New York Zoning and Municipal Law Blog
The Appellate Division found the challenge to the approval of a 150 foot tall wireless telecommunications tower had been rendered moot due to completion of construction. In the Matter of Buren v. Town Board of the Town of Kent, the Court found the Petitioner had failed to seek a temporary restraining order prior to the applicant’s completion of construction and therefore the appeal was moot.
Homeland Towers LLC. applied for permission to construct a 150 foot tall tower for wireless telecommunications. The Town Board granted approval and the Petitioner brought an Article 78 proceeding to appeal the approval. Thereafter, the lower court denied the Article 78 petition. Petitioner appealed the dismissal of the Article 78 proceeding to the Appellate Division. While the appeal was pending, Homeland Towers LLC. moved to dismiss the appeal as academic, in light of the fact that the tower had been completed while the litigation was pending. The Appellate Division deferred action on the motion until the appeal was heard.
In its decision the Court reviewed the status of the law on the question of mootness.
” ‘Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.’ Where the change in circumstances involves a construction project, we must consider how far the work has progressed towards completion … Because a race to completion cannot be determinative,’ however, other factors bear on mootness in this context as well. Chief among them has been a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation'” (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d at 729, quoting Matter of Dreikhausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173). ‘Also significant are whether the work was undertaken without authority or in bad faith, and whether substantially completed work is readily undone, without undue hardship.’ Further, [courts] may elect to retain jurisdiction despite mootness if recurring novel or substantial issues are sufficiently evanescent to evade review otherwise’ (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d at 729, quoting Matter of Dreikhausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173).
Here, it is undisputed that the petitioners never moved in this Court pursuant to CPLR 5518 for a preliminary injunction pending appeal (see Matter of Yeshiva Gedolah Academy of Beth Aaron Synogogue v City of Long Beach, 118 AD3d 901, 902; Matter of Molloy v Fraser, 74 AD3d 1207, 1208). The petitioners’ explanation that they did not do so because of monetary constraints is unavailing under the circumstances of this case…. Further, Homeland established that the construction of the tower was not performed in bad faith or without authority, that the work could not be readily undone without substantial hardship, and that this appeal does not present any recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise (see id. at 729; Matter of Dreikhausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 172-173).”