NY Appellate Court Holds ZBA’s Grant of the Area Variances was made in Violation of Lawful Procedure and was as Affected by an Error of Law

This post was authored by Matthew Loeser, Esq.

This case arose from the grant of three area variances by respondent-defendant Town of Hopewell Zoning Board of Appeals, which relieved respondent-defendant Emily Jeffery of a minimum lot width requirement with respect to Jeffery’s proposed subdivision of property located in the Town of Hopewell. Petitioners commenced this CPLR article 78 proceeding and declaratory judgment action seeking to annul the ZBA’s determinations approving the area variances and seeking a judgment declaring the ZBA’s votes approving those variances void. The ZBA and respondent Town of Hopewell Planning Board moved to dismiss the petition on the grounds that petitioners failed to state a cause of action against the Planning Board and improperly sought declaratory relief. In this case, the ZBA and Planning Board appealed from a judgment that denied their motion and granted the petition.

On appeal, the court found that the Supreme Court erred in denying respondents’ motion with respect to the request for declaratory relief, and in denying that part of their motion seeking to dismiss the petition against the Planning Board. As to the argument that the court properly annulled the ZBA’s determinations, the court found that the ZBA’s grant of the area variances was “made in violation of lawful procedure and was affected by an error of law.” Here, as no ZBA public hearing took place until June 27, 2016, the court held that the Planning Board’s June 20, 2016 vote to approve the variance was procedurally improper. As such, ZBA’s refusal to consider the procedurally compliant July 18, 2016 review and comments submitted by the Planning Board violated the procedure set forth in section 302(G) of the Code.

Schulz v Town of Hopewell Zoning Board of Appeals, 2018 WL 3567073 (NYAD 4 Dept. 7/25/2018)