Agenda - Planning Commission - 10/15/2015

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Zoning Bulletin August 10, 2015 1 Volume 9 1 Issue 15 staging] that the Town Board was `terminat[ing] [Acquest's] commercial project," was "wholly without justification" and "egregious official conduct." The court so concluded based on the following findings: The Town Board failed to give notice to Acquest that the Town Board was planning to reconsider the waiver request at its hearing. The Town Board Supervisor had admitted that the Town Board had acted in rescinding the waiver request solely on neighborhood activist concerns over the wetland. There had been no new studies on traffic or environmental impacts. Moreover, not only had the Board rescinded the sewer tap -in waiver request, but it had specifically terminated Acquest's project. The court found such conduct by the Town was "solely politically motivated" and thus "without legal justification." The court concluded that "[d]espite the existence of [Acquest's] constitutionally protected property interest in the January 2002 tap -in waiver request, the Town Board acted on March 20, 2006 to withdraw that waiver request, which was a violation of [Acquest's] constitutional rights." See also: Bower Associates v. Town of Pleasant Valley, 2 N.Y.3d 617, 781 N.Y..S.2d 240, 814 N..E.2d 410 (2004). Case Note: Acquest had also alleged violation of its equal protection rights under the constitutions of the United States and the State of New York. The jury had found that the Town violated Acquest's due process rights by treating Acquest differ- ently than two other- parties, and had granted Acquest more than $1.5 million in related damages. On appeal, the court rejected Acquest's claim, finding the Town had established that Acquest's Property was not similarly situated to the two other properties and thereby was not selectively treated in comparison to those two properties. Case Note: The Town had argued that the state constitutional due process claim should be dismissed because the Town was entitled to qualified immunity (as a government official). The appellate court rejected that argument, noting that a government official is only entitled to qualified immunity if "his or her conduct does not violate clearly established statutory or constitutional rights of which a reason- able person would have known. " Here, since the court found that the Town had violated Acquest's constitutional due process rights, the court concluded that the Town was not entitled to qualified immunity. © 2015 Thomson Reuters 11