Agenda - Planning Commission - 01/07/1997

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Page 2 -- December 1996 Z.B, Board m Applicant claims board's majority vote was failure to act Aloya v. Planning Board of Town of Stony Point, 646 N.Z&2d 375 (New York) ]996 Aloya wanted to develop a subdivision in the town of Stony Point, N.Y. The town was located within Rockland County. The county Planning Board recommended that the town Planning Board disapProve Aloya's application for final subdivision plat approval. Under state law, a town board had to "take action" on a final subdivision plat within 62 days after the public hearing on the application. If the town board didn't take any action, the final plat would be considered approved. A town board with three or more members had to take action through a majority of its members. To reverse a county board's recommended disapproval of an application, a majority plus one of the town board had to vote to approve it. After the town board's public hearing, four of its seven members voted to approve Aloya's proposed plat. Because that vote was a majority -- and not a majority-plus-one -- the town board treated the application as "turned down." Aloya asked a court to review the town board's decision. He said the town board's vote was really a failure to take action. Following that argument, Aloya claimed the town board didn't take action within 62 days of the public hearing, so his plat should be considered approved. The court dismissed Aloya's case. Aloya appealed. DECISION: Affirmed. The lower court properly dismissed Aloya's case. Because four members concurred on the resolution, the town board legally and validly did "take action." However, it did not have five votes in favor of Aloya's application, so it could not override the county board's recommended disapproval. Matter of D. E.P. Resources v. Planning Board of Village of Monroe, N.Y.S. 2d 954. Matter of Squicciarini v. Planning Board of Town of Chester, 367 N. Y.S. 2d 845. Adult Entertainment Video store says new ordinance denudes it of free speech rights T & D V~deo Inc. v. City of Revere, 670 N. E. 2d162 (Massachusetts)1996 T & D Video Inc. leased property in the city of Revere, Mass., for an adult video store. At the time, the city had at least three other video stores that were within 1,000 feet of residential areas and that offered adult films. The day after the company began interior construction, it applied for a city business certificate. Although the company was told it couldn't have a certifi- cate without an affidavit that stated it would not sell adult material, the city issued one after the company refused to sign the affidavit. That same day, the city building inspector got a stop-work order issued. Two days later, the city's mayor pro. posed to the City Council new zoning restrictions on adult entertainment. ..