Landstein v Town of LaGrange

[*1] Landstein v Town of LaGrange 2015 NY Slip Op 51260(U) Decided on August 21, 2015 Supreme Court, Orange County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 21, 2015
Supreme Court, Orange County

Myles Landstein, Petitioner,

against

Town of LaGrange, PLANNING BOARD OF THE TOWN OF LAGRANGE, ZONING BOARD OF THE TOWN OF LAGRANGE, ZONING AND BUILDING ADMINISTRATOR OF THE TOWN OF LAGRANGE AND DIRECTOR OF PUBLIC WORKS OF THE TOWN OF LAGRANGE, Respondents.



1330/2015



JON HOLDEN ADAMS, ESQ.

CORBALLY, GARTLAND & RAPPLEYEA, LLP

Attorneys for Petitioner

35 Market Street

Poughkeepsie, New York 12601

RONALD C. BLASS, JR., ESQ.

VAN DEWATER & VAN DEWATER, LLP

Attorneys for Respondents

85 Civic Center Plaza, Suite 101

P.O. Box 112

Poughkeepsie, New York 12602
James D. Pagones, J.

Petitioner seeks a judgment, pursuant to CPLR §7806, as follows: (1) annulling the determination of the respondent Town dated November 12, 2014; (2) directing respondents to issue a permit or in the alternative directing the Town to process and [*2]complete the application of the petitioner to permit him to construct a Seventy (70) foot tower consistent with the plans previously submitted; and, (3) awarding petitioner attorney's fees. Respondents move for an order, pursuant to CPLR 3211(a)(7), CPLR 3211(c) and CPLR 7804(e) and (f), dismissing the verified petition.

The following papers were read:

Notice of Petition-Verified Petition-Exhibits A-I1-11

Memorandum of Law12

Notice of Motion-Affidavit of Service13-14

Affidavit-Exhibit A15-16

Memorandum of Law-Exhibits A-C17-20

Affidavit21

Answering Affirmation22

Answering Affidavit23

Answering Brief24

Affidavit of Hand Delivery25

Reply Affidavit-Exhibits A-B26-28

Reply Memorandum of Law-Affidavit of Service29-30

Certified Record Volume I31

Certified Record Volume II32

Certified Record of Proceedings33

Upon the foregoing papers, the petition and motion are decided as follows:

"Undeniable tension exists between amateur radio operators' interests in erecting a radio antenna high enough to ensure successful communications, and local municipalities' interests in regulating the size and placement of amateur radio antennas" (Palmer v. City of Saratoga Springs, 180 F. Supp2d 379 [NDNY, 2001]).

By way of background, petitioner is the owner of single family residence located at 16 Velie Road, LaGrange, New York. Petitioner is an FCC-licensee in the Amateur Radio Service. On or about March of 2011, petitioner verbally applied to the zoning administrator of the Town of LaGrange for a land use permit to construct a One Hundred (100) foot lattice antenna support structure to support various antennas necessary to facilitate transmission and reception of amateur radio signals. Petitioner alleges that the approximate cost of this structure would be less than One Thousand Dollars ($1,000.00). On March 11, 2011, petitioner submitted a written application to the planning board for site plan approval and a special use permit for the location of a 100 foot support structure for antenna. On the application, petitioner requested that no expenses be incurred by the Planning Board without prior notice and consent. During the course of [*3]that proceeding, an issue arose as to whether the height requested was permitted, and the Planning Board asked petitioner to obtain an interpretation by the town's zoning administrator, who found such use to require an area variance. On February 7, 2012, petitioner applied to the zoning board of appeals for an area variance for height. On April 1, 2012, the town demanded an escrow fee of Seven Thousand Dollars ($7,000.00). On April 2, 2012, the zoning administrator determined that an amateur radio antenna was not a customary use for a residential dwelling and that a variance would have to be obtained. On August 12, 2012, petitioner, through counsel, advised the town, in writing, that the request for escrow was unreasonable. Petitioner alleges, that notwithstanding the request of the petitioner, the town board permitted its counsel "to engage in unfettered billing for this application, with invoices totaling $18,735.11 being submitted from April, 2012 through April, 2014." Petitioner subsequently appeared before the town's zoning board of appeals, expressing his opinion that the demand for escrow was excessive; amounting to a prohibition not a reasonable accommodation. Petitioner alleges that the zoning board continued to process his appeal notwithstanding the failure to submit the escrow demanded. After meeting with his neighbors, petitioner agreed to reduce the height of the proposed antenna to seventy (70) feet in height. Subsequent to this, the zoning board raised the issue of the resolution of the outstanding balance of professional fees incurred by the town. Petitioner states that the zoning board of appeals ultimately suspended its hearings when a controversy arose over the payment by the petitioner of the fees alleged to be required by the town's code. On June 25, 2014, the town board and the petitioner reviewed the issue of payment of fees. On November 21, 2014, the town board adopted a resolution requiring that the petitioner pay into an escrow account the sum of Five Thousand Seven Hundred Eighty-Four Dollars ($5,784.00). Petitioner believes this amount to be a voluntary reduction by the town attorney of his fees. The town further required that the petitioner maintain a One Thousand Dollar ($1,000.00) balance in an escrow account at all times, presumably to pay incurred legal fees.

Petitioner maintains that a real and justifiable controversy exists because his land use application cannot be processed and approved with payment of fees which he deems to be excessive, a prohibition and a failure to provide reasonable accommodation.

The simple question posed to this Court is: Can the town require the petitioner herein to pay "reasonable and necessary" attorney's fees incurred in conjunction with his application?

Section 240-88 of the Town Of LaGrange Code states:

"A.Where the Town Board, Planning Board or the Zoning Board of Appeals uses the services of private engineers, attorneys or other consultants for purposes of engineering, scientific land use planning, environmental or legal reviews of the adequacy or substantive details of applications, or issues raised during the course of review of such applications, for special permit approvals under Articles VII and VIII of this chapter, site plan approvals under Article VII of this chapter, subdivision approvals under Chapter 203, Subdivision of Land, of the Town Code, use or area variances under Article IX of this chapter, applications for rezoning of parcels to accommodate site-specific land development proposals or otherwise, applications for permits to extract topsoil or natural resources under Articles III and VI of this chapter, or for any other or ancillary land use or development permits or approvals required under the Town Code, as well as to assist in assuring or enforcing an applicant's compliance with the terms and conditions of all the aforementioned administrative and legislative permits or approvals, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs of such services. In no event shall that responsibility be greater than the actual cost to the Town of such engineering, legal or other consulting services.

B.

The Town Board, Planning Board, or Zoning Board of Appeals, through or with the assistance of Town planning staff, may require advance periodic monetary deposits, to be held on account of the applicant or landowner by the Town of LaGrange to secure the reimbursement of the Town's consultant expenses. When an initial deposit is required upon the filing of the application, that deposit shall not exceed 50% of the average cost of such services for applications of similar type, size and complexity based upon the Town's experience over the preceding period of three years. The Town may make payments from the deposited funds for engineering, legal or consulting services, after audit and approval by the Town Board of itemized vouchers for such services. The Town shall supply copies of such vouchers to the applicant and/or landowner, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultants. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Town to pay current or anticipated vouchers, the Town shall cause the applicant or landowner to [*4]deposit additional sums to meet such expenses or anticipated expenses.

C.

The Town Board shall review and audit all vouchers and shall approve payment only of such engineering, legal and consulting expenses as are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of applications for land use or development approvals or for the monitoring, inspection or enforcement of permits or approvals or the conditions attached thereto. For the purpose of this review and audit, a fee shall be "reasonable in amount" if it bears a reasonable relationship to the average charge by engineers, attorneys or other consultants to the Town for services performed in connection with similar applications, and in this regard, the Town Board may take into consideration the complexity, both legal and physical, of the project proposed, including the size, type, and number of buildings to be constructed, the amount of time to complete the project, the topography of the land on which such project is located, soil conditions, surface water, drainage conditions, the nature and extent of highways, drainage facilities, utilities or parks to be constructed and special conditions or considerations as the Town Board may deem relevant. A fee or part thereof is "necessarily incurred" if it was charged by the engineer, attorney, or consultant for a service that was rendered in order to protect or promote the health, safety, or other vital interests of the residents of the Town; protect public or private property from damage from uncontrolled surface water runoff and other environmental factors; assure the proper and timely construction of highways, drainage facilities, utilities and parks; protect the legal interests of the Town, including receipt by the Town of good and proper title to dedicated highways and other facilities, the correction of defects arising during any postdedication maintenance period and the avoidance of claims and liability and such other interests as the Town Board may deem relevant."

The power of a town to charge "some amount" associated with the consideration of a land-use application is permissible (see Twin Lakes Dev. Corp. v. Town Of Monroe, 1 NY3d 98 [2003]). However, the fees charged must be reasonably necessary to the accomplishment of the towns regulatory and proprietary functions (see Suffolk County Bldrs. Assn. v. County of Suffolk, 46 NY2d 613 [1979]; Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 NY2d 158 [1976] reargument [*5]denied by 40 NY2d 846).

As stated above, on November 12, 2014, the town board completed its internal review and audit of the accrued legal expenses. Respondents allege that after "applying overarching federal principles of reasonable accommodation' of ham radio licensees, the Town Board offered an itemized and documented reduction of the Town's invoiced legal cost by over 300%, from $17,481 to $5,874 covering the billing period through May of 2014."

Although, Federal Law, specifically PRB-1 [FN1] , clearly requires a city or town to accommodate amateur radio communications, an amateur radio operator clearly has no right to build any antenna he or she chooses (see Palmer v. City of Saratoga Springs, 180 F. Supp2d 379 [NDNY, 2001]). PRB-1 has a reasonable accommodation standard which requires a municipality to: (1) consider the application; (32) make factual findings; and, (3) attempt to negotiate a satisfactory compromise with the applicant (id.). The Court finds there exists no full federal preemption of local zoning regulations applied to ham radio communications, including regulations pertaining to the defrayment of municipal review costs in the State of New York (cf. Palmer v. City of Saratoga Springs, 180 F. Supp2d 379 [NDNY, 2001]).

The petitioner's application which is pending before the zoning board of appeals has not yet been ruled on; rather, the process was placed on hold until the issue of the payment of legal fees was resolved. The record before the Court pertaining solely to the issue of legal fees associated with the petitioner's application indicates that respondents attempted to reasonably accommodate the petitioner herein. The Court would note that over the nearly four year application process, as detailed above, petitioner was provided copies of invoices, numerous meetings were held, he was provided an opportunity to be heard concerning the invoices, the town board audited the invoices and ultimately reduced the legal fees sought by over two-thirds. Accordingly, this Court finds that the amount of Five Thousand Eight Hundred Seventy-Four Dollars ($5,874.00) covering the billing period through May of 2014 to be reasonable in nature (see generally Twin Lakes Dev. Corp. v. Town Of Monroe, 1 NY3d 98 [2003]).

Based upon the foregoing, the branch of the petition seeking [*6]to annul the determination of the town dated November 12, 2014 is denied. Petitioner is directed to submit payment in the amount of Five Thousand Eight Hundred Seventy-Four Dollars ($5,874.00), representing accrued billing up until May, 2014, to the respondent Town Of LaGrange within forty-five (45) days hereof. Petitioner is further directed to deposit the amount of One Thousand Dollars ($1,000.00) for future legal costs associated with this application. The petition is granted to the extent that, upon payment of arrears and the deposit of the escrow amount, the respondents are directed to proceed upon the petitioner's modified application concerning a Seventy (70) foot tower at his location. The branch of the petition seeking attorneys' fees is denied. The respondents' motion is denied as academic.

The foregoing constitutes the decision, order and judgment

of the Court.

Dated:August 21, 2015

Poughkeepsie, New York

ENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.

Footnotes

Footnote 1:"On September 19, 1985, the FCC issued In re Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952, 50 Fed.Reg. 38, 813 (1985) (codified at 47 CFR § 97.15(e) (2000)). For convenience, the Court refers to this ruling as PRB—1" (Palmer v. City of Saratoga Springs, 180 F. Supp2d 379 [NDNY, 2001]).