Articles Posted in Municipal Law

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.”

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.

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 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.