Articles Posted in Municipal Law

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:

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 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.

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.

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.