August 24, 2015

Supreme Court Sign Decision Widens the Limitations on Government Regulation

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

June 30, 2015

City Did Not Impliedly Dedicate Land as Parkland

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

February 21, 2014

Public Trust Doctrine Not Violated By Restaurant In City Park

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

July 14, 2013

Potential of Fracking Induced Earthquakes

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

June 22, 2013

Restaurant and Concessions in Park Do Not Violate Public Trust Doctrinw

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

November 28, 2012

Court of Appeals Directs Reinstatement of Employee

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

October 19, 2012

Town Fails to Exhaust Administrative Remedies in Challenge to SDHR

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

May 28, 2012

Second Circuit Finds Town Prayer Practice Violates Establishment Clause

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 Galloway v. The Town of Greece, the Court reversed the district court's grant of summary judgment for the Town and remanded the matter for additional action based upon this decision. As the Court emphasized that it's determination was very much driven by the facts of this case, it is important In understanding the decision to examine some of the specific findings by the Court.

"A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.” Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ’s name. Typically, prayer-givers stated something like, “In Jesus’s name we pray,” or “We ask this in Christ’s name.” Some prayer-givers elaborated further, describing Christ as “our Savior,” “God’s only son,” “the Lord,” or part of the Holy Trinity. One prayer, for example, was given “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.”

Reciting the history of the case, the Court noted the Plaintiffs originally challenged:

"aspects of the prayer practice under the Establishment Clause. They made two arguments before the district court: (1) that the town’s procedure for selecting prayer-givers unconstitutionally preferred Christianity over other faiths, and (2) that the prayer practice was impermissibly “sectarian.” In support of their position, the plaintiffs reiterated the same objections they had raised before the Town Board prior to filing suit. They claimed, as an initial matter, that the prayer practice aligned the town with Christianity, and that it therefore established a particular religion. They also pointed out that the prayer practice employed language unique to specific religious sects, and asserted that in so doing it established religion generally. The plaintiffs again did not distinguish between these arguments, nor have they done so on appeal...As to the plaintiffs’ challenge regarding the town’s prayer selection process, the district court held that the plaintiffs had failed to advance any credible evidence that town employees intentionally excluded representatives of particular faiths. Id. ...As to the plaintiffs’ contention regarding the sectarian content of the prayers, the district court held that, under binding Supreme Court case law, the Establishment Clause does not foreclose denominational prayers. The court concluded for these, and for a number of case-specific reasons, that the plaintiffs had failed to show that the town’s prayer practice had the effect of establishing the Christian religion."

However, on appeal Plaintiffs conceded certain of the findings of the District Court and instead focused on more narrow issues.

"This appeal presents a narrow subset of the questions raised before the district court. Galloway and Stephens do not assert that the district court erred in dismissing their claims against Auberger. They have, moreover, expressly abandoned the argument that the town intentionally discriminated against non-Christians in its selection of prayer-givers. Accordingly, the only live issue on appeal is whether the district court erred in rejecting the plaintiffs’ assertion that the town’s prayer practice had the effect, even if not the purpose, of establishing religion....As far as we are aware, this is the first instance in which this court has had occasion to consider the validity of a legislative prayer practice under the Establishment Clause."

After reviewing cases addressing similar issues the Court determined the test it must apply is "whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs."

The Court held:

"The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief....the town neither publicly solicited volunteers to deliver invocations nor informed members of the general public that volunteers would be considered or accepted, let alone welcomed, regardless of their religious beliefs or non-beliefs. Had the town publicly opened its prayer practice to volunteers in this way, its selection process could be defended more readily as random in the relevant sense."

The Court went on to explain:

"Absent any effort on the part of the town to explain the nature of its prayer program to attendees, the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion."

In discussing its finding that the prayers gave the impression of being part of Town policy, the Court found not only a level of participation by Town Board members but further stated:

" The invitation to audience members to participate in the prayer, particularly by physical means such as standing or bowing their heads, placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation, thus further projecting the message that the town endorsed, and expected its residents to endorse, a particular creed."

-Steven Silverberg

April 26, 2012

Court Reverses Dismissal of SEQRA Challenge By Adjoining Municipality

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

March 22, 2012

Court Of Appeals Finds EPA Is Not An "Agency" for Purposes of Exemption of Communications From Disclosure Under FOIL

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

December 31, 2011

Court Dismisses Civil Rights Claim

The Appellate Division affirmed dismissal of a claim under 42 U.S.C. §1983 for violation of civil rights, based upon a claim of improper delay in issuing a certificate of occupancy for a house. In Matter of Zarabi v. Incorporated Village of Roslyn Harbor, the Court found that the existence of unapproved changes in the construction served as a legitimate basis for the delay in issuing the certificate of occupancy.

As the Court noted:

"the defendants established, prima facie, that, inasmuch as there were building code violations on the property that needed to be corrected, which the plaintiff conceded, any delays in issuing the certificate of occupancy did not amount to egregious conduct so as to amount to a deprivation of the plaintiff's property interests without due process (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 628-629; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192, 202)."

The Court found the balance of Plaintiff's claims without merit.

-Steven Silverberg

October 25, 2011

Agency May Not Deny FOIL Request Because Some Of The Information May Be Exempt

The New York Court of Appeals held that a Freedom of Information (FOIL) request may not be denied because a portion of the requested information may be exempt from disclosure. In Matter of Schenectady County Society for the Prevention of Cruelty to Animals, Inc. v. Mills the Court admonished the parties for taking the time of three courts to resolve an issue that could have been addressed by merely redacting some of the information in a data base.

Here the request was for a list of names and business addresses of veterinarians in the County. The County refused to produce the list because it did not differentiate between residential and business addresses and therefore disclosure might constitute an invasion of privacy by releasing some residential addresses.

The Court held:

"an agency responding to a demand under the Freedom of Information Law (FOIL) may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information....In responding to petitioner's FOIL request, the Department had the choice of producing the existing record in full or removing the information that it did not want to produce and that petitioner did not demand. It cannot refuse to produce the whole record simply because some of it may be exempt from disclosure."

-Steven Silverberg

July 31, 2011

Town May Not Reject Low Bidder Based Upon Criteria Not Specified In Bid Documents

The N.Y. Court of Appeals found a Town Board was arbitrary in rejecting a low bid based upon criteria not specified in the bid documents. In AAA Carting & Rubbish Removal, Inc. v. Town of Southeast, the Court reversed the Appellate Division and held "accepting a higher bid based on subjective assessment of criteria not specified in the bid request gives rise to speculation that favoritism, improvidence, extravagance, fraud or corruption may have played a role in the decision. One of the primary purposes of the competitive bidding statutes is to guard against such factors...."

The Court found that the decision of the Town Board to award the contract to a higher bidder based upon previously unspecified criteria such as training, cleanliness and age of equipment, when there was never a finding that the low bidder was not a responsible bidder, was not supported by the provisions in the General Municipal Law for bidding on municipal contracts.

The Court went on to note:
"[i]f the Town wishes to have these qualitative factors considered, the proper remedy is not to reject the lowest responsible bid, but to reject all the bids submitted and begin the process anew, incorporating whatever reasonable and nonrestrictive requirements it wishes to consider into the bid solicitation (see Matter of Conduit & Found. Corp., 66 NY2d at 149 ["statutory law specifically authorizes the rejection of all bids and the readvertisement for new ones"]; see also General Municipal Law § 103 [1])."

-Steven M. Silverberg

June 25, 2011

Burden on Municipality To Prove Property No Longer Qualifies For Tax Exemption

The New York Court of Appeals held that a municipality has the burden of proving a tax exempt property no longer qualifies for tax exempt status. In Congregation Rabbinical College of Tartikov v.Town of Ramapo, the Court held "when a municipality seeks to revoke a previously granted tax exemption, it bears the burden of proving that the real property is now subject to taxation (Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 334 [1982])."

The previous owner of the property at issue had used the property as a summer camp with a "religious curriculum." The claim by the Town was that a contractor, hired to operate the property, not the owner was the "entity" exclusively using the property to operate a camp. However the Court, in upholding the Appellate Division decision finding the exemption should continue, concluded:

"The contract indicated that the contractor was managing the camp on behalf of the plaintiff and the Town stipulated to the fact that plaintiff retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum. Moreover, an economic profit made by a religious corporation "does not by itself extinguish a tax exemption" (Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 216 [2008])."

-Steven Silverberg

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

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.

September 19, 2010

Court Holds Documents Exchanged Between Federal and State Agencies May Be Exempt From FOIL, But Settlement Documents Exchanged WIth Corporation Are Not

A court held that documents exchanged between the EPA and the New York DEC may be exempt from disclosure under the Freedom of Information Law (FOIL) as inter-agency communications, but additional documents exchanged as part of the settlement negotiations with General Electric are subject to disclosure. In Town of Waterford v. New York Department of Environmental Conservation, the lower court held that the exemption from disclosure of inter-agency communications, contained in Public Officers Law section 87 (2)(g), does not apply to communications between state and federal agencies, but that documents prepared for settlement purposes were not subject to disclosure. The Appellate Division disagreed on both points.

With respect to the issue of inter-agency exemption applying to communications between state and federal agencies, the Court held, while generally the law favors disclosure of documents, the claim that "this exemption can never be applied to a communication with a federal agency, no matter its content or context — is dramatically at odds with the very purpose for which this exemption was enacted and one that, on these facts, is not in the public interest.'

The Court reviewed the history of the underlying project at issue, which is to clean up PCBs in the Hudson River resulting from industrial activities. The Court noted the EPA, Department of Health (DOH) and DEC all have statutory authority to address the issues and had worked cooperatively toward a resolution since 1984. Thus, the Court concluded:

"Here, the relationship that has existed for more than 25 years among these state and federal agencies on this project is statutorily based and memorialized by contractual agreements which, in effect, require that they work together to address the threat posed by PCB contamination in the Hudson River. In terms of this project, respondent, DOH and the EPA share a common objective, and by law as well as by contract are required to work as one unit to achieve that objective (compare Matter of Tuck-it-Away Assoc., L.P. v Empire State Dev. Corp., 54 AD3d 154, 164 [2008], affd 13 NY3d 882 [2009]). Under the circumstances, communications among them may well be part of the deliberative process and qualify for protection of the intra-agency or inter-agency exemption. Since Supreme Court, as previously noted, limited its decision to an interpretation of the phrase "intra-agency/inter-agency materials," we must remit this matter for the court to conduct an in camera review of the materials at issue to determine whether they otherwise qualify as exempt communications under Public Officers Law § 87 (2) (g)."

On the issue of whether documents prepared as part of settlement negotiations between the EPA and General Electric are exempt from disclosure, the Court held those documents are not exempt. Instead the Court stated:

"respondent points to no statute that specifically exempts documents that are created as part of settlement negotiations. CPLR 4547 provides that evidence regarding settlement negotiations is "inadmissible as proof of liability for or invalidity of the claim or the amount of damages," but says nothing as to the disclosure of that information. Even if we were to agree with respondent that these records were created as part of an effort to reach a negotiated settlement, CPLR 4547 is not a rule designed to limit the scope of discovery and does not provide that settlement discussions are confidential or would be otherwise exempt under FOIL"

-Steven Silverberg.

September 12, 2010

Court Rules on Use of Municipal Funds and Labor for Religious Display

The Appellate Division concluded that the context in which a menorah was displayed was not an unconstitutional endorsement of religion but that the nightly lighting of the menorah by municipal employees, even if the cost is reimbursed, violates the Establishment Clause of the First Amendment to the U.S. Constitution. In Chabad of Mid-Hudson Valley v. City of Poughkeepsie, the Court found that a downtown display in the City's business district, which included lights, wreaths and a Christmas tree, even though these are not considered religious symbols, created a context for the nearby display of a menorah as a "celebration of the diversity of the holiday season."

However the Court concluded that:

"allowing the plaintiffs to use municipal funds, labor, and equipment for the nightly menorah lighting, even if the plaintiffs repaid the City for such labor and equipment, as required under the stipulation, would foster the perception of an unconstitutional excessive governmental entanglement with religion (see Walz v Tax Comm'n of City of New York, 397 US 664, 674; Citizens Concerned for Separation of Church & State v City & County of Denver, 481 F Supp 522, 530, cert denied 452 US 963; cf. American Civil Liberties Union v City of Birmingham, 791 F2d 1561, 1656-1566, cert denied 479 US 939; Ritell v Village of Briarcliff Manor, 466 F Supp 2d at 526; see also County of Allegheny v American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US at 616 ["[t]he Christmas tree, unlike the menorah, is not itself a religious symbol"]). Accordingly, the Supreme Court should have granted that branch of the intervenors' motion which was for summary judgment declaring that the use of municipal funds, labor, and equipment to display the plaintiffs' menorah violates the Establishment Clause of the First Amendment to the extent of prohibiting the use of municipal funds, labor, and equipment to assist in the nightly lighting of the menorah."

-Steven Silverberg

August 5, 2010

New York Legislature Amends Opening Meetings Law Requirements

The New York Legislature has adopted several amendments to portions of New York’s Open Meetings Law (sections 103 and 107 of the Public Officers Law) in order to provide for more transparency in the conduct of governmental activities, as set forth in three recently adopted chapters.

Chapter 40
took effect in April, 2010. This Chapter adds a new subsection (d) to section 103 of the Public Officers Law which states in pertinent part:
“Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which adequately accommodates members of the public who wish to attend such meetings.”

It will be interesting to see how some municipalities, that hold meetings in rooms slightly larger than closets but keep the door open, will address this new provision.

Chapter 43 which takes effect in April 2011, and also purports to add a new section (d) to Public Officers Law section 103, provides for permitting photographing, broadcasting, webcasting and recording by audio or video any public meeting. This is consistent with prior court decisions and goes on to provide in section 2:

“A public body may adopt rules, consistent with recommendations from the committee on open government, reasonably governing the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a meeting so as to conduct its proceedings in an orderly manner. Such rules shall be conspicuously posted during meetings and written copies shall be provided upon request to those in attendance.”

Finally, Chapter 44 amends section 107 of the Public Officers Law. This Chapter, which became effective on June 14, 2010, deletes the previous provision which stated that if a court finds a violation of the law it can declare an action void and substitutes a provision which states that if a court finds that “a public body failed to comply with this article” the court may:

“declare that the public body violated this article and/or declare the action taken in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with his article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session concerning obligations imposed by this article conducted by the staff of the committee on open government.”

Section 107 retains the exemption from reversal if the violation is found to be only an unintentional failure to “fully comply with the notice provisions” and also exempts from reversal actions approving bond issue or notes.

-Steven Silverberg

May 21, 2010

N.Y. Court of Appeals Rules in Favor Of Cayuga Indian Nation On Failure To Collect Cigarette Sales Taxes

In an action brought to prevent prosecution of members of an Indian nation for failure to collect cigarette sales taxes on sale to non-members of the nation, the Court of Appeals issued judgment in favor of the plaintiffs. In Cayuga Indian Nation v. Cayuga County Sheriff, the court noted that Federal law precludes collection of cigarette sales taxes on sales by Indians to members of their own tribe on reservation lands. The court found that the two parcels in question were qualified reservation land.

Noting that the ultimate responsibility for payment of sales tax rests on the consumer, but that the practice has been for wholesalers to purchase tax stamps from the state and for the cost of those stamps to be passed up the chain to retailers and then consumers the court concluded:

"Thus, the issue in this case is not whether sales taxes are due when non-Indian consumers purchase cigarettes from Indian retailers — they are. The issue is whether Indian retailers can be criminally prosecuted for failing to collect the sales taxes from consumers and forward them to the Department. In the absence of a methodology developed by the State that respects the federally protected right to sell untaxed cigarettes to members of the Nation while at the same time providing for the calculation and collection of the tax relating to retail sales to non-Indian consumers, we answer this question in the negative".

Noting that the State Tax Law provision for collection of such taxes from the Indian Nations required implementation of regulations which were never put in place, the court held:

"restrictions that limit the state's efforts to collect cigarette taxes from Indian nations or their members in this context are derived from federal law and this prompted the Legislature to address the need for a specialized tax collection scheme by adopting Tax Law § 471-e. Since section 471-e was never operative, and no other comparable statutory or regulatory scheme has filled that gap, the Nation is entitled to declaratory relief."

-Steven Silverberg

May 15, 2010

Failure To Comply With Open Meetings Law Held Mere Negligence Not Requiring Remand

An appellate court held that a zoning board's failure to comply with the "precise requirements" of the open meetings law did not rise to a level which required that the matter be remanded for further action in public. In Matter of Cunney v. Board of Trustees of the Village of Grand View the lower court had found that the conditions imposed on the granting of an area variance were reasonable but that the zoning board had failed to comply with the open meetings law when it did not take its vote in public. Therefore the lower court found that the matter had to be remanded for "a formal decision in open session."

The Appellate Division reversed that portion of the judgment remanding the matter. While it agreed that "the ZBA violated the Open Meetings Law by failing to vote on the application in public session" the court went on to state that an action should only be voided for such a violation upon "good cause shown." The court held that the petitioner had failed to show good cause and anyway the violation was "mere negligence." The decision does not explain why the court determined this violation was negligence. However, it would appear that the court likely felt, since the conditions were found to be reasonable, that there was not much purpose in sending the matter back just to go through the formality of voting in public..

-Steven Silverberg

March 18, 2010

Court Review of Administrative Penalty Is Limited

The First Department upheld a $250,000 penalty imposed by the DEC. In Matter of Longwood Assoc., LLC v New York State Dept. of Envtl. Conservation, the court held that the penalty imposed for placing an unregistered 2000 gallon petroleum bulk storage tank in violation of the Environmental Conservation Law and Navigation Law was a penalty that did "not shock the conscience."

-Steven Silverberg

December 18, 2009

Reassessment of Single Property that is Otherwise Unchanged is Illegal

In the Matter of Harris Bay Yacht Club, Inc. v. The Town of Queensbury the Appellate Division, Third Department found that the town assessor had acted illegally when, after a town wide reassessment in 2005, the Yacht Club was singled out for a further reassessment in 2006 and again in 2007.

The court held:

"Indeed, an equal protection violation will be found when the assessing body isolates a particular property for reassessment and is unable to justify the changes with some legally recognized factor such as improvements to the property or equal application to all properties of similar character (see Matter of Kardos v Ryan, 28 AD3d 1050, 1051 [2006]; Matter of Adams v Welch, 272 AD2d 642, 643 [2000])....Here, it is undisputed that no improvements were made upon the property since the Town-wide reassessment. In explaining the basis for selectively reassessing the property, the Town Assessor merely stated that, based on her "familiarity with the [p]roperty and other area marinas and [her] experience and judgment," she thought that the appraisal consultant's value conclusion of $3,514,000 "might have understated the value of the [p]roperty." No comprehensive assessment plan was made to reassess all similarly situated marinas — class 570 properties — in the Town."

-Steven M. Silverberg

December 17, 2009

Appellate Division Determines Village May Not Discontinue Streets Unless Useless and There Has Been SEQRA Compliance

The New York Appellate Division, Second Department, in Matter of Baker v Village of Elmsford has unanimously held that the Village of Elmsford may not demap and discontinue portions of Vreeland Avenue and River Street unless the Village Board determines the streets are useless and it takes a hard look at the proposed action under the State Environmental Quality Review Act (SEQRA). The Court reversed the 2007 decision of Supreme Court, Westchester County which had dismissed the Article 78 proceeding brought by two contiguous commercial property owners contesting demapping and discontinuance of the streets.

The streets in question have been in use for nearly 80 years and the contiguous property owners were required to make improvements to the streets within the past 20 years. The surrounding area is frequently subject to severe flooding and during such times of flooding, such streets provide the only means of access and egress to the contiguous properties.

The Court relied upon Bass Building Corp. v Village of Pomona, 142 AD2d 657 (Second Dept. 1988) which held as follows:

Municipalities hold the fee of streets for the general public. The trust is publicum juris, that is, for the whole People of the State (citing People v Grant, 306 NY 258; City of New York v Rice, 198 NY 124). A municipality may not reserve its public streets for the benefit of its citizens as against the rights of outsiders (City of New York v Rice, supra). Under the “zone of interest” doctrine of standing, a plaintiff need demonstrate only that a municipal action has damaged it, and that the interest asserted is arguably within the zone of interest to be protected (citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Glen Head--Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484). At pages 658 – 659.

The Court determined that the proper standard of review was the Article 78 “arbitrary and capricious” standard because the required public hearing which preceded the demapping and discontinuance resolution had been informal in nature.

The Court found the Village Board’s determination to be arbitrary and irrational, since the Board had apparently ignored the testimony of the contiguous property owners regarding their tenants’ use of the streets during frequent episodes of flooding and the property owners’ improvements to the streets as required by the Village. The Court further found the Short Form Environmental Assessment undertaken by the Village Board, in purported accordance with the State Environmental Quality Review Act (SEQRA) and prior to their adoption of the demapping and discontinuance resolution, to be wholefully inadequate and not meeting the “hard look” and “reasoned elaboration” standards set forth in Matter of Jackson v New York State Urban Dev. Corp, 67 NY2d 400, 417 (1986).

- Bernis E. Shapiro

December 15, 2009

Court of Appeals Upholds Release of Documents Under FOIL Despite Claim of Exemption

The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL). In a rebuke to procedures followed by ESDC, in the Matter of West Harlem Business Group v. Empire State Development Corporation, the court found that the ESDC had failed to follow the statutory requirements in responding to the FOIL requests of a group that was seeking information about the proposed condemnation of property in West Harlem.

Initially, ESDC refused to release the documents requested. On administrative appeal the ESDC merely repeated the general denial without particularizing the basis for the denial. Once the action was commenced ESDC claimed various exemptions for different categories of documents but, the court found, again failed to specify which documents fell into each category of exemption. Therefore, the Supreme Court ordered an in camera review of the documents, labeled the documents according to its analysis of the documents and ultimately ordered their release.

The Appellate Division affirmed the lower court ruling. On appeal to the Court of Appeals, the ESDC argued, among other things, that the Supreme Court had placed documents in the wrong categories. The court held:

"In response to Supreme Court's order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents."
-Steven M. Silverberg

October 4, 2009

Court Allows Some Causes of Action Under 42 USC 1983 to Stand Against the Village of Suffern

The Appellate Division Second Department decided a complex appeal involving cross motions on whether a property owner had sufficiently stated causes of action sounding in violations of constitutional rights under 42 USC 1983 and related causes of action resulting from the denial of a certificate of use. In the case of Sonne v. Board of Trustees of the Village of Suffern, the court dismissed some but let stand several causes of action resulting from a long standing dispute over whether a property owner could use and occupy the third floor of a 100 year old commercial building.

The case has a complex history. The Village had denied the property owner the right to use the third floor of its commercial building because there is only one useable exit from the third floor and the Village claims this violates the State of New York Uniform Fire Prevention and Building Code . Underlying the dispute are several factors. The second means of egress from the third floor is blocked by a fence constructed on the adjoining property owned by a company which is Act controlled by the sons of the former Village Building Inspector, one of whom had also been a Village official, including Mayor from 2001 to 2003. The Village had indicated it would not intervene as this is a private matter between property owners. However, the fence is apparently in violation of the local code but no action was taken to cause it to be removed. Second, the Village has taken the position that the single exit does not comply with the State Uniform Fire Prevention and Building Code Act. Yet, there is an advisory opinion from the State indicating that where a property pre-exists the code, which is the case here, and there has been no substantial additional construction, none of which was proposed here, the current requirement of two exits is not applicable. Complicating the situation more is the fact that the use at issue is non-conforming and the third floor has been vacant for several years. The Village code provides that where a non-conforming use has ceased for more than 6 months it may not be re-established.

In an effort to resolve the issues an agreement was negotiated with the adjoining property owner to put a “panic bar’ in the fence, which would have permitted egress from the second exit in an emergency. In addition, as the fence was eight feet high and not in compliance with the local code a variance was obtained for the fence. However, the variance was issued for only two years. As a result the owner complained to Village officials that the two year variance was “useless.” Clearly the concern was that the variance for only two years limited the ability to rent the third floor space. Ten days later the property owner was issued several violations by the Village. During the litigation the Village claimed that this was coincidence and the violations issued were part of a “sweep” of the Village to clean up the downtown of the Village, based upon the Mayor telling the Code Enforcement Officer that there were “a lot of places downtown he’d like to see me pay a visit”. However, the court notes that there was only one other property issued a violation on that date and it appears the violation was based upon a review of the Village files not a “sweep.”

The Plaintiff commenced this action alleging various causes of action. There was discovery and then the Plaintiff moved for summary judgment and Defendants cross moved seeking either dismissal or summary judgment in their favor. The lower court denied both motions and the Appellate Division modified dismissing some causes of action and allowing others to stand.

The Appellate Division opinion first notes the different criteria in deciding a motion to dismiss under CPLR 3211 and a motion for summary judgment under CPLR 3212.

Noting the very limited scope of review on a motion to dismiss the court stated:
“A motion to dismiss a cause of action pursuant to CPLR 3211(a)(7) should not be granted [*4]"if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88). In making such a determination, evidentiary material may be considered to "remedy defects in the complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 636; Leon v Martinez, 84 NY2d at 88), "and, unless it can be shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it," dismissal may not be predicated on such evidentiary material (Guggenheimer v Ginzburg, 43 NY2d 268, 275; 511 W. 223rd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151).”

The Court then reviewed the basic criteria in determining whether to grant summary judgment stating:
“When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "Once this showing has been made . . . the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562).”

Examining the claim for a violation of substantive due process the court addressed the application of 42 USC 1983 in the context of land use disputes:
“"In the land use context, 42 USC § 1983 protects against municipal actions that violate a property owner's rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 626; Town of Orangetown v Magee, 88 NY2d 41, 49). However, "42 USC § 1983 is not simply an additional vehicle for judicial review of land-use determinations" (Bower Assoc. V Town of Pleasant Val., 304 AD2d 259, 263). In order to establish a deprivation of a property right in violation of substantive due process, the claimant must establish (1) a cognizable or vested property interest, not the mere hope of one, and (2) that the municipality acted " without legal justification and motivated entirely by political concerns'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 627, quoting Town of Orangetown v Magee, 88 NY2d at 53). "As for the second element of the test, only the most egregious official conduct can be said to be arbitrary in the constitutional sense'" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 628, quoting City of Cuyahuga Falls v Buckeye Community Hope Found., 538 US 188, 198; St. Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139, 144).”

Finding that the Village Officials had relied on an incorrect interpretation of the applicable codes the court nevertheless dismissed the cause of action for violation of substantive due process in failing to issue a certificate of use because: “despite these infirmities, the defendants' conduct in denying the plaintiffs' applications for certificates of use based upon an apparent misinterpretation of Village code provisions did not constitute egregious official conduct. Accordingly, the plaintiff does not state a cause of action sounding in the deprivation of property rights in violation of 42 USC § 1983 as alleged in her first cause of action, and that cause of action should have been dismissed pursuant to CPLR 3211(a)(7).”

The Plaintiff also sought a declaratory judgment that the provisions of the Fire Code do not apply because the structure was built prior to enactment of the Fire Code and no major renovations are planned. The Village contends that the Plaintiff failed to exhaust her administrative remedies by failing to seek a variance from the code provisions. The court noted however that the exhaustion of administrative remedies doctrine is not inflexible and in this case the State advised that no variance was necessary.

The court went on to find: “the defendants took the position that the plaintiff should have challenged each of its determinations in proceedings pursuant to CPLR article 78. However, at issue was the Village's classification of the subject property as subject to the current provisions of Fire Code, depriving the plaintiff of the use of her property in alleged violation of vested property rights, not the denial of a particular application for a certificate of use. Thus, a cause of action for a declaratory judgment, not a proceeding pursuant to CPLR article 78, was the proper vehicle to seek relief (see Matter of Huntington Hills Assoc. v Town of Huntington, 49 AD3d 647). The plaintiff's sixth cause of action states a cause of action for declaratory relief in her favor, and the defendants failed to establish as a matter of law that she is not entitled to such relief.”

The court next examined the claim of violation of equal protection of the laws based upon the alleged selective enforcement of the Village Code against Plaintiff. In holding that Plaintiff had adequately pleaded her claim the court held:

“"[A] violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations . . . intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; see Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693). In determining whether persons are similarly situated, "the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent. Exact correlation is neither likely nor necessary" (Penlyn Dev. Corp. V Incorporated Vil. Of Lloyd Harbor, 51 F Supp 2d 255, 264).
The person must be singled out for an impermissible motive not related to legitimate governmental objectives (see Bizzarro v Miranda, 394 F3d 82, 87; Gallo v Suffolk County Police Dept., 360 F Supp 2d 502, 511), which could include personal or political gain, or retaliation for the exercise of constitutional rights (see Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d at 693). In the instant case, the plaintiff is asserting that her building was singled out from other downtown buildings similarly situated because she exercised her rights to free speech under the First Amendment to the United States Constitution when she complained about the treatment of her application for a variance for the fence. In so doing, she adequately pleaded her causes of action. “

The court did dismiss her claim of violation of the right of free speech finding it duplicative of the claim for violation of equal protection finding: “the plaintiff does not allege how the defendants' actions actually chilled her exercise of her First Amendment Rights (id). However, she does allege that the defendants retaliated against her exercise of her First Amendment Rights. She contends that the defendants' retaliation resulted in selective enforcement of code provisions, constituting punishment for the exercise of the constitutional right to free speech, in violation of her right to equal protection of the laws.”

On the issue of failure to file a notice of claim the court held: “[a] cause of action asserted pursuant to 42 USC § 1983 does not require service of a notice of claim (see Rapoli v Village of Red Hook, 41 AD3d 456). However, the plaintiff's fifth cause of action sounding in the common-law tort of wrongful interference with prospective economic advantage required the service of a notice of claim as a condition precedent for maintaining it (see Montano v City of Watervliet, 47 AD3d 1106; Clemens v MTA N.Y. City Tr. Auth., 19 AD3d 636). Since the plaintiff failed to allege service of a notice of claim, the fifth cause of action should have been dismissed for failure to state a cause of action

Finally, there was a defense of qualified immunity raised on behalf of the individual defendants and the court ruled:
“Conlee was an employee of the Town of Ramapo performing duties for the Village pursuant to a contract between the Town of Ramapo and the Village. He established as a matter of law that, although he may have mistakenly violated the plaintiff's rights under the Village of Suffern Code in a good faith attempt to enforce Village policy, he did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The plaintiff, in opposition, failed to raise a triable issue of fact. However, the remaining defendants failed to establish their entitlement to judgment as a matter of law on this issue. ”

Unless it is settled we will no doubt see this case again.

September 28, 2009

Summer 2009 Zoning and Municipal Law Round Up

The following is a summary of New York zoning and municipal law cases decided since June that we have not yet covered. The summary has been prepared by Bernis Shapiro of our office.

In the Matter of Lackawanna Community Development Corporation v. Frank E. Karkowski et al, 12 NY3d 578, 883 NYS2d 168 (June 11, 2009).

Issue: Is property leased out by a Local Development Corporation for for-profit manufacturing activities taxable or exempt from taxation?

Holding: Local Development Corporations are special not-for-profit corporations organized under Section 1411 of the Not-For-Profit Corporation Law for “…charitable or public purposes of relieving and reducing unemployment…bettering and maintaining job opportunities, instructing or training individuals to improve or develop their capabilities for such jobs…and encouraging the development of, or retention of, an industry in the community or area….”

Section 420-a of the Real Property Law exempts real property owned by a corporation and used exclusively for charitable purposes from real estate taxation. However, the Court of Appeals in affirming the decision of the Appellate Division, Fourth Department, (50 AD3d 1469, 856 NYS2d 405) which reversed the Supreme Court, Erie County, held that since the manufacturing use of the property was not exclusively devoted to the charitable purposes outlined in Section 1411 of the Not-For-Profit Law, but rather also generated profit for the tenant, that the property was not exempt from taxation.

The Court of Appeals differentiated property owned by a Local Development Corporation, devoted to for-profit manufacturing use, from property owned by an Industrial Development Agency devoted to the same use, since Section 874 of the General Municipal Law specifically exempts land and improvements owned by an Industrial Development Agency from real property taxation regardless of the use of the property.

Buffalo Crushed Stone Inc. v. Town of Cheektowaga, 13 NY3d 88, ____NYS2d___, 2009 WL 1850964 (June 30, 2009).

Issue: Does the prior nonconforming use status of portions of a quarry property extend to other portions of such property on which quarrying activities were not conducted prior to change of zoning?

Holding: This issue was visited previously in 1980 in Matter of Syracuse Aggregate Corp. v. Weiss, 51 NY2d 278, 434 NYS2d 150 which held that “…where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.” at 286.

The Court of Appeals in Buffalo Crushed Stone , in affirming and expanding the decision of the Appellate Division, Fourth Department (55 AD3d 1228, 864 NYS2d 598), placed the burden of proof on the quarry to “…establish specific actions constituting an overt manifestation of its intent to utilize the property for the ascribed purpose at the time the zoning ordinance became effective; a mere contemplation of purpose, lacking supportive evidence of undertakings to effectuate such intentions, will not suffice” at 98. The Court held that the unique nature of quarrying in which portions of property are intentionally not mined and are held in reserve until initial portions have been depleted of their resources, would normally meet this burden unless the initial quarrying activities were insubstantial.

Chief Judge Lippman dissented in part from Judge Ciparick’s decision, opining that the “intent to mine” and the “lawful ability to mine” under prior zoning should be differentiated . In other words, in his opinion, all portions of a property for which prior nonconforming use status are sought should have permitted such use prior to change of zoning.

In the Matter of John Gebbie v. David Mammina et al, ___ NY3d ___, ___ NYS2d ___, 2009 WL 2762152 and 2009 WL 2633702 (August 27, 2009).

Issue: May the Appellate Division make a de novo determination of whether area variances should have been granted by a zoning board?

Holding: The Court of Appeals summarily reversed the Appellate Division, Second Department (57 AD3d 544, 868 NYS2d 740), thereby dismissing the Appellate Division’s review of whether the area variances in question should have been granted. The Appellate Division had relied upon the dual facts that there had been no community opposition to the variances and that the variances sought had been insubstantial, but the Court of Appeals concluded that the denial of the variances “…had a rational basis and was not arbitrary and capricious…and the Appellate Division erroneously substituted its judgment for that of the agency (zoning board).”

The Court of Appeals cited its prior ruling in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004) which held that “(t)his Court has often noted that local zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one. Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure (citations omitted). A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence (citations omitted).” at 613.

Town of Riverhead v. Gezari, 63 AD3d 1042, 881 NYS2d 172 (2nd Dept. June 23, 2009).

Issue: Was it proper for the Supreme Court to issue a preliminary injunction enjoining the regular use of property for the takeoff and landing of a private helicopter without a special permit as required for airports under the zoning code?

Holding: The Appellate Division affirmed Supreme Court, Suffolk County, in holding that the municipality showed a likelihood of success on the merits and the equities were balanced in its favor, because the use of the property met the definition of “airport”, the property was used for no other purpose that the takeoff and landing of a private helicopter, and the property owner could demonstrate no hardship in losing use of the property for such use.

Matter of Zaniewski v. Zoning Board of Appeals of Town of Riverhead, 64 AD3d 720, 883 NYS2d 279 (2nd Dept. July 21, 2009).

Issue: Was is proper for the zoning board to deny area variances for the construction of a house on a substandard lot?

Holding: The Appellate Division reversed Supreme Court, Suffolk County, by affirming the decision of the zoning board which denied the area variances, refusing to disturb the broad discretion of the zoning board as upheld by the Court of Appeals in Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 (2004). This was the second time that variances had been denied, the first being 7 years before when the applicant and her husband had sought area variances to subdivide an improved property to create a new vacant lot. Following that initial denial, they had conveyed the house and the major portion of the lot to the husband and a smaller portion of the lot to the wife who then attempted a second time to obtain the area variances.

June 9, 2009

Rochester Curfew Law Unconstitutional

The New York Court of Appeals declared a law adopted by the City of Rochester fixing a curfew on minors unconstitutional. In Jiovon Anonymous v. City of Rochester the Court held "we conclude that the crime statistics produced by defendants do not support the objectives of Rochester's nocturnal curfew."

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.

May 1, 2009

Town May Purchase Property for Town Hall Which Exceeds Present Needs

In Matter of Potter v. Town Board of Aurora, the Appellate Division Fourth Department upheld a resolution by the Town Board, after completing a SEQRA negative declaration, to purchase and renovate a building for a new town hall. The court found that the claim that the town violated State Constitution Article VII section 2, because it was entering into indebtedness for purposes which did not carry out town purposes, due to the fact that building is larger than what is currently required for town purposes, was without merit. The court noted: the town may “erect a public building having in view future necessities, and exceeding the demands of present use” (Matter of the Mayor of the City of N. Y., 90 NY 569,591)”

March 31, 2009

Sale of Municipal Property with a Purchase Money Mortgage is Not an Illegal Gift or Loan

The New York Court of Appeals held today that a municipality may sell municipal real property and take back a purchase money mortgage without violating the State Constitutional prohibition against municipalities making a gift or loan. In Matter of 10 E. Realty LLC v. Incorporated Village of Valley Stream, the court found that: "the Village made no loan of money or property to the purchaser. The fact that the consideration in this sale mentions an interest rate and a term of payment, or that a mortgage was taken as a security interest, does not make this transaction involving a deferred payment plan an unconstitutional loan."

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])."

March 30, 2009

Authority of Municipalities to Disclose Verizon’s Quarterly Franchise Reports to Cablevision Pursuant to FOIL

The Appellate Division, Second Department decided two cases last week, Matter of Verizon New York, Inc. v. Devita and Matter of Verizon New York, Inc. v. Mills on the issue of whether quarterly franchise reports submitted to municipalities by Verizon are exempt from disclosure under the Freedom of Information Law (FOIL). The cases basically held that disclosure of the detailed revenue and customer information contained in quarterly reports filed with municipalities fell within the exemption from disclosure provided in (Public Officers Law section 87(2)(d)). However, the court also held that, since FOIL favored disclosure, it is a matter of discretion whether the municipalities actually disclose the information and remitted both matters to the municipal officials to decide, in their discretion, whether to release the information.

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.

March 24, 2009

City's Extension of Credit to Purchase Ferry Service Was Not Illegal

The Appellate Division Fourth Department dismissed a challenge to the City of Rochester using its credit to purchase a ferry service. In Matter of Summers v. City of Rochester, the court dismissed the claim on the grounds of laches but then went on to analyze the City's actions under the N.Y Constitution and Local Finance Law and found its action valid.

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.

March 17, 2009

Oral Agreement With Mayor Is Not Binding On Village

In an action to collect additional benefits based upon an oral agreement with the former Mayor of the Village of Malverne the Appellate Division reversed a jury finding that a contract existed. In Garrigan v. Incorporated Village of Malverne the court held : "such contract was insufficient to support the plaintiff's claims since, absent a resolution from the Village Board reducing the oral contract to writing, the Village cannot be bound...."

Another issue in the case was whether other aspects of the claim were barred by the applicable statute of limitations. The court noted the statute "never began to run since the Village Board did not specifically reject plaintiff's November 2001 request...." Thus, the court effectively found that failing to formally reject a claim allows the claim to survive.

March 15, 2009

Court Holds Challenges to Zoning Amendments Do Not Alway Have to Be Brought Within Four Months

In August, 2006 we discussed the Court of Appeals decision in the case of Eadie v. Town Board of the Town of North Greenbush (7 N.Y.3d 306[2006]) in a post entitled "Court Holds Challenge to Zoning Law Must Be Brought Within Four Months- Sometimes." A few weeks ago in the case East Suffolk Development Corp. v Town Board of Town of Riverhead, the Appellate Division, Second Department advised that sometimes the challenge can be brought within six years.

The Town sought to have a challenge to a zoning amendment dismissed as untimely because it had not been brought within four months. We can only presume there was no SEQRA challenge involved, as SEQRA is not mentioned in the decision.

In denying the Town's motion the court held the amendment is a legislative act and that : "a declaratory judgment action, not a CPLR article 78 proceeding, is the proper vehicle to challenge the validity of the defendants' action...and the six-year statute of limitations set forth in CPLR 213(1) applies...." Thus, it now appears the statute of limitations for challenging a zoning amendment is six years-sometimes.

August 6, 2008

New York Legislature Clarifies Availability of Electronic Media Through FOIL

The Legislature has clarified a long contentious issue over the availability of electronic media under the New York Freedom of Information Law (FOIL). In Chapter 223 of the 2008 legislative session, which became law on July 7, 2008, the Legislature expanded FOIL to include electronic data that must be complied by government agencies. The new law requires government agencies and municipalities to “provide records in the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service.” The law also allows the agency to charge back the cost of the storage media, the actual cost of an outside service to retrieve the data or in some instances at least part of the salary of the person doing the retrieval.

It has often been a claim by agencies that records could not be retrieved because to do so would be “unduly burdensome” The new law provides in part that an: “agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside staffing service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph ( c ) of subdivision one of section eighty-seven of this article” (Public Officers Law).

This provision should result in some interesting litigation as agencies and individuals wrangle over whether the documents could be retrieved under these circumstances or whether the charges by outside vendors or for employee salaries are too high.

July 28, 2008

Court Holds Communications from Consultant Not Exempt from FOIL

In a detailed analysis of New York’s Freedom of Information Law (FOIL) the Appellate Division First Department held that certain communications from a consultant hired by the Empire State Development Corporation (ESDC) were not exempt from release under FOIL as intra-agency communications. Noting that while there is generally such an exemption “such communications lose their exemption if there is reason to believe that the consultant is communicating with the agency in its own interest or on behalf of another client whose interests might be affected by the agency action addressed by the consultant” the court held that because the consultant was also hired as a consultant by Columbia University to assist with the same project the communications sought under FOIL were subject to release under FOIL.

The issues in the case arose in the context of a proposed project by Columbia University which also requires approvals and assistance through ESDC in order to be fully implemented. The action entitled Tuck It Away Associates L.P. v Empire State Development Corp. involves an attempt by the largest property owner impacted by the Columbia University proposal (along with others) to obtain documents from ESDC related to its proposal to implement the Columbia University project. ESDC claimed certain documents, consisting of communications from a consultant hired to assist ESDC with a blight study preparatory to ESDC exercising eminent domain on behalf of the Columbia University project were exempt from FOIL as intra-agency communications. The Court noted that the consultant (AKRF) had also been retained by Columbia University to assist with other aspects of the same project, which were ultimately related to the ESDC adopting the General Project Plan (GPP) for Columbia University.

The Court found that “the question to be answered is whether the fact that AKRF represents both ESDC and Columbia, albeit, allegedly in separate areas related to the same massive project, constitutes a conflict such that AKRF is not capable of rendering a truthful, objective expert study of neighborhood conditions irrespective of its impact on Columbia’s plan.” The Court went on to make findings that it is “undisputed that AKRF has worked to promote ESDC’s adoption of Columbia’s GPP and that AKRF acted as Columbia’s consultant, agent and representative in all phases of environmental review under SEQRA” and that “Columbia’s interest in an agency finding of blight is virtually inseparable from its interest in ESDC’s adoption of its GPP.” The Court therefore held that the communications between ESDC and AKRF are not subject to intra-agency exemptions under FOIL because “the gargantuan size of the project, the layers of conflict between Columbia and ESDC and the difficulty of offering perfectly objective advice while serving two masters elevates this FOIL appeal beyond the average agency-consultant relationship that FOIL exemptions are designed to foster and protect.”

A note, in the interest of full disclosure it should be noted that, while this firm did not participate in this action, this firm is lead counsel to Tuck It Away in a challenge presently pending in New York State Supreme Court related to the SEQRA/CEQRA findings adopted by the New York City Planning Commission for the same project.

May 12, 2008

Municipal Home Rule Permits Creation of Position of Police Commissioner

The Appellate Division Second Department held in the case Overton v. Town of Southampton that a town board is authorized to create the position of police commissioner as chief administrative officer of the police department by local law. The court determined that the local law creating the position of police commissioner was not barred by the Civil Service Law provision requiring that a town maintain the position of chief of police. Here the chief of police kept his position but the local law requires the chief to report to a single police commissioner.

The court noted it had previously held that nothing in the Civil Service Law prevents a local government from requiring that the chief report to other local officials. Further, Town Law section 150(2) authorizes a town board to delegate supervision over the police department to a board of police commissioners. The court found that the Town properly invoked its authority under Municipal Home Rule Law section 22 to supersede the provision of Town Law permitting a board of commissioners and instead create the position of police commissioner by local law.

May 11, 2008

When Is a Water District Not a Municipality?

The Court of Appeals held, for purposes of allocating costs of New York’s “one-call” system for locating underground pipes, cables wires etc. before excavating, a water district created by Town Law is not a municipality. In Jericho Water District v. One Call Users Council, Inc. the Court held that a water district is therefore not exempt from contributing to the cost of maintaining the one-call system.

General Business Law section 761 provides for maintaining the one-call system with cost being shared among operators of underground facilities, except “municipalities and authorities that operate underground facilities and any operator of underground facilities that provides water service to less than four thousand customers.” The Jericho Water District was created pursuant to Town Law section 190 with the commissioners elected rather than being appointed by the Town Board. The court noted that various statutes define municipality either narrowly to include only counties, cities, towns, villages and school districts, or more broadly to also include specialized government units like a water district. However, the provision of the General Business Law at issue does not include a definition of municipality.

The court found that both general usage and the General Construction Law (which defines “municipal corporation”) would apply a more narrow definition, which would not include a water district as a municipality. While the General Construction Law defines municipal corporation rather than municipality the court construed the terms as synonymous. It therefore concluded, absent a definition in the specific statute to be applied, the narrow definition in the General Construction Law applies as “exceptions to generally applicable statutory provisions should be strictly construed…”

February 17, 2008

Court Rules Municipal Annexation Requires Special Election

The New York Court of Appeals ruled this week, in a case involving a contested annexation of land by one municipality from another that an informal petition by the residents of the area to be annexed was inadequate. In Matter of the City of Utica v. Town of Frankfort the Court found that the practice of the appellate divisions of waiving special elections in certain instances violated the clear mandate of Article IX § 1 (d) of the New York State Constitution which provides that annexation may not take place "until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum."

The Court concluded that the special election must be held "no matter how few eligible voters there are or how superfluous such an election might be."

January 18, 2008

Westchester Creates New Municipal Planning Tool

The Westchester County Planning Department has posted a new Web Page which it hopes will be a planning tool for local communities and assist in regional planning. The site states: "[w]hether you are a planner or a concerned resident, you will find tools on these web pages that assist in understanding your community, defining its character and envisioning the future."

The site ( contains links to all 43 Westchester municipalities and data on each municipality, with the intention that additional information will be added. Claimed to be the first site of its kind in the State of New York, it will be interesting to see if it is utilized and its impact on planning in the County.

January 8, 2008

Civil Rights Action Barred When Article 78 Proceeding Provides Adequate Remedy

An action under 42 USC §1983 may not be maintained when the plaintiff had other meaningful remedies. The Appellate Division, Third Department affirmed the lower court’s granting of summary judgment to the defendants in Hughes Village Restaurant, Inc. v. Village of Castleton-On-Hudson. The Court found that the plaintiff could have brought a CPLR article 78 proceeding against the officials who forced plaintiff to vacate an apartment house as a result of certain building and fire code violations.

The plaintiff claimed that by requiring that the building be vacated the municipal officials caused a situation which resulted in pipes freezing and the destruction of the property. If the damages resulted from established procedure due process requires that there be a hearing procedure available before deprivation of property rights. The Court found that the closure resulted from random unauthorized acts rather than established municipal procedure. Therefore, it concluded the question for the Court is whether there was a “meaningful post deprivation remedy” for the plaintiff. The Court held a CPLR article 78 proceeding provides such a remedy as “a CPLR article 78 proceeding could have challenged the alleged wrongful closure of plaintiff’s building, incidental to which it could have claimed damages for the destruction that allegedly resulted….” Finally, the Court found that the failure of the plaintiff to bring such a proceeding “does not undermine our determination.”

January 7, 2008

Agency Has the Burden of Proving Exemption for FOIL Request

The New York Court of Appeals held that the Freedom of Information Law carries the presumption of access to records. In reversing the holding of the Appellate Division and remitting the matter for a factual determination, the Court held in Matter of Data Tree, LLC v. Romaine that the Suffolk County Clerk, which claimed the requested documents were exempt from disclosure, “carries the burden of demonstrating that the exemption applies to the FOIL request.”

Data Tree is in the business of providing property records electronically and had requested that the County Clerk supply copies of various public land records from 1983 to the present, in an electronic format. When the Clerk failed to respond within five days, Data Tree treated this as a de facto denial and made an administrative appeal. The County Attorney denied the appeal citing three grounds (1) the request would require rewriting data which the Clerk is not required to do, (2) there would be an unwarranted invasion of personal privacy due to the volume and commercial nature of the request and (3) the records are otherwise available for copying individually in the Clerk’s Office. The determination was upheld by the Supreme Court and the Appellate Division.

The Court held that unless a specific exemption applies the records must be made available. After noting that the exemptions must be “narrowly interpreted” the Court agreed that the Appellate Division had engaged in improper burden shifting. It found that the burden is on the Clerk to prove an exemption applies not upon the applicant to prove an exemption does not apply.

Finding that the exemption under Public Officers Law section 87 (2)(b)(iii) for sale of mailing lists used for commercial or fund raising purposes did not apply, the Court remitted the matter for findings of fact on the other issues. The Court noted that questions existed as to whether the privacy exemption might apply because some records may contain personal information. In addition, the Court held that “an agency has no obligation to accommodate a request to compile data in a preferable commercial electronic format when the agency does not maintain records in such a manner.” Conflicting affidavits raised the question of whether the current records could be transferred electronically. Yet, the Court also held that “simple manipulation of the computer necessary to transfer exiting records should not, if it does not involve significant time or expense, be treated as creation of a new document.”

November 15, 2007

Open Space Restriction on Subdivision Plat Binds Future Property Owners

In a case of first impression, the New York Court of Appeals ruled today that an open space restriction which appears solely on a subdivision map but is not otherwise recorded in land records is binding upon subsequent purchasers of the property. In O’Mara v. Town of Wappinger the Second Circuit Court of Appeals had certified the following question to the New York Court of Appeals: “Is an open space restriction imposed by a subdivision plat under New York Law §276 enforceable against a subsequent purchaser, and under what circumstances?”

The New York Court of Appeals held that such an open space restriction “when filed in the Office of the County Clerk pursuant to Real Property Law §334, is enforceable against a subsequent purchaser.” The property in question had been subdivided in 1963 and the plat had a notation indicating there was an open space restriction. It was then purchased by the Plaintiffs in 2000 at a tax sale. At the time of acquiring title, a title insurance policy was issued which did not disclose the open space restriction, which was only on the plat and not part of a separately recorded instrument. A survey was performed after purchase in order to obtain approvals for construction. Although the surveyor apparently observed the open space notation on the original subdivision plat he did not note it on the survey. Permits were issued and construction nearly completed on a house when the new building inspector discovered the open space notation and stopped work.

The Plaintiffs unsuccessfully brought a number of claims in federal court which resulted in certification of the question to the Court of Appeals. Their position was that the reservation of open space to the benefit of the Town was effectively a conveyance of an interest in real property which required recording in the County Clerk’s Office under Real Property Law §291, in the same manner as a deed. Plaintiffs argued that absent such a recording they were not, as subsequent purchasers, placed on notice and should not be bound by the restriction.

The Court of Appeals held the open space reservation was not a conveyance and therefore did not meet the criteria for requiring separate recording under §291 of the Real Property Law. It further noted the purchasers “should have searched the County Clerk’s property records until it found the subdivision plat that created its parcel.” This case should serve as a warning to title companies and purchasers of real property of the need to review all filed maps for notations that may restrict the use of the property.

August 19, 2007

Appellate Court Holds Adjoining Municipalities May Sue Under SEQRA To Protect Community Character

In a comprehensive review of the capacity and standing of one municipality to sue another over local zoning, the Appellate Division, Second Department, in Matter of Village of Chestnut Ridge v. Town of Ramapo, held that villages have the capacity to sue a town over a local law enacting a zoning amendment. Yet the Court also found their standing is limited to SEQRA and General Municipal Law compliance rather than the local law’s consistency with a comprehensive plan.

The Town had adopted a zoning amendment by local law which permitted adult student housing. The law applied to four parcels of land near or adjacent to the boundary of four Villages located in the Town. The four villages and two individuals commenced a combined Article 78/declaratory judgment action challenging the local law, and subsequent actions which incorporated the local law. The lower court dismissed the action on a cross motion by the Town finding lack of capacity to sue and/or lack of standing on each of the causes of action. The Appellate Division modified.

First, the Court noted that Village Law specifically authorizes Villages to sue and be sued. The Town had argued that Town Law Section 264 provides that a village may not challenge a Town’s zoning in court. The Court distinguished a zoning amendment adopted pursuant to Town Law from a case such as this with a local law enacting a zoning regulation under Municipal Home Rule Law. The court found that Municipal Home Rule Law did not similarly restrict a challenge by a village.

More importantly the Court noted that SEQRA had been adopted and implemented after both the provisions of Town Law and Municipal Home Rule Law. The Court held that an abutting municipality as an interested agency (rather than an involved agency which automatically has standing) had the same right to challenge a SEQRA determination as an individual, although the test of standing is somewhat different.

In analyzing the standing of the Villages the Court found that while mere proximity was not enough by itself to create standing, the proposed development on the border of the Villages was substantial and could have a significant detrimental impact. In this case there was a claim that the Villages share much of their infrastructure with the Town. Noting that SEQRA specifically seeks to protect community character the Court held the “power to define community character is a unique prerogative of a municipality acting in its governmental capacity”. Therefore the Court held the Villages had standing under SEQRA to challenge the Town’s actions. In addition the Court found standing to enforce General Municipal Law provisions relating to procedural requirements for adoption of local laws. But the Court found the Villages had no interest in enforcing the procedural requirements related to the adoption of the zoning under Municipal Home Rule Law or with respect to compliance with the Town’s comprehensive plan finding “they are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement. The matter was remitted to the lower court for a determination on the merits of the causes of action that survived.

February 18, 2007

Court Denies Application to File Late Notice of Claim

The Appellate Division Second Department recently held that the failure to file a timely notice of claim, as required by the General Municipal Law, should not be excused in the case of Narcisse v. Village of Central Islip.

The Court noted that General Municipal Law section 50-e requires that within 90 days of the event giving rise to a tort claim a party making such a claim must file a notice of claim with the municipality. The purpose is to provide the municipality a timely opportunity to investigate the claim. However, if there is a failure to file such a notice the law allows a party to seek leave of the court to file a late notice. The party seeking leave of the court must address certain factors such as a reasonable excuse for failing to file, lack of prejudice to the municipality and most particularly whether the municipality had actual knowledge of the occurrence.

The Court denied this application finding that the municipality had no knowledge of the occurrence and the petitioner had failed to demonstrate there would be no prejudice to the municipality. In addition, the petitioner had not sought legal advice until the 90 day period had expired and the Court found that ignorance of the law is no excuse for failing to comply.

February 4, 2007

Condemnation for Recreational Proposes Qualifies as a Public Use

The Appellate Division found that a condemnation proceeding under the Eminent Domain Law in order to enhance a golf course and for other recreational purposes was proper in the case Matter of Rocky Point Realty v Town of Brookhaven. The Court found that review of a condemnation proceeding is limited to four issues: “whether (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition was within the condemnor’s statutory jurisdiction or authority, (3) the condemnor’s determinations and findings were made in accordance with procedures set forth in EDPL article 2 and SEQRA, and (4) a public use, benefit or purpose will be served by the proposed acquisition…”.

The property owner’s contention that EDPL 202, which requires that the purpose of the hearing conducted by the Town be stated in the notice, also mandates a description of every aspect of the project and its implementation was rejected by the Court. It was held that the proposed condemnation would serve a legitimate public purpose by enhancing recreation in the Town and therefore met the test of being a “public use”.

Finally, the Court noted that the Town complied with SEQRA. It found that, as the EAF failed to identify any potential adverse impacts and the petitioner failed to identify any significant potential for environmental harm, the Town took the requisite hard look and properly issued a negative declaration.

January 2, 2007

Court Finds Long Beach New York Ordinance Unconstitutionally Vague

A State Supreme Court Judge found that the Long Beach New York ordinance governing sales from food carts was unconstitutionally vague. In Party Magic Enterprises, Inc. v. City of New Rochelle, the plaintiff, who held a peddlers license from the city which permitted sale of food from a cart, challenged the local ordinance’s restriction on how long a peddler may keep his cart in the same location.

The challenged language required that the holder of a license may not “stand or permit the unmotorized vehicle used by him … to stand in a fixed location in any public place or street for more than five (5) minutes.”

The Court held that the ordinance was vague as the failure to define the distance a peddler must move every five minutes did not give a person of ordinary intelligence fair notice that contemplated conduct is forbidden and subjected the ordinance to arbitrary enforcement. It reasoned that one police officer might find that moving 100 feet was sufficient to comply with the law while another officer might conclude a greater distance was required. The court noted that several similar ordinances specify the distance that must be moved periodically and such a modification would cure the deficiency in this ordinance.

November 27, 2006

Federal Court Finds Village Discriminated Against Day Laborers

Finding that the Village violated equal protection rights of day laborers seeking employment on the streets of the Village of Mamaroneck, the United States District Court of the Southern District of New York directed the parties to submit briefs on the issue of appropriate remedies for the day laborers. The case arose out of activities undertaken by the Village to address what it viewed as “quality of life” issues arising out of the congregating of men seeking employment at various locations in the Village.

The findings of the Court (Doe v. Village of Mamaroneck) included a determination that the Village had undertaken a campaign of traffic enforcement to discourage contractors from picking up laborers in the Village. “The Village traffic enforcement policy was admittedly targeted at day laborers and contractors who wanted to hire them. In the mayor’s own words these groups were subjected to ‘aggressive ticketing’.”

The Court noted that the men impacted by the enforcement policies of the Village were almost exclusively Latino and concluded that the Village had acted differently in the past when those seeking work were mostly Caucasian. Finding that the accusations of anti-social behavior by the day laborers “have no support whatever in the record” and the “attitude of these Village officials differs radically from the historical attitude of Village officials toward transient laborers…” the Court concluded “the Village acted with malicious or bad faith intent” that was partially race based.

Finally, the Court concluded that the actions complained of were taken at the direction of municipal policy makers, the Chief of Police and Mayor, and therefore the municipality is liable for these actions.

October 18, 2006

New York Legislature Provides for Training of Planning Board and Zoning Board Members

Effective January 1, 2007 (Chapter 662 of the laws of 2006) the New York State Legislature has amended the General Municipal Law, Town Law, General City Law and Village Law to require four hours per year of training for each member of a local Planning Board and Zoning Board of Appeals, including the county planning board. Time spent in training in excess of four hours per year may be carried over to subsequent years.

The training may be traditional classroom or other formats, including video. Reappointment to the local board is conditioned upon completion of the required training. The law also provides that each local legislature must approve the training provided to local board members but also permits the local legislative body to modify the training requirements in the “best interests” of the community.

August 23, 2006

Legislature Provides for Freedom of Information Law (FOIL) Requests by E-Mail

Effective August 14, 2006 (Chapter 182 of the laws of 2006) the Public Officers Law, which governs FOIL requests, has been amended at section 89 (3) by adding (b) “All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.” Section 89(1) has also been amended to require development of forms for e-mail requests.

August 21, 2006

Court Holds Challenge To Zoning Law Must Be Brought Within Four Months of Adoption-Sometimes

In a July 5, 2006 decision the New York Court of Appeals held that an Article 78 challenge to a rezoning was properly brought within four months of the rezoning, despite the fact that the challenge alleging SEQRA violations was brought more than four months after the SEQRA findings were adopted. In Eadie v. Town Board of the Town of North Greenbush, the Court of Appeals found that the challenge to rezoning was timely and that the Town Board complied with SEQRA requirements.

In holding that the Article 78 four-month statute of limitations began to run when the rezoning was enacted, the court noted that previous cases held the period begins when the petitioner has suffered injury not amenable to further review and corrective action. Since the Court found the petitioner in this case suffered no concrete injury until the Town Board approved the rezoning, petitioner had until four months from the date the new zoning was enacted to commence his action.

Despite language apparently indicating a bright-line rule as to the statute of limitations issue, the court then went on to note: “[T]his does not mean that, in every case where a SEQRA process precedes a rezoning, the statute of limitations runs from the latter event, for in some cases it may be the SEQRA process, not the rezoning, that inflicts the injury of which the petitioner complains.” The Court gave as an example the possibility that certain mitigation measures adopted in SEQRA findings might burden those challenging the rezoning. In such a case the Court noted the injury and therefore the time to bring a challenge would run from the adoption of the SEQRA findings, not the enactment of the legislation.

Thus the four month statute of limitations does not always begin to run at the enactment of the ordinance, but may begin to run at another point in time. This ruling should generate some interesting decisions in the future.

August 7, 2006

Court Finds Substantial Compliance Sufficient to Uphold Petition to Establish Water District

A petition to establish a water district may be approved even when it contains technical defects if the petition substantially complies with applicable requirements.

In Angelis v. Town of New Baltimore, the validity of a petition to establish a new water district was challenged. Opponents based the challenge on technical defects such as missing or incomplete information, failure to initial handwritten changes, and questionable handwriting/signature relationships. The Appellate Division Third Department held that none of the alleged defects were fatal to the petition, and that the petition could stand because requirements were substantially complied with.

The court reasoned that Town Law requirements were satisfied, and looked to the Election Law for authority stating that substantial compliance with requirements as to form is deemed acceptable.

June 5, 2006

Court Upholds New York City’s Use of Eminent Domain for Hudson Yards Project

An appellate court dismissed five consolidated actions challenging New York City’s and the MTA’s use of eminent domain to obtain land for a project on Manhattan’s West Side. In Matter of C/S 12th Ave. LLC v. City of New York, the Appellate Division First Department upheld the City’s approval of property acquisition and easements related to the project, as well as the Determination and Findings generated by the City and the MTA. The court also held that condemnation of an entire parcel is reasonable where the project for which the parcel is sought only requires a portion of the parcel, but partial demolition of the existing structure is not feasible.

Owners of property subject to condemnation for the project, which is known as the No. 7 Subway Extension Hudson Yards Rezoning and Redevelopment Program, challenged the City’s authority to acquire their land. Petitioners’ numerous claims include arguments that the City failed to comply with requirements of the Eminent Domain Procedure Law, engaged in unconstitutional spot zoning, acted ultra vires, and failed to state an adequate public use to be served by the project.

The court held that Eminent Domain Procedure Law 204 does not require “extreme accuracy” in reference to the property to be acquired; rather the procedural requirement is satisfied when the acquiring agency sets forth the approximate location and the reasons for the location selection for the proposed project. In reaching its determination that specificity is not required, the court pointed out that the taking challenged in the EDPL claim is a temporary easement needed to construct and support portions of the project. In addition, the court reasoned, the easements were sought for structural stabilization of the subway tunnel during its construction, and precisely where the stabilization points would be required could not be determined in the planning stage of the project.

Petitioners claimed their property was singled out for a use classification that differs from that of the surrounding areas in violation of the Constitution’s Equal Protection clause. In examining this claim, the court found that there was a rational relationship between the disparate treatment of the parcel and the legitimate government purposes of well-considered development, generating jobs, and increasing the tax base. The court thus upheld disparate treatment of the property and discounted petitioners’ spot zoning claim.

In reviewing petitioners’ argument that the City’s actions were ultra vires, the court held that the actions were within the scope of its authority and further found that the Hudson Yards project constitutes a public use as required by the Constitution, since it serves a public purpose, citing the broad definition of public use upheld in Kelo v. City of New London.

The court also noted because the EDPL provided an adequate mechanism allowing the property owners to seek compensation, the challengers bore the burden of proving beyond a reasonable doubt that the challenged rezoning plan destroyed the economic value of the property. The court held that petitioners did not satisfy the burden and therefore allowed the regulations to stand.

May 12, 2006

Municipality Liable Under Contract for Construction Work

A municipality is liable under a construction contract once awarded, irrespective of whether the municipality decides to terminate before the contract is actually signed. In the case of Xavier Contracting LLC v. the City of Rye the Appellate Division Second Department held the City had liability for the contract awarded to Xavier, despite the fact that the City terminated the project before the contracts were executed because one of six other contractors on the project failed to meet the bonding requirements.

The City had let seven contracts out to bid for a construction project that included general construction, electric, plumbing etc. The City awarded seven contracts including one to Xavier for general construction. The only requirement for moving forward on the project was that each successful bidder had to submit proof of insurance and a bond. One contractor failed to produce a bond. The City decided not to go with the next lowest bidder but rather to rescind all of the contracts. Xavier sued claiming it was entitled to compensation under its contract.

The Supreme Court granted summary judgment on liability. The Appellate Division affirmed, finding that absent an express provision in the bid documents making each of the separate contracts contingent on the others the City “could not unilaterally refuse to perform.” Xavier was represented by Silverberg Zalantis LLP

April 8, 2006

Court of Appeals Bars Attempt to Block Eminent Domain Action

The New York Court of Appeals held that a property owner’s challenge to condemnation of property by the City of New York was untimely when it was not raised within four months of a finding by the City Planning Commission that the condemnation should proceed. In the April 4, 2006 decision in the Matter of City of New York (Third Water Tunnel Shaft 30B) the Court noted that under the Eminent Domain Procedure Law (EDPL) there is a two part process in completing condemnation (1) determining that a property should be taken for a public purpose and (2) commencing a judicial vesting proceeding to acquire title to the property. The Court held that once the City determined through an appropriate hearing process that the property should be condemned the owner’s challenge to the extent of the proposed condemnation had to be commenced within four months, even though no judicial proceeding was commenced by the City until approximately six months after the City determined to condemn the property.

In order to build a water tunnel the City determined to acquire the entire property even though once the shaft for the tunnel was dug only a portion of the property above ground would be used to vent and access the shaft. Six months after determining to condemn the property the City started a judicial vesting action. The property owner conceded the public purpose but raised, as a defense to the vesting action, a claim that acquiring the entire property would be excessive. The City moved to dismiss the defense and counter claim stating that this issue should have been raised in a separate Article 78 proceeding challenging the administrative determination to acquire the property, within four months of that determination. The Court of Appeals agreed.

The Court of Appeals noted that the general rule is that a challenge to an administrative action (Article 78 proceeding) must be commenced within four months of the date on which the administrative action becomes final and binding (there are specific exceptions that are shorter). While the owner argued that the action became final when the Mayor approved the capital budget proposal for the water tunnel, the Court found that the action became final when the City Planning Commission made its final determination to proceed with the acquisition and the City Council failed to exercise its right to review that determination. This case again demonstrates that when an administrative process has multiple steps it is always safer to challenge the earliest action, unless the courts have previously held that a challenge to that particular action can be brought later in the process.

March 25, 2006

Freedom of Information Law Continues to be an Issue in New York

It has been a year since amendments to the State Freedom of Information Law required that government agencies in New York provide a specific date by which records shall be provided to the public. Under the amendment to the Public Officers Law, if records cannot be provided within twenty business days, the party requesting the records must be given a date by which the records shall be provided. But as noted in the popular media ( lack of responsiveness by government agencies continues to be an ongoing issue.

One solution that has passed the New York State Assembly and is pending in the Senate is to give some teeth to the penalty for failure to comply with the law by making it easier to recover attorney fees by those who successfully sue to obtain public information ( Under the present law a court must find that the records sought were of interest to the general public. Under the proposed law fees shall be awarded if the court finds there was no reasonable basis for denying access to the records regardless of the nature of the records. Apparently the hope is that this will encourage government agencies to be more responsive and less arbitrary in delaying and denying access to public records.

February 15, 2006

Court of Appeals Invalidates New York City Equal Benefits Law

A sharply divided New York Court of Appeals upheld the position of New York City Mayor Bloomberg who refused to enforce the City’s Equal Benefits Law. On February 14, 2006, in the case the Matter of Council of the City of New York v. Bloomberg ( the Court held that the Equal Benefits Law was pre-empted by State and Federal Law. The Equal Benefits Law required that contracts awarded by the City in excess of $100,000 be made only to contractors who provided equal benefits to the domestic partners and spouses of employees.

In the first instance the Court held that that the issue of validity of the local law could be raised by the Mayor in defense of an Article 78 proceeding by the City Council seeking to compel him to enforce the law. The Court held that the Mayor acted properly in refusing to enforce a law he felt was invalid. It then determined that the law was at odds with, among other statutes, section 103 of the General Municipal Law which requires the award of contracts to the lowest responsible bidder. The majority stated that, as written, the law could violate the intention of the competitive bidding statute. For example, contract specifications could be drafted to favor contractors who provided specific benefits. Such requirements, the Court held, do not foster the purpose of the statute, which is to save money for the municipality.

In a dissent by Judge Rosenblatt, joined in by two other judges, he argued that the actions of the Mayor violated the doctrine of separation of powers. Judge Rosenblatt stated that the executive is required to carry out the law until a court declares it invalid and should not unilaterally refuse to carry out a legislative act. He argued that a defense in an Article 78 proceeding is not the proper vehicle for challenging a local law.

January 30, 2006

What Will the Eminent Domain Law Look Like in New York?

At the present time there are 28 bills pending in the New York State Assembly and Senate related to condemnation of private property by government entities. The bills range from comprehensive revisions of the eminent domain law in New York to minor changes directed at specific aspects of the law. Clearly a reaction to last year's decision by the United States Supreme Court, some of the proposed legislation, if adopted, will have a substantial impact on eminent domain for years to come. While many people believe the law requires reform, others are concerned that an over reaction will result in hampering revitalization of municipalities throughout the State.

The pending legislation, as listed on the New York State Assembly site, is listed below:

A00372 Provides for giving of just compensation upon the taking of any billboard
A02226 Requires a new public hearing for any change made to a proposed eminent domain project after the conclusion of public hearings
A02523 Relates to municipality responsibility for remedial programs involving hazardous wastes at sites owned by municipalities
A02536 Protects powers granted to municipalities concerning certain public utility services
A02761 Extends powers of municipal corporations to acquire public utilities by the power of eminent domain
A07909 Requires a thirty day notice in eminent domain procedures
A08865 Requires a vote by a local government which is considering eminent domain of a certain property
A09015 Requires a vote by a local government which is considering eminent domain of a property
A09043 Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development
A09050 Enacts comprehensive eminent domain procedure reform act to afford homeowners additional protection if homes are to be acquired for economic development; repealers
A09051 Relates to eminent domain in N.Y. city
A09060 Creates a temporary state commission to consider the scope and effectiveness ofeminent domain laws and balance society`s needs with the peoples rights; appropriation
A09079 Relates to the use of eminent domain
A09144 Relates to the use of eminent domain to take private property for the use of a private developer
A09152 Provides for the establishment of a state eminent domain ombudsman and providesfor the powers and duties thereof; enacts the "eminent domain ombudsman act"
A09171 Amends the definitions of "acquisition" and "public project" in relation to a municipality`s exercise of eminent domain
A09173 Proposes amendment of subdivision (e) of section 1 of article 9 of the constitution in relation to eminent domain powers of local governments
A09473 Alters provisions that a person be given just compensation if his or her residence or small business is taken through the eminent domain procedure
A09484 Provides for eminent domain reform and creates the "home and property protection act"; appropriation
S01335 Relates to municipality responsibility for remedial programs involving hazardous wastes at sites owned by municipalities
S01367 Protects powers granted to municipalities concerning certain public utility services
S01474 Extends powers of municipal corporations to acquire public utilities by the power of eminent domain
S03846 Provides for giving of just compensation upon the taking of any billboard
S05936 Provides that the power of eminent domain shall only be exercised for economic development purposes when the area for economic development is a blighted area
S05938 Relates to the use of eminent domain
S05946 Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development; creates temporary state commission; appropriation
S05949 Relates to eminent domain in cities with a population of one million or more
S06216 Creates a temporary state commission to consider the scope and effectiveness ofeminent domain laws and balance society`s needs with the peoples rights; appropriation

January 27, 2006

Property Rights Case Sent Back to District Court for Further Action

The Second Circuit Court of Appeals has remanded the case of Davis v. Town of Hempstead to the district court. The challenge involves actions taken in accordance with a local law that appears similar to many other local laws in New York State. Therefore the ultimate decision in this case may have serious implications for many municipalities in New York, as well as having the potential to add fuel to the already heated discourse over individual property rights.

The case involves a claim by a property owner that the Town of Hempstead violated his constitutional rights when it removed a structure on his property. The Town had declared the structure unsafe and ordered its repair or removal. The action was taken after the structure was certified as unsafe by an architect retained by the Town and the plaintiff was given notice and an opportunity to respond. When the property owner failed to repair or remove the structure the Town had the structure removed.

The District Court had granted the Town summary judgment. The Court found that this case involved actions that were part of a series of earlier actions previously upheld by the court and therefore the issues had already been decided (res judicata). The Circuit Court concluded that the incident complained of had occurred a year after the actions that were adjudicated in the earlier case. Therefore, the Circuit Court held the removal of the structure was not part of the same incident that resulted in the prior determination and remanded the case to the District Court for further action.

New York State Town Law section 130 specifically authorizes Towns to adopt local laws governing the removal of unsafe buildings. Many Towns have laws similar to the Hempstead law providing a procedure for removal of unsafe structures. Typically these local laws are invoked when a structure is located in area which poses a threat to the public in the event of a collapse. The final decision in this case will likely be instructive as to the full extent of municipal authority in these circumstances.

January 2, 2006

Appellate Division Decides Trilogy of New Rochelle Zoning Challenges

The Appellate Division of the New York State Supreme Court decided a trilogy of cases on December 27, 2005 relating to a series of determinations by the City of New Rochelle Zoning Board of Appeals to permit construction of an addition to a local religious institution. The cases, Halperin v. Zoning Bd. of Appeals, Richmond v. Zoning Bd. of Appeals and Halperin v. City of New Rochelle broke little new ground but are significant in that together they cover a number of issues related to variances, the standard of review of determinations by zoning boards, the deference accorded religious uses and standards for review under SEQRA, including cumulative impacts and when a supplemental environmental impact statement is required.

Perhaps the most interesting aspect of the decisions is the holding in Halperin v. City of New Rochelle that a variance for off street parking is an area variance when the proposed uses are otherwise permitted as of right. One argument had been that a variance for off street parking was a use variance requiring the more exacting standards for the granting of use variances. Agreement by the Court with this somewhat novel contention would have made many variance requests, that are otherwise routinely granted, extremely difficult to obtain.

Another potentially significant aspect of the ruling is the Court’s view of cumulative impact review. The Court also held that SEQRA does not mandate a review of cumulative impacts of other nearby developments when those developments are unrelated and not part of a common overall development plan.

December 12, 2005

Eminent Domain Case Remanded to District Court on Notice Issue

On December 5, 2005 the Second Circuit Court of Appeals remanded the case of Brody v. Village of Port Chester back to the District Court on the issue of whether Brody had actual notice of the proceedings and procedures under New York Eminent Domain Procedure Law (“EDPL”) before his property was condemned by the Village. In a case that has been bouncing between the District Court and Second Circuit Court of Appeals since the year 2000, the Second Circuit ruled that the EDPL’s procedure for determining whether a decision to condemn property for public use met constitutional muster. However, the Court determined that the notice provisions that existed prior to 2004 were flawed in that they failed to provide notice of the thirty day time limit for challenging a determination that the purpose of a condemnation was for a public use.

On its face the decision would appear to be limited to the facts of this case, as the Court noted the statute, as subsequently amended in 2004, now meets constitutional due process requirements. Yet, the decision of the Court raises interesting issues for other municipal land use determinations. The Court held “the notice sent to affected property owners must make some conspicuous mention of the commencement of the thirty-day review period to satisfy due process”. Does this mean that other land use determinations that implicate property rights must also contain notice of the commencement of a short statute of limitations in addition to the notice of decision required by statute?

December 5, 2005

Jury Awards 1.6 Million for Rezoning of Property

A Long Island jury (Noghrey v. Town of Brookhaven) granted a verdict of 1.6 million dollars against the Town of Brookhaven as a result of the rezoning of two parcels of land. The property, which had been zoned to permit shopping center uses was rezoned and the owner claimed this resulted in a loss of value.

While the presiding judge had ruled that the property owner had not lost all economically viable use of his land, he allowed the jury to reach a verdict on the issue of a regulatory taking based upon a loss of investment backed expectations. The property owner had purchased the two parcels in order to develop the properties for retail uses. The court apparently instructed the jury that it needed to only find by a perponderance of the evidence that there had been a loss of investment backed expectations.

This descision seems to run contrary to a long standing rule in New York that a property owner has no vested right in the potential use of her property. Municipalities have been permited to rezone property as long as the land owner has not established that there has been a substantial expenditure in furtherance of the development of the property for a specific use. In Magee v. Town of Orangetown, which is perhaps the leading case on this issue, the property owner had invested millions in developing the property when its permits were revoked and the property was rezoned. In that case the New York Court of Appeals upheld a judgment against the town for a regulatory taking.

It will be interesting to see how the appellate courts respond to this case.

December 1, 2005

Bar Association Creates Task Force to Study Eminent Domain

The President of the New York State Bar Association has established a task force to study New York’s Eminent Domain Law in the wake of the controversy created by the U.S. Supreme Court decision in Kelo v. New London this year. The holding by the Court that municipalities may use their eminent domain powers to take private property for economic development has prompted calls by members of the New York State Legislature to curb local authority to condemn property. In addition, members of Congress have suggested that projects with federal funding should be barred from using eminent domain powers.

What seems to be missing from the discussion is the fact that the Kelo case really did not break any new ground. Municipalities have been using eminent domain to build railroads, revitalize business districts or improve housing stock for about one hundred years. Following the end of World War II urban renewal became a major force for revitalization and condemnation was a significant tool for implementing these programs. It seems the Kelo decision has merely raised the collective consciousness about the use of eminent domain.

The thought that someone can have their home taken so that a private developer can build a supermarket or an office building has outraged many. Yet, the aim of these projects is to create jobs and improve the overall quality of life in these communities. Since the U.S. Constitution only requires that just compensation be paid, the actual rules governing the details of eminent domain powers are governed by state law. Therefore it will be up to the legislatures of States, such as New York, that permit broader use of condemnation authority to examine whether “public purpose” should continue to include the economic redevelopment of communities.

November 17, 2005

New York Court Holds Meeting By Telephone Violates Law

Holding that a meeting held at which one of the members required for a quorum attended by telephone was invalid the Appellate Division of the New York State Supreme Court ruled that the equalization rate for six Westchester Communities was improperly established in the Matter of the Town of Eastchester v. The State Board of Real Property Tax Services (

The State Board of Real Property Tax Services fixes the equalization rate for municiplities which serves as the basis for determining the rate at which properties in that municipality will be taxed. The Board is required to consist of five members. At the time of the determination at issue the Board had only four members, one member was absent and one member attended the meeting by telephone. Until recently the New York General Construction Law section 41 provided that for any government agency or board to conduct business a majority of the total number of members must be present in the same place. An amendment to that law in 2000 created a single exception permitting attendance by video conference. In finding that the Board did not act at a legal meeting the Court noted that had the legislature intended to include telephonic attendance it would have done so when the amendment permitting video confernces was adopted.

Since a quorum of the Board required three members to be in attendance at the same place or by video conference, the Court found that the meeting held by teleconference violated the General Construction Law. The Court invalidated the rates and sent the matter back to the Board for reconsideration. The practical result may be that the same rates will be set by a quorum of the Board at a new meeting.