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.

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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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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.”

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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.'”

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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:

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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])”