“Written Request” Not Satisfied By Oral Request Being Recorded in Town Board Meeting Minutes

There are times when the letter of the law overwhelms the spirit of the law, and today’s case is one of those times. Plaintiffs brought an action seeking enforcement of the Town of Rutland Code, which requires “the minimum setback distance of a communications tower from all property lines shall be equal to 100% of the height of the communications tower.” When defendant sought to build a 370-foot radio tower, Plaintiffs brought the current suit alleging the defendant’s property was insufficiently large to support it under the setback requirement. Seems straightforward, doesn’t it? Based on a simple factual determination, the defendant is either clearly in the wrong or clearly in the right. Unfortunately, the court never made that determination due to a procedural quirk.

Under Town Law §268(2), the town may “institute any appropriate action or proceedings” to prevent or restrain the violation of its zoning laws. It further provides that “upon the failure or refusal of the proper local officer, board or body of the town to institute any such appropriate action or proceeding for a period of ten days after written request by a resident taxpayer of the town so to proceed, any three taxpayers of the town residing in the district wherein such violation exists, who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding...”  In the case of the plaintiffs, however, that written notice was never filed. Instead, plaintiffs orally made the request at the town meeting, wherein their words were recorded in the town minutes. The court ruled that this failed to satisfy the requirements and granted defendants summary judgment.

It’s an unfortunate turn for the plaintiffs, as the purpose of the written requirement was likely to give the Board notice and formalize the process, both of which were accomplished by making the request at the Board Meeting. It just goes to show the importance of checking the language of a statute carefully before proceeding, as you never know what unfortunate bit of fine print could ruin an otherwise valid action.

The case is Smith v. Stephens Media Group-Watertown, LLC, 125 A.D.3d 1370 (N. Y. App. Div. 2015)

NY Appellate Court Does Mitzvah and Allows Mikvah

Good news for the Jewish population of the Town of Mamakating, as the Appellate Division, Third Department greenlights construction of a new mikvah. Petitioners had purchased a property used as a day spa with the intent of converting it into a mikvah, a Jewish ritual bath and precursor to a synagogue in observant communities. The Town Building Inspector had approved the use as consistent with the Town Zoning Code definition of a “neighborhood place of worship,” but that determination was overturned by the Town’s Zoning Board of Appeals after it was challenged by respondents Michael Hassler and Beverly Martin. Petitioner then commenced an unsuccessful Article 78 proceeding to annul the ZBA’s decision, before appealing to the Appellate Division.

In deciding that a mikvah was consistent with the requirements of a “neighborhood place of worship”, the court looked to the ordinary meaning of “neighborhood place of worship.” What they found was a relatively broad definition that included any “building or location set aside for any form of religious devotion, ritual, or service showing reverence, especially for a divine being or supernatural power.” What it did not include was the ZBA’s requirement of “communal worship.” The court accordingly overturned the ZBA’s determination and greenlighted the petitioners proposed development plan.

The case was Winterton Properties, LLC v Town of Mamakating Zoning Board of Appeals, 2015 WL 6181319 (NYAD 3 Dept. 10/22/2015)

Winds of Change: Court Reverses on Special Use Permit for Wind Turbines

The construction of wind turbines is often a controversial topic, pitting those seeking cleaner sources of energy against property owners who consider the structures an eyesore. Today’s case is just such a situation, as appellant is challenging a decision by the Town of Richmond Planning Board approving of a special use permit for wind turbines. The Board’s decision, which had been reversed by the lower court, was based on eight conditions enumerated in the land use ordinance, each of which required detailed findings to be made. Only two of findings related to those conditions were being contested and were under the Court’s consideration: (1) ensuring that the size, location, and use of the turbines would not interrupt the orderly development of the district and (2) that the use would not impair property values.

Reviewing the Board’s decision, the Court took note of the impact the turbines would have on the aesthetics of the area as seen from the nearby properties, considering the turbines can be up to 500 feet tall based on the orientation of the blades. Yet as the Board pointed out in its defense, the area already has a large number of high-transmission lines which affect the view, and a study the Board commissioned showed there would be no adverse effects on the owner’s ability to use their properties based on the turbines’ construction. Thus the court held that given the substantial evidence justifying the Board’s decision to grant the special use permit, it would not substitute its judgment for that of the Board, thereby reversing the lower court and upholding the Board’s decision.

The case is Frigault v Town of Richmond Planning Board, 2015 WL 2401337 (NYAD 3 Dept. 2015). The full decision can be found here: http://law.justia.com/cases/new-york/appellate-division-third-department/2015/518840.html


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