County Planning Board Review and General Municipal Law Section 239-m

The right to adopt controls on the use of land in New York, although derived from the state's power, has largely devolved to local municipal governments through New York's Town Law and Village Law, and similar legislation for cities. There are areas, however, where the state still exercises control, frequently as general oversight in perceived problem areas — coastal erosion and flood zones for example. The state also exercised its power, beginning in 1960, to allow for the creation of county-wide planning boards, to allow for the input of regional and county-wide considerations in local land use decisions.

This legislation, codified under General Municipal Law Article 12-B, ” 239-b through ff., was the subject of a recent Court of Appeals case, Headriver LLC v. Town Bd. of the Town of Riverhead, __ N.Y.2d ___ ,__ N.Y.S.2d ___, 2004 N.Y. LEXIS 927 (May 4, 2004) that clarified, in part, whether a county board's recommendations may trump the provisions of a local zoning code. Section 239-c empowers counties to create county planning boards, made up of appointed members, and permits counties to grant these boards the power to review local land use decisions pursuant to ” 239-l and 239-m. (The reader is cautioned to obtain the text of this opinion from the official Clurt of Appeals Web site, www.nycourts.gov/ctapps. The version currently available on LEXIS was subsequently corrected by the Court of Appeals within the first week after the opinion was issued, but the corrected version is not on LEXIS.)

The Provision At Issue

The particular provision at issue in this case, ' 239-m, allows a county board to require city, town and village governments to submit proposed actions, such as adopting or amending a zoning law, issuing special permits, approving site plans or granting variances, if they apply to real property that is within 500 feet of a municipal boundary, county or state land, or county or state roads. The Suffolk County Legislature established the Suffolk County Planning Commission under the auspices of 239-c, and under 239-m, adopted provisions that require local municipalities to submit a “full statement” of proposed actions that fall under 239-m to the county planning commission before voting on the proposed action. (A “full statement” has generally been held by the courts to mean the full application and the complete SEQRA review, Fleckenstein v. Town of Porter, 309 A.D.2d 1188; 765 N.Y.S.2d 123 (4th Dep't 2003); Gernatt Asphalt Products, Inc v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164 (1996)). The county commission can vote to approve, to approve with modifications or to disapprove. If the county body's recommendation is to disapprove or approve with modifications, and the local municipal body poised to act on the application wishes to do otherwise, it must act by a supermajority (majority plus one), or else the vote is insufficient to override the county board's recommendation.

In Headriver's case, the Town of Riverhead received an application for a special permit for a project that bordered a county road. In accordance with 239-m, it referred the proposed application to the county planning commission, which recommended against the application. Although Headriver submitted expert and uncontradicted proof, during Riverhead's public hearing, that it had met all of the town zoning code's standards for a special permit, the town board split 3-2 on a vote to grant the special permit. Since this was only a simple majority, not a supermajority, the special permit was denied. Headriver then brought an article 78 proceeding against the town board to compel it to issue the permit.

The town board was the only respondent, and immediately moved to dismiss the petition on two grounds: that Headriver had failed to sue the county planning commission, which was a necessary party; and that the town board could not be said to have acted improperly, when it merely failed to override the county planning board's recommendations and was moreover entitled to rely on the county commission's reasons, regardless of Headriver's proof that it had complied with all of the town's standards for a special permit. The motion was denied by the Supreme Court and this order was affirmed by the Second Department, 307 A.D.2d 314, 762 N.Y.S.2d 808 (2003), although with a dissenting opinion and, ultimately, a grant of leave to appeal to the Court of Appeals.

'Necessary Party'

The “necessary party” argument was made in the face of CPLR 7801, which explicitly states that an article 78 proceeding “shall not be used to challenge a determination which is not final,” and case law that the determination of an agency whose role is only advisory is a non-final determination, Matter of Cohoes Mem'l Hosp. v. Dep't of Health, 48 N.Y.2d 583 (1979); Matter of Baker-Firestone, Inc. v. Bowman, 43 A.D.2d 738 (2d Dep't 1973) (advisory decision of Town Planning Board not reviewable under Art. 78).

The Other Argument

The other argument, which received increasing emphasis as the case made its way up, and was the basis of the dissent in the Second Department, was the more interesting one. Was petitioner barred from claiming that the town had acted arbitrarily and capriciously in denying the permit, either because the town board could rely on the county planning body's reasons underlying its recommendation, or because the denial of the permit had occurred by operation of law under 239-m, ie, the failure to override with a supermajority?

It bears noting that in the Headriver case, the town advocated a position that is anathema to many municipalities: that its land use decisions should be subordinate to those of a county planning body. Petitioner for its part asserted that under a long line of Court of Appeals cases, a special permit cannot be denied without substantial evidence to support the denial once the applicant proves that all specific standards for the permit have been met, see Matter of North Shore Steak House v. Board of Appeals, 30 N.Y.2d 238, 243 (1972); compare, Matter of Retail Property Trust v. Board of Zoning Appeals, 98 NY2d 190 (2002). Headriver also argued it was wrong to exalt the county body's recommendation over town code requirements when the county board's recommendation was made in the absence of the evidence and testimony the applicant presented at the public hearing before the local municipality. (Under ' 239-m(1)(c), the county board receives “all materials required by and submitted to the referring body as an application on a proposed action, ” but applicants have no right to make any submissions to or appear before the county body, which acts without public hearings.)

The Decision

The decision of the Court of Appeals in Headriver was that the county planning commission was not a necessary party because its role was merely advisory; it also held that the Town Board's remaining contentions were without merit. This decision is good news for both sides, since it preserves the larger interests of both applicants for land use approvals and municipalities that regulate them through local zoning codes. Municipal bodies are free to legislate and administer their zoning codes to set appropriate standards for special use permits, and free to override the recommendations of a county planning board so long as they comply with ' 239-m. And applicants know what standards they are bound to meet by consulting the local zoning code, and are not subject to the unconstrained recommendations of a body that operates without concrete written standards and makes its decisions without affording the applicant any input or public hearing. Although ' 239-m continues to serve its avowed goal of injecting regional concerns into the decisions of local municipalities, the local zoning code will continue to govern the ultimate outcome of any application.

The right to adopt controls on the use of land in New York, although derived from the state's power, has largely devolved to local municipal governments through New York's Town Law and Village Law, and similar legislation for cities. There are areas, however, where the state still exercises control, frequently as general oversight in perceived problem areas — coastal erosion and flood zones for example. The state also exercised its power, beginning in 1960, to allow for the creation of county-wide planning boards, to allow for the input of regional and county-wide considerations in local land use decisions.

This legislation, codified under General Municipal Law Article 12-B, ” 239-b through ff., was the subject of a recent Court of Appeals case, Headriver LLC v. Town Bd. of the Town of Riverhead , __ N.Y.2d ___ ,__ N.Y.S.2d ___, 2004 N.Y. LEXIS 927 (May 4, 2004) that clarified, in part, whether a county board's recommendations may trump the provisions of a local zoning code. Section 239-c empowers counties to create county planning boards, made up of appointed members, and permits counties to grant these boards the power to review local land use decisions pursuant to ” 239-l and 239-m. (The reader is cautioned to obtain the text of this opinion from the official Clurt of Appeals Web site, www.nycourts.gov/ctapps. The version currently available on LEXIS was subsequently corrected by the Court of Appeals within the first week after the opinion was issued, but the corrected version is not on LEXIS.)

The Provision At Issue

The particular provision at issue in this case, ' 239-m, allows a county board to require city, town and village governments to submit proposed actions, such as adopting or amending a zoning law, issuing special permits, approving site plans or granting variances, if they apply to real property that is within 500 feet of a municipal boundary, county or state land, or county or state roads. The Suffolk County Legislature established the Suffolk County Planning Commission under the auspices of 239-c, and under 239-m, adopted provisions that require local municipalities to submit a “full statement” of proposed actions that fall under 239-m to the county planning commission before voting on the proposed action. (A “full statement” has generally been held by the courts to mean the full application and the complete SEQRA review, Fleckenstein v. Town of Porter , 309 A.D.2d 1188; 765 N.Y.S.2d 123 (4th Dep't 2003); Gernatt Asphalt Products, Inc v. Town of Sardinia , 87 N.Y.2d 668, 642 N.Y.S.2d 164 (1996)). The county commission can vote to approve, to approve with modifications or to disapprove. If the county body's recommendation is to disapprove or approve with modifications, and the local municipal body poised to act on the application wishes to do otherwise, it must act by a supermajority (majority plus one), or else the vote is insufficient to override the county board's recommendation.

In Headriver's case, the Town of Riverhead received an application for a special permit for a project that bordered a county road. In accordance with 239-m, it referred the proposed application to the county planning commission, which recommended against the application. Although Headriver submitted expert and uncontradicted proof, during Riverhead's public hearing, that it had met all of the town zoning code's standards for a special permit, the town board split 3-2 on a vote to grant the special permit. Since this was only a simple majority, not a supermajority, the special permit was denied. Headriver then brought an article 78 proceeding against the town board to compel it to issue the permit.

The town board was the only respondent, and immediately moved to dismiss the petition on two grounds: that Headriver had failed to sue the county planning commission, which was a necessary party; and that the town board could not be said to have acted improperly, when it merely failed to override the county planning board's recommendations and was moreover entitled to rely on the county commission's reasons, regardless of Headriver's proof that it had complied with all of the town's standards for a special permit. The motion was denied by the Supreme Court and this order was affirmed by the Second Department, 307 A.D.2d 314, 762 N.Y.S.2d 808 (2003), although with a dissenting opinion and, ultimately, a grant of leave to appeal to the Court of Appeals.

'Necessary Party'

The “necessary party” argument was made in the face of CPLR 7801, which explicitly states that an article 78 proceeding “shall not be used to challenge a determination which is not final,” and case law that the determination of an agency whose role is only advisory is a non-final determination, Matter of Cohoes Mem'l Hosp. v. Dep't of Health , 48 N.Y.2d 583 (1979); Matter of Baker-Firestone, Inc. v. Bowman , 43 A.D.2d 738 (2d Dep't 1973) (advisory decision of Town Planning Board not reviewable under Art. 78).

The Other Argument

The other argument, which received increasing emphasis as the case made its way up, and was the basis of the dissent in the Second Department, was the more interesting one. Was petitioner barred from claiming that the town had acted arbitrarily and capriciously in denying the permit, either because the town board could rely on the county planning body's reasons underlying its recommendation, or because the denial of the permit had occurred by operation of law under 239-m, ie, the failure to override with a supermajority?

It bears noting that in the Headriver case, the town advocated a position that is anathema to many municipalities: that its land use decisions should be subordinate to those of a county planning body. Petitioner for its part asserted that under a long line of Court of Appeals cases, a special permit cannot be denied without substantial evidence to support the denial once the applicant proves that all specific standards for the permit have been met, see Matter of North Shore Steak House v. Board of Appeals , 30 N.Y.2d 238, 243 (1972); compare, Matter of Retail Property Trust v. Board of Zoning Appeals , 98 NY2d 190 (2002). Headriver also argued it was wrong to exalt the county body's recommendation over town code requirements when the county board's recommendation was made in the absence of the evidence and testimony the applicant presented at the public hearing before the local municipality. (Under ' 239-m(1)(c), the county board receives “all materials required by and submitted to the referring body as an application on a proposed action, ” but applicants have no right to make any submissions to or appear before the county body, which acts without public hearings.)

The Decision

The decision of the Court of Appeals in Headriver was that the county planning commission was not a necessary party because its role was merely advisory; it also held that the Town Board's remaining contentions were without merit. This decision is good news for both sides, since it preserves the larger interests of both applicants for land use approvals and municipalities that regulate them through local zoning codes. Municipal bodies are free to legislate and administer their zoning codes to set appropriate standards for special use permits, and free to override the recommendations of a county planning board so long as they comply with ' 239-m. And applicants know what standards they are bound to meet by consulting the local zoning code, and are not subject to the unconstrained recommendations of a body that operates without concrete written standards and makes its decisions without affording the applicant any input or public hearing. Although ' 239-m continues to serve its avowed goal of injecting regional concerns into the decisions of local municipalities, the local zoning code will continue to govern the ultimate outcome of any application.