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Appellate Division Complicates the Rules for Municipalities Charging Consultants' Fees
In a case addressing what consulting fees (in particular attorneys' fees) can be charged to an applicant before a Zoning Board of Appeals, the Second Department in Landstein v. Town of LaGrange (– N.Y.S.3d –, 2018 WL 4905436, at 1 (Oct. 10, 2018)) found that the Town had overreached its statutory authority. Petitioner, an amateur radio operator, received an FCC license to operate a ham radio station at his single-family home. He sought a special use permit to allow him to construct a 100-foot ham radio antenna structure (that would be 18 inches by 18 inches wide). As the Town limited the height of "towers" to 35-feet, Petitioner also sought an area variance for the height of his proposed antenna.
As a result of neighbors' concerns that the antenna would be an eyesore and would potentially interfere with cellphone service, Petitioner's application was discussed at approximately 14 Zoning Board meetings. Ultimately, Petitioner agreed to reduce the antenna's height from 100 feet to 70 feet.
The real issues in this case are not the structure or its height, but the fees charged to the Petitioner for the Zoning Board's consulting attorneys and the Town's escrow requirements as the Second Department ruled that since "… the Town did not limit the consulting fees charged to the petitioner to those necessary to the decision-making function of the Town's Planning Board and Zoning Board of Appeals, the Town exceeded its State-granted authority by requiring payment of the consulting fees. Id at 1.
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