Posted by: Patricia Salkin | January 20, 2008

Votes of Two Planning Board Members Stand Despite Timing of Appointment and Alleged Conflicts

Former House Speaker Tip O’Neill was known for saying, “all politics is local.”  Nothing can better describe the environment of land use decision making.  In a lengthy dispute over a retail shopping center, leading to four separate lawsuits on various land use and environmental causes of action, the neighbors’ last challenge involved, among other things, the propriety of a lame duck town board appointing two new members to the planning board at the last official meeting before a new legislative body took office.   

The latest lawsuit to challenge the siting of a more than 250,000 square foot planned commercial development of a retail shopping center on  a 35-acre parcel focused on the authority of two planning board members to vote on the project.  Specifically, during the application review phase, and after a town-wide election but before the new town board was seated, the existing Board accepted the resignation of the Town Attorney and at the same December meeting, by a 3-2 vote, appointed her and another individual to the planning board. The next month, when the new Town Board took over with new leadership, they unsuccessfully sought to vacate the appointments of these two new planning board members and to cancel the January planning board meeting.  At the request of the developer-applicants, the trial court issued a temporary restraining order which, among other things, ruled that the January meeting “be conducted as originally scheduled and the Town Planning Board remain comprised of the members thereof prior to the January…meeting [sic: of the Town Board].” The planning board then met and approved the site plan application by 5-1 vote. The current action followed challenging the approval of the application, alleging, among other things, that the votes of the two new planning board members were a nullity because when the Town Board filled those positions in December, the positions had not been legally vacated, and further that the votes should be discounted due to conflict of interest issues or other alleged improprieties.  

The appeals court found no basis to invalidate the votes of the two new board members, noting that since their participation was pursuant to a valid order of the trial court, their votes were cast under the “color of authority” of valid planning board members. Further, the Court concluded that the petitioners had not established that the votes of these two board members should be invalidated due to alleged conflicts of interest and improprieties.  Although both planning board members had previously expressed favorable views with respect to retail development in Town, this did not amount to a conflict of interest. The Court commented that there was nothing in the record that clearly demonstrates that either board member had a financial or other proprietary interest in the project.  After reviewing the environmental claims of the petitioners and requests for attorney fees from the two board members, the Court upheld the Board’s approval.   

Eadie v. Town Board of the Town of North Greenbush, 2007 WL 4661300 (A.D. 3rd Dept. 1/10/2008). 

The opinion can also be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/501670.pdf


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