Posted by: Patricia Salkin | February 28, 2017

NY Appellate Court Finds Counterclaim Alleging “Official Misconduct” by the Planning Board Should Have Been Dismissed

The Vaillancourts applied to plaintiff’s Planning Board for a special use permit to allow them to construct a two-unit residential structure on their property, which included a garage to store equipment used for defendants’ business entity, Sootbusters, LLC.  The Vaillancourts also requested to use the building for commercial storage and to conduct some business. The Zoning Board of Appeals approved a use variance “as applied for.” The Vaillancourts then sought to amend the existing special use permit to add four additional apartment units. The Planning Board granted the application with the conditions that no more than four commercial vehicles could be stored, parked or garaged on the property, and that defendants could not store or park construction equipment or trailers on the property. In June 2014, the Vaillancourts installed two 500 gallon fuel tanks for their commercial vehicles and equipment. In response, plaintiff’s Code Enforcement Officer served a notice of violation directing the Vaillancourts to remove the fuel tanks and construction equipment.

The Vaillancourts failed to comply or to appeal the notice of violation, and plaintiff commenced this action seeking a restraining order and a fine. Plaintiff moved to dismiss the Vaillancourts’ counterclaim, and the Vaillancourts cross-moved for permission to file a late notice of claim. The trial court denied plaintiff’s motion and granted defendants’ cross motion, and plaintiff appealed.

Upon review of the record, the court determined that Michael Vaillancourt was present at the 2013 hearing when the conditions were discussed and approved, defendants did not allege that they relied on any misrepresentation, and defendants never appealed the Planning Board’s 2013 determination. Thus, in the absence of any facts supporting defendants’ bare allegation of fraud, the court held that trial court should have granted plaintiff’s motion to dismiss this counterclaim. Additionally, the court found that Supreme Court should have dismissed defendants’ counterclaim to the extent that it alleged “official misconduct” based on the Planning Board’s 2013 determination. Here, the record indicated that defendants never had a permit to allow them to park more than four commercial vehicles on the property or to install fuel tanks to use in association with their commercial operations. Nor did they allege that they had a vested property interest in such a special use permit. Even accepting as true that one Planning Board member stated that he wanted to “make an example” of defendants, defendants did not allege that this motivation resulted from an official municipal policy or custom.

Town of Tupper Lake v. Sootbusters, LLC, 2017 WL 702989 (NYAD 2 Dept 2/23/017)

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