Land Use Training Program
for Local Officials
Tutorial
Component VIII - Local Boards
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION *
Local Boards *
ROLE OF THE LOCAL LEGISLATURE*
ZONING BOARD OF APPEALS *
Essential Function and Appellate
Jurisdiction *
Original Jurisdiction *
PLANNING BOARD *
INTRODUCTION OF DOCUMENTARY EVIDENCE,
EXPERTS AND CROSS-EXAMINATION *
PUBLIC OFFICERS AND DUE PROCESS OF LAW *
Code of Ethics *
CONFLICTS OF INTEREST *
FREEDOM OF INFORMATION LAW *
DUE PROCESS, MEETINGS & HEARINGS *
Public Hearings *
Notice *
Open Meetings Law *
Executive Sessions *
Hearings *
FILING & MAKING A PROPER RECORD *
Record Keeping and Filing *
Minutes *
Decisions *
SUMMARY *
QUIZ *
Local boards are the keystones of an effective land use system. They create, modify, interpret, and administer the laws that regulate the use of land. The elected and appointed officials who sit on these boards have the difficult job of creating understandable laws and administering them fairly.
Three boards are responsible for making land use decisions in most localities. The first of these is the local legislature, such as the village board of trustees, the town board or the city council, which adopts the comprehensive plan, zoning, and other regulations. The second is the planning board, created to perform a variety of advisory and administrative functions related to community planning and land use decision-making and to review and approve certain applications. Third is the zoning board of appeals, which must be created when the local legislature first adopts a zoning law. A zoning board of appeals hears appeals from the decisions of the zoning enforcement officer or building inspector, interprets the zoning law, and hears applications for variances and other permits.
The New York State
legislature has allowed for the creation of these local bodies to provide a
decision-making structure regarding land use. This framework includes legislative,
quasi-judicial, and
administrative functions. Throughout the laws governing their operation are a
number of familiar legal doctrines including separation of powers, citizen
participation, public notice and access
to information, the right to be heard, the right to impartial decision-making,
and the right to appeal. The goal is to provide for the public health, safety,
and welfare through a well-planned and administered local land use system.
Members of planning boards and zoning boards of appeal are required to receive a minimum of 4 hours of training approved by the governing body, which may include training provided by a municipality, regional or county planning commission, state agency, statewide municipal association, college or similar entity. In fact, taking this tutorial may fulfill this requirement if approved by the governing body. The governing body may also waive these training requirements in its discretion, or it may impose more stringent requirements by local law or ordinance.
ROLE OF THE LOCAL LEGISLATURE
The elected legislative body plays the central role in the field of land use control. The local legislature has the authority to adopt and amend the zoning law, subdivision regulations, site plan controls, special use permit provisions, wetland ordinances, historic district provisions, and sign controls among other land use regulations. It may also create other local boards and agencies, in addition to the planning board and zoning board of appeals, and decide what authority to delegate to each of these boards. Examples of the former can include boards which focus on conservation, architectural review or historic preservation.
The local legislature may decide to retain certain administrative functions. For example, in its zoning law the legislature may provide that certain land uses are permitted only upon the issuance of a special use permit, and then retain the authority to review and issue those permits instead of delegating that authority to the planning board or the zoning board of appeals. Frequently, however, the legislature establishes these boards and delegates such important functions to them.
State statutes allow the local legislature to delegate the authority to review and approve applications for subdivision, site plan, and special use permits either to the planning board or the zoning board of appeals. Subdivision review authority can be delegated to the planning board and site plan authority can be delegated to the planning board or another administrative body, such as the zoning board of appeals. State law requires the zoning board of appeals to hear applications for variances and appeals from the decisions of the official charged with zoning enforcement, often the local building inspector.
Normally, the legislature is not required to act on a proposal to amend the zoning law or to take other legislative action. The legislature has the discretion to determine what is in the best interest of the community and when to act on legislative policy. When the legislature retains an administrative function, however, it must hear and decide matters submitted to it, such as applications for special use permits.
Review and determinations
on site plan, subdivision plat,
and special use permit applications by the legislature are administrative acts
and can be appealed to the courts and reviewed just as if it had been made by
any administrative body.
The local legislature is also responsible for adopting and amending the official map and the comprehensive plan of the community. These documents articulate local policy and guide and direct the deliberations and decisions of all local boards involved with land use decisions.
The local legislature is responsible for creating the substantive provisions that control land use, for creating the agencies that implement and enforce those controls, and for developing many of the procedures that the planning board, zoning board of appeals, and other local boards must follow.
Under state statutes, when a local legislature adopts zoning regulations it must establish a zoning board of appeals consisting of three or five members. In towns, appointments are made by the town board; in cities and villages, the mayor or city manager may make appointments (subject to the approval of the board of trustees in most [i.e., non-charter] villages).
Village Law § 7-712, Town Law § 267, and General City Law § 81, provide
that local legislatures are required to create zoning boards of appeals when
they adopt zoning laws. Additional administrative duties may be delegated to
the zoning board of appeals.
Essential Function and Appellate Jurisdiction
The essential function of the zoning board of appeals is to grant variances from the strict application of the zoning laws in circumstances when application of those laws create demonstrable hardships or practical difficulties for property owners. This makes the zoning board of appeals a safety valve, protecting landowners from unfair results from the application of the laws in particular circumstances. The zoning board of appeals also hears appeals from the decisions of the zoning enforcement officer or building inspector (i.e., alleging the decision was wrong) and when interpretations of the zoning law are necessary.
Before approaching the zoning board of appeals, property owners must seek a determination from the zoning enforcement officer or building inspector to determine how the zoning laws apply to their property. If they disagree with that decision, they may appeal it to the zoning board of appeals. If they agree, but wish to secure relief from the law's provisions, they may ask the zoning board for a variance. A majority of the members of the board as fully constituted must vote to reverse any such determination, order, or decision, or to grant a variance. The zoning board of appeals need not hear an appeal that is made more than sixty days after the zoning administrator's determination. Such an appeal has exceeded the time limit set in the statute. Town Law § 267-a(5), Village Law § 7-712-a(5), and General City Law § 81-a(5).
In hearing a timely appeal or granting a variance, the zoning board of appeals essentially is acting like a court of law. The board's procedures are quasi-judicial in nature. Its decisions, in turn, can be appealed only to a court of law for review.
The
law requires a person aggrieved by a zoning enforcement officer or building
inspector's ruling to appeal to the zoning board of appeals within sixty days
of the date of a disputed determination, order, or decision. This requires the
person to file a notice of appeal, including the grounds for the appeal and the
relief that is requested. The zoning board of appeals must hold a hearing on
the appeal and publish a public notice of the hearing at least five days before
it is to be held. The decision of the board must be handed down within
sixty-two days of this hearing, unless the parties mutually agree to an
extension.
As a general matter, zoning board of appeals hearings are more formal than planning board meetings. However, practices vary greatly while the courts are cognizant that “zoning hearings may be quite informal,” Von Kohorn v. Morrell, 9 N.Y.2d 27, 32, 210 N.Y.S.2d 525, 527, 172 N.E.2d 287, 288 (1961).
While strict rules of evidence do not apply in hearings before a zoning board of appeals (as they would in a court of law), the zoning board of appeals has an obligation to evaluate and weigh the evidence presented, and to credit only such testimony and evidence which is worthy of credence. Von Kohorn at 527.
Testimony should be provided by witnesses with first-hand knowledge of all essential facts or with the requisite technical expertise. Cross-examination of witnesses is not required and rarely is permitted. Aprile v. LoGrande, 89 AD.2d 563, 452 N.Y.S.2d 104 (2d Dept. 1982), affirmed 59 N.Y.2d 886, 466 N.Y.S.2d 316, 453 N.E.2d 545 (1983); Muscillo v. Town Board of the Town of Oyster Bay, 28 Misc.2d 79, 211 N.Y.S.2d 939 (Sup.Ct.Nassau Co. 1961).
If personal knowledge, inspections or facts otherwise outside the hearing record are relied upon, they must be set forth in the record and findings of the board. See Community Synagogue v. Bates, 1 N.Y.2d 445, 154 N.Y.S.2d 15, 136 N.E.2d 488 (1956); Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 155 N.E. 575 (1972); Stein v. Board of Appeals of the Town of Islip 100 A.D.2d 590, 473 N.Y.S.2d 535 (2d Dept.1984). If personal knowledge is relied upon, but is not disclosed, annulment of a challenged determination is likely. See, e.g., Varley v. Zoning Board of Appeals of the City of Saratoga Springs, 131 A.D.2d 905, 516 N.Y.S.2d 355 (3d Dept.1987); Galvin v. Murphy, 11 A.D.2d 900, 203 N.Y.S.2d 151 (4th Dept.1960).
It clearly is violative of a party’s due process rights if a board accepts evidence after a hearing has been closed and without giving other interested parties an opportunity to review and, if appropriate, rebut such information. For example, the court annulled the denial of relief to a property owner in Stein v. Board of Appeals of the Town of Islip, 100 A.D.2d 590, 473 N.Y.S.2d 535 (2d Dept.1984), because the zoning board had received a notarized letter containing factual allegations damaging to the application after the hearing was closed, and had relied upon the letter in reaching its determination. The court determined that the “ex parte” consideration of the letter without having afforded the applicant an opportunity to rebut its allegations violated his due process rights.
Curtailment of effective public review and comment resulted in the annulment of a variance and special permit for a cell tower in Cilla v. Mansi, 2002 WL 1275122 (Sup. Ct. Suffolk Co. 2002). The hearing began at 11:00 p.m. and ended at 1:30 a.m. The board did not entertain the comments of the public until after midnight and rejected the petitioners’ request that they be provided an opportunity to digest the applicant’s numerous submissions and reports, to prepare a response and to obtain legal and technical assistance to review the application materials. Moreover, the board accepted post-hearing submissions from the applicant which the petitioners did not have an opportunity to review or contest.
The Cilla court found that the board had relied on critical post-hearing submissions and based its decision on extensive documentation which the petitioners were denied the opportunity to read, study or dispute before the precipitous close of the hearing. Lastly, petitioners were subject to a “double standard” whereby submissions from the applicant were accepted more than six weeks after the hearing was closed but the petitioners’ request for additional time for review and comment was rebuffed.
The zoning board of appeals may also be delegated the authority to review applications for permits. In this case, it is exercising original jurisdiction as an administrative agency, rather than serving as an appeals board. Original jurisdiction simply refers to the power to review and make decisions on applications for administrative approval. Where, for example, special use permits are to be issued by the zoning board of appeals, an application is made directly to the board.
The
zoning board of appeals may not hear appeals from the actions of the local
legislature when the latter is acting in its legislative capacity. The denial
of a request for the rezoning of a parcel, for example, may not be appealed to
the board. The zoning board of appeals also has no power to review the legal
validity of the provisions of the zoning law. The board may only interpret
provisions of the zoning law or hear appeals by persons aggrieved by adverse
determinations of the responsible administrative official. Zoning boards of
appeals may not grant variances that have such a significant impact as to
constitute a rezoning of the land, a function within the province of the
legislature only. Decisions of the planning board regarding subdivision or site
plan applications may not be appealed to or heard by the zoning board of
appeals.
Where the board granted the
owner of a forty acre plot a variance from a zoning law that required a two
acre lot size for single-family homes, the
court held that the board's action constituted an invalid rezoning, rather than
a variance from the provisions of the zoning law. Changes of the zoning law of
this magnitude (potentially affecting more than 20 parcels) are legislative
decisions and beyond the power of the zoning board of appeals. Hess v.
Zoning Board of Appeals of the Village of Sands Point (1955).
State law permits the local legislature to establish a planning board consisting of five or seven members. Appointments to the planning board are made by the local legislature in towns, by the mayor, subject to the approval of the board of trustees, in villages, and by the mayor or city manager in most cities.
Under Village Law § 7-718, Town Law § 271, and General City Law § 27, local
governments are authorized to create planning boards, appoint their members, and
to refer various matters to planning boards for advisory opinions. Several other
state statutes authorize the local legislature to delegate various land use
approval responsibilities to planning boards.
The local legislature can delegate a variety of advisory functions to a local planning board, including the preparation of the comprehensive plan, drafting zoning provisions, or suggesting site plan and subdivision regulations. The legislature may request planning boards to review and comment on applications for specific zone changes or amendments to the comprehensive plan or other land use regulations. The planning board can offer advice on the official map, the adoption of capital budgets, or other matters affecting the development of the community. The local legislature must act formally to grant the planning board its power. Such powers may be found in the zoning laws that apply to the planning board's functions.
One important purpose of the planning board's advisory role is to provide an impartial perspective on land use issues based on the long range needs of the community contained in the comprehensive plan or other local policy documents.
The local planning board may also be delegated the authority to review and approve site plan and subdivision applications and to issue special use permits. If the local legislature delegates such review and approval powers to the planning board, that board must strictly follow the zoning law and any other adopted land use regulations regarding these matters. These regulations contain the substantive standards that the applicant must meet. If a variance from a zoning provision is required, the matter must be referred to the zoning board of appeals. In approving applications for subdivisions, site plans, or special use permits, conditions may be attached so long as they are reasonable and "directly related and incidental to the proposed" development plan.
Planning boards are
required to hold hearings within prescribed time periods before they may act on
the following applications: subdivision applications (Town Law § 276; Village Law § 7-728; and General City Law §32) and
special use permits (Town Law §
274-b(6); Village Law §
7-725-b(6); and General City Law §27-b(6)). A
public hearing may be required on site plan applications but only if the local
regulations provide for such a hearing.
(Town Law § 274-a(8); Village Law § 7-725-a(8); General City Law §27-a(8).
A planning board may not
consider or issue variances, hear appeals from the official responsible for
zoning administration, or issue interpretations of zoning provisions. Planning
boards may not act outside their delegated authority or base their decisions on
standards not contained in state or local
laws and regulations regarding matters over which they have jurisdiction.
Planning boards do however, have power and discretion to render decisions
within the scope of the standards contained in the locally adopted regulations.
INTRODUCTION OF
DOCUMENTARY EVIDENCE, EXPERTS AND CROSS-EXAMINATION
Local administrative bodies must base their decisions on facts in the record of their proceedings. In most cases, public hearings must be held after legal notice is given and interested citizens have been given an adequate opportunity to be heard. The courts often overturn board decisions when they are based solely on public opposition, rather than relevant and adequate facts.
An applicant must be given
the opportunity to present evidence to the officer or body conducting the
hearing. According to the U.S. Supreme Court, if this opportunity is not given,
the municipality's actions will be "constitutionally inadequate." In Goldberg
v. Kelly (1969), the board or officer failed to permit the individual
applying to the board to appear personally with or without counsel before the
official who made the determination. As a result, the board's decision was
invalidated and the proper procedures had to be employed. During the interim,
costs to the applicant can accrue, for which the board or agency may have to
reimburse the applicant.
Boards may receive studies, reports, documents, and impartial expert testimony that provide facts supporting their decisions. These facts must appear in the minutes of the meetings and hearings, or must be found in the documents submitted to the board during these proceedings. If evidence or testimony is presented which is contradictory, those factors which the board found more probative and upon which it relied should be identified in a series of findings supporting the board's decisions. It is very important that the facts on the record justify the board's decision.
PUBLIC OFFICERS
AND DUE PROCESS OF LAW
Local legislators and appointed members of local planning and zoning boards are considered "public officers." To be eligible to become a public officer, a person must be a resident of the municipality, 18 years of age, and a United States citizen. When one becomes a public officer, that individual must take (and file with the municipal clerk) an oath, which is kept on file for the duration of the term. This oath represents that the officer will uphold the constitutions of the United States and the State of New York, both which protect landowners' and citizens' rights to due process of law.
Due process guarantees that the government will provide certain safeguards to the citizens. This ensures a fair and open process and that impartial board members make decisions based on reliable evidence that is contained in the record of the board's deliberations. State and local laws which require public hearings upon adequate notice further secure these guarantees. Adequate notice means that the public is invited to be heard in a fair and impartial manner.
A number of state laws regulate local boards and officials in New York State, including the Public Officers Law and the General Municipal Law. Additionally, all municipalities in New York State are required to pass a local ethics law. This local ethics law is sometimes adopted as a chapter of the municipal code. It may parallel the requirements of the General Municipal Law or may impose additional regulations.
Each municipality must
adopt a code of ethics. Public
Officers Law § 3 contains qualifications for holding public officer and the
General Municipal Law §
809 also contains standards for avoiding conflicts of interest in the land
use decision-making process.
The General Municipal Law
prohibits a municipal official, acting in his official capacity, from accepting
a gift with a value exceeding seventy-five dollars. Violation of this rule, or
any provision of a local ethics code, may result in a fine, suspension or
removal from office. Even if the intention is innocent, public officers must
avoid the appearance of impropriety. This rule reduces both the risk that the
public will misunderstand the nature of an innocent gift, and the risk that a
municipal official will be unduly influenced. Local laws often prohibit an
official from accepting a gift of any value.
State law prohibits a public officer from having a private interest in a matter in which that officer is involved officially. Public officers may not make decisions in which they or a family member have a pecuniary interest. These laws ensure that the public body makes impartial decisions. To avoid such conflicts, board members must abstain from voting on any issues relating to the private interest, which is often called "recusing" one's self from all deliberations on the matter.
The laws governing public
officers in general, and conflicts of interests in particular, are found in the
General Municipal Law
Article 18. Section 809 requires an applicant before a board to disclose
the name and address of any person on the reviewing board with an interest in the
matter and the extent of that interest. Article 18 governs and prohibits
conflicts of interest on the part of municipal officials. Contracts entered
into with the municipality and made contrary to this prohibition are void and
the courts can invalidate them.
State statutes require that every applicant for a variance, zoning amendment, special permit, or site plan or subdivision approval must provide full information regarding any interest of a municipal officer in the matter presented. These laws have prevented planning and zoning board members from deliberating and voting on matters in which they have a private interest or a special connection. Examples where conflicts of interest can exist are a financial, familial, employment, or any significant contractual relationship with the applicant.
In Keller v. Morgan
(1989), a local planning board member had a twenty-five percent interest in the
land subject to a subdivision application. It was held that the board member
had a conflict of interest. On the other hand, there was no conflict of
interest when a planning board member was the president of a supply company
that did a few hundred dollars of business with the applicant for subdivision
approval. See Parker v. Town of Gardiner Planning Bd. (1992).
The General Municipal Law contains guidelines as to what constitutes a prohibited conflict of interest. For example, a public officer can earn up to $750 in one year from all combined contracts in which the public officer has an interest. All interests, whether or not prohibited, must be disclosed in writing to the municipal governing body. The law also prohibits a public officer from receiving compensation or entering into any agreement for compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member, or employee. In particular, the prohibition extends to contracts whereby his compensation is to be dependent upon any action by such agency. Violation of the law is a misdemeanor. In addition, violators may be fined, suspended, or removed from office.
Local land use agencies are governed by the state Freedom of Information Law (FOIL), which provides public access to governmental records. The records that are subject to public access include: photos, maps, designs, drawings, rules, regulations, codes, manuals, reports, files, and opinions. Governing bodies may establish reasonable rules regarding times and places such records are available and from whom they may be obtained.
The requirements to provide
information to the public are found in the Public Officers Law §§ 84-90. Article
6 § 86(4) requires maps, drawings, regulations, and other documents pertaining
to land use decision-making to be provided to the public on request.
FOIL ensures open access to government records. "Records" are defined very broadly in the law and include most government records without regard to the purpose for which the records were created.
The law is liberally applied in favor of access to the public, thus, its exemptions are narrowly construed. However, an agency may deny access that would amount to an invasion of privacy. This means, for instance, that giving lists of names and addresses that could be used for commercial or fundraising purposes may violate the privacy of the people on those lists. To protect privacy, the municipality can remove sensitive information and prevent its disclosure. This "redaction" of information can be performed to protect the privacy rights of individuals or the proprietary rights of businesses.
The
exceptions to the Freedom of Information Law are found in the Public Officers Law § 87(2).
The New York State Committee on Open Government provides opinions, in oral or written form, to guide agencies, the public, and local governments. Information for contacting the Committee for advice is provided at the end of this tutorial.
Public officers acting for
the government cannot prevent public release of most information contained in
documents. It is a violation of the law for any person to intentionally
"prevent the public inspection of a record."
A request for public
information cannot be denied based on a lack of necessary personnel or
difficulty in managing the retrieval or redaction.
In United Federation of Teachers v. New York City Health & Hospitals
Corp. (1980), the court stated that even though "it would be difficult
for the municipal corporation's depleted and diminished staff to sift through its
records, locate the information sought, and redact, where necessary …",
providing such a defense "would thwart the very purpose of the Freedom of
Information Law and make possible the circumvention of the public policy
embodied in the Act."
DUE PROCESS,
MEETINGS & HEARINGS
State statutes require that public hearings be held regarding the application for a variance, special use permit, or a subdivision approval. Public hearings regarding site plan applications may be required as a matter of local law or practice. These hearings afford citizens affected by administrative hearings an opportunity to have their views heard before decisions are made.
The fundamental guarantee of a fair and open process is that members of the public receive sufficient notice of meetings and hearings. If challenged, failure to provide the required notice will nullify the proceedings. Notice should be timely, and therefore, must be in advance of the hearing. State and local statutes contain specific notice requirements that spell out the number of days in advance of the hearing that notice must be given and the precise means that must be used to provide notice. These may include publication in the official local newspaper and mailing or posting notices in prescribed ways.
Typical provisions require that notice be given three days in advance for meetings open to the public and five days in advance for public hearings. Posting signs on affected properties is sometimes required. In certain circumstances, mailing notice to adjacent and nearby property owners may be required. If a hearing or meeting is adjourned until a later date, notice of the time and place of the meeting may need to be given again. If notice deficiencies exist, a decision can be rendered invalid.
"Public notice of the
time and place of a meeting scheduled at least one week prior thereto shall be
given to the news media and shall be conspicuously posted in one or more
designated public locations at least seventy-two hours before such meeting."
Public Officers Law § 104. Under
state law, however, legal public notice of meetings does not require
publication in a local newspaper. Local legal requirements may be more
specific.
Notice
of hearing (as contrasted with a meeting) is intended to inform citizens so
they may appear and be heard on matters pending before land use boards. The
notice should be written in plain and simple language. The U.S. Supreme Court
stated that notice should be "reasonably calculated under all the
circumstances to apprise the interested parties of the pendency of the action
and afford them an opportunity to present their objections." Mullane v.
Central Hanover Bank & Trust Co. (1950).
Local public bodies, including the legislature, zoning board of appeals, and planning board, are required by the state Open Meetings Law, or "Sunshine" Law, to allow the public access to their meetings. Meetings of the zoning board of appeals and planning board are subject to the Open Meetings Law. These laws permit the public to attend meetings of public bodies and hear the proceedings.
The requirements of state
law regarding the conduct of open meetings is found in the Public Officers Law §§ 100-111.
"Every meeting of a public body shall be open to the public." Public Officers Law § 103(a).
All meetings of these local bodies must be open to the public. Meetings are defined as any gathering that includes a quorum of a board convened for conducting public business. This includes special meetings with applicants (or opponents) attended by members of the board. When local legislatures, planning boards, or zoning boards of appeals conduct a site visit for the purpose of “observation and acquiring information” only, the visit is not required to be open to the public. Matter of Riverkeeper, Inc. v. Planning Board of the Town of Somers.
One exception to this rule is that the board may hold an executive session which is not open to the public. Executive sessions may be held only as part of an otherwise open meeting, and only in the rare circumstances listed in the statute, such as discussions about pending litigation.
An executive session is
the portion of a meeting not open to the public. Public Officers Law §§ 102(3) and 105
govern conduct of these sessions.
Executive sessions can be
held only if a majority of the board votes, in an open meeting, to hold the
closed session.
In Glens Falls Newspapers,
Inc. v. Solid Waste and Recycling Committee of the Warren County Board of
Supervisors (1993), the closure of a county board committee meeting to
discuss a proposal to utilize a neighboring county's landfill was a violation
of the Open Meetings Law.
Local boards hold public hearings as required by local legislation and state enabling acts. State laws for subdivision approval, variances, special use permits, zoning and comprehensive plan adoption and modification require hearings. Hearings are often held in conjunction with a meeting. In order to hold a hearing, a quorum of the board must be present. Hearings must be held prior to taking the advertised action, they must be open to the public, and accommodations must be made for citizen participation as appropriate.
Members of the public
should be given a fair opportunity to be heard at a public hearing. The
chairman of the board conducting the hearing may impose reasonable restrictions
to control the conduct of the meeting, to avoid undue delay, and to create an
effective means of communication. The applicant should be given an opportunity
to respond to the comments of the public, but the board is not required to
allow citizens to respond to every point made by the applicant in response.
FILING & MAKING
A PROPER RECORD
In making decisions on site plan and subdivision applications and the issuance of variances and special permits, local boards must keep a detailed record of their deliberations. These records are not required to be in verbatim transcript form. A clerk or secretary hired by the municipality often manages these records. The records should include the application and any reports, studies, documents, public comments, and the minutes of board meetings.
The minutes of a meeting typically cover the important portions of the meeting. The Open Meetings Law requires that the minutes for public meetings include a record of motions, proposals, and actions. This record must contain the votes on any matters, and how each member voted.
"The board of appeals
shall keep minutes of its proceedings, showing the vote of each member upon
every question, or if absent or failing to vote, indicating such fact, and
shall also keep records of its examinations and other official actions. Every
rule, regulation, every amendment or repeal thereof, and every order,
requirement, decision or determination of the board of appeals shall be filed
in the office of the town clerk within five business days and shall be a public
record." Town Law § 267-a.
See also Village Law §
7-712-a and General City Law §81-a(9). Public Officers Law § 106 requires
that minutes be taken at all open meetings and executive sessions.
"Minutes of meetings of all public bodies shall be available to the public
in accordance with the provisions of the Freedom of Information Law within two
weeks from the date of such meeting."
Keeping a good record is more than good practice. The board must base its decisions on facts contained in the record. The board should always base its findings and its decision on reliable evidence contained in the record. Whatever form the decision takes, it should contain a fair and reasoned explanation of the board's decision.
Decisions can take several forms: letter decisions mailed to the applicant, resolutions adopted by the board, or minutes of the deliberations and actions if prepared in sufficient detail. Whichever form the decision takes, it must be filed with the municipal clerk. Findings of fact must be included. The decision document should articulate the action that was taken and the reasons for that action.
When a zoning board of
appeals makes a decision, that decision "shall be filed in the office of
the [municipal] clerk within five business days after the day such decision is
rendered, and a copy thereof mailed to the applicant." Town Law § 267(9); Village
Law § 7-712-a(9); and General City Law §81-a(9).
If the decision is not
filed, the statute of limitations on actions challenging that decision does not
begin to run. Thus, not filing the decision extends the amount of time the
applicant has to appeal the decision to the courts. By filing the decision in a
timely manner, the applicant is informed of the decision and has one month to
decide to appeal the decision, after which the board's decision stands
regardless of any defects.
Keeping and filing a detailed record insures that board decisions are not arbitrary, capricious, or an abuse of discretion. Such decisions provide the type of information parties need in order to decide whether to appeal board decisions, and they create the type of record that a court will need to determine the validity of decisions made by land use boards.
A decision is a written
document that contains, at a minimum, the matter considered by the board, the
action taken by the board on that matter, and the reason for the decision.
There is no set form for decisions. Commonly, the board will adopt a resolution
containing the decision and findings of fact. The document must be filed with
the clerk of the municipality, and notice must be mailed to the applicant.
It is important to create
the type of record that a court will need to determine the validity of a
decision made by land use boards. Even if all the procedural requirements are
met, the most important feature of a decision is that it is based on facts in
the record. This helps ensure that the determination is not vulnerable to
reversal. Since the board has discretion to make reasonable decisions, when
decisions are supported with facts on the record, courts will be more likely to
uphold them.
Courts have suggested that decisions by a board must be consistent with its past decisions or must show why the board has decided to deviate from its precedents. Preparing an adequate record provides the courts with the information needed to determine whether the board made a fair decision that the court should affirm, or an arbitrary decision that the court should overturn.
In Knight v. Amelkin
(1986), a landowner was denied a variance from an off-street parking
requirement. Three previous zoning board decisions "reached contrary
results on essentially the same facts" and the board did not explain the
deviation in this case. The Court of Appeals reversed the determination of the
zoning board of appeals and ordered the board to provide "an explanation
or, in the alternative, a conforming determination."
Courts give deference to
board decisions because they do not want to substitute their own judgment for
that of the board’s. Ifrah v. Zoning Board of Appeals of the Town of
Harrison (2002); Retail Property Trust v. Board of Zoning Appeals of the Town
of Hempstead (2002); P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the
Village of Pleasantville (2002).
Local boards are charged with the duty of making
consistent, fair, and reasoned decisions. The goal of the many laws regulating
the process is fairness to the public and to the applicants. This process
includes: holding meetings and hearings; providing notice of meetings, an
opportunity for the public to be heard at hearings and for applicants to
introduce evidence; and insuring the objectivity of boards by avoiding
conflicts of interest and the appearance of 
impropriety.
- Harry J. Willis, David Church & James W. Hotaling, The Short Course, A Basic Guide for Planning Boards and Zoning Boards of Appeals in New York State, New York Planning Federation (1997).
- Robert J. Flynn, Robert J. Flynn, Jr. Zoning Board of Appeals Practice in New York, New York State Bar Association (1996).
- Committee on Open Government, NYS Department of State, 41 State Street, Albany, New York 12231. Telephone: (518) 474-2518; Fax: (518) 474-1927.
- John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter 3 (1998). http://www.law.pace.edu/landuse/
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