Zagoreos v. Conklin
| Decision Date | 01 July 1985 |
| Docket Number | No. 1,No. 4,No. 2,No. 3,1,2,3,4 |
| Citation | 491 N.Y.S.2d 358,109 A.D.2d 281 |
| Parties | In the Matter of Alexander E. ZAGOREOS, et al., Petitioners-Respondents, v. Lucien H. CONKLIN, et al., Respondents, Orange and Rockland Utilities, Inc., Intervenor-Appellant. (Proceeding) In the Matter of Alexander E. ZAGOREOS, et al., Petitioners-Respondents, v. Alfred LINDSELL, et al., Respondents, Orange and Rockland Utilities, Inc., Intervenor-Appellant. (Proceeding) In the Matter of ORANGE AND ROCKLAND UTILITIES, INC., Appellant, v. Lucien H. CONKLIN, et al., Respondents, Alexander E. Zagoreos, et al., Intervenors-Respondents. (Proceeding) In the Matter of ORANGE AND ROCKLAND UTILITIES, INC., Appellant, v. Alfred LINDSELL, et al., Respondents, Alexander E. Zagoreos, et al., Intervenors-Respondents. (Proceeding) |
| Court | New York Supreme Court — Appellate Division |
LeBoeuf, Lamb, Lieby & MacRae, New York City (G.S. Peter Bergen, Kimba M. Wood, Mary Jo Eyster and Molly S. Boast, New York City, of counsel), for appellant and intervenor-appellant Orange and Rockland Utilities, Inc.
Doig, Cornell & Mandel, New City (J. Martin Cornell, New City, of counsel), for petitioners-respondents and intervenors-respondents.
Before LAZER, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.
LAZER, Justice Presiding.
At issue here are the efforts of Orange and Rockland Utilities, Inc. (O & R) to obtain municipal approval for the construction of several structures necessary to effectuate conversion of two oil-burning generating units into coal-burning units at its Lovett Plant in the Town of Stony Point. The proposed conversion was included in the State Energy Master Plan (SEMP) and O & R was successful in obtaining approval of a Final Environmental Impact Statement (FEIS) as well as several necessary permits from the Department of Environmental Conservation (DEC). The validity of the DEC decision was previously before this court and was upheld (Matter of Environmental Defense Fund v. Flacke, 96 A.D.2d 862, 465 N.Y.S.2d 759). The permits issued and the FEIS approval by the DEC envisioned the installation of various pollution control devices, including a 475-foot smokestack, two electrostatic precipitators, ash silos and wastewater treatment facilities.
Because the proposed construction involved the extension of a prior nonconforming use located in a General Flood Plain Zone and would also violate the town zoning ordinance with respect to lot width, lot coverage, minimum side yard, minimum rear yard and height to yard ratio, use and area variances were a prerequisite to any construction by O & R. Furthermore, since the site was larger than one acre, a large scale development permit from the town board was also necessary. As these appeals derive from O & R's inability to obtain and retain the requisite variances and permit, resolution of the issues requires us to examine the always delicate balance between the right of a public utility to modify its operation where necessary to properly serve the public and the power of a locality to regulate such modification. Initially, however, we must determine whether certain proceedings before the Zoning Board of Appeals (ZBA) and the town board were fatally tainted by a conflict of interest arising from the participation in these proceedings of several employees of O & R who were also members of those public bodies.
To briefly summarize a procedural morass of substantial proportions, after the town building inspector denied its request for a building permit, O & R applied to the ZBA for the requisite variances and to the town board for a development permit. On August 5, 1982, the ZBA voted on the variance application despite the fact that its chairman had previously notified O & R that the matter was being removed from the agenda because no recommendation concerning the conversion project had yet been forwarded by the Rockland County Planning Board (see, General Municipal Law § 239-m). Nevertheless, during the ZBA meeting a member of the public told the board members that the county planning board had recommended disapproval that very day and the ZBA acceded to vociferous requests that, although no official representative of O & R was present, it vote on the matter immediately. The vote was four to two in favor of the variance application. Despite this, the measure was deemed defeated because a variance could not be approved over an adverse recommendation by the county planning board unless a majority plus one of the seven-member ZBA voted in favor of it (see, General Municipal Law § 239-m).
Reasoning that the four-to-two vote taken on August 5, 1982 was a nullity because of the lack of notice to O & R, the ZBA decided to reconsider the matter without holding another public hearing. Before any further vote of the ZBA, the county planning board issued a decision recommending rejection of the project; however, upon submission of additional information which the ZBA had originally failed to forward to it, the county planning board reconsidered the matter and then voted three to three on the approval resolution. This tie vote resulted in the county planning board informing the ZBA that it was making no recommendation on the proposal. As a result, the variance application could be approved by a simple majority of four. On September 30, 1982, the ZBA approved the application by a five-to-two vote. Several residents of Stony Point and interested groups (the residents) then commenced an article 78 proceeding (Proceeding No. 2) to challenge the issuance of the variances. Special Term set aside the September 30 vote on the ground that two of the five ZBA members who had voted in favor of O & R's application were employees of O & R and thus the proceeding was tainted by an improper conflict of interest. O & R, which was allowed to intervene in the proceeding, appeals from that judgment.
The ZBA did not appeal, however, and instead reconsidered the application. On July 21, 1983, with the two O & R employees abstaining, the ZBA voted three to one in favor of the application. Since the three favorable votes did not constitute a majority of the seven-person ZBA, the application was defeated. O & R then commenced an article 78 proceeding (Proceeding No. 4) contesting the denial. The residents were permitted to intervene and cross-moved for a judgment declaring the denial to be valid. Special Term denied O & R's request and granted the residents' application for declaratory relief. O & R also appeals from that judgment. Although the ZBA has elected not to file a brief on appeal, the residents have done so.
The application to the town board for a large scale development permit met essentially the same fate. On October 5, 1982, the five-member town board voted three to two in favor of the application, without referring it to the county planning board. One member of the town board who voted in favor of the permit was an O & R employee. The residents then commenced an article 78 proceeding contesting the town board's action (Proceeding No. 1). That decision was nullified by Special Term on the ground of conflict of interest, and O & R, which had been allowed to intervene, appeals from that judgment as well. This time it was the town board that chose to reconsider the application on remittitur rather than appeal. With the O & R employee abstaining, the application was defeated by a two-to-two vote on August 9, 1983. O & R commenced an article 78 proceeding challenging the denial (Proceeding No. 3). Once again, the residents intervened seeking a declaration that the board's action was valid. Special Term denied O & R's request that it nullify the board's determination and instead rendered a judgment declaring the action to be valid. O & R's appeal from this judgment also is before us and is opposed by the residents. The town board has not filed a brief.
At the outset, we note that the ZBA correctly decided that its original August 5, 1982 vote was a nullity. This was so both because O & R had been deprived of an opportunity to appear at that proceeding (see, Town Law § 267; 2 Anderson, New York Zoning Law and Practice [3rd ed.], §§ 25.08, 25.09) and because the ZBA lacked jurisdiction to determine the matter until it had received the written recommendation and statement of reasons from the county planning board or 30 days had passed without a response from that body (see, General Municipal Law § 239-m; Matter of Voelckers v. Guelli, 58 N.Y.2d 170, 175-76, 460 N.Y.S.2d 8, 446 N.E.2d 764; Matter of Asma v. Curcione, 31 A.D.2d 883, 298 N.Y.S.2d 286; Bloom v. Town Bd. of Town of Yorktown, 80 A.D.2d 823, 824-25, 436 N.Y.S.2d 355; 2 Anderson, New York Zoning Law and Practice [3rd ed.], § 19.09, at p. 34). Under the circumstances, it was proper for the ZBA to reconsider the matter without a rehearing such as would have been required had the prior vote been effective (see, Town Law, § 267[6] ). Accordingly, we turn directly to the question of whether the September 30, 1982 determination of the ZBA granting the variances and the October 5, 1982 vote of the town board approving the large scale development permit application were fatally tainted by the fact that in both cases the decisive votes were cast by board members who were also employees of O & R. We conclude that Special Term was correct in setting aside those determinations because of the perceived conflict of interest.
At the September 30, 1982 meeting of the ZBA, the decisive votes in favor of O & R's application were cast by two ZBA members who were employed by O & R as a repairman and a supervisor of rubber goods testing, respectively. Similarly, the determinative vote at the October 5, 1982 town board meeting was cast by an O & R training administrator. O & R correctly contends that these individuals did not act in violation of the specific provisions of General Municipal Law article 18 dealing with conflicts of interest by municipal officers and employees....
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