the challenge to the operation of a private restaurant in the park was based upon two claims: (1) the restaurant is not a park use and (2) that the “license” was actually a lease that alienated parkland without proper legislative approval.

In addressing the first issue, the Court noted that decades ago the Court had upheld the use of a restaurant in New York’s Central Park (795 Fifth Ave. Corp. v City of New York (15 NY2d 221 [1965]). In part that holding was based on the fact “that the ‘Park Commissioner is vested by law with broad powers for the maintenance and improvement of the city’s parks’ and that judicial interference would be ‘justified only when a total lack of power is shown’ (15 NY2d at 225 [internal quotation marks and citation omitted]).”

In further applying the rational established in 795 Fifth Avenue the Court held the:

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The Journal Science has published an article suggesting that hydro tracking may be contributing to increases in the number and severity of earthquakes in the eastern United States. We do not usually discuss scientific articles in this Blog. In this instance, since the article discusses the need for regulation and the State of New York, as well as many municipalities are looking at regulating or even banning hydro fracking, we thought this was a timely article.

The article notes

” It has long been known that impoundment of reservoirs, surface and underground mining, withdrawal of fluids and gas from the subsurface, and injection of fluids into underground formations are capable of inducing earthquakes….several of the largest earthquakes in the U.S. midcontinent in 2011 and 2012 may have been triggered by nearby disposal wells….The petroleum industry needs clear requirements for operation, regulators must have a solid scientific basis for those requirements, and the public needs assurance that the regulations are sufficient and are being followed.”

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In a very brief decision, the Appellate Division held that a restaurant and concessions in Union Square Park did not violate the Public Trust Doctrine. In Union Square Park Community Coalition, Inc v. New York City Department of Parks and Recreation, the Court held the uses: “are permissible park uses (see 795 Fifth Ave. Corp. v City of New York, 15 NY2d 221 [1965]) and the concession agreements are revocable licenses terminable at will, not leases (see Miller v City of New York, 15 NY2d 34, 38 [1964]).”

-Steven Silverberg

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