Opinion
644 CA 21-01520
09-30-2022
In the Matter of Chad ZIGENFUS, Berton Candee, Steve Trude and Hans Daatselaar, Petitioners-Appellants, v. TOWN OF COHOCTON TOWN BOARD and Baron Winds, LLC, Respondents-Respondents.
GARY A. ABRAHAM, Allegany, GREAT VALLEY, FOR PETITIONERS-APPELLANTS. YOUNG/SOMMER LLC, ALBANY (J. MICHAEL NAUGHTON OF COUNSEL), FOR RESPONDENT-RESPONDENT BARON WINDS, LLC.
GARY A. ABRAHAM, Allegany, GREAT VALLEY, FOR PETITIONERS-APPELLANTS.
YOUNG/SOMMER LLC, ALBANY (J. MICHAEL NAUGHTON OF COUNSEL), FOR RESPONDENT-RESPONDENT BARON WINDS, LLC.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioners appeal from a judgment that, inter alia, dismissed the amended petition and complaint insofar as it sought relief pursuant to CPLR article 78 and declared that respondent Town of Cohocton Town Board (Town Board) did not act unlawfully in enacting Local Law No. 4 of 2019, which amended the local zoning law to raise the maximum allowable height of wind turbines erected in the Town of Cohocton from 500 feet to 650 feet.
Petitioners contend that the Town Board acted improperly in enacting Local Law No. 4 because one of its voting members had a conflict of interest that required his recusal, and the Town Board could not invoke the rule of necessity to permit him to vote despite the conflict inasmuch as a quorum of the Town Board was available to vote. That contention differs from the contention raised by petitioners in their amended petition and complaint, i.e., that three of the five members of the Town Board were disqualified from voting by a conflict of interest, which would render a quorum unavailable. Petitioners’ contention is thus raised for the first time on appeal and is not properly before this Court (see Matter of Elmwood Vil. Charter Sch. v. Buffalo City Sch. Dist. , 195 A.D.3d 1542, 1543, 145 N.Y.S.3d 898 [4th Dept. 2021] ; Matter of Majka v. Utica City School Dist. , 247 A.D.2d 845, 846, 668 N.Y.S.2d 831 [4th Dept. 1998] ; see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We have considered petitioners’ remaining contentions and conclude that they do not warrant modification or reversal of the judgment.