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THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT)

The Fourth Department, modifying Supreme Court, determined the zoning board of appeals (ZBA) did not follow town code procedure when it refused to consider the review and comments submitted by the planning board in connection with area variances of lot-width requirements for a proposed subdivision. The court also noted that a declaratory judgment is not an available remedy for challenging an administrative determination:

The Town’s Zoning Code (Code) provides that “[t]he [ZBA] shall refer applications for variance requests to the Planning Board for review and comments. The Planning Board shall forward comments within 30 days of the close of a public hearing of the [ZBA]” … . Here, the Planning Board conducted a meeting on June 20, 2016, and voted to approve the relevant variances. On June 27, 2016, the ZBA held a public hearing and postponed its decision on the variance application until certain residents could comment at an upcoming July 18, 2016 Planning Board meeting. At the July 18, 2016 Planning Board meeting, various residents opposed the variances, and the Planning Board reversed its initial June 20, 2016 determination and voted not to approve the area variances. Thereafter, the ZBA determined that the Planning Board did not have the authority to reverse its prior determination and that the July 18, 2016 vote was null and void. The ZBA met on August 22, 2016 and voted to approve the area variances without considering the Planning Board’s July 18, 2016 review and comments.

” It is well established that [c]ourts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ ” … . Here, inasmuch as no ZBA public hearing took place until June 27, 2016, the June 20, 2016 action on the variance application by the Planning Board was procedurally improper … . The ZBA’s refusal to consider the procedurally compliant July 18, 2016 review and comments submitted by the Planning Board therefore violated the procedure set forth in section 302 (G) of the Code. We thus conclude that the ZBA’s grant of the area variances was “made in violation of lawful procedure [and] was affected by an error of law” (CPLR 7803 [3]). Matter of Schulz v Town of Hopewell Zoning Bd. of Appeals, 2018 NY Slip Op 05418, Fourth Dept 7-25-18

ZONING (THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/ADMINISTRATIVE LAW (ZONING, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/CIVIL PROCEDURE (ZONING, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/VARIANCES (ZONING, ADMINISTRATIVE LAW, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))

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