Articles Posted in Municipal Law

A State Supreme Court Judge found that the Long Beach New York ordinance governing sales from food carts was unconstitutionally vague. In Party Magic Enterprises, Inc. v. City of New Rochelle, the plaintiff, who held a peddlers license from the city which permitted sale of food from a cart, challenged the local ordinance’s restriction on how long a peddler may keep his cart in the same location.

The challenged language required that the holder of a license may not “stand or permit the unmotorized vehicle used by him … to stand in a fixed location in any public place or street for more than five (5) minutes.”

The Court held that the ordinance was vague as the failure to define the distance a peddler must move every five minutes did not give a person of ordinary intelligence fair notice that contemplated conduct is forbidden and subjected the ordinance to arbitrary enforcement. It reasoned that one police officer might find that moving 100 feet was sufficient to comply with the law while another officer might conclude a greater distance was required. The court noted that several similar ordinances specify the distance that must be moved periodically and such a modification would cure the deficiency in this ordinance.

Finding that the Village violated equal protection rights of day laborers seeking employment on the streets of the Village of Mamaroneck, the United States District Court of the Southern District of New York directed the parties to submit briefs on the issue of appropriate remedies for the day laborers. The case arose out of activities undertaken by the Village to address what it viewed as “quality of life” issues arising out of the congregating of men seeking employment at various locations in the Village.

The findings of the Court (Doe v. Village of Mamaroneck) included a determination that the Village had undertaken a campaign of traffic enforcement to discourage contractors from picking up laborers in the Village. “The Village traffic enforcement policy was admittedly targeted at day laborers and contractors who wanted to hire them. In the mayor’s own words these groups were subjected to ‘aggressive ticketing’.”

The Court noted that the men impacted by the enforcement policies of the Village were almost exclusively Latino and concluded that the Village had acted differently in the past when those seeking work were mostly Caucasian. Finding that the accusations of anti-social behavior by the day laborers “have no support whatever in the record” and the “attitude of these Village officials differs radically from the historical attitude of Village officials toward transient laborers…” the Court concluded “the Village acted with malicious or bad faith intent” that was partially race based.

Effective August 14, 2006 (Chapter 182 of the laws of 2006) the Public Officers Law, which governs FOIL requests, has been amended at section 89 (3) by adding (b) “All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.” Section 89(1) has also been amended to require development of forms for e-mail requests.

In a July 5, 2006 decision the New York Court of Appeals held that an Article 78 challenge to a rezoning was properly brought within four months of the rezoning, despite the fact that the challenge alleging SEQRA violations was brought more than four months after the SEQRA findings were adopted. In Eadie v. Town Board of the Town of North Greenbush, the Court of Appeals found that the challenge to rezoning was timely and that the Town Board complied with SEQRA requirements.

In holding that the Article 78 four-month statute of limitations began to run when the rezoning was enacted, the court noted that previous cases held the period begins when the petitioner has suffered injury not amenable to further review and corrective action. Since the Court found the petitioner in this case suffered no concrete injury until the Town Board approved the rezoning, petitioner had until four months from the date the new zoning was enacted to commence his action.

Despite language apparently indicating a bright-line rule as to the statute of limitations issue, the court then went on to note: “[T]his does not mean that, in every case where a SEQRA process precedes a rezoning, the statute of limitations runs from the latter event, for in some cases it may be the SEQRA process, not the rezoning, that inflicts the injury of which the petitioner complains.” The Court gave as an example the possibility that certain mitigation measures adopted in SEQRA findings might burden those challenging the rezoning. In such a case the Court noted the injury and therefore the time to bring a challenge would run from the adoption of the SEQRA findings, not the enactment of the legislation.

A petition to establish a water district may be approved even when it contains technical defects if the petition substantially complies with applicable requirements.

In Angelis v. Town of New Baltimore, the validity of a petition to establish a new water district was challenged. Opponents based the challenge on technical defects such as missing or incomplete information, failure to initial handwritten changes, and questionable handwriting/signature relationships. The Appellate Division Third Department held that none of the alleged defects were fatal to the petition, and that the petition could stand because requirements were substantially complied with.

The court reasoned that Town Law requirements were satisfied, and looked to the Election Law for authority stating that substantial compliance with requirements as to form is deemed acceptable.

A municipality is liable under a construction contract once awarded, irrespective of whether the municipality decides to terminate before the contract is actually signed. In the case of Xavier Contracting LLC v. the City of Rye the Appellate Division Second Department held the City had liability for the contract awarded to Xavier, despite the fact that the City terminated the project before the contracts were executed because one of six other contractors on the project failed to meet the bonding requirements.

The City had let seven contracts out to bid for a construction project that included general construction, electric, plumbing etc. The City awarded seven contracts including one to Xavier for general construction. The only requirement for moving forward on the project was that each successful bidder had to submit proof of insurance and a bond. One contractor failed to produce a bond. The City decided not to go with the next lowest bidder but rather to rescind all of the contracts. Xavier sued claiming it was entitled to compensation under its contract.

The Supreme Court granted summary judgment on liability. The Appellate Division affirmed, finding that absent an express provision in the bid documents making each of the separate contracts contingent on the others the City “could not unilaterally refuse to perform.” Xavier was represented by Silverberg Zalantis LLC

The New York Court of Appeals held that a property owner’s challenge to condemnation of property by the City of New York was untimely when it was not raised within four months of a finding by the City Planning Commission that the condemnation should proceed. In the April 4, 2006 decision in the Matter of City of New York (Third Water Tunnel Shaft 30B) the Court noted that under the Eminent Domain Procedure Law (EDPL) there is a two part process in completing condemnation (1) determining that a property should be taken for a public purpose and (2) commencing a judicial vesting proceeding to acquire title to the property. The Court held that once the City determined through an appropriate hearing process that the property should be condemned the owner’s challenge to the extent of the proposed condemnation had to be commenced within four months, even though no judicial proceeding was commenced by the City until approximately six months after the City determined to condemn the property.

In order to build a water tunnel the City determined to acquire the entire property even though once the shaft for the tunnel was dug only a portion of the property above ground would be used to vent and access the shaft. Six months after determining to condemn the property the City started a judicial vesting action. The property owner conceded the public purpose but raised, as a defense to the vesting action, a claim that acquiring the entire property would be excessive. The City moved to dismiss the defense and counter claim stating that this issue should have been raised in a separate Article 78 proceeding challenging the administrative determination to acquire the property, within four months of that determination. The Court of Appeals agreed.

The Court of Appeals noted that the general rule is that a challenge to an administrative action (Article 78 proceeding) must be commenced within four months of the date on which the administrative action becomes final and binding (there are specific exceptions that are shorter). While the owner argued that the action became final when the Mayor approved the capital budget proposal for the water tunnel, the Court found that the action became final when the City Planning Commission made its final determination to proceed with the acquisition and the City Council failed to exercise its right to review that determination. This case again demonstrates that when an administrative process has multiple steps it is always safer to challenge the earliest action, unless the courts have previously held that a challenge to that particular action can be brought later in the process.