To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York

AuthorElliot Gardner

    Elliot Gardner=Book Note Editor, Cardozo Law Review, Candidate for Jurist Doctor (June 2004). The author would like to thank Professor Stewart E. Sterk for his generous advice and invaluable guidance in preparing this Note. He would also like to thank his wife, Aviva Rothman, for her support, patience, and proofreading.

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"Village Wins Reversal in Mall Zoning Action," announced the headline in July 12, 2002's Garden City Life.1A highly contested zoning battle-which began in 1999 with an attempt by the owners of the Roosevelt Field Mall to secure permission to expand the mall-had ended in defeat for the developers, and in victory for the zoning board and its neighborhood allies.2 The case, Retail Property Trust v. Zoning Board of Appeals3 was one of a trio of zoning cases handed down by the New York Court of Appeals on July 1, 2002,4 all of which had the effect of reinstating local zoning board decisions that had been overturned byPage 422lower courts.5 The cases are noteworthy in that they narrow the scope of judicial review of local zoning board decisions.6

A simple definition of zoning7 is "[t]he legislative division of a region . . . into separate districts with different regulations within the districts for land use, building size, and the like."8 Zoning is an important feature of virtually every modern municipality.9 New York's Town, City, and Village Laws and municipal ordinances establish general zoning schemes,10 but zoning boards are necessary for the application ofPage 423zoning programs to individual pieces of land.11 Zoning boards, however, are composed of local officials who are generally not legal professionals or experts in zoning law,12 and who may be susceptible to local political pressures and prejudices,13 and even abuses of power.14 As such, the state courts-the only bodies which have direct appellate review over zoning boards15-play an important role in policing zoning boards and keeping the zoning process fair.16 Judicial review provides the state and the public with a way to hold zoning boards' actions up to a standard of reasonableness.17

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Judicial review is particularly important in the case of special use permits (also known as special exceptions18), where a statute or ordinance specifically allows the sought-after use, but zoning boards have the semi-discretionary power to deny the permits.19 Zoning boards may not simply deny a special use permit at their discretion because of community opposition-a decision to deny must be accompanied by substantial evidence.20

This Note will demonstrate the importance of maintaining a higher level of scrutiny in judicial review of cases involving zoning board denials of special permits21 than in other types of zoning cases (specifically those involving denials of variances22), and will examine how a trio of recent cases decided by the New York Court of Appeals seems to have eroded this distinction. Part I provides general background about zoning and illustrates New York's statutory scheme governing zoning boards and their review by courts. Part II discusses the difference between special permits and variances23 and their respective reviews by courts by exploring the relevant statutes and some illustrative cases. Part III explores three zoning cases recently decided by the New York Court of Appeals. Part IV assesses the likely impact of those cases, and analyzes both the importance of judicial review and the possible impact of the courts' failure to develop a clear framework for dealing with appeals of zoning board decisions.24 Finally, Part V of the Note proposes that the courts adopt a distinctly different standard of review for cases in which a zoning board denies a special permit, and that the legislature establish Courts of Zoning Appeals to heighten judicial oversight of the zoning process.

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I Setting the Stage
A An overview of zoning: historical background

In 1916, the city of New York enacted the nation's first comprehensive land zoning program;25 within nine years, 368 municipalities had enacted zoning ordinances.26 Early proponents of zoning included wealthy property owners interested in protecting their property values,27 social reformers wishing to create environmentally healthy residential areas free of industry,28 and urban planners seeking to maximize cities' efficiency by compartmentalizing their various uses.29

As desirable as zoning schemes may be, zoning is an exercise of the police power30 that imposes restrictions "in derogation of common-law property rights"31 by placing limitations on the uses to which a propertyPage 426owner can put his or her property.32 It was not clear that zoning was a constitutional method for regulating land-use until the United States Supreme Court upheld a zoning plan in Village of Euclid v. Ambler Realty Co.33 Justice Sutherland noted some of the advantages of zoning:

[Reports prepared by] commissions and experts . . . concur in the view that the segregation of residential, business, and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life; greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections; decrease noise and other conditions which produce or intensify nervous disorders; preserve a more favorable environment in which to rear children, etc.34

These same concerns today preoccupy zoning boards in their applications of zoning programs.35

Because zoning limits the manner in which a landowner can use his or her land,36 the specter of unconstitutional taking lurks behind every zoning scheme.37 Variances38 are constitutional "safety valves"39 inPage 427zoning schemes, which prohibit certain uses except when the prohibition would amount to an unconstitutional taking.40 Special permits41 serve a similar purpose42 in that they authorize certain uses under certain circumstances, but prohibit them under others.43

B Zoning board decisions and their review by the State Courts

Zoning enabling laws44 provide basic frameworks for zoning programs,45 but local municipal boards are necessary to implement the programs on the ground.46 The parallel provisions of article sixteen of New York's47 Town Law, article 5-A of New York's City Law, and section seven of New York's Village Law48 govern the mechanics of zoning inPage 428general, but empower local municipal boards to enact their own specific zoning programs.49

When a property owner wishes to put his or her property to a use which either requires a permit or is not permitted by the zoning scheme, he or she can petition the board for a variance or a special permit; New York's town laws provide standards for evaluating such petitions.50 At the municipal level, the final decision on whether or not to grant suchPage 429permits rests with the zoning board of appeals,51 a quasi-judicial52 appellate board53 whose subject matter jurisdiction is limited exclusively toPage 430zoning matters, and whose structure is prescribed by statute.54 The vast majority of most of these boards' time is spent considering applications for variances and special permits.55 These zoning boards hold hearings, and affect individual property owners' rights56 on a case-by-case basis by granting and denying special exceptions and variances.57 Because individuals' rights are at stake, and zoning boards are fertile ground for arbitrariness58 and conflicts of interest,59 the possibility of judicial reviewPage 431exists for zoning board decisions,60 as it does for actions of virtually all administrative bodies.61

If the party wishes to appeal the zoning board of appeals' decision, New York zoning law provides that Article 78 of the Civil Practice Law-which deals with judicial review of administrative decisions in general-governs judicial review.62 The action begins in the Supreme Court of the appropriate county, where the court is empowered to determine the answers to four questions raised by the statute, the most important for the purposes of this note being, "whether a determinationPage 432made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence."63

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In Cowan v. Kern,64 the New York Court of Appeals provides a brief summary of its philosophy toward judicial review of zoning board decisions:

The crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which...

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