Landstein v. Town of Lagrange

Decision Date10 October 2018
Docket Number2015–10079,Index No. 1330/15
Citation166 A.D.3d 100,86 N.Y.S.3d 155
Parties In the Matter of Myles LANDSTEIN, Appellant-Respondent, v. TOWN OF LAGRANGE, et al., Respondents-Appellants.
CourtNew York Supreme Court — Appellate Division

Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Jon Holden Adams of counsel), for appellant-respondent.

Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (Ronald Blass, Jr., of counsel), for respondents-appellants.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

OPINION & ORDER

SCHEINKMAN, P.J.

Introduction

The petitioner is an amateur radio hobbyist who applied for a special use permit and an area variance that would allow him to construct a radio antenna structure on his property in the Town of LaGrange. The Town incurred more than $17,000 in legal consulting fees in connection with the applications, and informed the petitioner that he was required to reimburse the Town for these fees before any determination would be made with respect to the applications. The Town subsequently, as "an accommodation to the petitioner," reduced the amount that it was demanding for previously incurred fees to the sum of $5,874, but also required the petitioner to maintain a minimum advance continuing escrow balance of at least $1,000 to cover the Town's future consulting costs in connection with the applications. We hold that, because 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 and, moreover, violated a rule promulgated by the Federal Communications Commission.

Factual and Procedural Background:

The petitioner, Myles Landstein, is the owner of a single-family home located on a 3.5–acre parcel of land in the Town of LaGrange, in Dutchess County. The petitioner also owns an adjacent unimproved 1.6–acre parcel of land. In 2010, the Federal Communications Commission (hereinafter FCC) granted the petitioner a license to operate an amateur radio station, also known as a ham radio station.

On March 11, 2011, the petitioner filed an application with the Town for a special use permit to erect a 100–foot–tall "ham radio antenna structure" on his property for "personal, hobby use." Around the time of the filing of this application, the petitioner paid the Town $250 in connection with it. The application form completed by the petitioner advised applicants that "all review costs are the sole responsibility of the applicant and full payment must be received by the Town prior to receiving final approval. The Planning Board may also, at their discretion, require an escrow account to be funded at the sole expense of the applicant" (emphasis in original). Next to this advisement in the application form, the petitioner wrote: "Please advise in advance Review cost amt."

Because the Town's zoning code limits the height of towers to 35 feet, on February 7, 2012, the petitioner also applied to the Town's Zoning Board of Appeals (hereinafter ZBA) for an area variance allowing the construction of the antenna. In the variance application, the petitioner stated that, in order for his amateur radio communications to "operate effectively," the height of the antenna needed to be more than 35 feet. The application stated that the antenna structure would be 18 inches by 18 inches wide and would be "barely visible above the tree line."

The ZBA received a number of letters from Town residents expressing concern that the antenna would be an eyesore and would interfere with other communications, such as cellular and internet services. Landstein's application was discussed at no less than 14 public ZBA meetings between March 5, 2012, and April 7, 2014. At a meeting on April 7, 2014, the petitioner agreed to modify his application to reduce the height of the proposed antenna from 100 feet to 70 feet.

Meanwhile, in a letter to the petitioner dated April 1, 2012, the Town's Administrator of Public Works wrote: "Based on the recent research and determination by the town's attorney regarding your Ham Radio application, please be advised that $7,000 ... is due immediately in order that the town's consultants may continue with the review of your application." The letter further stated that "[n]o further review by the consultants will be done until these monies are received." In a second letter to the petitioner dated May 25, 2012, the Town's Department of Public Works stated that the petitioner's "account balance is outstanding by $4,403.90" regarding engineering, legal, and consulting fees expended by the Town in connection with the petitioner's applications. The second letter provided a copy of the Town's "accounting record" for the petitioner's "escrow account." The second letter further stated that the $7,000 requested in the first letter was "based on your interests to pursue your application. If you are no longer interested in your application, then the only amount due is the outstanding balance."

In a letter to the Town's Deputy Supervisor dated August 15, 2012, the petitioner's attorney argued that the fees charged were excessive in light of the fact that the cost of the installation of the tower was expected to be substantially less than $1,000. The petitioner's attorney further contended that, in charging the petitioner for these fees, the Town acted in excess of the authority granted to it by the State of New York and in violation of an FCC declaratory ruling known as PRB–1 (see 101 FCC2d 952 ).

At a meeting of the ZBA on January 6, 2014, the chairperson stated that the petitioner had still made only one initial escrow payment in the amount of $250, and that the current outstanding balance owed by the petitioner to the Town for reimbursement of its consulting fees was $15,477.36. The petitioner offered to pay an additional $500, but no more. At a meeting of the ZBA on April 7, 2014, the petitioner made a $500 escrow payment to be used for the sole purpose of hiring a consultant to review the engineering documents that the petitioner had submitted.

On June 11, 2014, the Town Board of the Town of LaGrange (hereinafter the Town Board) passed a resolution providing that "[a]s an accommodation to [the petitioner] under PRB–1, and given the implicit request of [the petitioner], the Town Board will review and audit the reasonableness and necessity of the consultant expenses incurred by the Town in reviewing" the petitioner's applications. The record contains numerous invoices totaling more than $17,000 for services provided to the Town by the law firm of Van DeWater & Van DeWater, LLP (hereinafter the Van DeWater firm) in connection with the petitioner's applications. These invoices included charges for attendance at ZBA meetings, travel time to ZBA meetings, telephone calls with members of the ZBA regarding the petitioner's applications, conferences between attorneys within the firm, drafting ZBA meeting agendas, review of the petitioner's file in anticipation of attendance at ZBA meetings, and legal research.

The November 12, 2014, Determination at Issue in this Proceeding:

On November 12, 2014, the Town Board passed the resolution that is the subject of this proceeding. In a whereas clause, the resolution provided that the Town Board had

"received from the Town's legal counsel a potential method for reducing [the petitioner's] obligation for legal consultant fees, as and for a reasonable accommodation, from the sum of $17,481.11 to the sum of $5,874 through application of the following principles:
"a) only legal services directly devoted to advising or appearing before the Town's agencies would be passed on to the [petitioner];
"b) to the exclusion of such legal services as attorney research regarding PRB–1 and its case law, attorney preparation, attorney consultations with legal counsel for the [petitioner] or for neighbors, attorney efforts to locate experts for the ZBA in the areas of radio frequency transmission and visual impact study; and attorney advice to town departments on the subject other than the ZBA or Planning Board."

Attached to the resolution were copies of invoices sent by the Van DeWater firm to the Town, with the majority of the charges crossed out. Charges that were not crossed out included charges for attendance at ZBA meetings, including travel time, discussions with members of the ZBA regarding meeting agenda, preparation of letters to ZBA members regarding "status and procedures" for ZBA meetings, review of the file in anticipation of attendance at ZBA meetings, meetings between attorneys within the Van DeWater firm regarding who would attend the ZBA meetings, and conference calls with members of the ZBA regarding the petitioner's applications and controlling law.

In its resolution, the Town Board provided:

"As a reasonable accommodation to the [petitioner], the Town Board offers to the [petitioner] a reduction of his responsibility under 240–88 of the Town Code for legal consultant costs incurred by the Town and covering the period through May of 2014 from the sum of $17,481.11 to the reduced sum of $5,874, based on application of the criteria set forth above and as reflected in the modified legal billing statements attached hereto."

The resolution further provided:

"With respect to consultant charges following the billing period of May of 2014, and as a reasonable accommodation to the [petitioner], the Town Board offers to the [petitioner] a reduction of his responsibility under 240–88 of the Town Code for legal consultant costs incurred by the Town consistent with the same criteria."

Finally, the resolution provided:

"This reasonable accommodation is conditioned that future proceedings before town agencies shall not proceed unless (a) the above sum of $5,874 is paid by the [petitioner], and (b) the [petitioner]
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    • 25 Septiembre 2019
    ...process and the City has not presented any explanation for the relatively high application fee"); Landstein v. Town of LaGrange , 166 A.D.3d 100, 109-10, 86 N.Y.S.3d 155 (2d Dep't 2018) (striking down ordinance that defined "necessary" as including "expenses charged by an attorney for servi......
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