Posted by: Patricia Salkin | August 5, 2022

NY Appellate Court Finds Zoning Amendment Invalid where Conflicted Town Supervisor Recused Herself from Voting but Continued Attending and Participating at Public Hearings

This post was authored by Amy Lavine, Esq.

A New York appellate court held in February that a zoning amendment that prohibited concrete plants except in the Industrial-Office-Commercial District was improperly adopted and invalid due to the failure of a conflicted town supervisor to recuse herself from the relevant town board meetings.

The supervisor’s conflict arose because she lived in a residential subdivision that was located close to an existing concrete plant and she was also on the board of the homeowners association, which was the petitioner in related litigation seeking to shut the plant down. The homeowners association had sued the concrete plant as well as the town zoning board, which had determined in administrative proceedings that the concrete plant had a valid use variance and could continue operating the facility. The supervisor had acknowledged to the town board that her involvement in this litigation raised a conflict of interst, but despite being conflicted she still attended and participated in meetings regarding the local law and only recused herself from voting on the zoning amendment.

The court found that the supervisor’s involvement in the homeowners association lawsuit was “an interest in the local law which went beyond mere expressions of personal opinion or an interest shared by the majority of property owners in the town.” Considering the circumstances of the case, the court agreed with the lower court’s determination that the supervisor’s “limited recusal was insufficient to remedy the appearance of impropriety which arose from.”

Matter of Titan Concrete, Inc. v Town of Kent, 2022 NY Slip Op 01029 (NY App Div 2d Dept 2/16/22).

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