Development

Landowners sought to modify their home to provide a bedroom suite and sanitary facilities for an invalid parent. The building department denied a permit application on the ground that the proposed building lot coverage was in excess of the maximum, the proposed gross area was also in excess of the maximum, and the side yard set back was inadequate. Landowners applied for the required variances in November 2009. The ZBA did not schedule a hearing, allegedly because of opposition by the town building commissioner. Ultimately, a hearing was held on March 11, 2010, at which there were no objections by members of the public. The ZBA did not deliberate on the application until April 22. At that time, the ZBA took up the application in executive session, and landowners were initially denied access to all deliberations.Eventually, they were permitted to attend the executive session. At that session, the variance request was denied. The only reason provided was that the proposed structure was “a large structure for whatever else is on the block.” Landowners then brought this article 78 proceeding, contending that the ZBA's determination was arbitrary and capricious, and that the determination was made in violation of the open meetings law.

In granting the petition, the court held that because there was no evidence that the ZBA had weighed or balanced the factors listed in Town Law sec. 267-b(3), and because there was evidence that the ZBA had granted numerous similar variance requests, the ZBA's determination in this case was arbitrary and capricious, and therefore invalid. The court also held that the ZBA had violated the open meetings law by holding a private meeting for the purpose of transacting public business. In particular, the court concluded that the ZBA had failed to properly convene and conduct an executive session. Nevertheless, the court declined to annul the ZBA's action based on the violation of the open meetings law because there were other sufficient reasons for annulling the determination.

COMMENT

When a court determines that a public body has taken action in violation of the requirements of the Open Meetings Law, the court has discretion, upon good cause shown, to declare the action taken void, in whole or in part. The statute expressly clarifies that, without more, an unintentional failure to fully comply with the notice provisions is insufficient to invalidate an action taken at a meeting of a public body. Pub Officers Law, Section 107.

When a ZBA denies interested parties the right to present their arguments and evidence, the court will often exercise its discretion to annul the ZBA's determination. In Matter of Oshry v. Zoning Board of Appeals of the Incorporated Village of Lawrence, 276 A.D.2d 491, the court annulled the ZBA's determination to grant several variances when the ZBA held a meeting in a room too small to accommodate opponents of the variance, failed to provide adequate notice, and denied reasonable requests for an adjournment. On those facts, the court held that the board's violation of the Open Meetings Law by failing to vote in the public session prior to issuing its determination was sufficient to warrant annulling the determination

When, on the other hand, after hearing the arguments of interested parties a ZBA has a rational basis, supported by the record, for its determination, the court is unlikely to annul the ZBA's determination, despite a violation of the Open Meetings Law. In Matter of Aliano v. Oliva, 72 A.D.3d 944, the ZBA denied petitioner's application for a variance, and the court found that even if the ZBA had violated the Open Meetings Law when it ultimately made its determination, the circumstances were not sufficient to warrant annulment of the ZBA's determination because interested parties had previously had the opportunity to express their views at hearings and in written submissions. The court found evidence in the record that provided a rational basis for the ZBA's denial of the variance application. Also, in Matter of Carrier v. Town of Palmyra Zoning Board of Appeals, 30 A.D.3d 1036, although the ZBA discussed and voted to deny petitioner's variance application at an executive session, in violation of the Open Meetings Law, the court upheld the ZBA's determination because there had previously been a public hearing regarding petitioner's application.

Matter of Application of Jacobson Properties, LLC v. City of New York
NYLJ 8/17/10 Supreme Ct., N.Y. Cty. (Schlesinger, J.)

In a hybrid article 78 proceeding and declaratory judgment action, landowner challenged the rezoning of three blocks, which included landowner's parcels. Supreme Court held that landowner had standing, but dismissed the petition on the merits, concluding that the city had complied with its SEQRA obligations.

In 2008, the city approved zoning amendments for a 111-block area in the East Village and Lower East Side. Most of the mid-blocks in the area were rezoned R8B, with the exception of three blocks running from East 4th Street to East 7th Street between Avenue A and Avenue B. Those three blocks ' which include landowner's parcels ' were zoned R7B, which permits a lower FAR than in other mid-block areas, and which imposes height restrictions not in force before the amendment. Landowner brought this action challenging the amendment.

The court started by rejecting the city's argument that landowner lacked standing. The court noted that a landowner always has standing to advance a SEQRA challenge to the rezoning of his own land, even if landowner's motivations are primarily economic. But on the merits, the court observed that the city's EIS had identified differences in the scale of development on these three blocks that justified imposing more stringent restrictions than on other blocks in the area. The court concluded that the city had taken a hard look at all environmental factors, and, as a result, complied with SEQRA.

Open Meetings Law Violation Does Not Warrant Annulling ZBA Determination

Matter of Gold v. Zoning Board of Appeals
NYLJ 8/18/10, Supreme Ct., Nassau Cty. (Palmieri, J.)

Landowners brought an article 78 proceeding challenging a determination by the Zoning Board of Appeals (ZBA) denying area variances to permit expansion of their single-family home. The court annulled the ZBA's determinations and granted the variances, but declined to void the ZBA's action based on a violation of the Open Meetings Law.

Landowners sought to modify their home to provide a bedroom suite and sanitary facilities for an invalid parent. The building department denied a permit application on the ground that the proposed building lot coverage was in excess of the maximum, the proposed gross area was also in excess of the maximum, and the side yard set back was inadequate. Landowners applied for the required variances in November 2009. The ZBA did not schedule a hearing, allegedly because of opposition by the town building commissioner. Ultimately, a hearing was held on March 11, 2010, at which there were no objections by members of the public. The ZBA did not deliberate on the application until April 22. At that time, the ZBA took up the application in executive session, and landowners were initially denied access to all deliberations.Eventually, they were permitted to attend the executive session. At that session, the variance request was denied. The only reason provided was that the proposed structure was “a large structure for whatever else is on the block.” Landowners then brought this article 78 proceeding, contending that the ZBA's determination was arbitrary and capricious, and that the determination was made in violation of the open meetings law.

In granting the petition, the court held that because there was no evidence that the ZBA had weighed or balanced the factors listed in Town Law sec. 267-b(3), and because there was evidence that the ZBA had granted numerous similar variance requests, the ZBA's determination in this case was arbitrary and capricious, and therefore invalid. The court also held that the ZBA had violated the open meetings law by holding a private meeting for the purpose of transacting public business. In particular, the court concluded that the ZBA had failed to properly convene and conduct an executive session. Nevertheless, the court declined to annul the ZBA's action based on the violation of the open meetings law because there were other sufficient reasons for annulling the determination.

COMMENT

When a court determines that a public body has taken action in violation of the requirements of the Open Meetings Law, the court has discretion, upon good cause shown, to declare the action taken void, in whole or in part. The statute expressly clarifies that, without more, an unintentional failure to fully comply with the notice provisions is insufficient to invalidate an action taken at a meeting of a public body. Pub Officers Law, Section 107.

When a ZBA denies interested parties the right to present their arguments and evidence, the court will often exercise its discretion to annul the ZBA's determination. In Matter of Oshry v. Zoning Board of Appeals of the Incorporated Village of Lawrence, 276 A.D.2d 491, the court annulled the ZBA's determination to grant several variances when the ZBA held a meeting in a room too small to accommodate opponents of the variance, failed to provide adequate notice, and denied reasonable requests for an adjournment. On those facts, the court held that the board's violation of the Open Meetings Law by failing to vote in the public session prior to issuing its determination was sufficient to warrant annulling the determination

When, on the other hand, after hearing the arguments of interested parties a ZBA has a rational basis, supported by the record, for its determination, the court is unlikely to annul the ZBA's determination, despite a violation of the Open Meetings Law. In Matter of Aliano v. Oliva, 72 A.D.3d 944, the ZBA denied petitioner's application for a variance, and the court found that even if the ZBA had violated the Open Meetings Law when it ultimately made its determination, the circumstances were not sufficient to warrant annulment of the ZBA's determination because interested parties had previously had the opportunity to express their views at hearings and in written submissions. The court found evidence in the record that provided a rational basis for the ZBA's denial of the variance application. Also, in Matter of Carrier v. Town of Palmyra Zoning Board of Appeals, 30 A.D.3d 1036, although the ZBA discussed and voted to deny petitioner's variance application at an executive session, in violation of the Open Meetings Law, the court upheld the ZBA's determination because there had previously been a public hearing regarding petitioner's application.

Matter of Application of Jacobson Properties, LLC v. City of New York
NYLJ 8/17/10 Supreme Ct., N.Y. Cty. (Schlesinger, J.)

In a hybrid article 78 proceeding and declaratory judgment action, landowner challenged the rezoning of three blocks, which included landowner's parcels. Supreme Court held that landowner had standing, but dismissed the petition on the merits, concluding that the city had complied with its SEQRA obligations.

In 2008, the city approved zoning amendments for a 111-block area in the East Village and Lower East Side. Most of the mid-blocks in the area were rezoned R8B, with the exception of three blocks running from East 4th Street to East 7th Street between Avenue A and Avenue B. Those three blocks ' which include landowner's parcels ' were zoned R7B, which permits a lower FAR than in other mid-block areas, and which imposes height restrictions not in force before the amendment. Landowner brought this action challenging the amendment.

The court started by rejecting the city's argument that landowner lacked standing. The court noted that a landowner always has standing to advance a SEQRA challenge to the rezoning of his own land, even if landowner's motivations are primarily economic. But on the merits, the court observed that the city's EIS had identified differences in the scale of development on these three blocks that justified imposing more stringent restrictions than on other blocks in the area. The court concluded that the city had taken a hard look at all environmental factors, and, as a result, complied with SEQRA.