TABLE OF CONTENTS

INTRODUCTION *

Role of the Local Legislature *

Zoning Board of Appeals *

Planning Board *

Introduction of Documentary Evidence, Experts and Cross-Examination *

Public Officers AND DUE PROCESS OF LAW *

Conflicts of Interest *

Freedom of information law *

Due Process, Meetings & Hearings *

Filing & Making a Proper Record *

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 performed by the legislature, zoning board of appeals, and planning board. Observable in the laws governing their operation are a number of familiar legal doctrines including separation of powers, citizen participation, public notice, access to information and board deliberations, the right to be heard, the right to impartial decision-making, and the right to appeal. The result sought is to provide for the public health, safety, and welfare through a well-planned and administered local land use system.

The elected legislative body plays the central role in the field of local land use control. This body is typically called the city council in cities, the town board in towns, and the village board of trustees in villages. 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, such as the planning board, zoning board of appeals, or conservation board, and decide what authority to delegate to these boards.

The local legislature may decide to retain certain administrative functions. For example, in the zoning law the legislature may provide that certain land uses are permitted only upon the issuance of a special use permit and may retain the authority to review and issue those permits instead of delegating that authority either 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.

Although there are exceptions (as when the legislature acts irrationally), normally the laws adopted by the local legislature are presumed to be valid and those who attack such laws have the burden of proving their illegality. 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. When the legislature retains an administrative function, it must hear and decide matters submitted to it, such as applications for special use permits.

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.

Zoning Board of Appeals

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 and villages, appointments are made by the legislature; in cities, the mayor or city manager may make appointments.

The essential function of the zoning board of appeals is to grant variances from the strict application of the zoning laws in circumstances when they create demonstrable hardships or practical difficulties for the property owners. This makes the zoning board of appeals a safety valve, protecting landowners from unfair 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 when interpretations of the zoning law are involved.

A variance allows a landowner to use land or locate structures on the land in a manner not permitted by the provisions of the law. Use variances are granted only when a landowner establishes that the current use restrictions produce an "unnecessary hardship," preventing the realization of a reasonable economic return on the land. Area variances, permitting development that deviates from dimensional requirements of the law, are granted to landowners who encounter particular difficulties in locating structures on the land in compliance with the zoning regulations.

Before approaching the zoning board of appeals, property owners must seek an interpretation of the zoning law from the zoning enforcement officer or building inspector to determine how it applies to their properties. 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 must vote to reverse any such determination, order, or decision or they can 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, found in Town Law § 267-a(5) and Village Law § 7-712-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 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.

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 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 in villages, and by the mayor or city manager in cities.

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 applies to the planning board's functions.

One important purpose of the planning board's advisory role is to provide an impartial and professional 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, and the planning board has no authority to vary these standards unless the legislature has specifically authorized the board to waive them. 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.

State law permits the creation of planning commissions, which have the same power as the planning boards. These commissions make recommendations on specific planning decisions that the local legislature determines. Examples are placement of public buildings or parks, location of highways, and a variety of other issues. Referral to the commission on these topics is mandatory. Provisions that prevent a city or village official from making a final decision without the planning commission's recommendation enforce these referrals.

Local administrative bodies must base their decisions on facts on 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.

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.

Local legislators and appointed members of local planning and zoning boards are considered "public officers." 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 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, 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 that require most land use actions be taken only after there is a hearing following adequate notice further secure these guarantees. Adequate notice means that the public is invited to be heard in a fair and impartial manner.

The Public Officers Law regulates local boards and officials in New York State. Additionally, all municipalities in New York State are required to pass a local ethics law. This law is sometimes adopted as a chapter of the municipal code. It may parallel the requirements of the Public Officers Law or may impose additional regulations.

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 has 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.

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.

The Public Officers Law contains guidelines as to what constitutes a 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. 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. Boards may establish reasonable rules regarding access, time to respond, copying, mailing, and paying for the information requested.

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. For this reason, the government can inquire about the purpose of the request. 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. Generally, information should be made freely available to the public. Other exceptions include information that would interfere with law enforcement investigations or judicial proceedings, endanger the life or safety of any person, or provide access codes to computers.

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.

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, and identify personal details," 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."

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.

Notice 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. Under the Village, Town, and General City law, sessions 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.

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” 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 within an otherwise open meeting but only in the rare circumstances listed in the statute, such as discussions that might imperil public safety or contain sensitive medical, financial, credit, or employment information of a person or corporation. Courts will carefully scrutinize whether there was a valid reason to hold the meeting in private.

An executive session is the portion of a meeting not open to the public. Public Officers Law §§ 102(3), 103(a). Section 105 of the Public Officers Law governs conduct of these sessions.

Local boards hold public hearings as required by local legislation and state enabling acts. State law for subdivision approval, variances, special use permits, zoning and comprehensive plan adoption and modification requires 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.

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 may be kept in narrative form rather than in verbatim transcript form. A clerk or secretary hired by the municipality often manages these records. The records should include the applications and 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, including any absences.

"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. 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." The minutes of a subdivision matter held in an executive session must be available within one week.

Keeping a good record is more than good practice, it is a substantive part of any decision. 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. The record may be the minutes of the board, if prepared in enough detail to satisfy these requirements. The basis of the decision should be found in the decision that is filed with the clerk, if not in the minutes. 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. The decision document must contain the record or summary of all motions, proposals, resolutions and any other matter formally voted upon and show who voted and how they voted.

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 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.

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.

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 cross-examine witnesses, and insuring the objectivity of boards by avoiding conflicts of interest and the appearance of impropriety.

1. 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).
2. Robert J. Flynn, Robert J. Flynn, Jr. Zoning Board of Appeals Practice in New York, New York State Bar Association (1996).
3. Committee on Open Government, NYS Department of State, 41 State Street, Albany, New York 12231. Telephone: (518) 474-2518; Fax: (518) 474-1927.
4. 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/