New York Zoning And Municipal Law Blog

Articles Posted in Municipal Law

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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.

In Cahaly v. LaRosa, the 4th Circuit Court of Appeals, citing Reed, found that a law regulating political robocalls was unconstitutional. Noting the holding in Reed “abrogates” that Circuit’s prior holdings as to content neutrality, the Court went on to state:

“Applying Reed’s first step, we find that South Carolina’s anti-robocall statute is content based because it makes content distinctions on its face. Reed instructs that ‘[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.’ 135 S.Ct. at 2227. Here, the anti-robocall statute applies to calls with a consumer or political message but does not reach calls made for any other purpose…. The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. Assuming that interest is compelling, we hold that the government has failed to prove that the anti-robocall statute is narrowly tailored to serve it. Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists.”

The 7th Circuit, in Norton v. City of Springfield, Illinois, on rehearing, reversed its prior holding that an anti-panhandling law was constitutional. The law in question drew a distinction between soliciting for funds where the request was for immediate payment and oral or written solicitation for funds at a later date. The Court had originally justified the law as being less of an imposition on people when the request was for a “deferred” payment. In granting a rehearing, in light of the decision in Reed. the Court reversed its prior decision, finding the law unconstitutional and stating:

“The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient… Our observation, 768 F.3d at 717, that Springfield has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.”

In addition, at least one Federal District Court has applied Reed in order to hold another law unconstitutional. In Rideout v. Gardner, the Federal District Court of New Hampshire found a law prohibiting digital or photographic copying and disclosure of a completed ballot was unconstitutional. There the Plaintiff took a picture of his completed ballot and posted it on Twitter. The Court noted that the same test as was applied in Reed would apply in this case.

“In the present case, as in Reed, the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred by RSA 659:35, I are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone. In short, the law is plainly a content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter. Accordingly, like the sign code at issue in Reed, the law under review here is subject to strict scrutiny even though it does not discriminate based on viewpoint and regardless of whether the legislature acted with good intentions when it adopted the law.”

The Court held that the law failed the strict scrutiny test as “neither the legislative history nor the evidentiary record compiled by the Secretary in defense of this action provide any support for the view that the state has an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion.”

In her concurring opinion in Reed, Justice Kagan took exception to the potential broad application of the opinion of Justice Thomas, noting in part that it would likely result in the Court ultimately becoming the “Supreme Board of Sign Review”. It appears she may have underestimated the breath of the application that will be made of the strict scrutiny interpretation applied by the Court.

-Steven Silverberg

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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]).

It remains an open question whether the second prong of the implied dedication doctrine applies to a municipal land owner, but we need not and do not resolve that issue on this appeal because we conclude that the City’s acts are not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland. …”

The Court referencing the Appellate Division decision, noted:

“The permit, memorandum of understanding and lease/license relating to Mercer Playground, LaGuardia Park and LaGuardia Corners Gardens, respectively, show that ‘any management of the parcels by the [DPR] was understood to be temporary and provisional’ ….Thus, those documents’ restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property.”

Steven Silverberg

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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:

“claims are substantially similar to the ones we found insufficient in 795 Fifth Ave. Plaintiffs have a different view of the best use of Union Square Park and its pavilion in particular, but this difference of opinion, without more, does not demonstrate the illegality of the Department’s plan. Put differently, plaintiffs have not demonstrated that the ‘type and location’ of the restaurant are unlawful. While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose.”

The Court likewise rejected the claim that the license was, in reality, a lease that improperly alienated parkland.

“A document is a lease ‘if it grants not merely a revocable right to be exercised over the grantor’s land without possessing any interest therein but the exclusive right to use and occupy that land’….A license, on the other hand, is a revocable privilege given ‘to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands’…

Here, the language of the agreement confirms that it is what it purports to be – a revocable license. The Department retained significant control over the daily operations of the restaurant, including the months and hours of operation, staffing plan, work schedules and menu prices. Moreover, CDM’s use of the premises is only seasonal, and is not exclusive even in the summer, as outdoor seating is required to be available to the general public (with the exception of an area reserved for the service of alcoholic beverages) and CDM is obligated to open the pavilion to the public for community events on a weekly basis. The agreement also contains numerous environmental and community-based provisions. Aside from complying with extensive environmental standards, CDM is required, for example, to use Greenmarket vendors, offer culinary internships and host charitable events. More importantly, the agreement broadly allows the Department to terminate the license at will so long as the termination is not arbitrary and capricious. Consequently, despite the 15-year term and payment structure, we agree with the Department that it entered into a valid license arrangement with CDM.”

-Steven Silverberg

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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.”

-Steven M. Silverberg

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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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The New York Court of Appeals has interpreted Civil Service Law section 71 as mandating reinstatement of an employee, previously terminated due to the inability to perform his duties resulting from a work related injury, once the county civil service office has certified the employee as fit to work. In Matter of Lazzari v Town of Eastchester, the Court held that upon receipt of a communication from the County Department of Human Relations that the employee had been examined and found fit for duty the employee must be reinstated. The Court found that if the municipality disagrees, it may commence an Article 78 proceeding against the County to challenge its determination, but may not deny reinstatement while it argues with the County.

Civil Service Law section 71 provides that where a municipal employee has been found unfit for work, due a to a work related incident, he/she may seek reinstatement through the County. In the event the County, by way of an independent examination, finds the employee fit for duty, the municipality must reinstate the County. In this case, the Town had the employee examined by two doctors who found the employee could not perform the functions of his position due to prior work related injuries. The employee sought reinstatement by the County which had him examined by a third physician. The County then advised the Town the employee was fit for duty. The Town requested a copy of the medical report and the County declined to provide it. The Town then refused to reinstate the employee based solely on the letter from the County unsupported by a copy of a medical certification. The Town also failed to either pursue a formal Freedom of Information request for the medical report or otherwise bring an action to challenge the determination.

In this action, brought by the employee for reinstatement, the Court concluded the Town “…does not have discretion regarding reinstatement determinations when a Civil Service Department, pursuant to Civil Service Law § 71, has determined that a medical official has certified that the employee is fit to return to work and orders reinstatement. Civil Service Law § 71 does not give the Town the responsibility or power to police the performance of the County’s statutorily mandated duties.”

The Court also ordered that the employee be given back pay.

In dissent, Judge Prigott expressed concern over the practical impact of this ruling:

“I dissent and decline the majority’s invitation to go “through the looking glass” to a world where a municipal employer must, in blind faith, reinstate an employee under Civil Service Law § 71 without first receiving a certification from a medical officer that the employee is fit for duty. The majority berates the parties for “squabb[ling] in and out of court,” (deservedly so), but, instead of interpreting § 71 in a manner that would lead to less litigation, it offers a solution that invites more by requiring a municipal employer to commence an article 78 proceeding against another municipality that should be assisting it to obtain the certification. Although § 71 does not state to whom the certification must be given, the only practical interpretation is that it should be given to the municipal employer, the entity ultimately responsible for the consequences of an imprudent reinstatement.”

-Steven Silverberg

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The N.Y. Court of Appeals rejected a lawsuit by the Town of Oyster claiming an administrative complaint by the State Division of Human Rights (SDHR) was unconstitutional reverse discrimination. In Matter of the Town of Oyster Bay v. Kirkland, the SDHR had asserted a claim that certain provisions of the Town of Oyster Bay zoning ordinance discriminated against minorities in violation of the State Human Rights Law. Oyster Bay, without awaiting completion of the SDHR investigation, brought an action raising a number of claims. Except for the reverse discrimination claim the other claims were ultimately dropped by the Town.

The Court began by analyzing the exhaustion of administrative remedies rule and the exceptions to that rule:

“The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] [citations omitted]). Here, the Town has abandoned its argument that the SDHR’s complaint was ultra vires, but pursues its claim that the SDHR is engaged in unconstitutional “reverse discrimination.'”

However, the Court noted that, ” ‘merely asserting a constitutional violation will not excuse a litigant from first pursuing administrative remedies that can provide the requested relief’.” Therefore, the Court concluded that the matter should be addressed first at the administrative level, as an administrative law judge could find that the zoning is not discriminatory.

-Steven Silverberg

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The Second Ciircuit Court of Appeals found that a town’s practice of conducting prayers at the begining of town board meetings, as a result of the totality of the manner in which the prayer leaders were selected and the prayers were conducted, violated the Establishment Clause of the United States Constitution. In

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The dismissal of a challenge, by an adjoining Village, to a Town’s rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law § 239-m to proceed. In Village of Pomona v. Town of Ramapo, the Appellate Divisions upheld the dismissal of of a cause of action claiming failure to comply with General Municipal Law §239-nn, which requires notice to abutting municipalities, holding that the statute does not create a separate right of action. The Court also upheld dismissal of the claim that the zoning enactment failed to comply with the Town’s comprehensive plan noting:

“we held in Matter of Village of Chestnut Ridge v Town of Ramapo (45 AD3d 74), villages ‘have no interest in [a] Town Board’s compliance with . . . its comprehensive plan,’ since, unlike individuals who reside within the Town, ‘[villages] are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement….'”

However, the Court found that, contrary to the arguments made by the Defendants, the Village did have standing to bring other challenges to the Town’s actions:

“‘[T]he right of a municipality to challenge the acts of its neighbors must be determined on the basis of the same rules of standing that apply to litigants generally… Community character is specifically protected by SEQRA ‘… ‘The power to define the community character is a unique prerogative of a municipality acting in its governmental capacity . . . ‘Substantial development in an adjoining municipality can have a significant detrimental impact on the character of a community . . . thereby limiting the ability of the affected municipality to determine its community character'” (citations omitted).

In further holding that the Village had a right to contest the SEQRA determination leading up to the challenged actions, the court held:

“‘The unique nature of a municipality’s environmental interests . . . requires that the inquiry into its environmental standing not be a mechanical one, particularly in light of the established preference that the issues presented by land use disputes be decided on the merits . . . rather than by a heavy-handed approach to standing’…the Village did not have to show, in opposition to the motions, that the proposed development ‘would be visible from any particular Pomona neighborhoods’ or that ‘the plans call for clear-cutting and/or a lack of plantings or other visual barriers,’ and the Village did not have to explain in further detail how the significant increase in density would specifically affect the character of the community….”

Finally, on the issue of bringing a challenge under General Municipal Law 239-m the Court found:

“the Village has standing to assert the fourth cause of action. The purpose of General Municipal Law § 239-m, which governs the review process by a county planning agency of a municipality’s proposed planning and zoning actions, is to ‘bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction’ (General Municipal Law § 239-l[2]) and by so doing to facilitate regional review of land use proposals that may be of regional concern’ (Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 88-89). ‘Because [an] adjoining municipalit[y] necessarily [has] the same interest [as individual neighbors] in the regional review that General Municipal Law § 239-m requires, the Village[ ] also [has] standing to assert such claims’.”

– Steven Silverberg

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The New York Court of Appeals issued a decision today finding that the inter-agency/intra-agency exemption under the Freedom of Information Law (FOIL) does not apply to Federal Agency communications with State Agencies. The case of Matter of Town of Waterford v New York State DEC, was extensively discussed in a post on this Blog when the Appellate Division (77 A.D.3d 224 (3rd Dept. 2010)) held that such communications could be exempt. Today’s decision reverses that holding.

The Court noted that while there is an exemption for “pre-decisional inter-agency or intra-agency materials” (Public Officers Law § 87(2)(g)) the term agency has a specific definition and under FOIL
“‘[a]gency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature’ (Public Officers Law § 86 [3])”

The Court thus concluded that the EPA, as a Federal Agency, is not included within the definition of agency for purposes of FOIL and therefore does not fall within the exemption. In addressing the Town’s arguments that there have been cases where the intra-agency exemption has been applied to outside parties, the Court drew a clear distinction:

“We have held that the purpose of the intra-agency exception is to allow individuals within an agency to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]; Matter of Xerox Corp. v Town of Webster (65 NY2d 131, 132 [1985]). In Xerox, we determined that real estate appraisal reports prepared by a private consulting firm at the agency’s request were exempt from disclosure as intra-agency material (see 65 NY2d at 133). We observed that ‘[i]t would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies’ (Xerox, 65 NY2d at 133).”

While the court noted that the DEC and EPA were working in a collaborative manner on the particular matter at issue, this was not the same as an outside consultant, as the EPA was not retained by the DEC and was not an employee or agent of DEC.

-Steven M. Silverberg