Articles Posted in Municipal Law

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

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

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

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

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

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

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

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

The Court noted that while there is an exemption for “pre-decisional inter-agency or intra-agency materials” (Public Officers Law § 87(2)(g)) the term agency has a specific definition and under FOIL

“‘[a]gency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature’ (Public Officers Law § 86 [3])”

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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).”

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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:

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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:

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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]).”

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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.”

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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