“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)

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