NY Appellate Court Invalidates Local Law Due to Conflict of Interest

This post was authored by Sebastian Perez of Touro Law Center

In 2016, the Plaintiff was leased commercial property to refurbish and operate as a concrete plant. When the Town’s Zoning Board of Appeals (ZBA) determined that the property owners held a use variance to operate the concrete plant which ran with the land, the ZBA enacted Local Law which limited the manufacturing and production of concrete to the Industrial -Office-Commercial District. The local Law addressed such uses out of the district as a legal nonconforming use that would expire by amortization within two years, unless the ZBA extended the period when an applicant showed it was necessary to recover its investment. Plaintiff’s filed an article 78 to annul Local Law and recover damages for alleged constitutional violations. The Supreme Court granted the petition to invalidate Local Law on the basis that Maureen Fleming (Fleming), the Town Supervisor, did not properly recuse herself from the enactment process of the law. The Town’s appeal follows.

Fleming did not contest a conflict of interest existed and recused herself from voting on the Local Law but remained involved in public hearings, engaged in discussions on the matter, and voted on motions related to the law. The Court noted that a violation of the General Municipal Law is not needed in order for there to be an improper conflict of interest. Instead, the question presented was whether any direct or indirect interest in the project could reasonably be interpreted as potentially benefiting themselves. The Court agreed with the lower court that Fleming’s limited recusal was not enough to cure any impropriety from her participation in public hearings.

The Court held that the Supreme Court properly granted the petition to the extent it sought to invalidate the Local Law based on the conflict of interest.

Titan Concrete v Town of Kent, 2022 WL 468425 (NYAD 2 Dept. 2/16/2022)