Last week, Judge Mark G. Masler, issued a decision , Matter of Homer DG, LLC v. Planning Bd. of the Vil. of Homer, No. EF21-276, 2021 N.Y. Misc. LEXIS 4658 (N.Y. Sup. Ct. Sep. 1, 2021), ruling on the Respondents' motion to dismiss the Petitioner's request for a judgment annulling the decision of the Village of Homer Planning Board to deny his site plan application. The Respondents contended that statute of limitations barred the Petitioner's proceeding because it was not filed within 30 days of the filing of the Board's decision. The Board made its decision at a virtual Zoom hearing on April 12, 2021. The village clerk provided the Petitioner with a letter on April 19, 2021 that it stated was official notification that the plan application was denied. The Petitioners brought their proceeding for a judgment on May 17, 2021.
The Respondents contend that the statute of limitations began to run at the conclusion of the April 12, 2021 virtual meeting because a recording of the meeting, which included the Board's votes and resolution, was automatically saved to the cloud system used by the village, and was also streamed and remained posted on a YouTube page. The Petitioner noted that it contacted the clerk immediately after the hearing requesting an official notice of the decision, and was never notified that the video saved online was the official decision of the Board.
Judge Masler acknowledged that the statute of limitations does not specify that a decision be in writing, and that the Electronic Signatures and Records Act authorizes the electronic storage of records. However, the Court did not find that the automatic storage of the hearing recording in the cloud constituted a filing of the decision with the clerk. According to state law, a properly filed record can only be kept in an offi-site location, like the cloud, with the permission of the Commissioner of Education. "Although the recording of the April 12, 2021 meeting of the Planning Board may have been accessible to the Village Clerk or the public, it was not 'filed' with the Village Clerk. Notably, the Village Clerk did not provide any evidence demonstrating that the commissioner of education consented to the storage of such records by the Village of Homer on the Zoom cloud management system, or that Zoom storage meets the criteria established by the commissioner of education for storage of local government records in facilities which are not owned or maintained by the local government (see 8 NYCRR § 185.8). " Id. at *3-4.
Judge Masler also found that the Planning Board could be estopped from asserting the statute of limitations defense because they failed to notify the Petitioner of their novel argument that the video recording of the Board meeting constituted the record of its decision, despite repeated requests by the Petitioner for the official decision.
The Board's effort to get the Court to bar the Petitioner's proceeding seems to be particularly unwarranted in this case. But it's easy to see how the cloud storage of a video recording of a decision made at a hearing could provide a more persuasive argument that a statute of limitations had begun to run in other circumstances.