NY Appellate Court Holds ZBA’s Failure to Refer Initial Area Variance Application to County Planning Board Rendered Its Approval of Application Null and Void

This post was authored by Matthew Loeser, Esq.

Petitioners commenced this CPLR article 78 proceeding seeking to void certain actions of respondents New York State Department of Environmental Conservation (DEC) and Zoning Board of Appeals of Town of Sterling (ZBA) and to enjoin “the advancement” of a mine project on land owned by respondent Christopher J. Construction LLC (CJC). The ZBA, and respondents Planning Board of Town of Sterling, and Town of Sterling moved to dismiss, and CJC and respondent Christopher Ferlito cross-moved to dismiss the amended petition against them. Supreme Court denied the amended petition, and granted the motion and cross motion, but did not issue a decision explaining its reasoning.

At the outset, the court noted that “General Municipal Law § 239–m requires that a municipal agency, before taking final action on an application for land use approval, refer that application to a county or regional planning board for its recommendation.” Here, it was undisputed that the ZBA did not refer the initial application for an area variance to the Cayuga County Planning Board before taking final action on that application. The court found that, contrary to the contention of the Town respondents, area variances were proposed actions for which referral was required under the statute.

The owners next claimed that the ZBA’s determinations did not be voided because the ZBA’s unanimous approval to grant the amended area variance was sufficient to override the recommendation of the Cayuga County Review Committee to disapprove the area variance. The court rejected this contention, holding that the subsequent vote could not retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.

Lastly, the court found that there were no identifiable violations of the Freedom of Information Law or the Open Meetings Law that would warrant relief, and the court therefore properly granted those parts of the motion and cross motion seeking dismissal of that cause of action. Here, there was no evidence that any documents were wrongfully withheld. Furthermore, petitioners failed to establish that the Town respondents released any documents or records “because of the commencement of litigation, and have failed to produce any evidence that respondents did not act in good faith.”

Fichera v New York State Department of Environmental Conservation, 159 A.D. 3d 1493 (4 Dept. 3/16/2018)