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Settlement of Zoning Disputes
What power does a municipality's counsel have to settle a zoning dispute on terms that would ordinarily require the exercise of discretionary authority by a zoning board of appeals (ZBA) or by a planning board? In Matter of Commco, Inc. v. Amelkin, 62 NY2d 260, which was decided more than 20 years ago, the Court of Appeals indicated that counsel had no such settlement power, even if counsel acted with the approval of the municipality's elected governing body. The court's recent decision in Matter of Haberman v. Zoning Board of Appeals, 9 NY3d 269 (infra, page 4), imposes modest limits on the scope of Commco and provides an occasion for reconsideration of the issue.
Commco
In Commco, a landowner had sought a use variance to permit conversion of an abandoned school building into a home for senior citizens. The ZBA denied the variance, and the landowner brought an article 78 proceeding challenging the denial. The Supreme Court annulled the denial, and after the town attorney filed a notice of appeal on the ZBA's behalf, the town board replaced the town attorney with separate counsel and authorized settlement negotiations. Special counsel and the landowner entered into a stipulation of settlement granting the variance and imposing conditions on the project. Special counsel then moved to withdraw the ZBA's appeal, and the Appellate Division granted the motion. The ZBA then moved to vacate the withdrawal, but the Appellate Division denied the motion, and the Court of Appeals granted leave to appeal.
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