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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.

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A court recently reversed a zoning board determination and held that sections of a city zoning ordinance which excluded schools from commercial districts was unconstitutional, because educational institutions enjoy special treatment regardless of what zoning district they seek to build in.

In Albany Preparatory Charter School v. City of Albany, the Appellate Division Third Department rejected the City of Albany’s attempt to distinguish cases relied upon by the School in the lower court decision. The Appellate Division held that general principals announced in earlier decisions apply “with equal force to areas zoned commercial as well as those zoned residential.” In so holding, the court noted that since educational institutions are “inherently beneficial,” they receive special treatment and are permitted to enter neighborhoods where nonconforming uses would otherwise not be allowed. The court further held that since an ordinance excluding educational uses from a zone deprives an applicant of any opportunity to demonstrate that its proposed educational use is consistent with the public good, provisions of the City of Albany Zoning Ordinance that cause an exclusion of educational uses from the commercial districts at issue are unconstitutional.

In his concurring opinion, Justice Spain wrote about his concern that the existing law does not support a holding that excluding private schools from non-residentially zoned districts can never be upheld, since the precedent only specifies that schools and churches should enjoy preferred treatment in residential districts.

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Effective January 1, 2007 (Chapter 662 of the laws of 2006) the New York State Legislature has amended the General Municipal Law, Town Law, General City Law and Village Law to require four hours per year of training for each member of a local Planning Board and Zoning Board of Appeals, including the county planning board. Time spent in training in excess of four hours per year may be carried over to subsequent years.

The training may be traditional classroom or other formats, including video. Reappointment to the local board is conditioned upon completion of the required training. The law also provides that each local legislature must approve the training provided to local board members but also permits the local legislative body to modify the training requirements in the “best interests” of the community.

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The Appellate Division of the State Supreme Court restored a previously revoked building permit issued to construct a garage, which had been completed prior to revocation of the permit. In Matter of Veece v. Town of Babylon the Court held the combined Article 78 proceeding and declaratory judgment action was not time barred. The Court found the action was not based upon an appeal of the 1994 revocation of the building permit but rather the appeal of the 2003 Zoning Board of Appeals (ZBA) denial of a request for renewal of the permit and area variances. The action was brought within 30 days of the ZBA decision.

The property owner was held to have a protected interest in the permit as it was legally issued, substantial improvements had been performed based upon the permit and the permit was illegally revoked. The Court further found that the zoning as it existed in 1993 should be applied and therefore the only variance needed was for two tenths of a foot which the Court said should have been granted as it is a de minimus variance.

The decision applies long standing rules of vested rights but unfortunately the decision does not disclose the rationale for revoking the permit or why the Court held the permit was improperly revoked if, even under the 1993 zoning, an area variance was required, albeit a de minimus variance.

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In an Article 78 proceeding, the Appellate Division Second Department denied an applicant’s petition to compel the Department of Planning of the Town of Brookhaven to place an application for preliminary approval of a subdivision plat on the Planning Board calendar.

In denying the petition, the Court in Matter of Pheasant Meadow Farms, Inc. v. Town of Brookhaven noted that “the time within which a planning board must act upon a preliminary subdivision plat does not commence until the application is deemed complete.” The Court went on to find that the preliminary plat would not be considered complete until either a negative declaration is filed pursuant to the State Environmental Quality Review Act (SEQRA) or until a notice of completion of a draft environmental impact statement (DEIS) is filed pursuant to SEQRA.

Since neither filing had occurred and since there were still unanswered questions regarding storm water drainage, the relevant SEQRA review was continuing. The Court therefore held that the board was not required to place the application on the calendar.

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The Planning Board of the Town of Southeast was required to prepare a Supplemental Environmental Impact Statement (SEIS) pursuant to SEQRA, despite the board’s belief that a SEIS was not necessary, according to a recent Appellate Division Second Department decision.

The question presented in Riverkeeper v. Planning Board of Town of Southeast arose as a result of a developer’s 1988 subdivision application. The Board approved a final environmental impact statement (FEIS) for the project in 1991 and in 1997 the NYCDEP was granted authority over applications affecting the New York City watershed. The Army Corps of Engineers then determined that there were more acres of wetlands than previously thought on the site. The developer applied for subdivision approval in 2001 submitting an altered plat reducing the number of building lots, reduced the acreage of disturbed wetlands and proposing additional storm water detention basins. The petitioners in this suit then commenced a proceeding seeking final review of the subdivision approval and to compel the Board to prepare a second SEIS analyzing the changes to the project.

In reversing the lower court decision and remitting the matter to the Planning Board for preparation of a second SEIS, the Appellate Division reasoned that the FEIS and initial SEIS were inadequate because regulations had been modified since the original determination and the Planning Board, as lead agency, deferred analysis of important aspects of the project to other involved agencies without confronting the issues. The Appellate Division found that the board did not fulfill its responsibility under SEQRA and therefore must revisit the application and prepare a SEIS.

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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.

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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.

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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.

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A court held that a four month statute of limitations period applies to an action challenging the validity of a local law on the ground that due notice of the law’s consideration was not given.

In P & N Tiffany Props., v. Village of Tuckahoe, the Appellate Division Second Department affirmed the lower court decision, which reasoned that since Plaintiff’s claim related to the procedures followed in adopting a local law the challenge could have been brought as an article 78 proceeding. Therefore the action was required to have been commenced within four months of the enactment of the local law Plaintiff sought to invalidate.

The question arose when the Village adopted a local law amending the fines and penalties for local code violations. Plaintiff was fined under the new law and alleged that it was invalid because it was enacted in violation of the notice provision of Village Law § 21-2100.

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