IN THE CONTEXT OF ZONING REGULATIONS, THE AGENCY'S FAILURE TO FOLLOW, TO THE LETTER, THE APPLICABLE LAWS/STATUTES/REGULATIONS RENDERS THE AGENCY'S DETERMINATION ARBITRARY AND CAPRICIOUS

"The Town Board did not make the factual findings required by section 190-72, however, and the Town Attorney made clear that the Town Board was not relying upon that section in enacting Local Law No. 5. Respondents now argue that the facts of this case permitted the Town Board to rely upon section 190-72. The fact remains that the Town Board did not, however, and a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper ... . Thus, the Town Board acted in an arbitrary and capricious manner by disregarding the provisions of the Colonie Land Use Law in enacting Local Law No. 5, and the law cannot be sustained ...". 

Town Did Not Follow Its Own Procedures for Rescinding a Planned Development District--Local Law Purporting to Do So Annulled

The Third Department determined the Town of Colonie acted arbitrarily and capriciously when it enacted a Local Law restoring the original zoning after construction at the site came to a halt.  In enacting the new Local Law, the town had not followed its own procedures for rescinding a planned development district.  [The Third Department noted that the town's actions were not egregious and therefore damages based upon an alleged violation of constitutional rights (42 USC 1983) would not lie and the equal protection argument had no merit.]:

"Zoning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them" ... . The Town Board was therefore obliged to "comply with its own procedural rules regarding enactment of the zoning ordinance" in making amendments to that ordinance ... . Chapter 190 of the Code of the Town of Colonie (hereinafter referred to as Colonie Land Use Law) governs the creation and rescission of planning development districts, and Local Law No. 12 (2007) of the Town of Colonie was enacted pursuant to its terms (see Colonie Land Use Law § 190-65 et seq.). As is relevant here, Colonie Land Use Law § 190-72 permits the Town Board to rescind a planned development district and restore a property to its prior zoning under limited circumstances. The Town Board did not make the factual findings required by section 190-72, however, and the Town Attorney made clear that the Town Board was not relying upon that section in enacting Local Law No. 5. Respondents now argue that the facts of this case permitted the Town Board to rely upon section 190-72. The fact remains that the Town Board did not, however, and "a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper" ... . Thus, the Town Board acted in an arbitrary and capricious manner by disregarding the provisions of the Colonie Land Use Law in enacting Local Law No. 5, and the law cannot be sustained ... . Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip Op 09081, 3rd Dept 12-31-14

AS LONG AS THE ZONING BOARD CONSIDERED THE FACTORS MANDATED BY STATUTE, THE DETERMINATION OF THE BOARD WILL BE UPHELD, DESPITE SUBSTANTIAL EVIDENCE SUPPORTING A CONTRARY DETERMINATION

"A reviewing court may not substitute its judgment for that of a local zoning board ..., even if there is substantial evidence supporting a contrary determination ... . Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners' hardship is self-created (see § 81-b [4] [b] [i], [iii], [v])." 

Application for Variance Properly Denied---Courts' Review Powers Re: Actions of Zoning Board Explained

The Fourth Department determined the zoning board properly denied the petitioner's application for a variance and explained the courts' review powers in this context:

It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board ... . Consequently, when reviewing the denial of an application for an area variance, "[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion' . . . [, and the b]oard's determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence' " ... . A reviewing court may not substitute its judgment for that of a local zoning board ..., "even if there is substantial evidence supporting a contrary determination" ... .

Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners' hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15

WHERE NO EVIDENCE IS PRESENTED TO THE ZONING BOARD WHICH SUPPORTS THE REQUIRED STATUTORY BASIS FOR ITS RULING, THE RULING IS WITHOUT A RATIONAL BASIS, I.E. ARBITRARY AND CAPRICIOUS

The court noted that similar variances had been granted to other parties and there was no evidence before the board that the variances would have an undesirable effect on the character of the community, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood (statutory criteria for denial).

Denial of Area Variance In the Absence of Evidence of a Detrimental Effect on the Community Was Arbitrary and Capricious

The Second Department determined Supreme Court correctly held that the zoning board of appeals' denial of area variances was arbitrary and capricious.  The court noted that similar variances had been granted to other parties and there was no evidence before the board that the variances would have an undesirable effect on the character of the community, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood:

In determining whether to grant an area variance, a zoning board must consider "the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant" ... . The zoning board should also consider "(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance" (General City Law § 81-b[4][b]). In applying the statutory balancing test for granting area variances, a zoning board is "not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational"... . Matter of L & M Graziose, LLP v City of Glen Cove Zoning Bd. of Appeals, 2nd Dept 4-8-15

"An applicant for a use variance bears the burden of demonstrating, among other things, that the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned (see Town Law § 267-b [2] [b]...). Where, as here, a use variance is sought to expand a nonconforming use, the applicant must demonstrate that the land cannot yield a reasonable return if used as it then exists or for any other use allowed in the zone ... . Such an inability to yield a reasonable return must be established through the submission of "dollars and cents" proof with respect to each permitted use ... . * * * ... [N]o evidence was presented as to the financial implications of converting the entire property to residential use, which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use, [it] is . . . with respect to the whole tract that reasonableness of return is to be measured...".

Criteria for an Application for a Use Variance Explained---Not Met Here

The Third Department reversed Supreme Court's dismissal of a petition to annul the zoning board of appeals' grant of a use variance to the respondent.  Respondent operates a manufacturing facility in a residential zone.  The facility pre-dated the ordinance making the zone exclusively residential.  The Third Department, in a previous appeal, determined that an addition to the manufacturing facility constituted an unlawful expansion of a nonconforming use.  Thereafter the respondent procured a use variance from the zoning board of appeals.  In concluding the use variance must be annulled, the Third Department explained that the applicant for a use variance must demonstrate the property cannot "yield a reasonable return if used for any of the purposes permitted as it is currently zoned...".  In this case, the respondent was required to show that using the property for manufacturing without using the disputed addition would not yield a reasonable return. And the respondent was required to demonstrate that converting the entire property, not just the disputed addition, to residential use would not yield a reasonable return.  The respondent indicated only that the addition would be used to store old equipment and only attempted to demonstrate that conversion of the disputed addition (not the entire property) to residential use would not yield a reasonable return. Neither showing was sufficient:

An applicant for a use variance bears the burden of demonstrating, among other things, that the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned (see Town Law § 267-b [2] [b]...). Where, as here, a use variance is sought to expand a nonconforming use, "the applicant must demonstrate that the land cannot yield a reasonable return if used as it then exists or for any other use allowed in the zone" ... . Such an inability to yield a reasonable return must be established through the submission of "dollars and cents" proof with respect to each permitted use (... .

Since the operation of the industrial manufacturing facility, as it existed at the time the prohibitory zoning ordinance was enacted in 1983, was a nonconforming use that was permitted to continue because the property was devoted to such a use before the ordinance took effect, it was a use that was permitted in that zone. Further, the property is located in an R1 residential district and, thus, residential uses were also permitted in that zone. Therefore, respondents had the burden of proving that their property could not yield a reasonable return if used as a presently existing nonconforming use — i.e., as a manufacturing facility without use of the addition for manufacturing purposes — or if used for any residential use ... . Respondents' proof was insufficient to meet either of these showings.

With regard to whether the property could yield a reasonable rate of return if continued to be used for manufacturing purposes without utilizing the 800-square-foot addition, the evidence presented at the hearing established that the addition is used to house older equipment that has been replaced by more advanced, efficient equipment. * * *

Even if there were sufficient proof to demonstrate an inability to realize a reasonable return on the property if used as it presently exists for manufacturing purposes, no evidence was presented as to the financial implications of converting the entire property to residential use, [*3]which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use, "[it] is . . . with respect to the whole tract that reasonableness of return is to be measured"... . The fact that respondents' application for a use variance was limited to the addition is of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner's property rights subject to a regulatory regime ... . Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 2015 NY Slip Op 03008, 3rd Dept 4-9-15

STANDING TO CONTEST AGENCY RULING RE: ZONING

"The Town Code permits appeals by any person aggrieved by, among other things, the zoning administrator's decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning ... . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who has sustained special damage, different in kind and degree from the community generally... . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute's zone of interests and his or her property is sufficiently proximate to the property at issue ...".

Engineer/Engineering Firm Did Not Have Standing to Contest Variance

The Third Department determined the petitioner, Klein, an engineer who claimed to be representing neighbors opposed to a variance granted by the town zoning board, did not have standing to contest the variance:

The Town Code permits appeals by "any person aggrieved" by, among other things, the zoning administrator's decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning ... . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who "has sustained special damage, different in kind and degree from the community generally" ... . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute's zone of interests and his or her property is sufficiently proximate to the property at issue ... .

The notice of appeal to the ZBA [Zoning Board of Appeals] listed Klein's engineering firm as the appellant and Klein as the appellant's agent. Klein and his firm did not exhibit any specialized harm and do not own property near the Kitchens' property. Thus, Klein does not have standing in his individual capacity or as an agent for his firm. Klein asserts that at the public hearings and in letters he identified himself as appearing on behalf of neighbors. While this is true, at no point up until the day before the hearing on his appeal did he identify who his clients were. The other petitioners involved in this appeal, who later claimed that Klein was their agent, were not listed on the notice of appeal and did not file a formal designation form naming him as their agent — as the Town generally requires — prior to the expiration of the statute of limitations for appealing an administrative determination. Under the circumstances, the ZBA did not err in finding that Klein was not a duly authorized agent of an aggrieved party during the requisite limitations period for the appeal and was not himself aggrieved, so he had no standing ... . Matter of Fund for Lake George, Inc. v Town of Queensbury Zoning Bd. of Appeals, 2015 NY Slip Op 518831, 3rd Dept 3-12-15

REVIEW CRITERIA WHERE A HEARING HAS BEEN HELD---"SUBSTANTIAL EVIDENCE" DEFINED

"Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence" ... . "Substantial evidence means more than a mere scintilla of evidence,' and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides" ... . "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'" ... . "Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician's testimony over that of another'" ... . "Thus, even if conflicting medical evidence can be found in the record,' the municipality's determination, based on its own expert's conclusions, may still be supported by substantial evidence" ... .

Board of Commissioner's Rejection of Hearing Officer's Award of Supplemental Benefits Was Supported by Substantial Evidence---"Substantial Evidence" Defined and Review Criteria Explained

The Second Department determined the Board of Commissioners of the Greenville Fire District properly rejected a hearing officer's recommendation that the petitioner be awarded supplemental benefits pursuant to the General Municipal Law. The court explained its review powers and the evidentiary requirements:

"Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence" ... . "Substantial evidence means more than a mere scintilla of evidence,' and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides" ... . "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'" ... . "Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician's testimony over that of another'" ... . "Thus, even if conflicting medical evidence can be found in the record,' the municipality's determination, based on its own expert's conclusions, may still be supported by substantial evidence" ... .

Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner's application for benefits pursuant to General Municipal Law § 207-a(2), was supported by substantial evidence ... . The Board was entitled to make a finding contrary to the hearing officer's recommendation, as long as substantial evidence supported the determination ... . The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner's expert, as it did, so long as testimony of the Fire District's expert was consistent and supported by the medical evidence ... . Since the Board's determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination ... . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 02474, 2nd Dept 3-25-15

"DOCTRINE OF PRIMARY JURISDICTION"---DOCTRINE APPLIES WHERE COURTS AND ADMINISTRATIVE AGENCIES HAVE CONCURRENT JURISDICTION---COURT WILL SUSPEND PENDING REFERRAL OF ISSUES INVOLVING THE SPECIAL COMPETENCE OF THE ADMINISTRATIVE BODY

"The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions... . The doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views...".

Pursuant to the Doctrine of "Primary Jurisdiction," Teacher Seniority Matters Should First Be Considered by the Commissioner of Education, Not the Courts

The Second Department determined matters concerning teacher-seniority, before being considered by a court, should first be considered by the Commission of Education, invoking the doctrine of "primary jurisdiction:"

"The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions" ... . The doctrine applies " where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views'" ... .

Here, the issues raised in the petition relate to the appropriate calculation of the petitioner's seniority and, thus, fall within the special knowledge and expertise of the Commissioner ... . Matter of Schwartz v East Ramapo Cent. Sch. Dist., 2015 NY Slip Op 02769, 2nd Dept 4-1-15

LIMITED POWERS OF REVIEW RE: COLLEGE'S EXPULSION OF STUDENT FOR ACADEMIC REASONS

"Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute...". 

Court's Power to Review Dismissal for Academic Reasons Explained

The Second Department upheld the dismissal of a student's petition challenging her expulsion from a college nursing program for academic reasons.  The Second Department explained its limited review powers in this context:

Unlike disciplinary measures taken against a student, institutional assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators ... . Thus, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations ... . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute... . Here, the petitioner's professors at the College made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course designated as Nursing 204. There is no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational. Nor is there any evidence of a violation of the New York or United States Constitution, or any statute ... . Matter of Zanelli v Rich, 2015 NY Slip Op 02775, 2nd Dept 4-1-15