Posted by: Patricia Salkin | January 15, 2010

Protest Petition Valid When Only One Spouse Signs and Property is Held as Tenants by Entirety

Typically, a zoning amendment requires only a majority vote of the legislative body in New York unless a protest petition is filed, signed by owners of 20% of the property in the subject area, in which case the board must approve of zoning changes by a three-fourths majority. 

Where a wind energy company sought to construct a facility in the Town of Lyme, the planning board drafted a proposed local law to amend the zoning ordinance to regulate wind energy facilities.  A number of residents, including the petitioners, were opposed to the proposed local law based on a belief that it required excessive setback requirements and would make it difficult to site the wind facilities. The residents opposed to the proposed new law signed a protest petition.  The Town determined that the property included in the proposed law consisted of 35,920 acres and that 20% of the total area would be 7,184 acres. The Town further determined that the petition included valid signatures covering 5,301.61 acres, and invalid signatures for an additional 4,308.56 acres.  The Town based their determination of invalid signatures on the fact that the land for the 4,308.56 acres was held by husband and wife as tenants by the entirety, and as such, signatures of both property owners were required, and here, only one spouse signed the petition. The town board then voted to approve the new law by a 3-2 simple majority vote.

In a case of first impression to interpret the word “owners” in Town Law 265(1)(a), specifically as to whether it requires both signatures or just one where the land is held as tenants by the entirety, the New York appellate court held that one signature is all that is required.  Citing to a prior holding that held that only one signature was required where the assessment rolls listed just one name, although noting that in this case, the assessment rolls listed both names, the Court found the reasoning in Reister v Town Bd. of Town of Fleming, 18 N.Y.2d 92, 94 persuasive, as well as opinions from the Attorney General (e.g., see 1987 Op Atty Gen No. 87-85 – “Because a joint tenant has a full, undivided interest in the property, a vote for a challenge…would count for the entire parcel of land and not some fraction based on the number of joint tenants.”) Since the court held it was sufficient for only one spouse to sign the protest petition, it affirmed the holding below validating the petition and invalidating the local law.   

Gosier v. Aubertine, 2009 WL 5128540 (N.Y.A.D. 4 Dept. 12/30/2009).

The opinion can be accessed at: http://www.courts.state.ny.us/ad4/Court/Decisions/2009/12-30-09/PDF/1659.pdf


Responses

  1. What a shame! There is no doubt that many couples are divided over wind energy, and many are tenants in kind. So the form of petition potentially spurs a personally and even legally contentious situation. If my spouse signed such a petition without my consent (although we own the property jointly, not as tenants in kind), it would be problematic.

    The land use potential and implied value (cases exist showing real value loss, although wind developers do their best to cover these up) within a mile of wind energy facilities may be compromised. Luckily, tenants in ownership kind is less common than it used to be.

    The entire concept of allowing energy facilities which fail to offer a replacement for reliable electricity generation to encroach on established conflicting uses with animated mechanism at altitude, using unprecedented percentages of their revenue from taxpayer support (including from taxes paid by land owners damaged by the encroachment), is an unfathomable travesty. If the delivered KWH were of equal monetary and technical value to dispatchable generation, that would be different. But they are not. Visit http://www.energypresentation.info to learn more.


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