Lawsuit against Zoning Board dismissed

From the Penn Yan Chronicle-Express:

PENN YAN — A Penn Yan couple’s lawsuit against the Town of Jerusalem’s Zoning Board of Appeals was dismissed on Thursday, January 8.

In a lawsuit filed in October 2008, petitioners R. Parker Reynolds and Brenda Reynolds claimed the board illegally denied them a variance to allow recreational vehicles or campers in their mobile home park, located on Route 54A.

However, at last Thursday’s hearing in Yates County Supreme Court, attorney Steven Getman, representing the town, argued that the board had followed state and local law in denying the variance. Getman noted that the Town Zoning Code treated campgrounds and campers differently than mobile homes and that state law set minimum requirements for mobile home parks that prevented the town from granting a variance. He also cited court cases that held a zoning board’s decision should not be disturbed “unless it was arbitrary, illegal or capricious.”

Finally, Getman told the court, the petitioners had not presented the board with any valid evidence of financial hardship that would justify a variance under state law.
Therefore, Getman argued, the lawsuit should be dismissed.

Appearing for the petitioners, attorney Derek Brocklebank told the court that the zoning board should have made more findings on the record before denying the variance. He also argued that the distinctions between mobile homes and recreational vehicles or campers were inadequate to justify rejecting the Parkers’ application.

After hearing from both attorneys, acting State Supreme Court Justice Dennis Bender tossed the lawsuit. Bender ruled that the Reynolds had failed to justify overturning the zoning board’s decision. Therefore, he held, their petition should be dismissed on the merits.

New York Decision on Animal Cruelty May Have Broad Implications for "Puppy Mills"

A New York City Criminal Court has concluded that a man who failed to provide medical treatment for his dog can be prosecuted for animal cruelty.

Writing in People v. Curcio, 2008KN021343, Judge Michael Gerstein held that the state law prohibiting “Overdriving, Torturing and Injuring Animals [or] Failing to Provide Proper Sustenance for Animals” applied to a man who failed to bring his ailing 2-year-old dog to a veterinarian for at least a week after discovering a tumor on the dog’s hindquarter:

Defendant [allegedly] knew the dog had a mass on its rear end and that Defendant did not and would not take said dog to the veterinarian for medical attention. The Complaint further alleges that because of Defendant's failure to seek medical attention, saving the dog's life required surgery and six days of intensive care and that Defendant's lack of care caused [the dog] to suffer needlessly [and] are sufficient to establish a prima facie case.

This failure, the Judge held, could be construed as “further[ing] any act of cruelty to any animal, or any act tending to produce such cruelty" in violation of New York State Agriculture and Market Law.

Therefore, the court denied Mr. Curcio’s motion to dismiss and allowed his case to proceed to trial.

The court’s decision, if upheld and followed elsewhere, could have broad implications against operators of so-called “puppy mills,” in which dogs are often mistreated and over bred. Prior to this decision, many local jurisdictions refrained from investigating or prosecuting mill owners, due to questions regarding the application of state animal cruelty laws to situations where a dog had adequate food and shelter, but may have suffered in other ways.

However, the principles set forth in the Curcio decision could encourage those authorities to be more vigilant against large commercial breeders whose operations inflict needless suffering on companion animals.

Lodi takes step to form planning board

From the Finger Lakes Times:

The Town Board Thursday passed a motion to begin the process of forming a five-member planning board.

[Supervisor Lee Davidson] has sought the assistance of attorney Steven Getman in enacting a local law to form the board.

Davidson has also consulted with Getman on the possibility of a one-year moratorium on new subdivisions within the town, in conjunction with the town’s effort to implement a Farmland Protection Program.

Town Clerk Lois Jennings said she was pleased to see a step toward town planning, noting that she frequently receives phone calls from attorneys asking about land use restrictions ....

Balancing the Rights of Farmers and Animals

The Town of Ovid's Farm law draft gets support:

The town board didn’t hesitate Wednesday night to support the final draft of grape grower Chris Verrill’s proposed “Right to Farm Law.”

Verrill, a planning board member who suggested such legislation several months ago, couldn’t attend the board’s meeting that night, so he missed hearing Supervisor David Dresser commend his and Town Attorney Steven Getman’s efforts to protect local farmers’ interests.

Dresser and board members had been contacted by numerous residents concerned that the original draft might leave a loophole for puppy mill operators. A paragraph in the new version specifically excludes protection for dog and cat operations and bars the law from being broadened to mean that.

Working to Regulate Puppy Mills in New York

NY STATE HUMANE GROUP PRAISES ROMULUS FOR ANTI-PUPPY MILL LAW:

ROMULUS--Supervisor David Kaiser is pleased to report that the Town of Romulus has been recognized by a state animal welfare organization for efforts to regulate inhumane “puppy mills” in that town.

....Samantha Mullen, Chair of the New York State Humane Association Legislative Committee, praised the town for its recently-enacted moratorium on commercial breeding kennels, commonly known as “puppy mills.”

Kaiser said he was happy to receive the news and said that it was a testament to the hard work of the Town’s Planning Board, chaired by J. Barry Roach, which drafted the law with the direction of local attorney Steven Getman and board member Mickie Sanders-Jauquet.

Is Your License Plate Frame Illegal...or Protected Free Speech?

Most people have frames around their vehicle license plates, advertising their car dealer, a favorite sports team, or a pet slogan. Unfortunately, not all of them are legal.

From Rochester TV station R-News comes a story about Section 402-b of the New York State Vehicle and Traffic Law (“VTL”):

It's not illegal to have a frame around your license plate. That is, unless the frame covers any lettering or numbers on your plate.
Police say it's a violation they do write tickets for.
And ignorance is no excuse.
“There are so many other laws people don't know about,” acknowledged Trooper Mark O’Donnell, New York State Police spokesman. “The fact you don't know about it is not an affirmative defense.”

However, depending on the nature of the plate frame design, enforcement of the law might be unconstitutional.

In the case of Wooley v. Mayard, the United States Supreme Court held that a statute very similar to New York’s was unconstitutional. The Court held that the State's claimed interests in requiring display of the state motto on license plates were not sufficiently compelling to justify infringement of a driver’s First Amendment rights to obscure certain portions of a vehicle plate. In Wooley, the driver argued that he had a free speech right to cover the portion of the plate that displayed the state motto.

Based on the Wooley case, if the only part of the license plate covered by a frame were the motto “the Empire State,” one could argue that enforcement of VTL Sec. 402-b was also unconstitutional.

In most cases, a driver would probably not bother to challenge a ticket for VTL 402-b. They would decide the relatively low fine was not worth the time, effort and attorney fees. Others, however, might decide that defending the principle of free speech would outweigh any cost considerations.

In any case, whenever a person thinks his or her rights might have been violated by the police, even in a small way, he or she should consider speaking with an attorney to insure that he or she receives all the constitutional protections provided by law.

New State Program to Provide Funds to Help New York’s Neediest Heat More Efficiently

New York State officials have announced a new program to deliver $1.9 million to low-income home owners to help them cope with the high cost of home heating oil. According to the New York State Attorney General’s office:

This new program will offset the costs of installing high-efficiency furnaces, steam boilers, and household hot water systems, as well as insulation, weather-stripping, and other weatherization features. These oil efficiency measures are expected to save an average household approximately 224 gallons of heating oil per year. The new program will also pay for cost-effective electricity saving measures, such as lighting and refrigeration replacements, with estimated annual savings to average households of 600 kilowatt hours. Through these measures, the new program could save an average household up to $1,000 annually.

The program is also expected to result in substantial clean air benefits, including decreases in smog, acid rain and global warming pollution emissions that are equivalent to taking over 250 cars off the road each year.

For more information on this program, and ways to make your home more energy efficient, click here or call (877) NY-SMART.

Halloween: Be Safe, Avoid Lawsuits, Have Fun

With the growing popularity of Halloween as a holiday, both children and adults are cautioned to put safety first.

Many law enforcement and public safety agencies are issuing reminders nationwide to follow simple safety tips to ensure a safe Halloween, including:

* Warn children about the dangers of crossing the street.
* Avoid Trick or Treating on very busy streets.
* Always have your children use a sidewalk when there is one.
* To increase visibility, have your children carry a flashlight or glow sticks.
* Apply reflect tape or stickers to costumes.
* Make sure the costume fits your child properly before they venture out, making sure they can see out of their mask.
* Always chaperone in groups.

The National Law Journal reminds us that holiday celebrations in the workplace can create legal issues for employers and that Halloween is no exception:

With Halloween just around the corner, labor and employment attorneys are warning employers that the annual holiday could get scary — in a legal way — if costumes, or a work party, get out of hand.

Specifically, costumes that carry a political or social message, or are simply too raunchy for the workplace, could lead to a liability nightmare down the road.

[A]nother potential liability with Halloween: personal injury suits.

Above all, simple common sense can do a lot to prevent tragedies--and resulting lawsuits--from happening. Halloween is an enjoyable holiday for the entire family. Stay safe, stay smart and have fun.

Oil and Gas Leases: Know Your Rights

With the discovery of a large natural gas deposit in the Southern part of New York State, many property owners are being approached by energy companies looking to lease natural gas and mineral rights on area lands.

According to the Ithaca Journal, representatives of the New York State Attorney General and the Chemung County Farm Bureau recently cautioned that anyone considering leasing their property for natural gas exploration should know their rights:

The details of leases signed between landowners and gas companies are seemingly endless. They touch on everything from surface land-use to royalty and bonus payments or anything else landowners may want to include in their lease.

None of the leases pertaining to natural gas drilling and exploration are standard or non-negotiable, Michael Danaher, an assistant state attorney general from the Binghamton office, said. And negotiations don't pertain solely to bonus and royalty payments.

A landowner may want to negotiate a clause that requires the gas company to check the quality and quantity of the landowner's water [for example].

Ultimately, both presenters indicated the most important thing to do before signing a lease of this kind was to consult a lawyer:

Obtaining the services of an attorney familiar with leasing and knowing that all land leases are negotiable are the most basic steps in protecting property, they said, and that knowledge can be useful if a company land agent comes knocking.

What to Do if You Get a Speeding Ticket

Advice on how to fight a speeding ticket from, of all places, political magazine the American Spectator:

Even if you have a perfect driving driving record, each and every ticket is worth fighting with everything you've got. Reason? The presence of a single "moving violation" on your driving record -- no matter how minor (or bogus) -- can end up costing you hundreds, maybe even thousands of dollars over the three-to-five year period it will be visible on your DMV rap sheet....

* Hire a traffic lawyer: The cost to rent a legal eagle to handle a minor traffic case (normal speeding, not "reckless driving," DUI or a major charge that has a mandatory court appearance and the possibility you might get thrown in the clink) is typically between $300 and $700. It sounds steep, but for all the reasons outlined previously, it can be money well spent -- especially if you get another ticket at some point during the next three years.