NY Appellate Court Holds that Failure to Refer Variance to County Planning Board was a Jurisdictional Defect

This post was authored by Amy Lavine, Esq.

The March 16, 2018 decision in Fichera v New York State Dep’t of Envtl. Conservation held that the Town of Sterling zoning board improperly granted variances for a mining project because it failed to refer the variances to the county planning agency, as required by state law. The zoning board’s failure to comply with the referral statute was a jurisdictional defect, not just a procedural error, and as a result, the variance was null and void, as was an amended variance that was based on the findings underlying the initial variance.

The town argued that the challenge was time-barred and should have been dismissed because the petitioners failed to file their claims within 30 days after the initial variance was approved. However, because the failure to refer the variance to the county planning board was jurisdictional, the court found that approval of the variance did not start the statute of limitations and thus the challenge was not time-barred.

The board also argued that its unanimous vote on the amended variance excused the defect because it would have been sufficient to override any recommendation from the county planning agency, had it complied with the referral requirement in the first place. The court disagreed, however, because the ZBA’s subsequent vote could not retroactively cure the jurisdictional defect in its approval of the original area variance.

Finally, the court held that the Department of Environmental Conservation complied with its responsibilities under the State Environmental Quality Review Act by taking a “hard look” at the project’s environmental impacts and making a reasoned elaboration as to the basis for its determination to issue a negative declaration. The court also found that there were no violations under the Freedom of Information Law or the Open Meetings Law that warranted relief, as there was no evidence that any documents were improperly withheld and any defects in notice were unintentional and did not result in aggrievement.

 

Fichera v New York