NYSBA SPRING 2009 | VOL. 23 | NO. 2 Municipal Lawyer A joint publication of the Municipal Law Section of the New York State Bar Association and the Edwin G. Michaelian Municipal Law Resource Center of Pace University A Message from the Chair This is my last message leaders with more diverse backgrounds, to refl ect from the chair. Allow me to the perspectives and promote the interests of a more indulge in some observa- diverse membership. To this end, as reported in my tions about our Section over last message from the chair, we have amended our the last two years. Section bylaws to increase the number of Executive Committee members. We are actively interview- In the face of stiff ing candidates interested in being members of our competition from lower Executive Committee and chairs of our committees, cost Bar Associations and and we have accepted several. If you are interested in private purveyors of CLE getting the most out of your membership, I invite you credits, as well as tough to contact me or any other Section offi cer listed on the economic times, our Section back page of this publication. The Section programs membership continues to you attend, the Section articles you read, the Section grow. While the growth is Robert B. Koegel people you meet and get to know, all refl ect work moderate, it is steady, and done by Section leaders. We thank all of those mem- I’m confi dent, in light of the factors described below, bers who have given of their time to be leaders for it will continue. I’m not enamored with benchmark- the benefi t of all, and we look forward to new leaders ing membership growth for the sake of growth alone, joining with the old. even if such competition appears to be in the chair’s inherent job responsibility. But to the extent growing Bar activities provide many direct and incidental membership refl ects attorney interest in, respect for, public benefi ts, but for me, the primary purpose of and commitment to our Bar Association, then I’m all a bar association is to learn from other lawyers and in. We are growing, we can do better, and we will. Our Bar Association statistics indicate that our Section member practitioners are generally older, Inside white, and male. We don’t know whether this demo- From the Editor . .3 graphic profi le is accurate for all attorneys practicing (Lester D. Steinman) municipal law who are not members of our State Bar Association and this Section, and I suspect the cohort Home Rule in New York—Implied Preemption of non-NYSBA municipal law attorneys is more and Matters of State Concern. .4 (Richard Briffault) diverse. Court Strikes Blow for Affordable Housing . .11 It’s worth noting that our Section’s Executive (John Cappello) Committee, which plans and carries out the busi- ness of the Section, is more diverse than our Section Use of Municipal Resources for Personal Purposes. .17 membership in terms of age and gender, if not race. (Jessie Beller) But there is a general sense that we need to recruit Land Use Law Case Law Update . .22 more Section leaders, especially but not exclusively (Henry M. Hocherman and Noelle V. Crisalli) get to know them. In this regard, there is nothing like the entire state bar task force on the Supreme Court’s attending bar programs and volunteering for bar com- seminal eminent domain case, Kelo v. City of New mittee work to enjoy this salutary benefi t. Still, with London, were our Section’s members. I’m sure we will well over 1,000 members in our Section, it’s impossible continue to excel in this area. to meet, let alone converse, with all of them. Enter the Internet. As I have said over and over, our Section’s Section committees provide an opportunity for list-serve is working great. Almost every day, Section attorneys with a specifi c area of practice concentration members are posting interesting legal questions and or interest to get together with attorneys of similar getting thoughtful legal answers from their colleagues. background or interest, to write for our publication, This development shows no signs of waning, and I can to propose topics or participate as speakers for our only extol all who are using this Section resource and seminars, and to become acquainted with Executive urge others to get started. At the risk of doing any- Committee business. Our committee chairs have done thing to quell this robust and responsible use of the an excellent job in these respects. However, we have Internet, I would like to see if we could get the same been thin in our committee ranks. Again, we are setting kind of Internet response from Section members for in place procedures for growing our committee mem- Section business matters, such as topics, speakers, and bership and increasing their activities. If you are not locations for Section presentations. I tried this once, involved with the Section other than being a member and it fell fl at. I’m sure there’s a better way to do this, and attending its programs, this is a great place to start. and I’m sure we’ll get there with it. Check out the committees near the last page of this publication, or contact me or any other Section offi cer Our annual Fall and January Section meeting about committee participation. presentations continue to be informative and thought- provoking. They will stay that way so long as there are In June 2009, Patricia Salkin, Associate Dean and volunteers, new and old, willing to dedicate the time Director of the Governmental Law Center of Albany to select the topics, fi nd the speakers, and oversee the Law School, took over for me as Chair of our Section. presentation of their outlines. For those of you who know her, you know what a great job she will do. For those of you who don’t, she’s who Our Section publication, the Municipal Lawyer, they had in mind for the expression: If you want to get continues to publish excellent articles on various and something done, ask the busiest person to do it. Our sundry topics of interest to our Section members. Section couldn’t be in better hands. We are always interested in new writers with new material. Although this may not be the best forum for this remark, I will take this opportunity to thank one spe- For several reasons, our Section’s participation in cial person of the State Bar Association staff. That per- statewide, traveling CLE programs has atrophied over son is, of course, Linda Castilla. Whatever I’m respon- the last few years. With some structural changes and sible for, Linda makes sure it is done. Linda anticipates organizational changes, we may be able and willing to the task at hand, does what she can for it, makes sure renew that interest. I do what I can for it without antagonizing me, and stays through the job until it is done. Linda has incred- Like other Sections of our State Bar Association, ible institutional memory and even more importantly, our Section comments on proposed state legislation excellent judgment about people and circumstances. and participates in task forces which write reports en- She is always cheerful and never gets fl ustered. I will couraging legislative responses to social issues. Where miss her. we have felt that certain proposed state legislation will affect municipal law constituencies in concrete See you all at our joint Fall meeting with the Envi- ways, we have endeavored to make our objections or ronmental Law Section on the October 23rd weekend support known. We can do more here. Our Section’s in Canandaigua, New York. participation in task force reports has been particularly laudable. For example, the chair and one-quarter of Robert Koegel 2 NYSBA/MLRC Municipal Lawyer | Spring 2009 | Vol. 23 | No. 2 From the Editor The Municipal Briefs Given that the Village did not loan its money or column of the Summer property to the purchaser, the deferred payment plan it 2008 issue of the Municipal agreed to, and the mortgage taken back by the Village Lawyer discussed an Ap- as security for the deferred payments, did not consti- pellate Division ruling that tute an unconstitutional loan. held that (a) alienation of The Gift or Loan Clause is also the focus of an surplus municipal property article by Jessie Beller, Assistant Counsel with the New used for approximately fi fty York City Confl icts of Interest Board. Mr. Beller exam- (50) years as a public park- ines the “public purpose” requirement for municipal ing lot was not constrained expenditures and how the use of municipal resources by the public trust doctrine; for private purposes violates the Gift or Loan Clause. and (b) the fi nancing of the sale or lease of such property Constitutional issues are also at the heart of two for private commercial use by taking back a purchase other articles in this issue of the Municipal Lawyer. money mortgage violated the State Constitution’s Gift Richard Briffault, Joseph P. Chamberlain Professor or Loan clause.1 The Court of Appeals however, has of Legislation at Columbia Law School, analyzes the now reversed the second part of the Appellate Divi- constitutional and doctrinal framework supporting sion’s ruling and validated the use of the purchase municipal home rule in New York. John Cappello of money mortgage to consummate the transaction.2 Jacobowitz and Gubits, LLP discusses a recent appellate decision striking down, as unconstitutional exclusion- Here, the Village of Valley Stream sold municipal ary zoning, a town’s comprehensive plan and imple- property to a private entity for $275,000.00.