Stephen L. Brodsky, Partner, Mazzola Lindstrom LLP
Over the last year and half, one thing we learned is the ease of video meetings. But a recent New York decision, issued mere weeks ago, reminds us not to become too comfortable. The case, Matter of Homer DG, LLC v. Planning Bd. of the Village of Homer, [1] illustrates that process still matters — especially when legal compliance is at stake.
The Case
The Village of Homer Planning Board had denied a proposal during a meeting held via Zoom video, and the aggrieved party filed an Article 78 proceeding to challenge the denial. At issue was whether the video recording of the Board’s meeting constituted a Board “decision” that triggered a statute of limitations in a local statute, Village Law §7-725-a (11). The Village moved to dismiss the petition as time-barred, arguing that the time to file the petition began when the Village ended the video meeting and saved the recording to a cloud-based server accessible to government officials and the public. The Village of Homer court disagreed and denied the Village’s motion to dismiss.
Importantly, the court noted that a video recording could qualify as a Board decision. However, in the case before it, the Board had failed to demonstrate that the video recording “was filed with the Village Clerk,” as required by local law. Therefore, in this instance, the recording did not constitute a “decision of the Planning Board for purposes of running the statute of limitations.”
To reach this holding, the Court parsed through the words of the local statute, applied principles from governing precedent, and analyzed the Village’s technical compliance with the statute’s dictates. In short, the Court dug deep into the details.
The court agreed with the Village that a recording of a Planning Board meeting held by Zoom videoconferencing may constitute a “decision” as contemplated by Village Law §7-725-a. According to the court, the key is whether the recording contains the resolution acted upon and the vote of Board member. The court also agreed that the relevant statute, Village Law §7-725-a, does not specify that a Planning Board decision must be in writing. It even cited a Second Department case issued nearly twenty years prior stating that “modern electronic recording devices are silent observes of history” and “[v]ideo cameras provide the most accurate and effective way of memorializing local democracy in action.” [2]
The Important Facts
That is where the court’s agreement with the Village ended, however. Turning to a long line of Second Department authority, the court then focused on foundational requisites for governmental action. Documents that are required to be filed, the court noted, are deemed filed “when they are received by the office with which, or by the official with whom, they are to be filed.[3] Analyzing how the Village dealt with the Zoom video recording made those principles dispositive and drove the court’s decision.
The recording of the Planning Board’s zoom meeting may have been accessible to the Village Clerk and the public. However, the Village still had not “filed” the recording with the Village Clerk. The Planning Board failed to show that the relevant local officials, i.e., the Commissioner of Education and the Village Clerk, consented to the storage of these Planning Board recordings on the Zoom cloud management system. It also failed to prove that the Zoom storage system met the criteria that the Commissioner of Education established for the storage of government records in facilities not owned or maintained by the local government. [4]
In sum, the Planning Board failed to prove that the recording of the Planning Board’s Zoom video meeting was “filed with the Village Clerk.” Therefore, the recording did not commence the statute of limitations set forth in Village Law §7-725-a(11).
The Lesson
While somethings change, others remain the same. Even in our video-friendly world, with our ever-evolving ways of going about our business, we must be mindful of standing statutory, regulatory, and other legal mandates. We cannot be lulled into complacency. To quote David Byrne, some things even in our new normal are, “same as it ever was.”
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[1] 2021 N.Y. Misc. LEXIS 4656, 2021 NY Slip Op 21230 (N.Y. Sup. Ct.. Corland County, Sept. 1, 2021).
[2] Matter of Csorny v. Shoreham-Wading Riv. Cen. School Dist., 305 A.D2d 83, 89 (2nd Dept. 2003).
[3] Coty v. County of Clinton, 42 A.D.3d 612, 613-14 (2007).
[4] See 8 NYCRR § 185.8.