Articles Posted in Municipal Law

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

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

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

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

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

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

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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.

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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)”

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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:

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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.

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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.

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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.

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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.

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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.

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