Articles Posted in Municipal Law

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

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:

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.”

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.”

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”.

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

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

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.”

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:

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: