Plaintiffs commenced this action seeking enforcement of Town of Rutland Code § 130–48(E)(1)(g) which requires that “the minimum setback distance of a communications tower from all property lines shall be equal to 100% of the height of the communications tower.” Plaintiffs alleged that the size of the parcel owned by defendant was insufficient to permit its 370–foot radio transmission tower to meet the minimum setback distance. Plaintiffs sought injunctive relief enjoining the alleged violation.
The appellate court found that the court below erred in denying the part of defendant’s motion seeking summary judgment dismissing plaintiffs’ claim pursuant to Town Law § 268(2), which permits a town to institute any appropriate action or proceedings to prevent or restrain the violation of its zoning laws. This statute sets forth 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 who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do.” The Plaintiffs admittedly failed to show that the written request contemplated by the statute was made, and thus failed to satisfy a condition precedent to maintaining their claim pursuant to the statute. Because the court found that the written record of their oral request in the minutes of the Town Board meeting did not satisfy the requirement of a written request. The plaintiff’s appeal was dismissed, and the defendant’s motion to dismiss was granted.
Smith v Stephens Media Group-Watertown, LLC, 2015 WL 496796 (NYAD 4 Dept. 2/6/2015)
The opinion can be accessed at: http://leagle.com/decision/In%20NYCO%2020140131493/SMITH%20v.%20STEPHENS%20MEDIA%20GROUP