Barr v. City of Syracuse
| Decision Date | 11 December 1978 |
| Citation | 411 N.Y.S.2d 814,97 Misc.2d 453 |
| Parties | Norman L. BARR, Jr., d/b/a Munchy's, Plaintiff, Petitioner, v. The CITY OF SYRACUSE, Defendant, Respondent. |
| Court | New York Supreme Court |
This is an action for declaratory judgment in which the plaintiff challenges the constitutionality of two recently enacted amendments to the Traffic Code of the City of Syracuse. A companion Article 78 proceeding seeking a stay of enforcement was commenced by the plaintiff simultaneously with this action by Order to Show Cause dated October 13, 1978.
After hearing oral argument on October 30, 1978, the Court granted plaintiff a hearing pursuant to CPLR Section 2218 and issued a preliminary injunction pending determination of the action. The hearing commenced on November 20, 1978 and concluded on November 21, 1978.
Because an Article 78 proceeding is an improper vehicle for determination of constitutionality (Matter of Overhill Building Company v. Delaney, 28 N.Y.2d 449, 322 N.Y.S.2d 696, 277 N.E.2d 537; Berenson v. Town of Newcastle, 38 N.Y.2d 102, 378 N.Y.S.2d 672, 341 N.E.2d 236), the Court, while consolidating the underlying papers of the two proceedings, renders its decision as a declaratory judgment.
Plaintiff is the owner of a mobile restaurant that he has operated since May of 1977 under a license certificate issued by the City of Syracuse at an annual fee of $60.00. Approximately fourteen (14) other mobile food vendors currently hold such a license, although plaintiff's is the only mobile restaurant currently operating in the downtown special assessment district. In addition to the vendor's license, plaintiff holds a permit from the Onondaga County Department of Health pursuant to Part 14 of the New York State Sanitary Code.
Plaintiff's mobile restaurant consists of a van equipped with grill, refrigerator, warmers, coffee maker, and various other articles of equipment designed for fast food preparation. Plaintiff estimates that he has invested approximately $50,000.00 in such equipment for his vehicle. Unlike most other mobile food vendors who sell pre-packaged cold sandwiches, donuts and the like, plaintiff offers hot foods, including such items as hamburgers and hot dogs, which are not prepared until ordered by the customer. Even cold dishes such as salads are prepared daily on location to preserve freshness. According to plaintiff, the equipment daily requires an hour of "warm-up" time in the morning before use and an hour of "tear-down" and clean-up time in the afternoon. Although plaintiff's normal working day begins at about 9:00 A.M. and concludes at 5:00 P.M., the lunch hours of 11:00 A.M. through 2:00 P.M. are the busiest and most important part of his business day.
The present dispute is the latest episode in an ongoing controversy which erupted soon after plaintiff commenced business in the Syracuse downtown area over fifteen (15) months ago. Plaintiff originally located his vehicle in a "No Parking" zone on the north side of the 200 block of East Onondaga Street just west of Montgomery Street and adjacent to Columbus Circle. A good number of plaintiff's customers worked in nearby office buildings and would consume his goods in the Columbus Circle area, on the north side of East Onondaga Street.
At the time plaintiff commenced operating his mobile restaurant at Columbus Circle, the section of East Onondaga Street in question was controlled by two traffic signs. The first was located immediately west of the intersection of East Onondaga Street and Montgomery Street and the second was located immediately to the west of a driveway entrance connecting East Onondaga Street and the Cathedral of the Immaculate Conception. Both signs designated this area as a "No Parking" zone. Immediately to the west of the second "No Parking" sign is a series of parking meters.
The intersection of East Onondaga and Montgomery Streets forms a ninety degree turn in which traffic is permitted to flow only in a one-way direction westerly on East Onondaga Street. At its junction with Montgomery Street, East Onondaga Street is twenty-two (22) feet wide for approximately fifty (50) feet until approximately the eastern side of the driveway leading to the Cathedral, at which point the street gradually widens to forty (40) feet.
In early May of 1977, plaintiff daily placed his vehicle between the intersection of East Onondaga and Montgomery Streets near the eastern edge of the driveway leading to the Cathedral in a "No Parking" zone and dispensed his wares. During this period of time, it is alleged that complaints were raised by nearby restaurant owners claiming that the plaintiff was illegally parked and unfairly drawing business from the conventional downtown restaurants. On May 18 and 19, 1977 the City changed the aforementioned "No Parking" signs to "No Standing At Any Time". Thus plaintiff would be in violation of the City Traffic Code if he placed his mobile restaurant in this location.
Later the City agreed to remove the first parking meter immediately west of the Cathedral driveway and in its place create a loading zone. Plaintiff would thus be permitted to locate his mobile restaurant in that area but would be required to move every thirty (30) minutes in order to make the loading zone available for other commercial vehicles that should desire to use it. Subsequently, plaintiff instituted an Article 78 proceeding to have the "No Standing" signs returned to the original designation of "No Parking". Such relief was denied in an unreported decision of Justice Leo F. Hayes dated July 13, 1978 (Matter of Barr v. Storto ). The Court held that it was not an abuse of discretion for the Commissioner of Transportation to decide that public safety and general traffic conditions would dictate that no vehicles would be permitted to stand between the intersection of East Onondaga and Montgomery Streets and the eastern edge of the driveway leading to the Cathedral. The Court further stated that plaintiff's license in no way granted him the right to the continuous use of a particular street area in the City of Syracuse, and that the requirement that plaintiff move from a loading zone every thirty (30) minutes was a fair and reasonable regulation.
In an effort to resolve this continuing conflict, the Common Council of the City of Syracuse in early 1977 began to consider possible solutions. Members of the public, including plaintiff and other downtown restauranteurs, attended a number of open meetings of the Council and expressed their views. The Council directed a study by the Traffic, Transportation, Licenses and Franchise Committee to investigate the proposed possible locations for mobile vendors to park and conduct business at a stationary location within the downtown area.
On July 31, 1978 the Common Council by a vote of 6 to 2 duly adopted General Ordinance No. 29 and General Ordinance No. 30 as amendments to Article XVIII and Article XVI, respectively, of the Traffic Code of the City of Syracuse. Both amendments were to become effective on October 15, 1978.
Ordinance No. 29 prohibits conducting sales from vehicles parked adjacent to parking meters or in any location where parking, stopping or standing is prohibited, or in any area designated as a loading zone, parcel pick-up zone or area designated for use by the handicapped. The Ordinance further prohibits any person from depositing coins to extend parking or standing time in a metered space beyond the maximum time designated. The purpose of the Ordinance as evidenced by the opening "Whereas Clause" is to insure a "turnover" of street metered parking spaces and to guarantee to a greater number of motorists the use of public street parking.
Ordinance No. 30 authorizes the Commissioner of Transportation to designate a mobile vendor stand for retail sales at four (4) locations within the special assessment district: (a) on Jefferson Street between Montgomery and South State Street, (b) on the north side of East Genesee Street between South State and Townsend Streets, (c) on West Washington Street between Clinton and Franklin Streets, (d) on Onondaga between Salina and Clinton Streets. Parking at each location would be limited to one mobile vendor vehicle for a sixty (60) minute period between 10:00 A.M. and 3:00 P.M. If, at the end of sixty (60) minutes, no other mobile vendor requested the stand, the original vendor could remain for an additional sixty (60) minute period, but must thereafter vacate the stand and relocate elsewhere. The Commissioner in selecting the site for the stand on the aforementioned streets would determine that no mobile vendor stand impede the normal flow of vehicular traffic, the use of the adjacent sidewalk by pedestrians or the safe use of the street by emergency vehicles. The Ordinance further prohibited mobile vendor vehicles outside the special assessment district from operating from a fixed location, from remaining in one block for more than sixty (60) minutes, and from remaining in the street in front of or within fifty (50) feet of any premises if the owner, lessee, or tenant thereof objected thereto.
Plaintiff contends that Ordinances 29 and 30 are illegal, unreasonable, oppressive and capricious exercises of the police power, are discriminatory and violative of the Fourteenth Amendment of the United States Constitution, Articles I and IX of the New York State Constitution, Section 20 (subd. 13) of the General City Law and Article Two, Section 10 of the Municipal Home Rule Law.
Plaintiff claims that the Ordinances were not designed to further any legitimate objectives under the City's police powers, but rather were conceived and enacted to protect tax-paying downtown...
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Big Apple Food Vendors' Ass'n v. City of New York
...also Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; Barr v. City of Syracuse, 97 Misc.2d 453, 457, 411 N.Y.S.2d 814; Collis v. Town of Niskayuna, 178 A.D.2d 868, 577 N.Y.S.2d 919). The presumption can only be upset by proof beyond a ......