Re: Question about scope of authority

<nospam@xxxxxxx> wrote in message news:jlu3f3lme1sbpp4es9eibet4vg2t5pk8cm@xxxxxxxxxx
On 20 Sep 2007, "John Doe" <none@xxxxxxxxx> further said/asked in
substance in pertinent part:

[ Would there probably be a difference if at
a hearing conducted by a land use agency
determining whether to grant a permit to
erect a fence at a residence members of
the public appear to object than if there
were no objections. ]

This would depend on what reasons were advance by the objectants
considered in light of the specific provisions of law that prescribed
the standards for whether to grant or deny such applications.
However, your unremitting insistence in your postings in this thread
that you're soliciting just a "hypothetical" analysis but without you
providing any of this information makes impossible further analysis
in this connection.

In regards to this aspect of the issue, the objections raised are all valid in that the proposed fence would violate a local ordinance prohibiting the erection of any structure which would adversely impact the aesthetic nature of the community. However, the objections were voiced by members of the community who had already installed similiar fences in their front yard, or who were actively in the process of seeking a permit to erect a similiarly styled fence in their neighboring front yards, and whose applications for these fences were treated as being ministerial by a representative of the board (i.e., no concern about the nephew's alleged parking violations had been raised with their applications).

What can and perhaps should be said is that the gist of your earlier
queries did not appear to concern the conformity or not of the
would-be fence to whatever are the legislatively prescribed land-use
standards in the (hypothetical?) and, instead, mostly that the
hypothetical applicant claimed delay not permitted by law although you
continue to fail to report, if there are such, what all the provisions
of the )hypothetical?) law in question say about scheduling and
required timing of decisions (and yet, in real life, some laws dealing
with these subjects prescribe schedules and others don't).

To the best of my knowledge, the law in question does not place any time limit on how long a board may review an application, nor does the law place any limit on how many adjoinments may be implemented for a public hearing.

[assume N.Y. law applies to this hypothetical mini-melodrama]

I've previously referred you to N.Y. CPLR Art. 78 and also
informatively summarized many of that law's provisions; although, now
that you do mention N.Y. as the state whose law applies, it may also
be important to emphasize, otoh, the "finality" requirements of that
statute as a key trigger for judicial review but that the state's
courts have created a comparatively arcane (or, anyway, not always
simple to understand) jurisprudence re. what sort of agency/board
action is/isn't "final" for such purposes and, otoh in this
connection, that, especially if you're asking about a real-life and
not just "hypothetical" potential case, the applicant would be
well-advised not to overlook that law's comparatively very short
(four-month) statute of limitations.

In a real life situation what is the comparitively arcane jurisprudence regarding an agency's or board's action which would trigger that four month statute of limitation?

The (hypothetical?) applicant might want further to note in that
connection that N.Y. decisional law is not particularly clear about
how "justice delayed is justice denied!" claims ought be
analyzed/determined in Art. 78 proceedings -- that is, at what [if
any] point delays in scheduling hearings amount to the refusal of a
hearing conducting agency to comply with the ministerial elements of
its required processes (i.e., actually to schedule a hearing if/when
required by law) -- and, therefore, that the most that can be said
only hypothetically [if still reliably] about this sort of Stuff is
that, like it or not, you need to be much more specific about all the
operative/relevant facts and especially about what if any time
requirements the legislation and rules pursuant to which the hearing
to which you refer is being conducted say about these subjects.

The statute states that the board in question has forty five days to deliver it's decision on the application when (if ever) the public hearing is closed.

Perhaps not incidentally, note, too, too, that you have not even
actually reported why -- on what ground assertedly under color of what
provision of law -- hearings are required and have been held at all in
the case.

In this case the provision of law is based upon the public health and welfare which must be weighed against the public's social and economic need for front yard fencing when making a discretionary decision on an application.

[Perhaps you're suggesting that in the place in question
a local land use ordinance . . . [directs] the agency . . .
with the primary authority to construe/apply it [not to
grant] permits for modifications to and alternation of real
property [such as the erection of a fence] unless/until
the property's owners and occupants are in compliance
with all local laws relating in any way to their use and
occupancy of the property in question [?]

This is what I am suggesting, except (it appears to me) the local government had vitiated the opportunity to address the allegation about the nephew's unpaid parking violations when it granted permits for front yard fences to all of the other property owners within the development, and that the implementation of that local statute to my "hypothetical" application is an arbitrary and capricious action since it had been implemented (unsuccessfully) with only one of the other property owners within the development and not implemented with any of the other residents.

This reads to be a reasonable statute if it is implemented
equitably.

We hadn't discussed earlier whether, if there were such a law
applicable to the place in question, it would be "reasonable" or
whether it is/isn't "implemented equitably" and so until you've
reported (whether or not hypothetically) whether there is some version
of such a statute and, if so, what it says, you also prevent
meaningful evaluation of your rejoinder above.

There is such a statute and in essence it states (for the purposes of our discussion) exactly what you had previously posted, i.e.: "Owners and occupants of real property must be in compliance with all local statutes and ordinances before any permit can be approved for front yard fences".

If, however, that rejoinder is to suggest (though you seemed to
disclaim earlier) that there is some version of such a law in the
place in question, that would put in doubt your earlier claim that the
agency or board in question has acted in excess of its jurisdiction by
its references to the person you now acknowledge to be a resident of
who had accumulated but not paid parking tickets relating to his use
and occupancy of the subject property.

If the allegation that the nephew has unpaid parking violations was proven to be factual truthful then some representatives of the local government must have conspired with other residents of the development to evade that statute when the local government issued permits for the other fences (or the nephew's parking violations would have been paid in full before any resident in the development was granted a permit for a front yard fence).

The applicant in this case has relied on professional
services to expidite the handling of his/her application
for the hypothetical fence. The applicant is utterly
ignorant of whether or not the professional services
rendered have been conducted appropriately since this
is the first time he/she has applied for a fence.

And so, presumably, the applicant (especially if a merely hypothetical
one paying with hypothetical dollars or, hypothetically, not paying at
all) is free to ask the professional pertinent questions that would
dispel the applicant's utter ignorance while also assisting the
applicant (hardly just hypothetically) to determine whether the
services in question have been provided appropriately -- one would
think, basically "DUH!!" sorts of options.

With all due respect to you, "DOH!!" pretty much sums up how I feel about the "Homer Simpson" role I have been embracing with this whole messy situation.

The decision to deny the permit for the hypothetical
fence is discretionary.

This comment is obvious but, given the crux of your/our earlier
postings in this thread, suggests that you're now failing adequately
to distinguish that substantive issue from the gist of what you've
been focusing on primarily earlier, i.e., the procedural delay
(assuming -- though, as noted, you persist in not reporting that/how
-- the laws prescribing how/when hearings shall be conducted also
do/don't include scheduling limitations and whether (though you seem
now to be retreating from your earlier asserted claim in this respect)
the permit granting/denying agency has introduced matters that exceed
its limited (to an extent you continue not to report) jurisdiction
and, even if it does have the authority to address the question of the
resident/land-using nephew's parking tickets, whether it has done so
in an arbitrary and capricious or otherwise unlawful manner (still
more information you appear to be dancing around rather than reporting
directly).

To the best of my knowledge, the only time constraints the board is bound by is the thirty days to hold a public hearing for a "complete" application, and the forty five days to render a decision at the close of the public hearing. I am not aware of any statute (federal, state or local) that constrains the board's authority when the board (for whatever reason) would rather not make a decision on an application and elects instead to adjoin the public hearing indefinitely.

I am reluctant to post actual facts since this is
a public forum but I am eager to post whatever
hypothetical facts might narrow the scope of this
discussion to a fine point.

I can't and won't continue to play this game, having already given you
more than more than ample pointers for where/how to proceed, albeit
that you are of course free to post all the relevant facts, or not, as
you wish. Relatedly, you now acknowledge the option of consulting
and, if the applicant wishes, retaining an attorney in the area who
knows about and is experienced in dealing with this sort of Stuff.

Thank you for all of the information you have given me, nospam, and for all of the time you have spent helping me try to understand this crummy "game" that I am compelled to play.

.

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