Opinion
EF21-276
09-01-2021
HOMER DG, LLC, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules v. PLANNING BOARD OF the VILLAGE OF HOMER, New York, Village of Homer, New York, and GVN, LLC (a necessary party), Respondents.
COUGHLIN & GERHART, LLP, By: Nicholas S. Cortese, Esq., Attorneys for Petitioner, 99 Corporate Drive, P.O. Box 2039, Binghamton, New York 13092-2039 WEAVER MANCUSO BRIGHTMAN PLLC, By: John A. Mancuso, Esq., Attorney for Respondents, Planning Board for the Village of Homer, New York and the Village of Homer, New York, 150 Allens Creek Road, Suite 240, Rochester, New York 14618
COUGHLIN & GERHART, LLP, By: Nicholas S. Cortese, Esq., Attorneys for Petitioner, 99 Corporate Drive, P.O. Box 2039, Binghamton, New York 13092-2039
WEAVER MANCUSO BRIGHTMAN PLLC, By: John A. Mancuso, Esq., Attorney for Respondents, Planning Board for the Village of Homer, New York and the Village of Homer, New York, 150 Allens Creek Road, Suite 240, Rochester, New York 14618
Mark G. Masler, J. Petitioner commenced this CPLR article 78 proceeding seeking a judgment annulling a determination of the Village of Homer Planning Board denying petitioner's application for site plan approval. Before answering, respondents Village of Homer Planning Board and the Village of Homer (collectively the respondents ) moved to dismiss the petition pursuant to CPLR 3211 (a) (5) and 7804 (f) as being barred by the statute of limitations, on the basis that petitioner failed to commence this proceeding within 30 days after the filing of the Planning Board's decision in the Village Clerk's office (see Village Law § 7-725-a [11] ).
GVN, LLC, the current owner of the project site which has contracted to sell the site to petitioner contingent upon petitioner obtaining all required land use approvals, was named as a necessary party pursuant to CPLR 1001 (a). Although service was made upon GVN, LLC by personal delivery to its authorized agent, it has not appeared in this proceeding.
The Planning Board meeting of April 12, 2021 was held virtually via Zoom teleconference. Petitioner's counsel, Keegan Coughlin, contacted the office of the Village Clerk the next day by email and telephone seeking "formal notice of decision" of the Planning Board's denial of the site plan application and was advised that the Village Clerk was out of the office and would provide a written notice of decision upon his return. Coughlin continued to request a written notice of decision by engaging in email exchanges on April 15 and 16 with Dan Egnor, Village Clerk for the Village of Homer, who consistently indicated that he had not yet prepared a written notice of the decision. Egnor thereafter provided petitioner's counsel with a letter dated April 19, 2021, which stated it was "official notification" that the site plan application had been denied (see NY St Cts Elec Filing [NYSCEF] Doc No. 10). The minutes of the Planning Board meeting were filed in the Village Clerk's office on May 10, 2021. Petitioners commenced this proceeding on May 17, 2021.
In their motion to dismiss, respondents assert — for the first time — that the statute of limitations began to run immediately at the conclusion of the Planning Board's April 12, 2021 meeting, when a recording of the meeting that was conducted by Zoom teleconference was saved to a cloud-based server. In this regard, respondents submitted the affidavit of Egnor, who averred that following the onset of the COVID-19 pandemic, the Village purchased a Zoom videoconferencing license to conduct all public meetings virtually. Egnor explained that these virtual meetings, including the April 12, 2021 Planning Board meeting, "are recorded and stored within the cloud management system provided to the Village through the Zoom license" immediately upon conclusion of a meeting, and that the digital files stored to the cloud may be immediately accessed by Village personnel (see NYSCEF Doc No. 42, Egnor aff, ¶ 8). Accordingly, Egnor contends that such recordings are within his custody and control (see NYSCEF Doc No. 42, Egnor aff, ¶ 8). Additionally, meetings are streamed on the Village's YouTube page, where a record of the meeting remains publicly available after the meeting ends. Although minutes of the meeting were later prepared and filed in the Village's office, respondents contend that the video recording of the Planning Board meeting constitutes the decision of the Planning Board because it contains the resolution and the votes of the Board members and, further, because it was filed in the Village Clerk's office as a Village record upon conclusion of the meeting when it was automatically stored in the cloud. Accordingly, respondents contend that this proceeding, which was commenced 35 days after the recording was saved, is untimely.
In opposition, petitioner asserts that an audio/video recording cannot constitute a decision of the Planning Board and that the Zoom recording was not filed in the office of the Village Clerk in accordance with Village Law § 7-725-a (11). Petitioner further argues that respondents should be estopped from raising the statute of limitations defense, noting that its counsel repeatedly contacted the Village Clerk's Office in the immediate aftermath of the meeting to obtain formal evidence of the decision specifically for the purpose of ascertaining the appropriate limitations period for commencing a CPLR article 78 proceeding, yet was never advised by Egnor that respondents considered the digital video recording to be the decision of the Planning Board.
A proceeding brought pursuant to CPLR article 78 to challenge the decision of a village planning board regarding site plan review must "be instituted within thirty days after the filing of a decision by such board in the office of the village clerk" ( Village Law § 7-725-a [11] ). No particular form of decision is mandated by statute (see Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 63, Village Law § 7-725-a at 98-99); however, it is well-settled that a decision must set forth the resolution of the board, any conditions imposed by the planning board, and the vote of each member of the planning board (see Matter of Sullivan v. Dunn , 298 A.D.2d 974, 975, 747 N.Y.S.2d 666 [2002] ; Matter of Allens Cr./Corbett's Glen Preserv. Group v. Town of Penfield Planning Bd., 249 A.D.2d 921, 922, 672 N.Y.S.2d 222 [1998] ).
Filing of meeting minutes, which must contain "a record or summary of all ... matter[s] formally voted upon and the vote thereon" ( Public Officers Law § 106 ), may start the running of the statute of limitations if the minutes incorporate a decision (see Matter of Bauman, Taub & Von Wettberg v. Village of Hamilton Zoning Bd. of Appeals , 202 A.D.2d 840, 841, 609 N.Y.S.2d 373 [1994] ["the filing of minutes which incorporate a decision satisfies the statutory mandate"]; see also Matter of Shepherd v. Maddaloni , 103 A.D.3d 901, 904-905, 960 N.Y.S.2d 171 [2013] ; Matter of Sullivan v. Dunn , 298 A.D.2d at 975, 747 N.Y.S.2d 666 ; Matter of Allens Cr./Corbett's Glen Preserv. Group v. Town of Penfield Planning Bd. , 249 A.D.2d at 922, 672 N.Y.S.2d 222 [a letter merely informing applicant of the decision does not constitute the decision, but minutes from the meeting which contain the text of the resolution and indicate unanimous adoption by the board members present do]). Respondents persuasively argue that the recording of a Planning Board meeting conducted via video conferencing could satisfy the requirements of a "decision" of the Planning Board as contemplated by Village Law § 7-725-a because it contains the resolution that was acted upon and records each member's vote. Respondents further assert that the statute does not specify that a decision must be in writing. In this regard, in 2003, the Appellate Division, Second Department, noted that "[t]he law has embraced the undeniable fact that modern electronic recording devices are silent observers of history. Video cameras provide the most accurate and effective way of memorializing local democracy in action" ( Matter of Csorny v. Shoreham-Wading Riv. Cent. School Dist. , 305 A.D.2d 83, 89, 759 N.Y.S.2d 513 [2003] ). Further, the Electronic Signatures and Records Act ( State Technology Law § 301 et seq. ) specifically authorizes government entities to produce, file, and store records electronically, provided that certain statutory and regulatory requirements are met (see State Technology Law §§ 302 [2], 305 [1] ; 9 NYCRR § 540.5 ). It thus stands to reason that the video recording of a planning board meeting, if properly filed with the appropriate officer, could constitute the "decision" of the planning board pursuant to Village Law § 7-725-a.
The letter dated April 19, 2021 could not constitute the decision of the Planning Board because it did not contain the vote of each member.
However, administrative guidance indicates that the minutes of a meeting should be reduced to writing (see Comm on Open Govt OML-AO-2872 [2018] [Note: Open Meetings Law Advisory Opinion]). Further, while a tape recording may be used to aid in the preparation of minutes, the recording does not constitute the minutes themselves and may, but need not be, retained as a public record (see 1982 Ops St Comp No. 82-179; 1980 Ops St Comp, No. 80-163; 1978 Ops St Comp No. 78-280). This administrative guidance only addresses the format required of minutes — which may constitute a decision but are not necessarily the decision — it does not address whether every decision of a planning board must be in writing.
However, the statute of limitations did not begin to run until the decision was filed with the Village Clerk. Respondents’ contention that the Planning Board's decision was "filed" with the Village Clerk upon its automatic storage within the cloud management system provided to the Village pursuant to its Zoom license is unpersuasive. Documents "that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom, they are to be filed" ( Coty v. County of Clinton , 42 A.D.3d 612, 613-614, 839 N.Y.S.2d 825 [2007] [internal quotation marks and citations omitted]; see Matter of Gagliardi v. Board of Appeals of Vil. of Pawling , 188 A.D.2d 923, 923-924, 591 N.Y.S.2d 629 [1992], lv denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969 [1993] ; Matter of Pickett v. Town of Tusten Zoning Bd. of Appeals , 169 A.D.2d 906, 907, 564 N.Y.S.2d 625 [1991] ; Matter of King v. Chmielewski , 146 A.D.2d 102, 105, 539 N.Y.S.2d 546 [1989], affd 76 N.Y.2d 182, 556 N.Y.S.2d 996, 556 N.E.2d 435 [1990] ). Upon filing, "all local government records shall be kept in secure facilities maintained by the local government unless the consent of the commissioner of education is obtained to their transfer and storage elsewhere" ( Arts and Cultural Affairs Law § 57.31 ; see Arts and Cultural Affairs Law §§ 57.13 ; 57.17 (1), (4); 8 NYCRR §§ 185.8, 185.9 ). Thus, to be properly filed, a record must be kept in a secure facility maintained by the local government or, alternatively, may be stored in an off-site location, such as the cloud, only with the permission of the commissioner of education.
The Village Clerk is required to "have custody of the corporate seal, books, records, and papers of the village and all the official reports and communications of the board of trustees," keep records of proceedings of the board of trustees and each board of village officers, all village resolutions and local laws; and produce for inspection or furnish a certified copy of the such books, records, and papers "during office hours as prescribed by the board of trustees, on demand of any person" upon payment of the appropriate fee (Village Law § 4-402 ).
Although the recording of the April 12, 2021 meeting of the Planning Board may have been accessible to the Village Clerk or the public, it was not "filed" with the Village Clerk. Notably, the Village Clerk did not provide any evidence demonstrating that the commissioner of education consented to the storage of such records by the Village of Homer on the Zoom cloud management system, or that Zoom storage meets the criteria established by the commissioner of education for storage of local government records in facilities which are not owned or maintained by the local government (see 8 NYCRR § 185.8 ). Accordingly, respondents failed to demonstrate that the video recording of the April 12, 2021 Planning Board meeting was filed with the Village Clerk and, therefore, it cannot serve as the decision of the Planning Board for purposes of commencing the running of the statute of limitations.
In any event, petitioner's assertion that respondents should be estopped from asserting that the statute of limitations began to run at the conclusion of the April 12, 2021 meeting is compelling. Estoppel is generally not available against a governmental agency exercising its governmental functions unless an exception of "very limited application" is warranted by an "unusual factual situation" ( Matter of Daleview Nursing Home v. Axelrod , 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130 [1984] ), which can occur upon a change in the law (see e.g. Bender v. New York City Health & Hosps. Corp ., 38 N.Y.2d 662, 668-669, 382 N.Y.S.2d 18, 345 N.E.2d 561 [1976] ). Respondents acknowledge that their statute of limitations defense raises "a novel question of law" (NYSCEF Doc. No. 57, Mancuso aff, ¶ 4), which is founded upon their assertion that the COVID-19 pandemic necessitated the Village's use of Zoom videoconferencing for its public meetings, thereby permitting the unprecedented practice of allowing recordings of such meetings to serve as the decisions. Accordingly, this case presents such an unusual factual situation.
Moreover, a governmental subdivision may be estopped from asserting a statute of limitations defense when its actions have wrongfully or negligently precluded a party from commencing a timely action or proceeding (see id. at 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Roscigno v. Town of Mount Kisco , 210 A.D.2d 573, 574, 620 N.Y.S.2d 145 [1994] ; Corona v. Gallinger Real Estate Better Homes & Gardens , 168 Misc. 2d 429, 434, 642 N.Y.S.2d 802 [Sup. Ct., Onondaga County 1996, Major, J.], affd, 242 A.D.2d 961, 665 N.Y.S.2d 598 [1997] ; cf. Matter of Atlantic States Legal Found., Inc. v. New York State Dept. of Envtl. Conservation , 119 A.D.3d 1172, 1173-1174, 991 N.Y.S.2d 151 [2014] ). Respondents do not deny that petitioner's counsel made several attempts to obtain written notice of the Planning Board's decision from the Village Clerk immediately following the meeting, but was never advised that respondents considered the video recording already uploaded to the Zoom cloud server to be the Planning Board's decision. It should have been apparent to respondents that the purposes of the persistent inquiries made by petitioner's counsel were to have a decision in hand to serve as the basis for commencement of a CPLR article 78 proceeding and, further, to ascertain when the statute of limitations would begin to run. Nonetheless, respondents failed to advise petitioner's counsel of their novel legal position that they considered the recording of the April 12, 2021 meeting to be the Planning Board's decision. Therefore, respondents are estopped from asserting a statute of limitations defense based upon the argument that the statute of limitations began to run on April 12, 2021.
Thus, under any view of the record before the court, this proceeding was timely commenced and respondents’ motion to dismiss on the basis that this proceeding was not timely commenced must be, and hereby is, denied.
It appears that the statute of limitations did not begin to run until May 10, 2021, when the minutes of the April 12, 2021 Planning Board meeting were filed in the office of the Village Clerk; however, the proceeding was timely commenced even if it is assumed that the statute of limitations began to run upon filing of the letter dated April 19, 2021.
This decision constitutes the order of the court.