Using Local Laws to
Protect Health, Safety &
Community Assets
Workshop for Local Government Officials
Tully, NY August 8, 2011
Helen Slottje, Esq. & David Slottje, Esq.
Community Environmental Defense Council, Inc.
CedcLaw.org
hslottje@cedclaw.org
dslottje@cedclaw.org
Overview
• Disclaimer: Educational – Not Legal Advice
• Using Zoning Laws to Prohibit Uses
• Using (non-zoning) Police Power-based Laws
• Using a Moratorium
(while municipality considers above options)
Where Do We Get
the Power to Do This?
NYS Constitution
• In general, local governments only have the lawmaking
powers that the Legislature has conferred upon them.
• Article IX of the NY State Constitution declares that effective
local self-government and intergovernmental cooperation are
purposes of the people of this State, and provides that “every
local government shall have the power to adopt and amend
local laws not inconsistent with the provisions of this
constitution or any general law except to the extent that the
legislature shall restrict the adoption of such a local law.”
Municipal Home Rule Law
• In 1964 a “home rule package” was adopted consisting of
Article I of the State Constitution, the Municipal Home Rule
Law, and the Statute of Local Governments.
• Municipal Home Rule Law § 10(11), (12) vests towns with the
police power to enact laws relating to the “protection and
enhancement of its physical and visual environment” and for
the “protection, order, conduct, safety, health and well-being
of persons or property therein.”
• In keeping with the provisions of the constitution, the MHRL
prohibits localities from adopting local laws inconsistent with
the State Constitution or any general law of the State.
Police Power
• Local governments have police power – preserve health, safety and
welfare. NY Municipal Home Rule § 10(6)
• Even municipalities without zoning have land use powers using the
Municipal Home Rule Law, and SEQRA can provide support to
findings.
• Every citizen holds his or her property subject to the reasonable
exercise of the police power of a municipality.
People v. Murphy, 195 NY 126 (1909)
A person’s ability to pursue what is otherwise lawful may be curtailed
if “this infringement and deprivation [is] reasonably necessary for
the common welfare.” See People v. Bunis, 9 NY2d 1 (1961)
Restrictions on Local Power
• A municipality cannot adopt local laws that
are inconsistent with the State Constitution or
any general law of the State. MHRL §10(1)(ii)
Is it true that the Oil and
Gas Drilling Law statute
preempts LOCAL control?
Oil & Gas Statute
New York State Oil & Gas Law, ECL §23-0303(2):
“The provisions of this article shall
supersede all local laws or ordinances
relating to the regulation of the oil, gas
and solution mining industries;
but shall not supersede local government
jurisdiction over local roads or the rights of
local governments under the real property
tax law.”
what does ‘supersede all
local laws relating to
regulation of gas mining’
even MEAN?
NY Court of Appeals
What does “relating to the regulation of” mean
for preemption purposes?
The Court of Appeals has said unequivocally – albeit
in a slightly different context – that the legal effect of
language virtually identical to ECL 23-0303(2) is that
while a town may not regulate the operational
processes of the industry which is the subject of
such language, the town may prohibit the industry
altogether.
NY Court of Appeals
What does “relating to the regulation of” mean
for preemption purposes?
The slightly different context where the highest court
of the state has spoken on this issue is the context
of mineral mining – as opposed to gas mining.
Applying all traditional rules regarding statutory
interpretation, there is no reason why the language
in the gas drilling statute (ECL 23-0303(2)) should
be interpreted any differently than the language in
the mineral mining statute.
Does ECL 23-0303(2) preempt Use of
Local Laws of General Applicability to
Prohibit Unconventional Gas Drilling?
So we believe municipalities are NOT preempted, and that if,
as, and when the Court of Appeals has occasion to answer
this question, it will hold that a municipality is preempted
from regulating the operations and processes of gas drilling,
but is NOT preempted from prohibiting drilling outright,
throughout the entire town.
Who agrees with us? Funny you should ask!
Does ECL 23-0303(2) preempt Use of
Local Laws of General Applicability to
Prohibit Unconventional Gas Drilling?
It turns out that over the last year this position has become
pretty much mainstream, at least among lawyers who have
actually looked at the question and have an opinion. Examples:
Bond Schoeneck & King
(5/12/11 legal opinion):
“This author does not perceive any sound basis for [believing that
the gas drilling preemption language will be construed any
differently than the mining statute preemption language]. […]
However, as a cautionary note, there is virtually no caselaw
interpreting the Preemption Provision.”
(click on ‘gas drilling memo’ at
http://www.middlefieldny.com/Documents%20Forms/documentsforms.
htm)
Whiteman Osterman & Hanna (6/24/11 A of T presentation)
Zoning
• The Statute of Local Governments § 10(6) gives towns
the power to “adopt, amend and repeal zoning
regulations,” as does Article 16 of the Town Law.
• Purposes of zoning set forth in Town, Village and City
Law, and include lessen traffic congestion, secure safety,
promote health and welfare, provide adequate light and
air, prevent overcrowding, facilitate adequate services.
• May use zoning to prevent uses for which the physical
and financial resources of the town are inadequate.
Golden v. Town of Rampano, 30 NY2d 359 (1972)
Comprehensive Plan
• Zoning must be accomplished in accordance
with a comprehensive or well-considered plan.
• Gen. City Law §§ 20(25), 28-a; Town Law
§§ 263, 272-a; Village Law §§ 7-704, 7722
Must we Update our
Comprehensive Plan?
Not necessarily;
broad objectives are fine.
Evaluating the Existing
Comprehensive Plan
No need to specifically address or contemplate
unconventional gas drilling, but should not contain
language that would be inconsistent with a ban
(such as, “Our Village aspires to be the
unconventional gas drilling Capital of New York
state”).
It is sufficient if there is a rational reason to believe
that the goals and aspirations contained in the Plan
will be advanced by what you have in mind (i.e., a
prohibition on certain uses.)
Evaluating the Existing
Comprehensive Plan
[Town] is a rural community in the Finger Lakes region that takes
great pride in its agricultural heritage and character, natural
resources, and small-town atmosphere.
[Town] is defined by a rich diversity of natural features and open
spaces. Residents have expressed a strong desire to preserve
the quality of these natural features and resources.
The Comprehensive Plan includes as an Objective that the Town
should “preserve and protect the Town’s rural characteristics
and agricultural lands”
Evaluating the Existing
Comprehensive Plan
The exploration for natural gas, the extraction of natural gas,
the underground storage of natural gas, and the storage,
transfer, treatment or disposal of natural gas exploration and
production wastes in the urban environment of [CITY} is
inconsistent with the City’s on-going comprehensive
planning goals which have a long-range focus on the safety
and well-being of community residents. The City has worked
to craft a plan that reflects community values and a desire of
residents to make [CITY} a global model for sustainable
revitalization and urban livability. [CITY}’s economy is also
driven by the [XX] colleges and universities located within its
borders. Hospitals, colleges, universities and other not-forprofit entities have been targeted as drivers of employment,
and such employers are not attracted to industrial cities.
Changed Circumstances
“The only, and the narrow, issue before us is whether in the
absence of a formal amendment of the 10-year-old plan, the
Village Board was authorized, as it clearly intended to do, to
take into account what it found to be drastic intervening
changes and in the light thereof to continue to follow a new
comprehensive planning strategy. None of the authorities
cited to us stands for the proposition that formal
amendment of a comprehensive plan must precede its
adaptation to current conditions and planning
considerations. . . . The record indicates[…]that specific
findings were made by the Board of Trustees of Mount Kisco
at the time which supported its action. It is apparent from the
record that the Board of Trustees considered the welfare and
economic stability of Mount Kisco as its first concern[…].” Town
of Bedford v. Village of Mount Kisco, 33 NY2d 178 (1973)
Comprehensive Plan
The law does not define or require that
comprehensive plan to be limited to the
particular piece of paper (or on-line
document) that is titled “Comprehensive
Plan.” To the contrary, the law is clear that
a town’s ‘comprehensive plan’ is in fact the
document titled “Comprehensive Plan,”
together with updates and supplements,
which may include various goals and
standards adopted by the town board.
Comprehensive Plan
§ 345-5 of the Existing Zoning Law is hereby
amended so as to delete the text of the present
definition of “COMPREHENSIVE PLAN” in its entirety,
and to replace the same with the following text:
“The Comprehensive Plan adopted by the Town Board
of the Town of [XX] for the future preservation and
development of the Town pursuant to § 272-a of
the New York State Town Law, as the same may
from time to time be amended, updated, and
supplemented, including without limitation by
planning policy statements, goals, and standards
adopted by the Town Board.”
Validity of Zoning
“Both the New York Court of Appeals and the
Supreme Court have made clear that a municipal
zoning ordinance predicated on the State's
delegation of the police power will be struck
down only if the ordinance bears no substantial
relation to the police power objective of
promoting the public health, safety, morals or
general welfare.”
Great Atlantic and Pacific Tea Co. v. Town of East
Hampton, 997 F.Supp. 340 (EDNY 1998)
Requirements for Local Actions
• Determination must have a rational basis – not
arbitrary and capricious.
• The law must be designed in good faith to
accomplish the general public good for which it
is adopted.
• Consider problems presented, and respond
with reasonable and uniformly applicable
provisions to deal with them, intended to
promote the welfare of the general community
welfare (as opposed to particular individuals).
Findings of fact
• WHEREAS peer reviewed research done by Stephen Osborn,
Avner Vengosh, Nathaniel Warner and Robert B. Jackson from
both Duke University and the Nicholas School for the
Environment titled Methane Contamination of Drinking Water
Accompanying Gas-Well Drilling and Hydraulic Fracturing
looked at 68 water wells across Pennsylvania which showed
levels of methane with the chemical profile of shale-gas in
groundwater were 17 times higher on average in water wells
located within a kilometer of active hydrofracking than water
wells where there was no hydrofracking
(http://www.nicholas.duke.edu/hydrofracking/methanelevels-17-times-higher-in-water-wells-near-hydrofrackingsites); and
Findings of fact
• WHEREAS, significant numbers of Town residents depend
on groundwater as their primary water source based on
a 2009 survey (52% response rate) which indicates 75
properties obtain their water from Cayuga Lake and 450
properties from water wells; and
• WHEREAS chemicals used in the hydraulic fracturing
process are not of public record due to trade secret
protection, it is difficult to impossible to evaluate risks
that might be associated with this process; and
• WHEREAS long-term studies of the cumulative impacts of
long-term high volume slick water hydraulic fracturing
(HVSWHF) operations on a community’s water, air, health
and economy have not been completed; and
Findings of fact
WHEREAS according to preliminary results of an
economic study conducted by Susan
Christopherson at Cornell University
(http://www.greenchoices.cornell.edu/downloa
ds/development/marcellus/Marcellus_Prelim_R
esults.pdf) an average of 890 -1340 truck trips
per well site cause a high potential for road
degradation. […]; and
Findings of fact
WHEREAS according to preliminary results of an
economic study conducted by Susan
Christopherson at Cornell University
(http://www.greenchoices.cornell.edu/downloa
ds/development/marcellus/Marcellus_Prelim_R
esults.pdf) Bradford County, Pennsylvania saw an
increase in demand on health, educational,
administrative, emergency response, and
environmental monitoring services and an
increase in public safety costs; and
Findings of fact
WHEREAS the process of HVSWHF has been linked
to chronic diseases such as respiratory ailments,
neurologic impairments and the high likelihood
that exposure to fracking chemicals many of which
are highly toxic can cause cancer
(http://earthworksaction.org/oil_and_gas.cfm,
http://www.huffingtonpost.com/2011/03/08/wyo
ming-ait-pollution-gas-drilling_n_833027.html,
http://www.circleofblue.org/waternews/2010/wor
ld/epa-announces-study-to-re-examine-thehealth-risks-of-hydrofracking); and
Findings of fact
The Town’s rich natural and visual environment is a
valuable asset that creates a sense of identity and
well-being for residents of the area. Preserving and
protecting the scenic and other natural resources of
the Town is important for both a healthy
environment and vibrant economy. Aesthetic issues
are real and evoke strong reactions from people.
They deeply affect the way people feel about a place
– whether or not students will want to come here
for school, businesses will want to locate, or people
will want to live in and visit a place.
Findings of fact
Allowing the activities prohibited by § 345-38 of the Local
Law would impair the existing character of the Town,
because by their very nature such activities have the
potential to produce a combination of negative impacts
upon the environment and people living in or in proximity
to the communities in which they are located. Such
negative impacts may include, without limitation, traffic,
noise, vibrations, fumes, damage to roadways,
degradation of water quality, degradation of air quality,
decreased availability of affordable housing, damage to
and loss of agricultural lands and soils, damage to and
loss of open space, natural areas, and scenic views,
decreased recreational opportunities, and damage to the
tourism industry.
Drafting the Zoning
Amendment prohibiting
certain Uses
We favor a ‘belt and suspenders’ approach.
Drafting the Zoning Amendment
prohibiting certain Uses
The ‘belt’ component involves confirming that (i)
your code provides that any use not expressly
allowed is prohibited; and (ii) a use you did not
intend to be ‘allowed’ can not sneak in through a
back door or open window in your code.
Drafting the Zoning Amendment
prohibiting certain Uses
On the issue of confirming that your code
provides that any use not expressly allowed is
prohibited, it’s not enough to locate such language
in your code and then move on. Your lawyer must
read the entire code to satisfy herself that there
are no inconsistencies or ambiguities.
Drafting the Zoning Amendment
prohibiting certain Uses
Here’s an actual example of an otherwise well-drafted
code that provided in one subsection that any use not
specifically allowed was prohibited, but then in
another subsection of the very same section provided
that:
“If a proposed use is not specifically listed in any
category of uses or within any zoning district […]the
[PB] shall render a formal determination as to
whether the use is permitted…”
Drafting the Zoning Amendment
prohibiting certain Uses
§ 345-11 of the Existing Zoning Law is hereby amended
so as to delete present Clauses A. and B. thereof in their
entirety, and to replace the same with the following text:
“A. Any Use Not Specifically Permitted is Prohibited. Any
use not specifically set forth as a permitted use (whether
as of right or by special use permit) in any district shall
be expressly prohibited in that district. A use specifically
set forth as a permitted use in one district shall not be
permitted in another district unless it is specifically set
forth as a permitted use in said other district. […] “
Special Uses
Special uses are allowed uses – their inclusion in a
zoning code is equivalent to a legislative
determination that they are proper for the
zone. As a general matter, a town cannot deny
the application on the ground that it is not in
harmony with the purpose and intent of zoning.
A reviewing board is thus required to grant the
permit unless there are significant negative
impacts. North Shore Steak House Inc. V. Board
of Appeals of Incorporated Village of Thomaston,
30 NY2d 238 (1972)
Drafting the Zoning Amendment
prohibiting certain Uses
Another back door where a use you thought was
prohibited can sneak into your town is a variance
provision that is not drafted tightly enough.
(At the ZBA level in many municipalities, there is
often confusion about the differing legal
requirements between area variances and use
variances, and as a result many use variances are
granted improperly. So we insert language which
minimizes the chances that a use variance will be
improperly granted.)
Drafting the Zoning Amendment
prohibiting certain Uses
Drafting the Zoning Amendment
prohibiting certain Uses
Drafting the Zoning Amendment
prohibiting certain Uses
Drafting the Zoning Amendment
prohibiting certain Uses
Open windows: ‘allowed’ uses that may be
susceptible to an argument that they include a use
you did not intend. Examples: ‘mineral mining,’
‘industry,’ even ‘governmental uses’
Drafting the Zoning Amendment
prohibiting certain Uses
Drafting the Zoning Amendment
prohibiting certain Uses
The ‘suspender’ component involves specifically
articulating certain uses you wish to prohibit.
Options:
Industry-specific prohibition;
Impacts-specific prohibition;
No suspenders; my belt works just fine, thank you
Drafting the Zoning Amendment
prohibiting certain Uses
If you go with the approach of explicitly prohibiting
certain uses, this is where what the lawyer does can make
a critical difference in enforceability.
The law must not be so broad as to prohibit conduct which
is either Constitutionally protected or is beyond what is
reasonably required to address the harm you’re concerned
about, and must be sufficiently detailed to reasonably
apprise people as to just what conduct is prohibited.
Definitions
The rule is that “(r)egulations limiting the use of
property must be strictly construed, and if there
is any doubt as to their meaning it must be
resolved in favor of the property owner.” Since
the zoning ordinance under review does not
define “distribution center”, and it is unclear
precisely what is meant by these words, the
resulting ambiguity must be resolved against the
municipality and in favor of the property
owners.”
Town of Huntington v. Barracuda Transport Co., Inc., 435 NYS2d 354
(2nd Dept. 1981)
Drafting the Zoning Amendment
prohibiting certain Uses
Natural Gas And/Or Petroleum Extraction, Exploration Or
Production Wastes --- Any of the following in any form, and
whether or not such items have been excepted or exempted
from the coverage of any federal or state environmental
protection laws, or have been excepted from statutory or
regulatory definitions of “industrial waste,” ”hazardous,” or
“toxic,” and whether or not such substances are generally
characterized as waste: (a) below-regulatory concern
radioactive material, or any radioactive material which is not
below-regulatory concern, but which is in fact not being
regulated by the regulatory agency otherwise having
jurisdiction over such material in the Town, whether naturally
occurring or otherwise, in any case relating to, arising in
connection with, or produced by or incidental to the
Drafting the Zoning Amendment
prohibiting certain Uses
exploration for, the extraction or production of, or the
processing, treatment, or transportation of, natural gas,
petroleum, or any related hydrocarbons; (b) natural gas or
petroleum drilling fluids; (c) natural gas or petroleum
exploration, drilling, production or processing wastes; (d)
natural gas or petroleum drilling treatment wastes (such as
oils, frac fluids, produced water, brine, flowback, sediment
and/or any other liquid or semi-liquid material); (e) solution
mining brine or mineral brines; (f) any chemical, waste oil,
waste emulsified oil, mud, or sediment that was used or
produced in the drilling, development, transportation,
processing or refining of natural gas or petroleum;
Drafting the Zoning Amendment
prohibiting certain Uses
(g) Soil contaminated in the drilling, transportation,
processing or refining of natural gas or petroleum; (h) drill
cuttings from natural gas or petroleum wells; or (i) any other
wastes associated with the exploration, drilling, production
or treatment of natural gas or petroleum. […]The definition
of Natural Gas And/Or Petroleum Extraction, Exploration Or
Production Wastes does not include (i) recognizable and nonrecognizable food wastes, or (ii) waste generated by
Agriculture Use.
Drafting the Zoning Amendment
prohibiting certain Uses
HIGH-IMPACT TRUCK --- A truck or tractor, as defined in the
Vehicle and Traffic Law, with a minimum of three axles, and/or ten
wheels, and capable of hauling a gross vehicle weight of 34,000
pounds or more. High-impact truck does not include exempted
vehicles.
HIGH-FREQUENCY, HIGH-IMPACT TRUCK TRAFFIC --- Any one of
the following: (a) more than twenty (20) one-way trips by highimpact trucks to or from the site of the proposed use during any
twenty four (24) hour period at any time during the duration of the
use; or (b) more than fifty (50) one-way trips by high-impact truck
to or from the site of the proposed use during any seven (7) day
period at any time during the duration of the use; or (c) more than
seven hundred (700) one-way trips by high-impact truck to or from
the site of the proposed use during any three hundred sixty five
(365) day period during the duration of the use.
Drafting the Zoning Amendment
prohibiting certain Uses
EXEMPTED VEHICLES --- Any of the following: (a) vehicles for
agricultural use, (b) school buses or other mass transit buses, (c)
emergency vehicles, (d) military vehicles driven by active duty
military personnel, or (e) trucks used in the construction, repair or
maintenance of state, county, or Town roads or other public
structures or property.
LARGE SCALE WATER USE --- Any water withdrawal or
sequestering water use of over 100,000 gallons of water in any
thirty (30) day period from water resources within the Town. Large
scale water use does not include water withdrawn for agricultural
use, for emergency uses such as fire fighting, or for drinking,
recreational, cooking, washing, or sanitary purposes and used
within the Town.
Police Power
• Local governments have police power – preserve health,
safety and welfare. NY Municipal Home Rule § 10(6)
• Even municipalities without zoning have land use powers
using the Municipal Home Rule Law.
• Every citizen holds his or her property subject to the
reasonable exercise of the police power of a municipality.
People v. Murphy, 195 NY 126 (1909)
A person’s ability to pursue what is otherwise lawful may
be curtailed if “this infringement and deprivation [is]
reasonably necessary for the common welfare.” See
People v. Bunis, 9 NY2d 1 (1961)
What does such a law look like?
“2.2. Activities Prohibited
A. Subject only to the provisions of Clause B.
below of this Section 2.2, it shall be unlawful for
any Person to use, cause, or permit to be used
any land, body of water, building, or other
structure located within the Town for any of the
following: (i) any Natural Gas And/Or Petroleum
Exploration Activities; (ii) any Natural Gas
And/Or Petroleum Extraction Activities; or (iii)
any Natural Gas And/Or Petroleum Support
Activities.”
What does such a law look like?
“B. The prohibitions set forth above in Clause A. of this
Section 2.2 are not intended, and shall not be construed,
to: (y) prevent or prohibit the transmission of natural gas
through utility pipes, lines, or related appurtenances for
the limited purpose of supplying natural gas utility services
to residents of or buildings located in the Town; or (z)
prevent or prohibit the incidental or normal storage or use
of lubricating oil, heating oil, gasoline, diesel fuel, kerosene,
or propane in connection with legal Agriculture, residential,
business, commercial, and other uses within the Town, so
long as such uses do not involve any Natural Gas And/Or
Petroleum Exploration Activities, Natural Gas And/Or
Petroleum Extraction Activities, or Natural Gas And/Or
Petroleum Support Activities.”
What does such a law look like?
• NATURAL GAS AND/OR PETROLEUM SUPPORT
ACTIVITIES --- Shall mean and be any one or more of
the following: (a) Natural Gas Compression Facility;
(b) Natural Gas Processing Facility; (c) Natural Gas
And/Or Petroleum Extraction, Exploration Or
Production Wastes Disposal/Storage Facility; (d)
Natural Gas And/Or Petroleum Extraction,
Exploration Or Production Wastes Dump; (e)
Injection Well; (f) Land Application Facility; (g) NonRegulated Pipelines; (h) Underground Injection; (i)
Underground Natural Gas Storage; or (k) disposal of
radioactive material.
What does such a law look like?
NATURAL GAS AND/OR PETROLEUM
EXTRACTION, EXPLORATION OR PRODUCTION
WASTES DUMP --- Land upon which Natural
Gas And/Or Petroleum Extraction,
Exploration Or Production Wastes, or their
residue or constituents before or after
treatment, are deposited, disposed,
discharged, injected, placed, buried or
discarded, without any intention of further
use.
Moratorium
Moratorium
• May be adopted as a “stop gap or interim measure where it is
reasonably designed to temporarily halt development while
the municipality considers, inter alia, comprehensive zoning
changes.” Cellular Telephone v. Village of Tarrytown, 624
NYS2d 170 (2nd Dept. 1995)
• Enactment of moratorium requires following same legal
procedures as had to be followed when the legislation that it
suspends.
• Moratorium is a Type II Action and is exempt from SEQRA
• 6 NYCRR § 617.5(c)(30)
Requirements
• Moratorium found to be roughly equivalent to zoning law and
therefore subject to notice, hearing and other procedural
requirements required under state and local zoning laws. B & L
Development Corp. v. Town of Greenfield, 551 NYS2d 734 (Sup.
1990)
• Limited Duration – no bright line test.
What does a moratorium look like?
“A. From and after the date of this Local Law, no
application for a permit, special permit, zoning
variance, building permit, site plan approval,
subdivision approval or other Town-level approval shall
be accepted, processed, approved, approved
conditionally, or issued for the construction,
establishment, or use or operation of any land, body of
water, building, or other structure located within the
Town for any of the following: (i) any Natural Gas
And/Or Petroleum Exploration Activities; (ii) any
Natural Gas And/Or Petroleum Extraction Activities; or
(iii) any Natural Gas And/Or Petroleum Support
Activities.”
What does a moratorium look like?
“B. 1. From and after the date of this Local Law, no
Person shall use, cause, or permit to be used,
any land, body of water, building, or other
structure located within the Town for any of the
following: (i) any Natural Gas And/Or Petroleum
Exploration Activities; (ii) any Natural Gas
And/Or Petroleum Extraction Activities; or (iii)
any Natural Gas And/Or Petroleum Support
Activities.”
What does a moratorium look like?
“C. This moratorium and prohibition shall be in
effect beginning on the effective date of this
Local Law and shall expire on the earlier of (i)
that date which is [nine (9) months] [?] after said
effective date; or (ii) the effective date of a Town
Board resolution affirmatively stating the Town
Board has determined that the need for this
moratorium and prohibition no longer exists.”
What does a moratorium look like?
Section 7. HARDSHIP USE VARIANCE.
The Board of Appeals of the Town is hereby
authorized to accept and review (after public notice
and hearing and in accordance with the
requirements of law and of this Local Law) requests
for a hardship use variance from application of the
provisions of this Local Law by persons aggrieved
hereby.
No such use variance shall be granted by the Board of
Appeals without a showing by the applicant that
applicable zoning regulations and restrictions have
caused unnecessary hardship.
Can’t Our
Town Be
Challenged?
Yes, there could be a lawsuit.
Property Rights
• Property rights are ALWAYS subject to limitations to
prevent injury to rights of community and neighbors.
• “A municipality is not obliged to permit the exploitation
of any and all natural resources within the town as a
permitted use if limiting that use is a reasonable
exercise of its police powers to prevent damage to the
rights of others and to promote the interests of the
community as a whole.”
Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87
NY2d 668 (1996)
Public Health, Safety & Welfare
• An ordinance regulating property use will therefore be upheld
unless it is “clearly arbitrary and unreasonable, having no
substantial relationship to the public health, safety, moral, or
general welfare.” Village of Euclid v. Ambler Realty Co., 272 US
365 (1926)
What Sort of
Challenges Might
Be Brought?
The Law Isn’t a Good Idea
‘If the validity of the legislative classification for
zoning purposes be fairly debatable, the
legislative judgment must be allowed to control.’
Rodgers v. Village of Tarrytown, 302 N.Y. 113
(1951)
Takings
• “As the United States Supreme Court has noted, ‘the
submission that [a property owner] may establish a
taking simply by showing that they have been
denied the ability to exploit a property interest that
they heretofore had believed was available for
development is quite simply untenable.” Briarcliff
Associates Inc. v. Town of Cortlandt, (quoting Penn
Central Transp. Co. v. City of New York, 438 US 104.)
Constitutional Challenges
• Equal Protection, Substantive Due Process, Procedural Due
Process, § 1983 Challenge
• Ripeness
• Party challenging an ordinance has the burden to negative
every conceivable [rational and legitimate] basis which might
support the ordinance. Tuan Anh Nguyen v. INS 533 US 53
(2001)
Constitutionality Presumed
• An ordinance regulating property use will be upheld unless it
is “clearly arbitrary and unreasonable, having no substantial
relationship to the public health, safety, moral, or general
welfare.” Village of Euclid v. Ambler Realty Co., 272 US 365
(1926)
Constitutional Challenges
• “There are two types of constitutional challenges to a statute
[or other legislative act]: facial challenges, in which a statute is
alleged to be unconstitutional on its face, i.e. in all
circumstances, and ‘as applied’ challenges, in which a statute
is alleged to be unconstitutional under the particular facts of
the plaintiff’s case. A legislative enactment may be struck
down as unconstitutional on its face if the plaintiff
demonstrates that it is ‘arbitrary and/or unreasonable, and
not rationally related to a legitimate government interest.
Rational-basis review is properly applied to legislation that
does not implicate any suspect classification or impinge upon
the exercise of a fundamental right.” Casciani v. Nesbitt, 659
F.Supp.2d 427 (W.D. NY 2009)
Equal Protection
• The Equal Protection Clause of the Fourteenth Amendment,
§ 1, commands that no State shall “deny to any person within
its jurisdiction the equal protection of the laws.” Of course,
most laws differentiate in some fashion between classes of
persons. The Equal Protection Clause does not forbid
classifications. It simply keeps governmental decision makers
from treating differently persons who are in all relevant
respects alike.
• F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct.
560, 561, 64 L.Ed. 989 (1920). See also City of Cleburne, Tex. v.
Cleburne Living Center, 473 US 432 (1985)
Equal Protection
• “Statutes create many classifications which do not deny equal
protection; it is only ‘invidious discrimination’ which offends
the Constitution.” Ferguson v. Skrups, 372 US 726 (1963)
Basis for Discrimination
•
In general, the Equal Protection Clause is satisfied so long a
there is a plausible policy reason for the classification, see United
States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179, 101 S.Ct. 453, 459, 461,
66 L.Ed.2d 368 (1980),
the legislative facts on which the
classification is apparently based rationally may have been
considered to be true by the governmental decisionmaker, see
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66
L.Ed.2d 659 (1981),
and the relationship of the classification to its
goal is not so attenuated as to render the distinction arbitrary
or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U.S., at 446, 105
S.Ct., at 3257. . . . the State has a legitimate interest in local
neighborhood preservation, continuity, and stability. Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
Nordlinger v. Hahn, 505 US 1 (1992)
Equal Protection Con’t
New York
“A duly-enacted local law is clothed with the presumption of
constitutionality that applies to state legislation (see 41 Kew Gardens Rd. Assoc. v.
Tyburski, 70 N.Y.2d 325, 520 N.Y.S.2d 544, 514 N.E.2d 1114). For purposes of equal
protection review, a legislative classification, such as the one at bar, that
neither makes distinctions on the basis of a suspect class nor impairs a
fundamental right, must be upheld if the challenged classification is
rationally related to achievement of a legitimate state purpose (see Miriam
Osborn Mem. Home Assn. v. Chassin, 100 N.Y.2d 544, 762 N.Y.S.2d 867, 793 N.E.2d 404; Trump v.
Chu, 65 N.Y.2d 20, 489 N.Y.S.2d 455, 478 N.E.2d 971). ‘In determining whether a
reasonable objective is promoted by the classification, the courts are not
bound by the stated purpose of the statute. ‘Instead, a classification must
be upheld against an equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification’ ‘(Miriam Osborn Mem. Home Assn. v. Chassin, supra at 547, 762 N.Y.S.2d 867,
793 N.E.2d 404, quoting Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284, 704 N.Y.S.2d
897, 726 N.E.2d 449, cert. denied 530 U.S. 1276, 120 S.Ct. 2744, 147 L.Ed.2d 1008).”
Korotun v. Incorporated Village of Bayville, 809 NYS2d 533 (2nd Dept. 2006)
Due Process
• The touchstone of due process is whether a law is reasonable in
relation to its subject matter and is adopted in the interests of the
community (see West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391,
57 S.Ct. 578, 581 81 L.Ed. 703). While there is, of course, a strong
presumption of constitutionality , the measure must bear ‘some fair,
just and reasonable‘ relation to the ‘promotion of health, comfort,
safety and welfare of society ‘
Niagara Recycling Inc. v. Town of Niagara, 443 NYS2d 939 (2nd Dept.
1981)
Procedural Due Process
• A law fails to meet the requirements of the Due Process
Clause if it is so vague and without standards that it leaves the
public uncertain as to the conduct it prohibits or leaves judges
and jurors free to decide, without any legally fixed standards,
what is prohibited and what is not in each particular case.”
People v. Scott, 26 NY2c 286 (1970)
Substantive Due Process
• Violation of the federal and state constitutional guarantee that
the state not deprive it of property without due process of
law.
• Two elements.
• (1) valid property interest in a benefit that is entitled to
constitutional protection.
• (2) the government action was wholly without legal justification.
• Supreme Court has said that only the most egregious official
conduct can be said to be arbitrary in the constitutional sense.
City of Cuyahoga Falls, Ohio v. Buckeye Community Hope
Foundation, 538 US 188 (2003)
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