Posted by: Patricia Salkin | December 29, 2016

NY Appellate Court Dismisses Claim Alleging Town Board’s Approval of Construction and Operation of Wireless Communications Tower as Moot

Petitioners sought a review of two resolutions of the Town Board of the Town of Kent authorizing the construction and operation of a 150–foot monopole wireless communications tower.  The trial court denied the petition, dismissed the proceeding, and declared that the resolutions are not null and void. The petitioners appealed. The respondent Homeland Towers, LLC  moved to dismiss on the ground that the appeal has been rendered academic by the completion of the tower.

The Court noted that the petitioners never requested a preliminary injunction to prevent the work.  Their claim that they did not do because of monetary constraints was “unavailing under the circumstances of this case.”  The Court found that Homeland “established that the construction of the tower was not performed in bad faith or without authority, that the work could not be readily undone without substantial hardship, and that this appeal does not present any recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise.”   Therefore the Court granted  Homeland’s motion to dismiss the appeal as academic.

Bruenn v. Town Bd. of Town of Kent, 2016 WL 7380923 (NYAD 2 Dept. 12/21/2016)

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