Posted by: Patricia Salkin | April 17, 2022

NY Open Meetings Law Amended Regarding Use of Video Conferencing

Please see the below from NYCOM. Available here: https://www.nycom.org/images/Open_Meetings_Law_2022_Amendments_-_New_Videoconference_Procedures.pdf

Overview
As part of the 2022 Enacted State Budget,1 the NY Legislature amended the NYS Open Meetings Law to provide when and how public bodies may conduct meetings via videoconference technology. Accordingly, the previous videoconference authorization, which was enacted in 2000, has been repealed and replaced with a new, substantially different videoconference provision. In addition, from April 9, 2022 through June 8, 2022, public bodies may continue to conduct meetings following the remote meeting procedure that was authorized pursuant to Executive Order 202.1 and Chapter 1 of the Laws of 2022 during the pandemic.


The NYS Open Meetings Law
The Open Meetings Law (OML), Article 7 of the Public Officers Law (§§ 100‐111), outlines basic requirements for meetings conducted by public bodies.


Public Officers Law § 102(1) defines a “meeting” as “the official convening of a public body for the purpose of conducting public business.” Any time a quorum of a public body gathers for the purpose of discussing public business, the meeting must be open to the public, whether or not the body intends to take action or vote on a particular issue.2 Consequently, meetings include “workshops,” “work sessions,” and “agenda sessions.”3 Chance meetings or social gatherings are not covered by the OML since these are not official meetings. However, public officials may not discuss public business at chance meetings or social gatherings.4
Basic Requirements of the Open Meetings Law

There are four basic requirements of the New York State Open Meetings Law:

  • All meetings must be noticed;
  • The public must be allowed to attend and observe the meetings in person except that portion of a
    meeting which is in executive session;
  • Proposed local laws, rules, regulations, resolutions, and policies, and any record which is subject to
    disclosure under FOIL which is scheduled to be discussed at the meeting must be made available to the
    public to the extent practicable; and
  • The public body must make minutes of the meeting available within two weeks of the meeting and
    within one week of the executive session.
    For more information on the OML’s specific requirements, see the NYCOM Handbook for Village Officials,
    Chapter 6, and the NYCOM Handbook for City Officials, Chapter 4, as well as the NYS Committee on Open
    Government website at https://opengovernment.ny.gov.
    The OML’s New Videoconference Procedure
    As of April 9, 2022, the previous videoconferencing provisions found in Public Officers Law § 103(c) are removed, and public bodies wishing to conduct meetings via videoconference must comply with the new requirements of Public Officers Law § 103‐a.
    Specifically, Public Officers Law § 103‐a(2) authorizes public bodies to conduct meetings using videoconference technology so long as a quorum of the public body is physically present at one or more of the locations where the public can also attend in person. This requirement can be satisfied, for example, if three members of a five‐member public body are physically present in the municipal hall and the public is allowed to attend at that location or if three members of a five‐member public body are participating via videoconference but from three
    different locations and the public is allowed to by physically present at each of those locations.
    Additionally, the law requires public bodies comply with the following in order to conduct any meeting via videoconference: The local government must adopt a local law or an individual public body must adopt a resolution
    authorizing the use of videoconferencing
    a. For itself and its committees or subcommittees or
    b. Specifying that each committee or subcommittee may make its own determination. The public body must (a) adopt written procedures governing member and public attendance consistent
    with Public Officers Law § 103‐a and (b) conspicuously post those written procedures on the public
    body’s website. Members of the public body must be physically present at one of the meeting locations at which the
    public can attend in person unless the member is unable to be physically present due to extraordinary
    circumstances, as set forth in the public body’s adopted meeting procedures, which include disability,
    illness, caregiving responsibilities, or any other significant or unexpected factor or event which
    precludes the member’s physical attendance at such meeting. Members of a public body do not have a
    right to attend meetings remotely but may participate remotely via videoconference only at the
    discretion of the public body.
  • Except in the case of executive sessions conducted pursuant to Public Officers Law § 105, the public
    body must ensure that members of the public body can be heard, seen, and identified while the meeting
    is being conducted, including but not limited to any motions, proposals, resolutions, and any other
    matter formally discussed or voted upon.
  • The minutes of meetings involving videoconferencing must include which, if any, members participated
    remotely and must be made available to the public pursuant to Public Officers Law § 106.
  • The public notice for the meeting must (i) inform the public (a) that videoconferencing will be used, (b)
    where they can view and/or participate in such meeting, and (c) where required documents and records
    will be posted or available, and (ii) identify the physical location(s) where members of the public body
    will be participating in the meeting and where the public can attend the meeting in person.
  • The public body must record each meeting that uses videoconferencing and such recordings must be
    posted or linked to on the public body’s website within five business days of the meeting. The
    recordings must remain available for a minimum of five years thereafter, and recordings must be
    transcribed upon request.
  • The public body must provide the opportunity for members of the public to view the meeting via video.
    Additionally, at meetings where public comment or participation is authorized, members of the public
    must be able to participate in the proceedings via videoconference in real time. The public body must
    ensure that the videoconferencing provides the same opportunities for public participation or testimony
    as in‐person participation or testimony.
  • A local public body electing to utilize videoconferencing to conduct its meetings must maintain an
    official website.
    If a public body broadcasts its meetings or conducts its meetings via videoconference, it must use technology that permits members of the public with disabilities to access the video in a manner consistent with the 1990 Americans with Disabilities Act (ADA). Information on how meetings can be made accessible to attendees with disabilities can be found online at http://www.section508.gov/create/accessible‐meetings/. In addition, local officials should consult with their municipal attorney to ensure compliance with this requirement.
    In summary, the Open Meeting Law’s new videoconference provisions allow a member of a public body to participate in a meeting of a public body without allowing members of the public to be physically present at the location from which they are participating in the meeting if (a) extraordinary circumstances exists such as disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member’s physical attendance at such meeting, and (b) at least a quorum of the public body are participating in the meeting from a location or locations at which members of the public may physically attend in person. Note that the public notice for the meeting must inform the public that videoconference will be used at the meeting. In addition, Public Officers Law § 103‐a continues to prohibit meetings from being conducted using only teleconferencing technologies.
    Emergency Meetings
    Part WW of Chapter 56 of the Laws of 2022 also creates an emergency exception to the in person requirement associated with videoconference meetings. Specifically, if (1) the Governor has declared a state of emergency or the local chief executive has declared a local state of emergency pursuant to NYS Executive Law § 24 and (2) the public body determines that the circumstances necessitating the emergency declaration would affect or impair the ability of the public body to hold an in person meeting, then the public body is not required to hold an in person meeting.5
    Although not required by Public Officers Law § 103‐a, NYCOM recommends that, when a public body invokes this emergency exception and takes action at a meeting without allowing members of the
    public to be present, at its next meeting where the public is allowed to attend, the public body should it
    acknowledge the previous meeting and summarize any action taken thereat. Moreover, public bodies must still produce minutes of such emergency meetings pursuant to the requirements of the Open Meetings Law. Finally, local governments are strongly encouraged to consult with their municipal attorney before holding an emergency meeting where the public is not allowed to attend in person.
    Expiration of Videoconference and Emergency Meetings Provisions
    The videoconference and emergency meeting provisions of Part WW of Chapter 56 of the Laws of 2022, as described above, took effect on April 9, 2022, and will expire and be deemed repealed July 1, 2024.
    Temporary Remote Meeting Authorization
    Lastly, Part WW authorizes public bodies to continue to conduct meetings following the procedures set forth in Chapter 1 of the Laws of 2022 through June 8, 2022. Specifically, any public body may meet and take action remotely by conference call or similar service and without permitting public‐in‐person access to the meeting, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.
    This language mirrors the language found in Governor Cuomo’s Executive Order 202.1, which suspended the in‐person requirement of the NYS Open Meetings Law for most of the State’s declared COVID state of emergency.
    The law does not indicate by when the recordings must be transcribed. Local officials are encouraged to have the meetings transcribed within a reasonable period of time. Moreover, public bodies must still prepare meeting minutes within two weeks of the meeting, and within one week of an executive session. The transcription requirement does not obviate the obligation to prepare minutes
    in accordance with the requirements of the Open Meetings Law.
    The notice for remote meetings conducted must clearly state the specifics of the meeting:
  • The name of the public body meeting;
  • The date and time of the meeting;
  • Whether the meeting is being conducted in accordance with Part WW of Chapter 56 of the Laws of 2022;
  • The method that the public body will be using to conduct the meeting (e.g., videoconference or
    teleconference);
  • How the public can view or listen to the meeting;
  • If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the
    public of the internet address of the website streaming such meeting; and
  • If the meeting will have a public comment period or if a public hearing is being conducted, the noticed
    should indicate that individuals may submit comments via email or regular mail, whether such written
    comments must be received prior to the commencement of the meeting or whether the meeting/public
    hearing will be held open for a specific number of days for the receipt of such written comments, and that
    the written comments will be made part of the record.
    1 Part WW of Chapter 56 of the Laws of 2022
  • 2 Orange Co. Publications v. City of Newburgh, 60 A.D.2d 409 (2d Dep’t. 1978), aff’d. 45 N.Y.2d 947.
  • 3 N.Y. St. Comm. Open Gov’t. OML‐AO‐4506.
  • 4 Kissel v. D’Amato, 97 Misc.2d 675 (Sup. Ct. Nassau Co. 1979), mod on other grounds, 72 A.D.2d 790 (2d Dep’t. 1979).
  • 5 Public Officers Law § 103

This post was authored by Julie Tappendorf, Esq. and it originally appeared on the Ancel Glick Municipal Minute Blog. It is reposted with permission.

In Wortham v. Village of Barrington Hills, 2022 IL App (1st) 210888, the Village notified a homeowner who was renting out their home as a short-term rental more than 40 times on VRBO that the short-term rental use was not allowed in the R1 district which only permits single-family uses. The homeowner ignored the notice, and continued to rent out their home. The Village sent two additional notices before sending notice to appear before a hearing officer on the alleged Zoning Code violations. The hearing officer found the short-term rental use to be an unlawful commercial lodging use that was not a permitted use in the R1 district under the Village Zoning Code and imposed a fine of $26,250 and ordered the homeowners to cease renting their home out. When the homeowners continued to rent out the home, the Village cited them again, and the hearing officer imposed a second fine and another order to cease the illegal use of the property. The homeowners appealed both administrative hearing decisions to the trial court, which upheld the Village’s decisions. The homeowners then appealed that ruling.

On appeal, the Appellate Court reviewed the Village’s Zoning Code, specifically to determine whether the short-term rental use was permitted under the R1 regulations as the homeowners argued or constituted an unlawful commercial use as the Village argued. First, the Appellate Court held that the short-term rental use was not a permitted home occupation under the Zoning Code, which was the only lawful commercial use of R1 zoned property. The Court determined that the homeowners’ advertisement of the use on VRBO, the parking of multiple vehicles in the driveway during the short-term rental use, and the installation of a keypad on the door gave an outward appearance of a vacation rental business, not a single family residence. Second, the Court found that the short-term rental use was not consistent with the “intent and purpose” of the Zoning Code which included the prevention of the harmful encroachment of incompatible and inappropriate uses into residential areas. Finally, the Court rejected the homeowners’ argument that the fact that the Village prohibited short-term rentals but allows longer term leases was unconstitutionally vague because the Zoning Code did not define the appropriate time-frame for unlawful or lawful leases, finding it to be an impermissible facial challenge to the Zoning Code.

In sum, the Appellate Court upheld the Village’s citation of the homeowners for improperly using their single family home as a short term rental use in violation of the Village’s Zoning Code.

Posted by: Patricia Salkin | March 17, 2022

Upcoming Webinar on Cemeteries – Preservation and Zoning issues

APA Planning and Law Division

WEBINAR Preservation and Zoning for Cemeteries: What Lies Ahead
Monday, March 21, 2022 
1:30 p.m. ET

1.50 CM (1.00 CM Law)
1.50 CLE through Illinois State Bar
 There is controversy about how to best use cemeteries. On one hand, cemeteries are seen as a place of rest for the deceased. In recent history, cemeteries can be parks, often with low traffic and low activity. On the other hand, cemeteries are opportunities to explore oral histories and celebrate the immediate community. Some cemeteries have recently explored alternative burial practices, commercial activity and historical education. Still more circumstances call for removal of burial sites, sometimes for development needs, and at other times for protection of managed cemeteries. This webinar will explore these often-overlooked residential areas by focusing on the preservation, zoning and future uses of burial sites. The speakers will discuss the economic burden of death and possible environmental regulations that can facilitate traditional, green and innovative burials. The webinar will cover recent case law regarding burial site removal for commercial development in Atlanta, as well as the new Atlanta Cemetery Network, and will discuss state regulations and zoning for pet cemeteries, which are increasingly in demand as pets are increasingly considering to be core family members.RegistrationJoin PLD before registering for updates on future webinars!

Individual rate:
– $20 PLD member
– $20 non-member (special rate)
One person/registration fee per computerOnline registration will close on Sunday, March 20, 2022 at 11:59 p.m. ET.SpeakersMary CashPatricia E. SalkinVictoria J. HanemanDoug YoungRegister Here

This post, authored by  Alexandra A. Haggarty appeared on the Rocky Mountain Sign Law Blog as is reposted with permission.

Before Halloween in 2018, the Butts County Sheriff’s Office placed signs in the front yards of registered sex offenders in the County, warning against trick-or-treating there. The next year, three registered sex offenders sued to enjoin County Sheriff Gary Long from placing the signs again, claiming that they constituted compelled speech in violation of the First Amendment. Although the district court granted summary judgment in favor of the Sheriff, the Eleventh Circuit recently reversed, finding the signs to be unconstitutional compelled speech.

Prior to 2018, the Sheriff’s Office had distributed warning fliers to registered sex offenders and asked that they place them on their doors before Halloween. No evidence suggested that any sexual offenses or unwanted contact with minors had occurred in these prior years; on the contrary, the Sheriff admitted that no such incidents had been known in his tenure with the County. However, simply because the Sheriff believed that signs would be more effective than fliers, the County changed its practice. Officers placed signs (depicted below) in the yards of all registered sex offenders and told residents that only the Sheriff’s Office could remove them.

At trial, the district court found that the signs did not constitute compelled speech because a reasonable third party would not view the sign as endorsed by the registrant. That court focused on two major factors: (1) that the signs were clearly government speech, and (2) that registrants were not prohibited from placing their own competing signs. However, as pointed out on appeal, neither of these factors are relevant when determining whether speech is compelled by the government.

The Eleventh Circuit easily found that the signs were a “classic example” of compelled speech because they stated that the warning was “a community safety message from Butts County Sheriff Gary Long,” were placed on yards despite homeowners’ and/or residents’ objections, and could only be removed by the Sheriff’s office. Well-established Supreme Court precedent does not require that a reasonable third party would view the speech as endorsed, and any ability to offer competing speech does not cancel out the compelled speech. Unless narrowly tailored to meet a compelling state interest, the forced display of government speech on private property violates the constitutional right to refrain from speaking.

Here, all parties agreed that preventing child sex abuse is a compelling interest, but the court found that the signs failed strict scrutiny because they were not narrowly tailored to serve this interest. As the Sheriff admitted, no evidence existed to support the need for the signs to prevent child sex abuse on Halloween. Additionally, although the Sheriff’s Office could have limited posting to yards of registrants with a known risk of recidivism, it posted signs on the yards of all registrants–even those determined to be rehabilitated.

The court reversed the district court’s holding as it applied to one plaintiff who owned his residence, with instructions to enter summary judgment and a permanent injunction in that plaintiff’s favor. Because the other two plaintiffs did not own their residences, the court vacated and remanded for proceedings consistent with the opinion, taking into consideration any issues of standing.

McClendon v. Long, No. 21-10092, 2022 WL 165992 (11th Cir., Jan. 19, 2022).

Posted by: Patricia Salkin | February 17, 2022

NY Appellate Court Invalidates Local Law Due to Conflict of Interest

This post was authored by Sebastian Perez of Touro Law Center

In 2016, the Plaintiff was leased commercial property to refurbish and operate as a concrete plant. When the Town’s Zoning Board of Appeals (ZBA) determined that the property owners held a use variance to operate the concrete plant which ran with the land, the ZBA enacted Local Law which limited the manufacturing and production of concrete to the Industrial -Office-Commercial District. The local Law addressed such uses out of the district as a legal nonconforming use that would expire by amortization within two years, unless the ZBA extended the period when an applicant showed it was necessary to recover its investment. Plaintiff’s filed an article 78 to annul Local Law and recover damages for alleged constitutional violations. The Supreme Court granted the petition to invalidate Local Law on the basis that Maureen Fleming (Fleming), the Town Supervisor, did not properly recuse herself from the enactment process of the law. The Town’s appeal follows.

Fleming did not contest a conflict of interest existed and recused herself from voting on the Local Law but remained involved in public hearings, engaged in discussions on the matter, and voted on motions related to the law. The Court noted that a violation of the General Municipal Law is not needed in order for there to be an improper conflict of interest. Instead, the question presented was whether any direct or indirect interest in the project could reasonably be interpreted as potentially benefiting themselves. The Court agreed with the lower court that Fleming’s limited recusal was not enough to cure any impropriety from her participation in public hearings.

The Court held that the Supreme Court properly granted the petition to the extent it sought to invalidate the Local Law based on the conflict of interest.

Titan Concrete v Town of Kent, 2022 WL 468425 (NYAD 2 Dept. 2/16/2022)

This post was authored by Sebastian Perez of Touro Law Center

A concrete plant operated on commercial property which was situated within a zoning district that prohibited the manufacturing of products unless fewer than five employees were engaged. The Zoning Board of Appeal (ZBA) previously issued a variance permitting the then-owner of the property to employ more than five people in operating a concrete manufacturing plant on the property. Under the current property owner, a Building Inspector for the Town noted that the use of the property was a preexisting non-conforming use and issued findings that the property could no longer be used for concrete manufacturing due to an extended discontinuance of that use.

An appeal of the Building Inspector’s findings was made to the ZBA. Following a public hearing, the ZBA granted the appeal and vacated the determination because the variance was a use variance that ran with the land to the benefit of the current owner which empowered the Building Inspector to reissue a building permit for the premises. Adjacent property owners commenced an Article 78 proceeding to review the ZBA’s determination in Supreme Court. This appeal followed.

The Appellate Division limited the scope of its judicial review to the facts and record before the ZBA and found that the lower court properly denied the motion to effectively enlarge the record by including materials concerning applications for variances by prior property owners not originally presented to the ZBA on the matter. On the issue of standing, the Court used a two-prong analysis; a petitioner must show that it will suffer an injury-in-fact and that the alleged injury falls within the zone of interest sought to be protected by the statute. The Court also highlighted that in land use matters, the alleged harm must be an injury that is in some way different from that of the public at large.

The Court concluded that the lower court improperly determined there was no standing to challenge the ZBA’s determination because the environmental injuries were properly alleged where the adjacent property owners also owned a private lake situated directly across from the subject property and enjoyment of said lake was interfered by an increase in noise, truck traffic, dust, and pollutants from the concrete manufacturing use. The Court held the alleged injuries were different from those suffered by the public at large and fell within the zone of interests protected by the Town’s zoning laws and remitted the case to the Supreme Court.

Veteri v Zoning Board of Appeals of the Town of Kent, 2022 WL 468445 (NYAD 2 Dept. 2/16/2022)  

Posted by: Patricia Salkin | February 7, 2022

NY Governor Hocul Announces Proposals to Promote Affordable Housing

From the Governor’s Office:

Governor Kathy Hochul today announced sweeping plans to make housing more affordable as part of the 2022 State of the State. Governor Hochul will initiate a new, $25 billion five-year housing plan to create and preserve 100,000 affordable homes statewide, increase construction of new homes, and tackle inequities in the housing market.

“In the wake of the pandemic, it’s crucial that we tackle the housing crisis and make New York a more affordable place for all,” Governor Hochul said. “These bold steps are a major step forward in transforming our housing market, protecting affordability and increasing the housing supply.”

Governor Hochul will implement a comprehensive 5-year plan, $25 billion plan to create and preserve 100,000 affordable homes, including 10,000 homes with support services for vulnerable populations. Governor Hochul’s plan would also electrify an additional 50,000 homes as part of the State’s plan to electrify 1 million homes and make another 1 million electrification-ready. The comprehensive housing plan will be designed using a four-part framework of economic recovery, social justice, climate action, and digital connectivity.

Governor Hochul will take major steps to construct new housing and increase density in appropriate urban areas, including:

  • Permit accessory dwelling units in single-family neighborhoods: Governor Hochul will propose legislation to require municipalities to allow a minimum of one ADU on owner-occupied residentially zoned lots. This legislation will allow for municipalities to set size requirements and safety standards for these dwellings. It will also require that an amnesty program be created in New York City to legalize existing ADUs, with the expectation they be brought into compliance with building code to ensure resident safety. The housing plan will also include capital funding for municipalities or nonprofits to assist in the legalization or creation of new ADUs.
  • Kick-start transit-oriented development: Governor Hochul will propose legislation to foster multifamily construction in zones drawn by municipalities around rail transit stops within commuting distance to New York City. The State will provide assistance to municipalities for drafting the ordinance changes, easing the burden on smaller municipalities.
  • Give New York City the authority to encourage densification: Governor Hochul will propose amending the State law that limits the maximum density of residential floor area ratio to 12.0 in New York City, returning it to local authority. This will provide municipal leaders with the autonomy to allow for denser residential development where appropriate.
  • Ease restrictions on converting hotels and offices to housing: Given the changing demand for office and hotel space, Governor Hochul will use legislation to implement more flexible zoning rules to make it easier to convert unused office buildings and hotels to residential spaces. This includes allowing any Class B hotel located within a residential zoning district to use the existing certificate of occupancy for permanent residences, with certain conditions, and allowing for office-to-residential conversions of buildings constructed before 1980 or any applicable buildings located south of 60th Street in Manhattan from now until the end of 2027.

https://www.governor.ny.gov/news/governor-hochul-announces-sweeping-plans-address-housing-affordability-crisis-new-york-state

This post was authoed by Andrew Peters and first appeared on the Rocky Mountain Sign Law Blog and is reposted here with permission.

One of the trickier aspects of First Amendment jurisprudence has always been deciding whether and when conduct receives constitutional protection. Regulations that involve words or speech are easy enough. But does the First Amendment protect the heap of garbage your neighbor piled in his front lawn to protest the city’s tardy trash collection? (Probably, but the city can constitutionally regulate it anyway.) Does the Constitution care if you want to direct a spotlight against your neighbor’s home to express your displeasure with his trash heap? (Harder to say, but probably not.) These and other questions continue to vex courts assessing the First Amendment’s reach.

Enter Donald Burns and his quest to build a massive midcentury mansion amidst minimally more modest mansions in Palm Beach, Florida. (We’ve reported on his effort before.) Palm Beach considers itself “a worldwide synonym for beauty, quality and value,” and to preserve that reputation, it applies architectural review to new homes. Its standards observe that the “essential foundation of beauty in communities is harmony” and therefore prohibit structures that are too dissimilar from the surrounding buildings.

Dissatisfied with his 10,000 square-foot mansion, Burns approached Palm Beach about replacing it with a 20,000 square-foot midcentury design that Burns considered, a “means of communication and expression of the person inside: Me.” As it happened, however, Burns’s neighbors and the city’s architectural review commission were rather more interested in how the building appeared, on the outside. Concluding it was too tall and too massive in relation to surrounding homes, the commission rejected the proposed design.

Burns took to federal court, alleging violations of the First and Fourteenth Amendments. As relevant for this blog, Burns claimed that the First Amendment protected his home’s midcentury design as a reflection of “evolved philosophy of simplicity in lifestyle” and his message that “he was unique and different from his neighbors.”

After Burns lost on a motion for summary judgment, the case arrived before the 11th Circuit, which considered whether Burns’s concerns implicated the First Amendment at all. They didn’t. But perhaps not for the reason you’d think.

Over a vociferous dissent, and declining to decide whether the First Amendment could ever apply to architectural choices, the panel majority concluded Burns’s design didn’t raise a First Amendment concern because Burns had hidden it from view. Under the two-part test announced in Texas v. Johnson, 491 U.S. 397 (1989), which considers whether the party intended to convey a message and whether someone would have understood it as such, the majority held that no one could have received Burn’s message in the first place.

Yes, they said, Burns had every intent for his design to express something, but then he hid it behind walls and landscaping so that no one could see it. At most, the house might have peeked above the tree tops, but being tall, the majority said, was not itself a message: “[L]arge trash heaps also have height and mass, and no one would say they are midcentury modern masterpieces.” Even if a viewer could catch a glimpse, they would at most receive that impression that Burns had constructed “a really big house”—but not any sort of message.

The dissent, on the other hand, considered architecture self-evidently expressive and deserving of First Amendment protection. Mechanically, however, it disagreed with the majority’s factual conclusion (an odd thing in an opinion upholding summary judgment) that no one would be able to see Burns’s home. Situated as it was next to a public beach and above the treetops, the home could reach at least some viewers, thought the dissent. In its view, the majority effectively condemned architecture to suffer without First Amendment protections, while affording constitutional safeguards to tattoo parlors and elevator music.

Burns hasn’t filed a petition for certiorari with the Supreme Court, so it appears the saga has concluded—at least until he comes up with another design.

Burns v. Town of Palm Beach, 999 F.3d 1317 (11th Cir. 2021).

The Appellate Division, 1st Department upheld the granting of an area variance by the NYC Board of Standards and Appeals for the Frick Collection, finding that the BSA’s decision had a rational basis and was supported by substantial evidence as they appropriately set forth each required finding.  Further the Court found that the BSA awarded the minimum variance necessary to afford relief in accordance with the City Zoning Resolution. Further, the Court noted that the BSA providently issues a “negative declaration” finding that the environmental impact was not significant and the that the BSA sought input from the Landmarks Preservation Commission.

Stop Irresponsible Frick Development v New York City, 2022 WL 174486 (NYAD 1 Dept. 1/20/2022)

This post was authored by Michael Eisenberg, Touro Law Center

The defendant owned four lots containing personal belongings including scrap metal and automotive parts for personal use. These items were kept outdoors and in sheds in a dilapidated condition. The defendant had neither obtained a license to operate a junk yard nor a special exception from the town. The town sought injunctive relief to stop the defendant from operating a junk yard and the further imposition of civil penalties and the award of costs and attorney’s fees. The trial court found that the defendant was indeed operating or maintaining a junk yard in violation of RSA 236:114 and that his properties were a nuisance. The defendant was ordered to abate the nuisance. The court authorized the town to impose a civil penalty of $50 for every day the defendant remained out of compliance past a determined date. However, the trial court disregarded the town’s petition to enforce the local zoning ordinance, reasoning that the defendant must sell junk in order to qualify as “operating” a junk yard under the zoning ordinance and that the materials were exclusively for the defendant’s personal use.

The trial court’s statutory and zoning ordinance interpretation were each reviewed de novo. The defendant argued on appeal that the trial court erred as a matter of law when applying RSA 236:111-:129 to the defendant’s four non-business personal properties and indiscriminately constituting each as a junk yard notwithstanding placement of items on each property. The court upheld the trial’s court finding based on ample evidence in the record as to the distribution of junk on the respective properties. So too, under RSA 236:112, a junk yard need not be a place of business per se, but may be any “place” used to store junk. The defendant also argued that the subject parcels of land are within New Hampshire’s limited access highway system for I-93, and thus, RSA 236:90-:110 would be the “correct” statutory subdivision to apply. However, the court affirmed that the provisions of RSA 236:111-:129 apply to all junk yards, including those subject to regulation under RSA 236:90-110. The court upheld the trial court’s finding that the zoning ordinance regulates “junk yards” as an “industrial use.” The storage of one’s own personal belongings on one’s own property is not an “industrial use.”

Lincoln v Chenard, 2022 WL 166066 (NH 1/19/2022)

Older Posts »

Categories