Agenda - Planning Commission - 06/06/1995

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Page 8 -- May 15, 199~5 Z.B. revoked, however, if problems arose. The franchise ordinance required those who put phones on public property to sign a franchise agreement with the city. The ordinance also allowed the city to order removal of payphones. The Independent Coin Payphone Association Inc. sued the city. It alleged the city used the ordinances to raise tax revenues. According to the association, the city denied requests for zoning exceptions to put phones on private property, and then granted franchises for phone installation at nearby public locations. The association claimed the city left illegal phones on private prop- erty if franchisees owned them, while removing phones other providers owned. The city asked, the court to dismiss the claims. DECISION: Granted in part. The association had some viable claims that had to go to trial, but other claims were dismissed. If proven, the association's charge that the city deliberately discriminated against non-franchisee providers would support a claim that the non-franchi- see providers had been denied equal protection. Likewise, the association's arguments -- that the ordinances were irrational because they had no deter- rent effect on crime, and that applying the ordinances amounted to a taking of property without compensation -- could not be resolved without a trial. By contrast, the association failed to identify any free speech violations. Controlling the location of payphones was not the same as controlling the con- tent of speech,-Because the franchise ordinance was a state tax, the federal court did not .have authority to rule on a claim that 'the ordinance imposed an illegal tax. Zoning Agreement -- Tenants Seek to Enforce Industrial Park Owner's Agreement With :Village Cornerstone Metrofit Corp. v. Rusciano & Son Cor. p., 618 N.Y.&2d 428 (New York).1994 In 1953, a lawsuit between the village of Pelham Manor, N.Y., and Rusciano & Son Corp., the owner of an industrial park there, resulted in a zoning agree- ment giving the park's future owners and tenants the right to use part of the site that had been set aside for setbacks, roadways, and parking. In 1994, the owners and tenants of a building in the park sued the company. They asked the court for a declaration stating that they could use the common parking area behind their building for a rear-yard setback. The company had built a fence to prevent this type of use. DECISION: Judgment for the owners and tenants. The 1953 zoning agreement entitled the tenants to use the common parking area behind their building for a rear-yard setback. The company could not pre- vent this use by any means, including the construction of a fence. 6-8 Pelham Parkway Corp. v. t~uscia~o & Son Corp., 565 N.Y.S. 2d 843.