Development

Zoning Board Counsel Enjoys Absolute Immunity

Alfano v. Village of Farmingdale

NYLJ 3/18/10, p. 32, col. 3

U.S. Dist. Ct., E.D.N.Y.

(Spatt, J.)

In an action for damages for violating landowners' constitutional rights by denying them a variance, legal counsel to the zoning board of appeals moved to dismiss the complaint against him. The court granted the motion, holding that zoning board's counsel enjoyed absolute immunity from liability.

In 2006, landowners sought to subdivide the parcel on which their home was located in order to build a second home. After they applied for the appropriate permits, the village board enacted a moratorium that prohibited the subdivision, and then amended the village zoning laws in a way that would prohibit construction of the second house. Landowners then applied for a variance from the new zoning laws, but the zoning board of appeals denied the variance. Landowners subsequently brought an action in state supreme court against the zoning board of appeals and its legal counsel, seeking money damages for constitutional violations, negligence, and intentional infliction of emotional distress. Landowners contended that legal counsel wrongfully advised the zoning board of appeals to deny the variance. After the case was removed to federal court, counsel moved to dismiss, asserting immunity from suit.

In granting counsel's motion to dismiss, the court started with the principle that zoning boards of appeal and their members are immune from suit for actions taken in their quasi-judicial capacity. Decisions on variance applications are decisions made in a quasi-judicial capacity, and therefore trigger immunity. The court held that just as legal advisers to courts enjoy the same judicial immunity enjoyed by the judges themselves, legal advisers to zoning boards of appeal should enjoy the same immunity as the board members. The court went on to discuss an alternative holding: Even if counsel were not immune from suit, the only claim landowners could advance against counsel was one for professional negligence ' a claim landowners could not sustain because of the absence of privity between landowners and counsel for the zoning board of appeals. As a result, the court dismissed the complaint against legal counsel.

Town Took Hard Look at Plan's Environmental Impact

Red Wing Properties, Inc. v. Town of Milan

NYLJ 4/6/10, p. 35, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the town's adoption of a comprehensive plan, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the petition, holding that the town had taken the requisite “hard look” at the plan's environmental impact.

In 2007, the town adopted a comprehensive plan recommending that the town eliminate a “floating zone” zoning district that had previously permitted residential or agricultural land to be used for industrial or mining purposes. The town had prepared an environmental assessment form (EAF), and sent it to the Dutchess County Planning Board for review. On the same day the town adopted the plan, it amended the Town Code to eliminate the floating zone district. Landowner operates a sand and gravel mine in the town, and, on the date the plan was adopted, had an application pending to rezone an agricultural parcel into the floating zone, which would have permitted mining use. Landowner brought this article 78 proceeding, challenging the town's environmental review of the plan. Supreme Court granted the petition, holding that the blanket prohibition of mining was overbroad, and that the town could have used less restrictive means to accomplish its objectives. The town appealed.

In reversing, the Appellate Division held that Supreme Court had improperly made a judgment about the substance of the town's action rather than focusing on the sufficiency of the town's environmental review. The court concluded that the town had identified the relevant areas of environmental concern, taken a hard look at them, and provided a “reasoned elaboration” for its conclusion. Moreover, landowner had not established any impropriety in the referral of the amendment to the county planning board. As a result, the court dismissed the petition.

Zoning Board Counsel Enjoys Absolute Immunity

Alfano v. Village of Farmingdale

NYLJ 3/18/10, p. 32, col. 3

U.S. Dist. Ct., E.D.N.Y.

(Spatt, J.)

In an action for damages for violating landowners' constitutional rights by denying them a variance, legal counsel to the zoning board of appeals moved to dismiss the complaint against him. The court granted the motion, holding that zoning board's counsel enjoyed absolute immunity from liability.

In 2006, landowners sought to subdivide the parcel on which their home was located in order to build a second home. After they applied for the appropriate permits, the village board enacted a moratorium that prohibited the subdivision, and then amended the village zoning laws in a way that would prohibit construction of the second house. Landowners then applied for a variance from the new zoning laws, but the zoning board of appeals denied the variance. Landowners subsequently brought an action in state supreme court against the zoning board of appeals and its legal counsel, seeking money damages for constitutional violations, negligence, and intentional infliction of emotional distress. Landowners contended that legal counsel wrongfully advised the zoning board of appeals to deny the variance. After the case was removed to federal court, counsel moved to dismiss, asserting immunity from suit.

In granting counsel's motion to dismiss, the court started with the principle that zoning boards of appeal and their members are immune from suit for actions taken in their quasi-judicial capacity. Decisions on variance applications are decisions made in a quasi-judicial capacity, and therefore trigger immunity. The court held that just as legal advisers to courts enjoy the same judicial immunity enjoyed by the judges themselves, legal advisers to zoning boards of appeal should enjoy the same immunity as the board members. The court went on to discuss an alternative holding: Even if counsel were not immune from suit, the only claim landowners could advance against counsel was one for professional negligence ' a claim landowners could not sustain because of the absence of privity between landowners and counsel for the zoning board of appeals. As a result, the court dismissed the complaint against legal counsel.

Town Took Hard Look at Plan's Environmental Impact

Red Wing Properties, Inc. v. Town of Milan

NYLJ 4/6/10, p. 35, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging the town's adoption of a comprehensive plan, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the petition, holding that the town had taken the requisite “hard look” at the plan's environmental impact.

In 2007, the town adopted a comprehensive plan recommending that the town eliminate a “floating zone” zoning district that had previously permitted residential or agricultural land to be used for industrial or mining purposes. The town had prepared an environmental assessment form (EAF), and sent it to the Dutchess County Planning Board for review. On the same day the town adopted the plan, it amended the Town Code to eliminate the floating zone district. Landowner operates a sand and gravel mine in the town, and, on the date the plan was adopted, had an application pending to rezone an agricultural parcel into the floating zone, which would have permitted mining use. Landowner brought this article 78 proceeding, challenging the town's environmental review of the plan. Supreme Court granted the petition, holding that the blanket prohibition of mining was overbroad, and that the town could have used less restrictive means to accomplish its objectives. The town appealed.

In reversing, the Appellate Division held that Supreme Court had improperly made a judgment about the substance of the town's action rather than focusing on the sufficiency of the town's environmental review. The court concluded that the town had identified the relevant areas of environmental concern, taken a hard look at them, and provided a “reasoned elaboration” for its conclusion. Moreover, landowner had not established any impropriety in the referral of the amendment to the county planning board. As a result, the court dismissed the petition.