ADMINISTRATIVE LAW

 

 

COURT REVIEW CRITERIA RE: ADOPTION OF AN ENVIRONMENTAL IMPACT STATEMENT---DETERMINE ONLY WHETHER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT HAS BEEN FOLLOWED PROCEDURALLY AND SUBSTANTIVELY--COURT CANNOT WEIGH THE DESIRABILITY OF ANY ACTION OR CHOOSE AMONG ALTERNATIVES

 

 

"Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination ... . [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA [the State Environmental Quality Review Act], procedurally and substantively...".

 

Extent of Court Review of Town Board's Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained

 

The Second Department determined the Town Board had properly adopted the Final Generic Environmental Impact Statement (FEGIS) and Findings Statement re: an airport master plan (dealing with noise).  The Second Department explained the court's review powers:

 

Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure ... . Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination ... . " [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'" ... .

 

Here, the Town Board of the Town of East Hampton (hereinafter the Town Board) fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the Final Generic Environmental Impact Statement (hereinafter FGEIS), which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.  Matter of Committee to Stop Airport Expansion v Wilkinson, 2015 NY Slip Op 01941, 2nd Dept 3-11-15

 

 

 

 

COURT REVIEW IS LIMITED TO THE GROUNDS INVOKED BY THE AGENCY---COURT CANNOT SUBSTITUTE A MORE ADEQUATE OR PROPER BASIS FOR THE AGENCY'S ACTION

 

"Judicial review of a determination by the SLA [State Liquor Authority] is limited to the grounds invoked by the agency" ... . "If those grounds are inadequate or improper, the court is powerless to affirm the administrative [determination] by substituting what it considers to be a more adequate or proper basis ... . Furthermore, reliance upon an improper basis for its determination requires that the determination be annulled, regardless of whether the SLA also relied, in part, upon valid considerations ...".  

 

Criteria for Review of State Liquor Authority (SLA) Determination Explained

 

In affirming Supreme Court's determination that the State Liquor Authority (SLA) should have granted petitioner's application for a liquor license, the Second Department explained its review powers:

 

In reviewing the SLA's determination of whether the public convenience and advantage would be served by granting or denying an application for a retail liquor license, the inquiry of the court is strictly limited to whether the SLA acted arbitrarily and capriciously ... . A determination is "arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" ... .

 

Judicial review of a determination by the SLA "is limited to the grounds invoked by the agency" ... . "If those grounds are inadequate or improper, the court is powerless to affirm the administrative [determination] by substituting what it considers to be a more adequate or proper basis" ... . Furthermore, reliance upon an improper basis for its determination requires that the determination be annulled, regardless of whether the SLA also relied, in part, upon valid considerations ... .  Here, the bases proffered by the SLA for its decision to deny the application were without factual support in the record. Accordingly, since the asserted bases did not constitute adequate grounds to support the challenged determination, the Supreme Court's order must be affirmed.  Matter of Costco Wholesale Corp v New York State Liquor Auth, 2015 NY Slip Op 01274, 2nd Dept 2-11-15

 

 

 

COURTS SHOULD NOT DEFER TO THE AGENCY'S DETERMINATION OF A PURELY LEGAL QUESTION (ABSENT THE NEED TO RELY UPON THE AGENCY'S SPECIALIZED KNOWLEDGE AND EXPERTISE)

 

"Although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law ... . Because zoning ordinances are in derogation of common law, they must be strictly construed against the municipality that drafted them, and any ambiguity must be resolved in favor of property owners ...". 

 

Courts Should Not Defer to Zoning Board of Appeals' Determination of a Purely Legal Question (the Meaning of a Town Code Provision)

 

The Third Department determined Supreme Court erred when it deferred to the zoning board of appeals' (ZBA's) interpretation of the town code (because the interpretation was a purely legal issue) and the ZBA erred in its interpretation of the code. The Third Department found that the word "dwelling" was encompassed by the word "building" and, therefore, the code provision at issue allowed the construction of 74 single family dwellings on petitioner's (Boni's) parcel:

 

Supreme Court erred in deferring to the ZBA's interpretation of the zoning ordinance, and the ZBA erred in its interpretation of the Town Code as it pertains to the Boni parcel. Although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law ... . Because zoning ordinances are in derogation of common law, they must be strictly construed against the municipality that drafted them, and any ambiguity must be resolved in favor of property owners ... . The Boni parcel is located in a B-1 zoning district, which has 18 listed permitted uses, including one- and two-family dwellings (see Town Code of the Town of Clifton Park § 208-32 [A] [14]). Pursuant to § 208-33 (B) of the Town Code, in a B-1 district, "[n]o preexisting building(s) shall be rehabilitated or remodeled or new building(s) constructed on a vacant lot to a size greater than 12% of the lot size, with no single building to have a maximum square footage exceeding 4,800 square feet. Multiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded."

 

Essentially, petitioners argue that the word "buildings" in the last sentence of § 208-33 (B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. * * *

 

We agree with respondents that respondent Town of Clifton Park probably never envisioned a landowner being able to build 74 one-family dwellings on a single, unsubdivided parcel in a business district. Nevertheless, the plain language of the Town Code, strictly construed against the municipality, must be interpreted as permitting multiple buildings — including one-family dwellings — on a single lot as long as they do not exceed the density limitations ... . Matter of Boni Enters LLC v Zoning Bd of Appeals of the Town of Clifton Park, 2015 NY Slip Op 00428, 3rd Dept 1-15-15

 

 

"A zoning board's interpretation of its zoning ordinance is generally entitled to great deference ... . However, where, as here, the issue involves pure legal interpretation of statutory terms, deference is not required... . Pursuant to our independent review of the law, we conclude that the ZBA's determination complied with applicable legal principles ...".

 

Court's Review Powers Re: a Zoning Board's Interpretation of an Ordinance Explained---Reviewing Court Need Not Defer to the Board's Ruling on a Purely Legal Issue/Here Zoning Board Properly Interpreted the Ordinance---Criteria Explained

 

Reversing Supreme Court, the Second Department determined the Zoning Board of Appeals (ZBA) had properly found that a "tire sales and automotive repair" business was a "conditional use," not a "permitted use," within the meaning of the Village Code. A "conditional use" requires a conditional use permit and site plan approval.  The court explained its review powers in this context and the statutory interpretation criteria it applied. The reviewing court need not defer to the agency's ruling on a purely legal question (here the meaning of the applicable code provisions). The ordinance must be read as a whole and no language should be rendered superfluous:

 

" In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion'" ... . "[Z]oning restrictions, being in derogation of common-law property rights, should be strictly construed, and any ambiguities are to be resolved in favor of the property owner" ... .

 

A zoning board's interpretation of its zoning ordinance is generally entitled to great deference ... . However, where, as here, "the issue involves pure legal interpretation of statutory terms, deference is not required" ... . Pursuant to our independent review of the law, we conclude that the ZBA's determination complied with applicable legal principles ... .

 

Under the Zoning Code, uses permitted as of right (hereinafter permitted uses) and conditional uses are set forth in accompanying zoning schedules. The uses listed in column A of the applicable schedules "are permitted by right," while the uses listed in column C "are permitted only on approval of the Planning Board, and are conditioned to [sic] special requirements that may be imposed to ensure compatibility with neighboring uses" (Code of the Village of Monroe § 200-15[B]). Zoning Schedule I-F is applicable to the GB District. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I-F include, among others, "retail sales" (Item 17) and "repair service, including automotive" (Item 16). However, column C lists "tire sales and service" (Item 4) among the conditional uses. Section 200-3 of the Code of the Village of Monroe provides that "[i]n the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control" ... . 

 

"A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance" ... . Matter of Robert E. Havell Revocable Trust v Zoning Bd. of Appeals of Vil. of Monroe, 2015 NY Slip Op 03369, 2nd Dept 4-22-15

 

 

A COURT WILL DEFER TO AN AGENCY'S INTERPRETATION OF THE APPLICABLE LAW WHEN THE COURT DETERMINES THE AGENCY'S SPECIALIZED KNOWLEDGE AND EXPERTISE IS REQUIRED FOR AN INFORMED  INTERPRETATION---WHERE SPECIALIZED KNOWLEDGE IS DEEMED NECESSARY, THE AGENCY'S INTERPRETATION OF THE LAW WILL BE UPHELD IF IT IS NOT IRRATIONAL OR UNREASONABLE

 

"...[T]he number of hours in the 'normal workweek' of an overtime-ineligible state employee necessarily implicates the Budget Director's specialized knowledge of state employment practices and involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom ... . Accordingly, this Court will defer to the Budget Director's determination and uphold it if it is not irrational or unreasonable ...". 

 

Appellate Court Defers to Agency Interpretation of a Statute When Specialized Knowledge Required

 

The Third Department affirmed the State Budget Director's determination that state employees normally not entitled to overtime pay are eligible for overtime pay if they worked more than 47.5 hours in a week as a result of Hurricane Sandy.  Petitioners sought overtime pay for those who worked more than 40 hours per week.  The Third Department explained when an appellate court must defer to the statutory interpretation made by a state agency (the court so deferred here):

 

Initially, we must determine whether the Budget Director's interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency's expertise in the matters covered by the statute, but will accord no such deference when "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent" ... . Although the Civil Service Law provides that the "workweek for basic annual salary" for employees who are eligible for overtime shall not exceed 40 hours (Civil Service Law § 134 [1]), overtime-ineligible employees are expressly excluded from the coverage of that section, and nothing else in the legislation defines the phrase "normal workweek" as used in Civil Service Law § 134 (6) for such employees or prescribes the number of hours contained in such a workweek. Under these circumstances, in our view, the number of hours in the "normal workweek" of an overtime-ineligible state employee necessarily implicates the Budget Director's specialized knowledge of state employment practices and "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom" ... . Accordingly, this Court will defer to the Budget Director's determination and uphold it if it is not irrational or unreasonable ... . Matter of Kent v Cuomo, 2015 NY Slip Op 00680, 3rd Dept 1-29-15

 


ADMINISTRATIVE POLICY CHANGES (QUASI-LEGISLATIVE ACTIONS)--STATUTE OF LIMITATIONS FOR A CHALLENGE

 

"In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party ...".

 

 

Four-Month Statute of Limitations Starts Running When Administrative Agency's Policy Change Is "Readily Ascertainable," Not When Notice of the Policy Change Is Actually Received

 

The Third Department explained when the four-month statute of limitations begins to run when the triggering event is a policy memorandum issued by an administrative agency:

 

...[B]oth the statute and case law make clear that the statute of limitations period for a CPLR article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217 [1]...). Such determination, in turn, "becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party" ... . In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party ... . Matter of School Adm'rs Assn of NY State v New York State Department of Civ Serv, 2015 NY Slip Op 00676, 3rd Dept 1-29-15

 

 

 

EXCEPTIONS TO THE "EXHAUSTION OF ADMINISTRATIVE REMEDIES" PREREQUISITE FOR COURT REVIEW

 

"It is well settled that an administrative agency's determination must be challenged through every available administrative remedy before it can be challenged in the courts ... . The narrow exceptions to this requirement include ... where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm."

 

 

Exceptions to "Exhaustion of Administrative Remedies" Requirement Not Applicable---"Futility" and "Irreparable Harm" Not Demonstrated

 

The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health's (DOH's) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:

 

It is well settled that an administrative agency's determination must be challenged through every available administrative remedy before it can be challenged in the courts ... . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm ... . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15

 

 

 

 

WHEN AN ACTION TAKEN BY A  MUNICIPALITY IS AN "ADMINISTRATIVE," AS OPPOSED TO A "LEGISLATIVE," ACT, CHALLENGE OF THE ACT IS GOVERNED BY THE FOUR-MONTH "ARTICLE 78" STATUTE OF LIMITATIONS

 

"Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]... . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies..."

 

 

Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month "Article 78" Statute of Limitations

 

The Fourth Department determined the four-month "Article 78" statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:

 

The causes of action under General Municipal Law § 51 have no specific limitations period, and we must "examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought" ... . "If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period" ... . Ultimately, "the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations" ... . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]... . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies ... . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15

 

 

 

 

 

 

 

 

 

 

 

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