In early January, 2023, the DJA suit brought by 5 residents of Upper Brookville against the Trustees of the Village was thrown out on a technicality.  It was ruled that petitioners lacked the necessary ‘standing’ in order for the evidence and facts of the case to be considered. 

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What does it mean to have ‘standing’?  Not just anyone can bring a suit and expect it to be considered by the court.  Standing limits participation in lawsuits and asks whether those who bring a lawsuit have enough cause to “stand” in order for their arguments to be heard.  In this case, standing involves demonstrating sufficient harm resulting from the construction of the cell tower under consideration at the corner of Wolver Hollow Road and 25A.

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A ruling was made that in the absence of actual photos of the cell tower the petitioners could not prove harm at this time regarding aesthetics, diminished property values, or any other resident concerns protected by our Village code.  

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In the court’s opinion, taxpayer status as residents of Upper Brookville was not enough to proceed with evaluating the petitioners’ challenge to the Village Trustees’ authority to adopt the 10/6/20 Code change. This change guaranteed that the Zoning Board of Appeals MUST always vote yes to a cell tower application slated for Village-owned property. The petitioners believe this move abrogates the ZBA’s full and fair determination of an application based on both evidence from the code and Upper Brookville homeowner input.  

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To review, the DJA suit argued that NYS Municipal Law establishes a separation of powers between Village Boards.  One Board cannot tell another Board how to do its business.  Under the law, the ZBA alone has the power to interpret and apply provisions of the code for a cell tower application.  It is solely in the ZBA’s purview to decide whether or not to approve a cell tower application based on its merits and by weighing critical resident input. We maintain that the BOT cannot ‘fix’ the ZBA’s vote de facto in favor of a permit to build a cell tower just because it is on Village-owned property as this is an un-democratic, non-participatory move that factors out real resident involvement in the decision-making process.

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Dismissal of the DJA suit does not mean that this crucial issue regarding the separation of powers between our Board of Trustees and our Zoning Board of Appeals will be dropped.  The issue of separation of powers between our Boards will be reiterated before the ZBA when the cell tower application is under consideration, whenever that may be.  We will prevail upon the ZBA to disregard the 10/6/20 code change that ties up its ability to vote according to its own judgment on a cell tower permit.  We will reassert our right under the law as residents to have a full and fair evaluation of the cell tower application by asking that our due process and fair representation under the ZBA be restored.

 

Stay tuned!