This post was authored by Amy Lavine, Esq.

The Kings County Supreme Court vacated six foreclosures under New York City’s Third Party Transfer (TPT) program in a decision issued in March. Under the TPT program, the city is authorized to transfer distressed and tax-delinquent residential properties to pre-qualified nonprofits with the capacity to undertake repairs and rehabilitation, with the intent of preserving affordable housing. The former owners of these properties, however, were entirely dispossessed of their interests and equity, receiving no payment from the proceeds of sale as they would in the usual foreclosure process. For the six property owners involved in this case,  the court found that the foreclosure and transfer of their properties amounted to unconstitutional takings. Each of the property owners claimed that they didn’t receive sufficient notice, and the value of their properties far exceeded the amount of taxes that they owed. The foreclosure actions presented other serious legal issues as well, and the court didn’t shy away from criticizing the city for ignoring the purposes of the TPT program and instead using it to unjustifiably divest property owners of their rights and interests.

 

While the court didn’t go so far as to strike down the TPT program, it was also explicit that the unconscionable results in these foreclosures weren’t isolated or rare events. Rather, the problems in these cases were “a widespread occurrence being experienced by many other property owners, who are being inequitably stripped of their valuable property rights. The City has particularly targeted properties that are owned by minorities. The court recognizes that home ownership is an important means for families to build intergenerational wealth. While the Third Party Transfer Program was intended to be a beneficial program, an overly broad and improper application of it that results in the unfair divestiture of equity in one’s property cannot be permitted.” The court’s acknowledgment of these problems reflects growing concerns among housing advocates and some New York City officials that the TPT program has abandoned its focus on preserving affordable housing and instead morphed into a mechanism for systematically redistributing property in gentrifying neighborhoods. In response to the decision, the Brooklyn borough president renewed calls for a moratorium and a “full-scale forensic audit and investigation” of the TPT program.

 

Turning to the specific properties involved in the case, the court found that the first property was not “distressed,” which was a prerequisite for foreclosures under the TPT program, but it was nevertheless included in the program because it was on the same block as another property that was distressed. The court was highly skeptical of this result and concluded that “it [was] completely arbitrary and could not possibly have been the intent of Administrative Code § 11-405 (a), considering the dire ramifications of loss of the property without any recovery of surplus monies as would be obtained in a tax lien sale. Furthermore, it would result in disparate treatment for property owners based upon what block they lived without regard to whether or not their own property was distressed. Such unequal treatment raises equal protection concerns.” The owner of the non-distressed property had also entered into an installment agreement and begun making payments, and in light of the disparity between the amount of the tax lien and the value of the property, the court concluded that the TPT foreclosure was “unconscionable and shocking to the conscience.”

 

The only claim in the second contested foreclosure was a lack of actual notice, which the city disputed by claiming that its mailings satisfied “the minimum requirements of due process” and by relying on the presumption of regularity that attaches to deeds after four months and prevents subsequent challenges from the former owners of foreclosed properties. This presumption is not a statute of limitations, strictly speaking, however, and even if it was the court concluded that the transfer of this property under the TPT was an unconstitutional taking, which is not subject to any statute of limitations. The court emphasized that because “the right to property is a fundamental right in New York, all subsequent grants of power, including the taxing power, are limited as to how they adversely affect it. While the City has an interest in tax collection, the countervailing interest of preserving property ownership is paramount and must be protected.” And while the court acknowledged that the U.S. Supreme Court has upheld foreclosures in which the taxing jurisdiction retained the entire amount of proceeds from the sale of the property, this precedent didn’t involve a case where notice of the foreclosure was lacking. The court additionally noted that the city had not made a requisite showing that the property was distressed, and this was not a case where the property owner had blithely allowed the building to fall into disrepair. “The intent of the Third Party Transfer Program,” the court explained, “was to protect tenants by stabilizing buildings that are actually distressed and abandoned, and it was designed to encourage the rehabilitation and preservation of existing housing. This intent is not furthered by depriving property owners of their property rights where they are actively seeking to preserve their property. The court cannot countenance a result where a property owner unfairly and unjustly incurs the loss of his or her property and his or her equity and investment in such property.”

 

The third action reviewed by the court involved a situation where the property owner was unable to redeem her property within the statutory redemption period due to a clerical error that failed to list her as the property owner. Her attempts to resolve this problem were returned with bureaucratic machinations that the court concluded amounted to misrepresentation, thereby creating an issue of equitable estoppel. And the court again found that the city’s lax attention to the purposes of the TPT program raised a serious constitutional takings issue. The program, the court explained, “was not intended to permit the City to strip a property owner of all of the surplus monies above its lien by its unjustified refusal to accept payments from a property owner who has not abandoned his or her property and is seeking to pay all arrears and maintain and rehabilitate the property himself or herself.” The foreclosure and transfer of title in this instance, the court concluded, “distorted” the intent of the TPT program and resulted in a “grave injustice.”

 

The fourth property owner did not have any outstanding property tax delinquency but the city included the parcel in the foreclosure action due to emergency repair liens and other maintenance charges imposed by the city.  The court pointed out that the foreclosure notices sent by the city failed to include any unit number in the address, and it was accordingly unclear who received them. And while the city again argued that it provided sufficient notice to satisfy the minimum requirements of due process, the court agreed with the property owner that “it defie[d] logic that Shurma would willfully ignore notice of an in rem foreclosure action based on emergency repair liens while consistently paying all of its real estate taxes.” Moreover, the city’s documentation of the violations allegedly incurred by the property were in fact listed as occurring at a different address.

 

The court found a complete lack of distress in the fifth property under review, which had been fully renovated and was valued at approximately $5 million. The court again emphasized the intent of the TPT program, and its discussion of this property included a review of the program’s legislative history. Testimony before the New York City Council in support of the 1996 TPT bill, the court recounted, “set forth that the goals of this legislation was to identify ‘troubled buildings’ and ‘prevent abandonment.'” This testimony also set forth that the legislation providing for the Third Party Transfer Program was a ‘tough provision,’ which ‘would be utilized where owners are irresponsible,’ and ‘tenants are being harassed and not provided with essential services,’ or ‘where buildings are unlikely to become economically viable without complete tax and mortgage restructuring.'” None of these justifications were remotely applicable to this property, which was not distressed, where the tenants were the owners of cooperative shares, and where the corporate owner was actively attempting to resolve its tax liens. The court again concluded that the city’s application of the TPT in this instance constituted a “grave injustice” that was “unconscionable and shocking to the conscience” and that it amounted to unconstitutional taking without compensation.

 

The last foreclosure property involved in this case was owned by a low income housing corporation that claimed it was not given timely notice of the foreclosure. It attempted to redeem its property when it subsequently learned of the proceeding, after the judgment of foreclosure but before the title was transferred under the TPT program. Despite providing certified checks totaling $500,000, which was more than twice what it owed in tax arrears, the city refused to accept its late redemption because it was unable to verify the source of the corporation’s funds. However, while this was an appropriate factor for the city to consider under the regulations for entering into installment agreements, it was not a requirement for redemption. The court concluded that the city had no reasonable basis to refuse the payment, dismissing the city’s contention that the acceptance of late redemptions was entirely discretionary. The only other explanation provided by the city was the fact that the building had several remaining maintenance violations, but the court held that this was simply not enough to justify the property’s taking, nor was it consistent with the focus of the TPT program on owners who were unwilling or unable to resolve tax delinquencies or correct serious maintenance violations.

 

In Rem Tax Foreclosure Action No. 53, 2019 NY Slip Op 50434(U) (N.Y. Sup. Ct. Kings Cty. 3/28/19).

This post was authored by Amy Lavine, Esq.

An interesting lower court case from New York was issued in April on the subject of nuisances. The plaintiff in the action claimed that the incessant barking of her neighbors’ dogs interfered with her right to quiet use and enjoyment of her property. The issue before the court, however, was the validity of a counterclaim filed by the neighboring dog owners. They claimed that it was actually the plaintiff who was liable for creating a nuisance, which was accomplished through her frivolous and unfounded complaints to the authorities about the alleged dog barking.

While the neighbors’ counterclaim was stated in the classic language of a nuisance claim, it was questionable whether they met the necessary elements for establishing a private nuisance. As the court explained: “A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff’s occupation and enjoyment of their home physically uncomfortable. Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations—a markedly unusual claim.” The elements of a nuisance, the court further explained, have historically required proof of some offensive use of property itself, rather than some action or inaction only indirectly connected with the property alleged to be a nuisance. Nevertheless, the court noted, “private nuisance is a common law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether the court should venture into new grounds.”

While the court was not aware of any New York caselaw that expanded nuisance claims beyond traditionally offensive uses of property, it noted several cases from other states that considered nuisances arising from other circumstances. In Brillhardt v. Ben Tipp, Inc., 48 Wash 2d 722 (Wash 1956), for example, a nuisance was found where the plaintiff was plagued by frequent calls for a company that had accidentally printed the plaintiff’s phone number on its sales slips, rather than its own. The nuisance of the repeated calls, the court noted, was caused by the people calling the plaintiff’s number, not by any direct action of the defendant. An Oregon court found a nuisance in a similar case, Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972), where the plaintiff’s phone number was incorrectly listed as the number for a floral shop in the phonebook. On the other hand, an Illinois case held that a nuisance claim required a physical invasion of the plaintiffs’ property and on this basis refused to find a nuisance arising from their neighbors’ repeated complaints to the police and other enforcement agencies about their violations of noise and other municipal ordinances. Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005).

Reflecting on these cases, the court suggested that the best approach was to focus on the origins of the law of nuisances and the purposes to be served by such complaints. “The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes,” the court explained. It analogized the odors and noise caused by industrialization to the later proliferation in telephone lines that resulted in the intrusions onto the use of property found in the Oregon and Washington cases. The court then disagreed with the holding of the Illinois case and continued its analogy, finding that today, “the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other…. Such repeated intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home— and correspondingly, give rise to a private cause of action for nuisance.” The court also noted that the defendants’ counterclaim in this case was “directly connected to their ability to continue the use and enjoyment of their property” in that the plaintiff sought to have them evicted or removed from their property with each of her complaints to authorities. This was a sufficient connection to the use of the property, the court found, to properly allege a private nuisance.

In closing, the court noted that the neighbors’ counterclaim sufficed to plead a valid cause of action, but it was as yet lacking in relevant details that would be necessary to survive on summary judgment or to prevail at trial. “The question of nuisance,” the court explained, “will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints.”

Allen v Powers, 2019 NY Slip Op 29104 (City Court Of Cohoes, Albany County 4/1/2019).

This post was authored by Amy Lavine, Esq.

In a decision issued in April, a New York appellate court held that absolute governmental immunity attached to statements made by a town supervisor and a town board member about waste contamination on property owned by a sewage and septic system business. The court emphasized that environmental conditions such as sewage dumping were a matter falling under the ambit of the town officials’ duties, and their statements about the property were also made discreetly to state regulators rather than being broadcast more publicly. In light of these circumstances, absolute immunity was appropriate and the property owner’s claims for defamation and interference with business relations were properly dismissed.

The circumstances of this case began when the New York Department of Environmental Conservation (DEC) investigated complaints in 2014 and 2015 regarding illegal dumping in the Town of Tusten on property owned by Enviroventures, a sewer and septic system business. Although no violations were found during these investigations, the town supervisor and a member of the town board subsequently complained to DEC about “septic dumping” on the property and claimed the raw sewage was making town children sick. DEC conducted another inspection after receiving these complaints and while it didn’t uncover any raw sewage, it did issue a violation to Enviroventures for depositing eggshell waste on the property. In response to what it saw as baseless complaints, Enviroventures responded by suing the town supervisor and board member for defamation, intentional and tortious interference with business relations, and prima facie tort.

The Appellate Division held on appeal that the trial court properly dismissed Enviroventures’ claims based on the town officials’ governmental immunity. “Town supervisors and town board members,” the court explained, “are afforded absolute immunity from liability for defamation ‘with respect to statements made during the discharge of [their] responsibilities about matters which come within the ambit of those duties.” This immunity only extends to communications that are relevant to matters within their competence, however, and the determination as to whether town officials are entitled to immunity requires an analysis of the content of their statements and the circumstances in which they were made.

In considering the circumstances of this case, the court acknowledged Enviroventures’ contention that the town defendants, “by reason of their elected positions,” had a substantial influence over the town’s affairs, as well as its allegation that their unfounded complaints had resulted in DEC’s issuance of the eggshell waste violation. The court noted that the town officials were not required by law to report to DEC about property conditions making children sick, but it concluded that their discretionary reporting of these issues was nevertheless within the scope of their official governmental duties. Additionally, the court found that there was no “totally unwarranted conduct” in the manner by which the town officials made these communications, as their complaints were communicated to DEC officials “discreetly,” either by phone or email, rather than being more widely disseminated in media releases or public statements. The court accordingly determined that the town officials were entitled to absolute immunity, and because all of Enviroventures’ claims were based on these protected communications the complaint was appropriately dismissed for failure to state a cause of action.

Enviroventures, Inc. v Wingert, 2019 NY Slip Op 02605 (3d Dept. 4/4/2019).

This post was authored by Amy Lavine, Esq.

Petitioner owned a 43.5-acre parcel in the agricultural overlay district in Village of Sagaponack that faced the ocean on its southern side and fronted on a public highway to the north. After submitting and abandoning a series of applications proposing the construction of four single-family homes, the petitioner submitted a new application in 2013 to build one 13,000 square foot house on the northwest corner of the property. The board rejected this plan in 2015, however, based on its determination that the northwest part of the property was unsuitable for development.

On appeal, the court affirmed the denial of the petitioner’s application, noting that local planning boards have broad discretion to consider requests involving the use of land and that judicial review of their decisions is limited to determining whether the action was illegal, arbitrary or capricious, or an abuse of discretion. In this case, the court found that the board’s determination that the northwest portion of the property was unsuitable for development was reasonable and there was no basis to overturn its judgment. The court noted in particular that the board had considered the factors and criteria for site plan applications that were set out in the village code, and its determination was based on findings that the petitioner’s proposed development would result in a loss of agricultural soils, impaired views and farmland vistas, and negative impacts on future subdivisions of the property.

Matter of Sagaponack Ventures, LLC v Board of Trustees of the Vil. of Sagaponack, 2019 NY Slip Op 02527 (2d Dept. 4/3/19)

This post was authored by Amy Lavine, Esq.
A New York appellate court ruled that the use of eminent domain for a bus transit center was lawful and constitutional, with no procedural defects in the public hearing or environmental review process that would require the condemnation to be annulled.
The Capital District Transportation Authority (CDTA) wanted to build a bus transit center in the City of Troy adjacent to a parking garage that was owned by Uncle Sam Garages. After negotiations to purchase or lease the property fell through, the CDTA issued a determination and findings that authorized the use of eminent domain to acquire a sufficient portion of the property to construct of the bus terminal and facilitate the staging and movement of bus traffic.
In reviewing the determination authorizing the use eminent domain, the court noted that it was limited to reviewing “whether the proceeding was constitutional, whether the acquisition was within the condemnor’s statutory authority, whether the determination was made in accordance with the statutory procedures and whether a public use, benefit or purpose will be served by the proposed acquisition.” Uncle Sam Garages, as the petitioner, bore the burden of proving that the determination was illegal or unconstitutional. It didn’t challenge the determination itself or whether the taking had a sufficient public use, however, but instead argued that the condemnation was illegal due to defects in the environmental review and public hearing process.
The court recognized at the outset that public hearing procedures are mandated under New York’s condemnation statutes in order “to ensure that an appropriate public purpose underlies any condemnation.” It found that the CDTA had sufficiently complied with these procedures, however, noting that a hearing was held and that the attendees, including a representative from Uncle Sam Garages, were provided with an outline of the project and given a reasonable opportunity to present comments or submit other relevant documentation.
The court also rejected the complaint that a quorum of the CDTA board wasn’t present at the public hearing, a circumstance that Uncle Sam Garages saw as undermining the purposes of the public hearing requirement altogether. As the court pointed out, the public hearing operated to provide a record of evidence that the board would consider in making its determination and findings regarding the transit center project, but the public hearing itself wasn’t a meeting of the CDTA’s board at which deliberations or other official actions could actually be conducted. Nor did the court agree more generally with Uncle Sam Garages that the CDTA’s board “defeated the purpose of requiring a public hearing by ignoring the information collected at it.” On this point, the court credited documentation and a sworn affidavit provided by the CDTA that disputed the allegation that its board members ignored or were unaware of the public hearing record when they voted to adopt the determination. In sum, the court found that the evidence was simply insufficient to prove that the board “made no independent appraisal and reached no independent conclusion” based on the information gathered at the public hearing.
With respect to the CDTA’s compliance with the State Environmental Quality Review Act, the court noted that the transit center project would involve replacing but not expanding existing pavement surfaces, minor work within the parking garage, and the construction of a new nonresidential structure with a floor area of less than 4,000 square feet. Under these circumstances, and based on the applicable environmental review regulations, the court held that it was reasonable for the CDTA to determine that the project was a Type II action that would presumptively have no significant environmental impacts. As a result, the preparation and circulation of an environmental impact statement was unnecessary, and the court accordingly dismissed the claim that the CDTA’s environmental review was defective or otherwise arbitrary or capricious.
Matter of Uncle Sam Garages, LLC v Capital Dist. Transp. Auth., 2019 NY Slip Op 02592 (3 Dept. 4/4/2019).

This post was authored by Amy Lavine, Esq.

 

An interesting lower court case from New York was issued this month on the subject of nuisances. The plaintiff in the action claimed that the incessant barking of her neighbors’ dogs interfered with her right to quiet use and enjoyment of her property. The issue before the court, however, was the validity of a counterclaim filed by the neighboring dog owners. They claimed that it was actually the plaintiff who was liable for creating a nuisance, which was accomplished through her frivolous and unfounded complaints to the authorities about the alleged dog barking.

 

While the neighbors’ counterclaim was stated in the classic language of a nuisance claim, it was questionable whether they met the necessary elements for establishing a private nuisance. As the court explained: “A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff’s occupation and enjoyment of their home physically uncomfortable. Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations—a markedly unusual claim.” The elements of a nuisance, the court further explained, have historically required proof of some offensive use of property itself, rather than some action or inaction only indirectly connected with the property alleged to be a nuisance. Nevertheless, the court noted, “private nuisance is a common law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether the court should venture into new grounds.”

 

While the court was not aware of any New York caselaw that expanded nuisance claims beyond traditionally offensive uses of property, it noted several cases from other states that considered nuisances arising from other circumstances. In Brillhardt v. Ben Tipp, Inc., 48 Wash 2d 722 (Wash 1956), for example, a nuisance was found where the plaintiff was plagued by frequent calls for a company that had accidentally printed the plaintiff’s phone number on its sales slips, rather than its own. The nuisance of the repeated calls, the court noted, was caused by the people calling the plaintiff’s number, not by any direct action of the defendant. An Oregon court found a nuisance in a similar case, Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972), where the plaintiff’s phone number was incorrectly listed as the number for a floral shop in the phonebook. On the other hand, an Illinois case held that a nuisance claim required a physical invasion of the plaintiffs’ property and on this basis refused to find a nuisance arising from their neighbors’ repeated complaints to the police and other enforcement agencies about their violations of noise and other municipal ordinances. Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005).

 

Reflecting on these cases, the court suggested that the best approach was to focus on the origins of the law of nuisances and the purposes to be served by such complaints. “The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes,” the court explained. It analogized the odors and noise caused by industrialization to the later proliferation in telephone lines that resulted in the intrusions onto the use of property found in the Oregon and Washington cases. The court then disagreed with the holding of the Illinois case and continued its analogy, finding that today, “the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other…. Such repeated intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home— and correspondingly, give rise to a private cause of action for nuisance.” The court also noted that the defendants’ counterclaim in this case was “directly connected to their ability to continue the use and enjoyment of their property” in that the plaintiff sought to have them evicted or removed from their property with each of her complaints to authorities. This was a sufficient connection to the use of the property, the court found, to properly allege a private nuisance.

 

In closing, the court noted that the neighbors’ counterclaim sufficed to plead a valid cause of action, but it was as yet lacking in relevant details that would be necessary to survive on summary judgment or to prevail at trial. “The question of nuisance,” the court explained, “will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints.”

 

Allen v Powers, 2019 NY Slip Op 29104 (City Court Of Cohoes, Albany County 4/1/2019).

This post initially appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.
Montebello’s regulation prohibits tattoo parlors within 1,000 feet of certain sensitive uses, including residential properties, schools, libraries, and religious institutions. The effect of the regulation is to limit such establishments to two small shopping centers in the city. Tattoo parlors are also subject to a conditional use permit requirement, in which the city is required to determine that the use will not have an adverse effect on surrounding properties and that it is consistent with city planning goals.
The plaintiff did not seek city approval to operate the tattoo parlor, but instead challenged the city’s regulation under the First Amendment. The court observed that body art establishments are First Amendment-protected, because tattoos and body art are protected speech. The court went on to find that the conditional use permit requirement in the code conferred unbridled discretion on the city, because the criteria for issuance of a conditional use permit were unspecific. It also found that the ordinance failed to incorporate sufficient procedural safeguards, such as short review timeframes and available appeals. Finally, the court found that the restriction on tattoo parlors was not narrowly tailored to the city’s interest in ensuring neighborhood compatibility and public health, safety, and general welfare.
Weaver v. City of Montebello, ___ F. Supp. 3d ___, 2019 WL 1454205 (C.D. Cal. Apr. 2, 2019).

The Rhode Island Ethics Commission opined that it is permissible for the spouse of a deputy zoning official to petition the town council for an amendment to the zoning use regulations to allow the deputy zoning official to open and operate an art studio and gallery on her spouse’s property. Under Rhode Island statute a public official is prohibited, among other things, from participating in any matter in which s/he has an interest and that is in substantial conflict with the proper discharge of their public duties. Further, public officials may not represent themselves nor any other person before an agency of which s/he is a member or by which s/he is employed, and public officials are prohibited from authorizing another person to appear on their behalf in front of an agency of which they are a member or employed. The Commission concluded that since it was the spouse and not the deputy zoning official who wished to appear before the council, and that the zoning official was neither a member of the town council nor employed by it and that further the council did not appoint the zoning official, there would be no prohibition.

RI Ethics Commission, Advisory Opinion No. 2019-22 (March 29, 2019)

Note: This summary appears in the April 2019 Religious Freedom in Focus published by the US Department of Justice and is available at: https://www.justice.gov/crt/religious-freedom-focus-volume-79-april2019#church

On March 29, a federal judge in New York ruled that the Village of Canton must allow the Canton Christian Fellowship Center to begin holding worship services at a property the church purchased in the Village’s commercial district. The U.S. District Court for the Western District of New York held that the church had shown a likelihood of success in its challenge under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) that the Village had treated it less favorably than nonreligious assemblies and institutions. The court also found that the church would be irreparably harmed if not allowed to begin using the property for Sunday worship on March 31 since it had nowhere else to go, and held that issuing an emergency “preliminary injunction” was in the public interest.

The case, Christian Fellowship Centers of New York, Inc. v. Village of Canton, involves a congregation that purchased a building in the Village’s commercial zoning district that had previously been used as a “gentleman’s club” to use as a church. After the Village denied zoning approval, the church sued, alleging that the Village violated RLUIPA by excluding it while allowing various nonreligious assemblies in the same district.

On March 26, the Justice Department filed a Statement of Interest supporting the church’s request for a preliminary injunction. The United States argued that the church had shown a likelihood that it would succeed on its claim that the Village violated RLUIPA’s “equal terms” provision because there is no basis on which to exclude places of worship while allowing fraternal organizations, theaters, social clubs, and other nonreligious assemblies.

Section 2(b)(1) of RLUIPA states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” This provision, according to lead sponsors Senators Edward Kennedy and Orrin Hatch, was included in RLUIPA because “[z]oning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes. . . . Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.” (quoted in DOJ’s Report on Enforcement of RLUIPA).

The federal court agreed with the church and the United States.  The court held that since the Village’s commercial zone “permits property owners to host meetings for nearly every purpose – business, governmental, ‘educational,’ ‘fraternal,’ ‘social club,’ ‘charitable,’ or ‘philanthropic,’-except for religious purposes,” the Village has likely violated RLUIPA by excluding the church. The court likewise held that a state law meant to protect churches from the purported offensiveness of being near liquor-serving establishments could not be used as a reason to exclude the church when the church simply wants to be treated the same as other assemblies in the zone as required by federal law.

Christian Fellowship Centers of NY, Inc v Village of Canton, 2019 WL 1428344 (NDNY 3/29/2019)

This post was authored by Amy Lavine, Esq.

The New York State Court of Appeals issued a decision on historic preservation regulations last month in Matter of Save America’s Clocks, Inc. v City of New York, 2019 WL 1385906 (N.Y. 3/28/2019). The case involved a historic building in New York City that was particularly notable for its clock tower and the gallery space that overlooked the large and ornate mechanical clockworks. These parts of the building were designated as an “interior landmark” under the New York City Landmarks Preservation Law, and this required the owner of the building to obtain approval from the Landmarks Preservation Commission (LPC) before for making any changes or modifications that would affect its historic character. When the property was purchased in 2013 by a developer that planned to convert the structure into luxury housing, it accordingly submitted its plans to the LPC and requested a certificate of appropriateness (COA). The LPC then held two public hearings and conducted a site visit, and it ultimately concluded that the developer’s restoration investments would outweigh any negative impacts that might result from the developer’s proposal.

The petitioners, a coalition of opponents to the project, commenced this litigation seeking to overturn the LPC’s decision granting the COA. Their appeal was limited to two issues: whether the LPC had authority to approve changes that would restrict public access to an interior landmark, and whether it was reasonable for the LPC to allow the clock tower to be converted to electric power. The trial court ruled in the petitioners’ favor on both issues and annulled the LPC’s decision. A majority of the Appellate Division affirmed, although one judge wrote a separate dissent. The Court of Appeals also failed to reach a consensus judgment, and one judge wrote separately in dissent, but the majority reversed the decisions made by the trial and appellate courts and instead concluded that the LPC’s decision was rational and entitled to deference.

In affirming the LPC’s decision, the court emphasized that it conducted an extensive deliberative process, including holding several public meetings and encouraging a dialogue between staff members and the property owner. It ultimately based its decision on its findings that “the main lobby, stair hall, clock tower rooms and banking hall w[ould] be fully restored, and the clock mechanism and faces w[ould] be retained, thereby preserving these significant features.” As the court noted, these were all reasonable considerations within the purposes of the landmarks law.

The petitioners claimed more specifically that the COA was unreasonable because it would allow the clock tower to be closed off from public access. They claimed that this was inconsistent with the landmarks law, which defined an “interior landmark” as “[a]n interior, or part thereof, any part of which is thirty years old or older, and which is customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value.” But the court was more persuaded by the LPC’s position that “public access is a threshold condition, not an ongoing one.” This was the logical conclusion to draw from the general structure and purposes of the COA procedure, the court explained, as the alteration and even demolition of designated properties was inherently contemplated by the COA process.

The court also concluded that it was reasonable for the LPC to allow the clock to be electrified. It quoted the dissenting Appellate Division opinion on this point, which noted that “the operation of the clock would be modernized by electrification, thereby assuring its continued maintenance for the foreseeable future, and the visibility of exterior clock faces to the public would be enhanced by LED or some other form of modernized lighting, while the clock faces would remain in their original, pristine condition. The COA also makes plain the LPC’s finding that the developer’s plan would ensure that “the clock mechanism and faces will be retained, thereby preserving these significant features.” As with the issue of public access, the court found that these were reasonable considerations and that the LPC’s determination “constituted a rational exercise of [its] discretion based on its unique expertise.”

As a final matter, the court found that the LPC’s determination was not subject to any error of law based on remarks made by the LPC’s attorney at one of the public hearings. The petitioners could not porove that the LPC’s decision was based on these statements, and as the court explained, the LPC’s reasons were actually set forth in the COA and showed that it appropriately “determined the work to be appropriate.”

Save America’s Clocks Inc. v City of New York, 2019 WL 1385906 (NY 3/28/2019).

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