Agenda - Planning Commission - 06/04/1996

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Page 81~-- May 1996 z.g. forced ~Taber to go to court when he should not have had to. Thd~ town appealed the attorney's fees award. Taber appealed the court's order tl~at the owner remove only the porch, rather than the entire structure. DECISION: Reversed in part. Tab ,~r was not entitled to attorney s fees from the town. The lower court did not abuse its discretion when it found the owner had to remove only the porch, not the entire new structure. The !ower court's reasoning did not justify an attorney's fee award against the towri. Forcing the town and the board to adhere to the ordinance was not enough of a benefit to justify attorney's fees. If it were, towns would pay attorneyls fees whenever they unsuccessfully tried to support their agencies in court. TlJe zoning board ~ not the town. incorrectly granted the variance. Since thei board acted in a quasi-judicial capacity, Taber could not have sued it for attorney's fees. Likewise, he could not sue the town simply for defending the actiot~s of a quasi-judicial body. Taber could collect attorney's fees from the town ,,0nly if the board acted either outside its jurisdiction or in a non-quasi- judicial chpacity and the town defended the board's actions in bad faith. Special ~se m Town Board Amends Ordinance While Appeal Is Pending Walloiv. Town of Orleans Zoning Board of Appeals, 637 ]¢,Y.S.2d 587 (New York) 1996 Hutchinson wanted to build a barn to store construction equipment on property in the town of Orleans, N.Y. He applied to the town Zoning Board of Appeals for a speci~l use permit. The zoning board granted the permit, finding the special use substarltially the same as an automobile service station or machine and welding shop, bothlof which were permitted uses under the town's zoning ordinance. Wallo ~sked a court to annul the zoning board's decision} which the court did. The court found the ordinance did not authorize the use, and the zoning board had ~o authority to interpret the ordinance to include the use. The zoaing board appealed. While the appeal was pending, the Town Board amended tile. ordinance to include storage buildings, and to authorize the zon- ing board tb determine whether any proposed use "substantially and practi- cally'' comtblied with the ordinance. DECISIONi: Reversed; zoning board's decision reinstated. The zoning board's decision to issue the special use permit was reinstated. The Town Board validly amended its zoning ordi'nance to allow the storage building before the court ruled on the appeal. r When a ilaw was amended in the middle of an appeal process, the court based/ts ded~ision on the law then in effect, unless the opposing party (Wallo) could prove ~he town acted in bad faith or purposefully delayed acting on the application While it changed the.ordinance. Wallo proved neither, and the amended or4inance was effective when the court decided the appeal. Matter of Baldassare v. Planning Board, 607 N.Y.S. 2d 459. Matter of Willard v. Haab, 565 N. Y.S. 2d 915.