Posted by: Patricia Salkin | April 29, 2009

Board May Hire Outside Consultant and Require Applicant to Pay Fee, But Board May Not Succumb to Community Pressure in Application Review

A New York Appellate Court reaffirmed that a Town Board, when reviewing a complex and difficult application, has the discretion to hire an outside consultant and require the applicant to pay the consultant’s fee. The Town Code authorized the action when the Board determines that the “complexity of the activity, the difficulty on determining the threat to the resource areas or the size of the request or project involves or requires more information and analysis than can reasonably be supplied to the Board without independent technical professional assistance.” (See, Town of Southold Code §275-7[d]).

The Court, however, ultimately annulled the determination of the Board since the Board relied on the recommendation of the Local Waterfront Revitalization Coordinator who stated that the application was inconsistent with the local waterfront revitalization plan. The Board had made a previous determination that this staff member was not qualified to perform the required review, and therefore their reliance on his recommendation was misplaced. Further, the Court concluded that rather than relying on the reports of the experts, the Board improperly succumbed to community pressure to deny the application.

Moy v. Board of the Town Trustees of Town of Southold, 2009 WL 1016092 (N.Y.A.D. 2 Dept. 4/14/2009).

The opinion can be accessed at:

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