Posted tagged ‘unconstitutional’


April 19, 2012

The United States District Court in Syracuse has issued a preliminary injunction against Oswego County to prohibit it from enforcing the 2011 Flow Control Law against JWJ Industries, Inc. and Jeff Holbook.

The Court found that JWJ was likely to win its claim that Oswego County’s 2011 Flow Control Law was unconstitutionally vague and, if enforced, would put JWJ out of business, favor one of its competitors and result in an unconstitutional taking without just compensation.

This decision means a transfer station in the county will not be subject to the county’s waste disposal monopoly until the lawsuit concludes, and will help a small private company stay in business.

The Court’s decision stops enforcement of a law adopted by the County on December 15, 2011, before plaintiffs had an opportunity to view it.  The law was to become effective on January 1, 2012.  Not until December 27, 2011, at 3:26 p.m. was the law sent to JWJ’s attorneys.  The Court expressed disapproval of how the County handled the 2011 amendment:

Upon finding the 2008 flow control law unconstitutionally vague, the Court ordered the County to revisit its flow control law and clarify the language, to allow plaintiffs and potential similarly situated parties to know exactly what was expected and required of them to conform to the waste management laws of the County.   The Court, perhaps too optimistically, expected the parties to confer in good faith to reach a consensus and arrive at a law that would be clear, unambiguous and would avoid the need to reopen this case.   That did not happen.

For the past sixteen (16) years, Jeffrey Holbrook has operated the JWJ Transfer Station in Oswego County under a permit from the New York State Department of Environmental Conservation (“DEC”).  The JWJ Transfer Station accepts construction and demolition waste that is generated both in and out of Oswego County pursuant to the DEC Permit.

This is the U.S. District Court’s second recent decision regarding Oswego County’s laws that seek to restrict businesses in Oswego County who are involved in the transport and processing of construction and demolition debris.  The first of these “Flow Control” laws was enacted on October 13, 2008

In a previous decision made on June 13, 2011 regarding the 2008 “Flow Control” provisions, the district court granted plaintiffs’ motion for judgment on the pleadings and struck the law as unconstitutionally vague.

The Court found that “Scrutiny of the letters and directives from the County and its director of solid waste reveals that not only does the Flow Control Law in question authorize and encourage arbitrary and discriminatory enforcement, such arbitrary enforcement is manifest here.”  It concluded that “the inadequately drafted Oswego County Flow Control Law is unconstitutional for vagueness as written.  The Court also finds that the Flow Control Law is unconstitutional as applied to JWJ, and foreseeably to any other entity that would deem to own and operate a waste management facility in the County, however unlikely this scenario might be under the County’s existing waste management penumbra.”

Jeff Holbrook, JWJ’s owner and a resident of Oswego County for 48 years, is pleased with the recent decision.  JWJ and Holbrook are represented by Mindy Zoghlin, a partner in Bansbach Zoghlin P.C. in Rochester.


Zoning Out Fast Food Restaurants

January 4, 2012

Towns typically use zoning laws to ensure that their communities develop in well-thought –out and perhaps even sustainable ways. Like uses are grouped together.  Buffers are placed between high density and low density uses.  Space is set aside for recreation, industry, natural resource extraction.  Uses that trigger special concerns, like adult book stores, are kept a minimum distance away from schools.

So how does fast food zoning fit into all this?  The Ontario County Supreme Court addressed this issue in Mead Square Commons LLC v. Village of Victor.  Mead Square Commons  bought commercial property on Main Street in the historic Village of Victor and proposed to replace the existing building with  a mixed use building featuring commercial uses downstairs and upscale residential upstairs.   One of the proposed downstairs tenants was a Subway restaurant.

The Village Zoning Code prohibits “Formula Fast Food Restaurants” in the Central Business District.  It defines a Formula Fast Food Restaurant as “any establishment, required by contract, franchise or other arrangements, to offer two or more of the following:

[i] Standardized menus, ingredients, food preparation and/or uniforms.

[ii] Prepared food in ready to consume state.

[iii] Food sold over the counter in disposable containers and wrappers.

[iv] Food selected from a limited menu.

[v] Food sold for immediate consumption on or off premises.

[vi] Where customer pays before eating.”

Mead Square Commons challenged the “Fast Food Ban” as illegal and unconstitutional under New York state law and the United States Constitution. Ontario County Supreme Court disagreed.

The Court first noted that the Fast Food Ban was a Village law entitled to a presumption of constitutionality. The Court did not articulate what compelling public purpose it advanced.   Reading between the lines, it appears the Court agreed with the Village’s claim that §170-13 had a legitimate purpose “to maintain the unique village character and vitality of the commercial district.”   However, the Court did not connect the dots as to how an absolute Fast Food Ban advanced this purpose. Many communities address this concern through the site plan review process.

The Court disagreed with Mead’s argument that the Fast Food Ban illegally zoned based on property ownership, not use because it found that the Fast Food Ban treated all Fast Food owners the same and was based on “neutral planning and zoning principles.”

Finally, the Court rejected Mead’s claim that the Fast Food Ban was an invalid over-regulation of business operation detail because such restaurants were prohibited, not micro-managed.