New York Zoning And Municipal Law Blog

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.

It has been a year since amendments to the State Freedom of Information Law required that government agencies in New York provide a specific date by which records shall be provided to the public. Under the amendment to the Public Officers Law, if records cannot be provided within twenty business days, the party requesting the records must be given a date by which the records shall be provided. But as noted in the popular media (http://www.star-gazette.com/apps/pbcs.dll/article?AID=/20060322/OPINION01/603220340/1004) lack of responsiveness by government agencies continues to be an ongoing issue.

One solution that has passed the New York State Assembly and is pending in the Senate is to give some teeth to the penalty for failure to comply with the law by making it easier to recover attorney fees by those who successfully sue to obtain public information (http://public.leginfo.state.ny.us/menugetf.cgi). Under the present law a court must find that the records sought were of interest to the general public. Under the proposed law fees shall be awarded if the court finds there was no reasonable basis for denying access to the records regardless of the nature of the records. Apparently the hope is that this will encourage government agencies to be more responsive and less arbitrary in delaying and denying access to public records.

A sharply divided New York Court of Appeals upheld the position of New York City Mayor Bloomberg who refused to enforce the City’s Equal Benefits Law. On February 14, 2006, in the case the Matter of Council of the City of New York v. Bloomberg (http://www.courts.state.ny.us/reporter/3dseries/2006/2006_01111.htm) the Court held that the Equal Benefits Law was pre-empted by State and Federal Law. The Equal Benefits Law required that contracts awarded by the City in excess of $100,000 be made only to contractors who provided equal benefits to the domestic partners and spouses of employees.

In the first instance the Court held that that the issue of validity of the local law could be raised by the Mayor in defense of an Article 78 proceeding by the City Council seeking to compel him to enforce the law. The Court held that the Mayor acted properly in refusing to enforce a law he felt was invalid. It then determined that the law was at odds with, among other statutes, section 103 of the General Municipal Law which requires the award of contracts to the lowest responsible bidder. The majority stated that, as written, the law could violate the intention of the competitive bidding statute. For example, contract specifications could be drafted to favor contractors who provided specific benefits. Such requirements, the Court held, do not foster the purpose of the statute, which is to save money for the municipality.

In a dissent by Judge Rosenblatt, joined in by two other judges, he argued that the actions of the Mayor violated the doctrine of separation of powers. Judge Rosenblatt stated that the executive is required to carry out the law until a court declares it invalid and should not unilaterally refuse to carry out a legislative act. He argued that a defense in an Article 78 proceeding is not the proper vehicle for challenging a local law.