Byer v. Town of Poestenkill

232 A.D.2d 851, 648 N.Y.S.2d 768, 1996 N.Y. App. Div. LEXIS 10546
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 24, 1996
StatusPublished
Cited by16 cases

This text of 232 A.D.2d 851 (Byer v. Town of Poestenkill) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byer v. Town of Poestenkill, 232 A.D.2d 851, 648 N.Y.S.2d 768, 1996 N.Y. App. Div. LEXIS 10546 (N.Y. Ct. App. 1996).

Opinion

Carpinello, J.

Appeal from a judgment of the Supreme Court (Canfield, J.), entered September 22, 1995 in Rensselaer County, which granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of the Town Board of the Town of Poestenkill adopting Local Laws, 1994, No. 2, and declared said law invalid.

At issue in this case is the validity of Local Laws, 1994, No. 2 of the Town of Poestenkill (hereinafter Local Law No. 2) passed by the Town Board in July 1994. Local Law No. 2 permits property owners to apply to rezone up to 10 acres in a residential zone to a natural products (hereinafter NP) designation for the purpose of mining gravel. Local Law No. 2 was enacted less than a year after the Town Board adopted Local Laws, 1993, No. 1 (hereinafter Local Law No. 1), which had prohibited rezoning of all residentially zoned land to an NP designation. In this combined CPLR article 78 proceeding and declaratory judgment action, petitioners contend, inter alia, that the Town [852]*852Board failed to comply with the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) in issuing a negative declaration regarding the environmental impacts of Local Law No. 2 and that Town Board member Keith Hammond, who proposed and supported Local Law No. 2, should not have been permitted to vote on its adoption because of a purported conflict of interest. The vote approving Local Law No. 2 was 3 to 2; therefore, were Hammond disqualified from voting, Local Law No. 2 would have been defeated.

Supreme Court declared Local Law No. 2 invalid, concluding that Hammond should have been disqualified from voting because he possessed a financial interest in the subject matter of the legislation. The court noted that the Town of Poestenkill Board of Ethics (hereinafter Ethics Board) had issued an opinion concluding that there was no conflict of interest, but nonetheless concluded that Hammond’s vote on Local Law No. 2 created an appearance of impropriety. Supreme Court also annulled the negative declaration issued by the Town Board with regard to Local Law No. 2 on the ground that the Town Board’s SEQRA review was inadequate.

The issue in this case is not the desirability of gravel mining (itself no small controversy), but rather the level of personal financial interest in such a controversy as will warrant the disqualification of a duly elected public official. Petitioners claim that Hammond should have been disqualified from voting on Local Law No. 2 because he possessed a financial interest in the outcome of the vote, in direct violation of General Municipal Law article 18 and the Poestenkill Code of Ethics. The record in this case reveals that in 1992, before he was elected to the Town Board, Hammond, a dairy farmer, obtained a permit to mine 1.02 acres of his property solely for the purpose of restoring the parcel to a productive agricultural use. Additionally, the record also reveals that before his election to the Town Board in November 1993, Hammond publicly objected to Local Law No. l’s absolute ban on the rezoning of residential areas to permit gravel mining. Petitioners also point out that Hammond owns land in a residentially zoned area that is suitable for gravel mining, although Hammond has stated that he has no present intention of applying for an additional permit to mine gravel on his land.

In determining whether a conflict of interest exists, courts should take a case-by-case approach in looking to the extent of the interest at issue (see, Matter of Parker v Town of Gardiner Planning Bd., 184 AD2d 937, 938, lv denied 80 NY2d 761). It is critical that the public be assured that their officials are free to [853]*853exercise their best judgment without any hint of self-interest or partiality, especially if a matter under consideration is particularly controversial (see, Matter of Zagoreos v Conklin, 109 AD2d 281, 287-288).

In this case, the Ethics Board had determined that there was no conflict of interest that would have prevented Hammond from voting on Local Law No. 2. This finding is entitled to great weight (see, Matter of Parker v Town of Gardiner Planing Bd., supra, at 938; DiLucia v Mandelker, 110 AD2d 260, 263, affd 68 NY2d 844). Based on the record before us, we find the Ethics Board’s determination to be entirely rational. The mere fact that Hammond obtained a permit to mine a portion of his land in 1992, more than a year before he was even elected to the Town Board, does not create a conflict of interest since Local Law No. 2 could have absolutely no effect on the continued validity of this permit. Although Hammond opposed Local Law No. 1 and addressed the issue of gravel mining during his 1993 campaign, his statement of personal opinion does not constitute a basis for finding a conflict of interest (see, Matter of Segalla v Planning Bd., 204 AD2d 332, 333; Matter of Laird v Town of Montezuma, 191 AD2d 986, 987). Indeed, any other conclusion would necessarily have a chilling effect upon a candidate’s ability to express an opinion on important issues during an election campaign or to advocate changes in the law once elected. Certainly, the disclosure by candidates for public office of their opinions on controversial topics is to be encouraged, not penalized.

We also reject petitioners’ purely speculative argument that Hammond may financially benefit by Local Law No. 2 because he owns residentially zoned land which may be suitable for mining (see, Town of N. Hempstead v Village of N. Hills, 38 NY2d 334, 344; Matter of Segalla v Planning Bd., supra, at 333; Matter of Ahearn v Zoning Bd. of Appeals, 158 AD2d 801, 802, lv denied 76 NY2d 706). Since every owner of property in a residentially zoned district is affected by Local Law No. 2, "petitioners’ argument would make all but a handful of property owners in the [Town] ineligible to sit on the board in such matters” (Town of N. Hempstead v Village of N. Hills, supra, at 344).

Simply stated, we respectfully disagree with Supreme Court’s finding that Hammond "clearly * * * furthered his financial interests” by his vote. Local Law No. 2 merely permits a property owner to apply to the Town Board for a rezoning, a process which itself requires a complete SEQRA review and the issuance of a special use permit from the Town Planning Board. [854]*854Even if we discount Hammond’s statement in the record that he has no intention of applying for an NP rezoning in the future, the possibility that he might apply, and that after all the requisite reviews his application might be granted, does not rise to the level of personal financial interest which has previously resulted in disqualification (see, Matter of Keller v Morgan, 149 AD2d 801; Matter of Zagoreos v Conklin, supra; Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd., 69 AD2d 320). " ' "The interest which disqualifies a member of councils to vote is a personal or private one, not such an interest as he [or she] has in common with all other citizens or owners of property” ’ ” (Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd., supra, at 326, quoting Annotation, 133 ALR 1257, 1261-1262). Since we find no such conflict, Supreme Court erred in declaring Local Law No. 2 null and void.

Supreme Court also erred in annulling the negative declaration issued by the Town Board in connection with the enactment of the law.

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Bluebook (online)
232 A.D.2d 851, 648 N.Y.S.2d 768, 1996 N.Y. App. Div. LEXIS 10546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byer-v-town-of-poestenkill-nyappdiv-1996.