New York Zoning and Municipal Law Blog

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.

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)”

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])."

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.

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.

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.

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.

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.

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.

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.

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…”

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."

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 (http://www.westchestergov.com/w2025.htm) 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.

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.”

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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 (http://www.star-gazette.com/apps/pbcs.dll/article?AID=/20060322/OPINION01/603220340/1004) 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 (http://public.leginfo.state.ny.us/menugetf.cgi). 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.

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 (http://www.courts.state.ny.us/reporter/3dseries/2006/2006_01111.htm) 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.

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

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.

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.

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?

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.

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.

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 (http://www.courts.state.ny.us/reporter/3dseries/2005/2005_08732.htm).

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.