Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
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.
While the antenna's cost was estimated to be less than $1,000, the Town's consulting attorneys, who represented the Zoning Board of Appeals on the matter, submitted invoices totaling more than $17,000. Petitioner objected to the invoices. Ultimately, the Town Board issued a determination reducing Petitioner's obligation to pay only $5,784. As part of that determination, the Town Board also required that Petitioner deposit an additional $1,000 in escrow, to be replenished as it was used up, to cover further invoices related to the application. This action challenged the Town Board's determination.
In reviewing the claims, the Second Department cited the leading case on this issue, Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158 (2009), and concluded that the Town had failed to follow the standards established by the Court of Appeals. The court explained that "[t]he Court of Appeals held that, although Village Law §7–712(1) provided villages with the implied delegation of power to enact fees necessary to carry out the functions of ZBAs, the 'open-ended, indeed unlimited, nature of the fees" authorized by the Village ordinance "makes the ordinance vulnerable to attack on the ground that it overreaches the State statute's implied grant of power to the village'" Id. at 4, quoting, Jewish Reconstructionist Synagogue at 163. "The Court of Appeals stated that 'when the power to enact fees is to be implied,' there must be a limitation on this power in that the 'fees charged must be reasonably necessary to the accomplishment of the statutory command." Id.
The court then went on to determine that there was no reasonable basis for fixing the fees in the instant case and that the Town's ordinance had failed to establish a method for determining whether the fees were reasonable, based upon what might be charged for such services and what was needed by the boards as opposed to what may be convenient. The court ruled that the ordinance's language speaking to the need "to assist" the boards was too vague.
Further, the court held that the Town Board's requirement that Petitioner place $1,000 in escrow, to be replenished as charges are incurred, was likewise improper. The court compared the holding Twin Lakes Dev. Corp. v. Town of Monroe, 1 N.Y.3d 98 (2005), in which the Court of Appeals found that requiring escrow by an applicant was permissible because "the record established that the Planning Board audited vouchers submitted by consultants in the first instance and rejected any excessive or unnecessary charge, and where the plaintiff did not request an audit of the fees or allege that the fees were unreasonable." Id.
In contrast, in the instant case, the court found a lack of safeguards to ensure the escrow funds were being properly utilized: "[t]he escrow direction made by the Town would permit unfettered spending by consultants without regard to the nature of the application and the burden placed upon the applicant, the necessity for consultants in the first instance, and the reasonableness of consultant charges in the light of comparable charges for similar services in connection with similar applications." Id. While not the focus of this article, the court also ruled that the fees charged violated the FCC regulations.
|If taken broadly, it would seem that the Second Department is proposing that there be some analysis performed by the municipality as to not only what is charged by the municipality as a rate for consultants, but what tasks are charged back by other municipalities with regard to specific applications. This would appear to mean not only that if the attorneys' fees generally charged in a county for review by a municipal consulting attorney are $200 per hour that a particular town may not charge $500 per hour, but that the municipality must also analyze the specific task to be performed for each aspect of a specific land use application. Therefore, the implication is that before charging more for a 20-lot subdivision than a 2-lot subdivision, the municipality must analyze what tasks go into consulting on each type of subdivision and what other municipalities deem appropriate "assistance" in each case.
This appears to be an unwieldy and impractical approach. A 2-lot subdivision could have restrictive covenants, wetlands, no road frontage and steep slopes, while a 20-lot subdivision could be flat, have road access and no other significant issues. How does a municipality determine in advance what assistance it will need for a specific application? Until all of the variables are analyzed, and as every application is different, how can a municipality appropriately undertake an analysis of "… data or experience derived by this or comparable municipalities in similar cases …."? It is clear that a municipality cannot give its consultants free rein to charge whatever they like. Further, a municipality must have a process for both reviewing its consultants' fees and permitting an applicant to challenge fees that appear unreasonable. Yet, perhaps here the old saying applies that "bad facts make bad law." Surely charging in excess of $17,000 to provide legal assistance to review a ham radio antenna does raise issues, we are just not sure that analyzing data or experiences from unrelated applications, done in advance of hearing the actual land use application, is the solution. The cure may be worse than the disease.
*****
Steven M. Silverberg and Katherine Zalantis are the founding members of Silverberg Zalantis LLP. They concentrate their practice in areas of municipal, land use law and related litigation. Steve is also a member of this newsletter's Board of Editors and blogs on related topics at http://blog.szlawfirm.net/.
|ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
What Law Firms Need to Know Before Trusting AI Systems with Confidential Information In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.
Most of the federal circuit courts that have addressed what qualifies either as a "compilation" or as a single creative work apply an "independent economic value" analysis that looks at the market worth of the single creation as of the time when an infringement occurs. But in a recent ruling of first impression, the Fifth Circuit rejected the "independent economic value" test in determining which individual sound recordings are eligible for their own statutory awards and which are part of compilation.
Practical strategies to explore doing business with friends and social contacts in a way that respects relationships and maximizes opportunities.
Regardless of how a company proceeds with identifying AI governance challenges, and folds appropriate mitigation solution into a risk management framework, it is critical to begin with an AI governance program.
As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.