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The New York Court of Appeals reaffirmed the basic principle of zoning, that zoning relates to the use of land “not the identity of the user.” In Matter of Sunrise Check Cashing & Payroll Services Inc, v. Town of Hempstead, the Court found that the provisions of the Town’s zoning code that prohibited check cashing establishments were invalid.

The Court noted that the basis for the prohibition was a memorandum produced by one of the Town’s attorneys who, among other things, concluded the prohibition would be beneficial because it :

“…encourages young and lower income people to open up bank accounts, save their money, and develop a credit rating” and “also removes a seedy type of operation, akin to pawnshops and strip clubs, from the commercial areas of the Town.”

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The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site.

The property in question is located in three municipalities. Municipal boards in two of those towns declared themselves co-lead agencies under SEQRA, for the purpose of reviewing the proposed development and issued a positive declaration, requiring preparation of an environmental impact statement. Meanwhile the municipalities in which the project is located declined to guarantee sewer service to the site.

While the SEQRA review was pending, the County determined to allow the extension of a County Sewer District (“OCSD”) to serve the property. The County declared itself lead agency for purposes of the proposed OCSD extension, prepared a short form EAF and issued a negative declaration. Thereafter, the County approved the extension.

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The Appellate Division Second Department vacated conditions fixed by a zoning board as part of the grant of a permit to operate a farm stand. In The Matter of Edson v. Southold Town Zoning Board of Appeals, the Court reversed the lower court’s dismissal of the petition.

The Petitioner has a Christmas tree farm and wanted to also open a farm stand in its building. However, the building is 7,826 square feet, where the Town Code limits farm stands to 3,000 square feet. The Petitioner proposed to partition the building and limit the area used for the farm stand to 3,000 square feet. After the building inspector denied the permit the Petitioner applied to the zoning board. The zoning board found that the application met the requirements of the code but fixed conditions not agreed to by the Petitioner. The conditions limited the operations to only certain months and prohibited the storage of incidental items, not raised on the farm, within the balance of the building outside the stand.

In reversing the lower court and vacating the conditions the Court held:

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The Appellate Division held that an assisted care facility did not have standing to challenge a change in definition under local zoning that permitted a competitor to open a facility nearby. In Matter of VTR FV, LLC v Town of Guilderland, the Court held the:

“allegations distill to a claim of ‘the threat of increased business competition, which is not an interest protected by the zoning law[]’ (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 415). Thus, notwithstanding the proximity of petitioners’ property to the phase IV site affected by the amendment to Local Law No. 1, the economic harm they allege is insufficient to confer standing on them (see id. at 409-410, 414).”

In addition, the Court noted there was no allegation of a specific noneconomic environmental harm. As for other claims raised by the Petitioner, the Court found that the change did not constitute spot zoning, nor did it result in a taking.

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This week, the U.S. Supreme Court reversed the Federal Circuit decision finding that temporary flooding of property instituted by the government could not be a taking and remanded the matter for further findings.In Arkansas Fish and Game Commission v United States (11-597), the Court reversed the Circuit’s conclusion that there can only be a taking if the flooding were permanent or inevitably reoccurring. Instead, the Court determined that “recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.”

Here, the Commission owns timber land upstream of a dam controlled by the Army Corps of Engineers (Corps). Between 1993 and 2000 the Corps modified and slowed the release of waters, so that downstream farms would have a longer growing season. However, this deviation from the adopted plan caused recurrent flooding of the upstream timber lands owned by the commission. As a result the Commission claims significant damage to those timber lands.

In reversing the decision finding that there could be no taking under these circumstances, the Court remanded the matter for further findings and limited its decision as follows:

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The New York Court of Appeals has interpreted Civil Service Law section 71 as mandating reinstatement of an employee, previously terminated due to the inability to perform his duties resulting from a work related injury, once the county civil service office has certified the employee as fit to work. In Matter of Lazzari v Town of Eastchester, the Court held that upon receipt of a communication from the County Department of Human Relations that the employee had been examined and found fit for duty the employee must be reinstated. The Court found that if the municipality disagrees, it may commence an Article 78 proceeding against the County to challenge its determination, but may not deny reinstatement while it argues with the County.

Civil Service Law section 71 provides that where a municipal employee has been found unfit for work, due a to a work related incident, he/she may seek reinstatement through the County. In the event the County, by way of an independent examination, finds the employee fit for duty, the municipality must reinstate the County. In this case, the Town had the employee examined by two doctors who found the employee could not perform the functions of his position due to prior work related injuries. The employee sought reinstatement by the County which had him examined by a third physician. The County then advised the Town the employee was fit for duty. The Town requested a copy of the medical report and the County declined to provide it. The Town then refused to reinstate the employee based solely on the letter from the County unsupported by a copy of a medical certification. The Town also failed to either pursue a formal Freedom of Information request for the medical report or otherwise bring an action to challenge the determination.

In this action, brought by the employee for reinstatement, the Court concluded the Town “…does not have discretion regarding reinstatement determinations when a Civil Service Department, pursuant to Civil Service Law § 71, has determined that a medical official has certified that the employee is fit to return to work and orders reinstatement. Civil Service Law § 71 does not give the Town the responsibility or power to police the performance of the County’s statutorily mandated duties.”

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The Appellate Division affirmed the denial of summary judgment in an action by a town, seeking to enjoin the use of a property as being in violation of the local zoning ordinance. In Matter of Town of Huntington v. Braun, the court explained the zoning ordinance permits florist shops and nurseries with accessory greenhouses that are defined “as ‘[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit.'” The Town claims the business is not in compliance because it sells products that are not “field-grown.”

The Court concluded:

“Possible ambiguities in zoning ordinances are to be construed against the municipality which has enacted them and seeks to enforce them (see Town of Riverhead v Gezari, 63 AD3d 1042; Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 527; Town of Huntington v Barracuda Transp. Co., 80 AD2d 555). Construction of ambiguous language is an issue of fact that cannot be decided on a motion for summary judgment (see DiLorenzo v Estate Motors, Inc., 22 AD3d 630, 631; Leon v Lukash, 121 AD2d 693, 694).

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The N.Y. Court of Appeals has directed the New York City School Construction Authority to prepare a Supplemental Environmental Impact Statement to detail its ongoing management of remediation measures at a brownfield site where it proposed to construct a campus for four public schools. In Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Court held that the failure of the Authority to subject its ongoing management plan for the site to scrutiny pursuant to the State Environmental Quality Review Act (SEQRA) violated the purposes and intent of the regulations and required the preparation of a Supplemental Impact Statement.

SEQRA review by the Authority was initially challenged for failure to include in the EIS a description of the long term site management plan. The Authority did not argue that the long term plan was not an important environmental consideration but instead took the position that: “…the plan must be governed by post-remediation soil and groundwater conditions” that could not be assessed until after the site cleanup was complete. The Supreme Court therefore treated this position as an admission that the long term management should be addressed and directed that once the plan was completed that a Supplemental EIS should be prepared.

Thereafter, the Authority prepare a long term management plan that was submitted to and approved by the DEC, but no Supplemental EIS was prepared. Instead, the Authority to moved to renew and reargue asserting that the preparation of the long term plan and sign-off by DEC were sufficient and no further SEQRA review was necessary. The lower courts disagreed with the Authority’s position.

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The N.Y. Court of Appeals rejected a lawsuit by the Town of Oyster claiming an administrative complaint by the State Division of Human Rights (SDHR) was unconstitutional reverse discrimination. In Matter of the Town of Oyster Bay v. Kirkland, the SDHR had asserted a claim that certain provisions of the Town of Oyster Bay zoning ordinance discriminated against minorities in violation of the State Human Rights Law. Oyster Bay, without awaiting completion of the SDHR investigation, brought an action raising a number of claims. Except for the reverse discrimination claim the other claims were ultimately dropped by the Town.

The Court began by analyzing the exhaustion of administrative remedies rule and the exceptions to that rule:

“The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] [citations omitted]). Here, the Town has abandoned its argument that the SDHR’s complaint was ultra vires, but pursues its claim that the SDHR is engaged in unconstitutional “reverse discrimination.'”

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The Appellate Division held that a trial is required to determine whether Rockland County properly determined the costs that must be prepaid before it will comply with a FOIL request. In Matter of Weslowski v Vanderhoef, the Second Department concluded there were triable issues of fact as to whether the County had used the proper criteria in requiring the prepayment of over $ 156,000.00 before complying with a large FOIL request.

The Court reviewed the statutory provisions for recovery of the costs of complying with a FOIL request:

“Public Officers Law § 87 sets limits on the costs which an agency may charge those who have requested records: “fees for copies of records . . . shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record” (Public Officers Law § 87[1][b][iii]). Section 87(1)(c) of the Public Officers Law defines the term “actual cost.” Under that provision, an agency may only recover the “actual cost” of reproducing the record, including “an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record” (Public Officers Law § 87[1][c][i]). However, the statute provides that “preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested” (Public Officers Law § 87[1][c][iv]).”

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