HomeMy WebLinkAbout1974-10-15 ROBERT M . ANDERSON •
I 207 STONECREST DRIVE
1 .
DEWITT, NEW YORK 13214
October 15 , 1974
Dal_ L . Van Epps , Esq .
125 'Elwood Davis Road
North Syracuse , New York 13212
Dear Mr . Van Epps :
You have asked me to comment on the question whether a
town board which elects to retain authority to review and ap -
prove or disapprove proposed site plans , may vest in a board
of appeals authority to review such decisions . In this con -
nection , you have directed my attention to the last paragraph
of Section 17 . 34 of Zoning Law and Practice in New York ( Se -
cond Edition ) which , in part , reads : " absent a specific pro -
vision in the municipal zoning ordinance , a board of zoning
appeals is without authority to review a decision of the leg - •
islative body of the municipality . " You ask whether the
quoted language is intended to imply that a town board is auth -
orized to make such a delegation of appellate jurisdiction .
While the language could be fairly read with the inference
you suggest , it was intended to state a limited proposition
which is supported by the cited case . ( Katz v . Board of Appeals ,
21 AD2d 693 , 250 NYS2d 469 ( 1964 ) ) . The case simply held that
a board of appeals is without authority to review a decision
of a village board . The court did not comment on the question
whether such a legislative body could delegate authority to re -
view its decisions . My search of the published cases , as well
as the unpublished ones in my files , did not yield a decisive
opinion , The only subsequent court to comment or the problem ,
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repeated with approval the holding of the Katz opinion . ( See
village of Farmingdale v . Karn , 283 NYS2d 267 ( 1967 ) ) .
Lack of square authority on the issue may be explained
by the fact that the delegation suggested is so rare as to
be almost unique . An examination of 75 zoning ordinances ' cur -
rently in effect in New York disclosed only two with provisions
of this kind . These ordinances were very similar , and the lan -
guage delegating review powers to the board of appeals was
identical in each . There is reason to suppose that the same
draftsman wrote both or that one was copied from the other .
Neither has been judicially construed . A similar examination
of 25 out - of - state ordinances did not disclose a similar dele -
gation .
It seems likely that the scarcity of ordinances which per -
mit a board of appeals to review a decision of the legislature
is due to the doubtful wisdom of such a provision as well as
the legal difficulties inherent therein . The policy consid -
terations which move a local legislative body to retain auth -
ority over permits or site plans seem clear . Such authority
is retained to insure control over community development policy ,
. an authority which may be lost or eroded by permit issuing prac -
tices of a board of appeals which may be too strict or too gen -
erous . A legislative body retains this power not withstanding
that it involves additional work which is not strictly legis -
lative in character . To give a board of appeals authority to
review the decisions is to relinquish a substantial portion of
the power retained . Such an ordinance seems to contain con -
. flicting purposes .
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In addition to this apparent conflict , delegation to a
board of appeals of authority to review site plan decisions
of a town board presents serious legal problems . If a legis -
lative body delegates authority to grant or deny permits , it
must impose adequate standards . ( Aloe v . Dassler , 278 AD
975 , 106 NYS2d 24 ( 1951 ) , affd 303 NY 878 , 105 NE2d 104 ) . In
New York , a legislative body may retain the power to issue per -
mits without articulating standards , and it is not wholly bound
by standards spelled - out in the ordinance . ( Green Point Savings
Bank v . Board of Zoning Appeals , 281 NY 534 , 24 NE2d 319 ( 1939 ) ) .
It can grant or deny permits when it reasonably believes that
the public welfare will be served . Under these well - established
. propositions , it is not difficult to project a situation in
which a board of appeals would be constrained to alter a legis -
lative decision , based upon a proper consideration , but one not
articulated in the ordinance . It takes no great stretch of the
imagination to envision other combinations of standards and
de -
cisions which might complicate court review and frustrate the
intent of the legislative body . The basic difficulty is that
the review proposed is one by an inferior body ; the review pro -
cess is proceeding down the chain of authority rather than up ,
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as is customary in administrative and judicial practice .
An additional legal puzzle is posed when the scope of re -
view is considered . The New York courts have said that the
scope of review is narrower when reviewing a decision ( even a
quasi -administrative one ) of a legislative body than is true
when a board of appeals decision is under review . ( Y . M . C . A .
v . Burns , 25 disc 2d 580 , 207 NYS2d 631 (1960 ) ; revd on other
• grounds 13 AD2d 2009 , 216 NYS2d 716 ) . Under the proposed del -
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egation , if a town board decision were reversed or modified
by the board of appeals , would the court review it as though
it came from the legislative body or the board ? There is no
easy or certain answer to this question , nor is there any sim -
ple drafting technique which will clearly avoid these issues .
In summary , the New York cases clearly hold that a board
of appeals is without authority to review a decision of a leg -
islative body . The cases are silent on whether such appellate
power can be delegated by ordinance . Even if it is assumed
that such a delegation is legally permissible , it seems to me
to be self -defeating . Finally , if there are persuasive reasons
for so unusual a delegation , it should be done with full con -
sideration of the legal complexities which render the draft -
ing problem an unresolved and difficult one .
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Respe - tf , lly submitted ,
pbert ISI . Anderson
RMAamac