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rejecting a construction based on the rule of the last antecedent because it ran contrary to the purpose, intent, and overall structure of the statute
Summary of this case from Citizens United & Citizens United Found. v. SchneidermanOpinion
Argued June 5, 1990
Decided July 2, 1990
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, John G. Dier, J.
Walter O. Rehm III for appellants.
Robert Abrams, Attorney-General (Lawrence A. Rappoport, O. Peter Sherwood, Peter H. Schiff and Douglas H. Ward of counsel), for respondent. Robert L. Beebe for Lake George Association and another, amici curiae.
The Adirondack Park Agency (APA) has been granted a limited oversight responsibility and review power with respect to zoning variance determinations of local governments within its park land jurisdiction. In affirming the dismissal of the petition to annul the APA's reversal of the grant of a zoning variance, we hold that the 30-day period within which APA must rule under Executive Law § 808 (3) commences no later than upon APA's receipt of notice of the variance grant together with the hearing record and other pertinent materials on which it was made. This interpretation of the timing mechanism provision harmonizes interrelated parts of the over-all statutory design and insures that APA review is meaningful and in furtherance of the policies underlying the Adirondack Park Agency Act.
Petitioners own a seven-acre resort with frontage on Basin Bay, Lake George, in the Town of Bolton. They applied on May 19, 1988 for a variance to convert the resort into a 32-unit condominium development. The Bolton Town Zoning Board of Appeals (ZBA) sent APA notice of the application on May 19 (Executive Law § 808; 9 N.Y.CRR 582.6 [b]) and granted it on June 13.
On June 16, the APA notified the ZBA that the application was subject to APA review and requested a copy of "the application materials". APA received notice on June 21 that the application had been granted, together with the following application materials: the first page of the application; an undated narrative description of the proposed development; the recommendation of the Town Planning Board; and two letters in opposition. Although the APA, as a matter of course, requests a copy of hearing minutes from local ZBAs in every case it reviews, no transcript was provided in this case. The APA reversed the ZBA's variance on July 19, noting that the ZBA had not provided a complete record of the evidence before it. No timely review of the APA determination was sought. Thus, the article 78 proceeding now before us, insofar as it seeks relief with respect to that determination, must be rejected on the threshold ground of untimeliness of the judicial proceeding.
On September 7, the APA was notified that the ZBA would consider petitioners' revised variance application. The APA received further notice on September 26, without any accompanying materials, that the ZBA had again granted petitioners' application. After an unheeded oral request, the APA, by letter dated October 7, requested documents concerning the variance, including a site plan of the affected area. The materials were provided on October 24 and the APA then reversed the new ZBA determination on November 14.
Petitioners brought this article 78 proceeding to annul APA's overturnings of the June and September variances. Supreme Court granted the demanded relief, without opinion. A unanimous Appellate Division reversed and dismissed the petition, and we granted leave to appeal. Petitioners-appellants argue solely that the APA determinations are null as untimely under Executive Law § 808 (3) because they were rendered more than 30 days after the ZBA decisions were made. We are not persuaded and affirm the order of the Appellate Division.
Executive Law § 808 (3) provides: "3. Upon receipt of an application for a variance from any provision of an approved local land use program involving land in any land use area other than a hamlet, including any shoreline restriction, the local government body or officer having jurisdiction thereof shall give written notice thereof to the [Adirondack Park Agency] together with such pertinent information as the agency may deem necessary. If such variance is granted, it shall not take effect for thirty days after the granting thereof. If, within such thirty day period, the agency determines that such variance involves the provisions of the land use and development plan as approved in the local land use program including any shoreline restriction and was not based upon the appropriate statutory basis of practical difficulties or unnecessary hardships, the agency may reverse the local determination to permit the variance. If the agency so acts, the appropriate local government officer or body, as well as any other person aggrieved by such action, shall have standing to have such action reviewed under article seventy-eight of the civil practice law and rules."
Petitioners assert that, because a granted variance "shall not take effect for thirty days" and the exercise of APA's review power is keyed to a conditional "if" clause preceding the "within such thirty day period", it follows that the 30 days following the local government grant is strictly measured as the sole period of empowerment. Read in vacuum-like isolation with absolute literalness, the statute could be amenable to that construction. However, such a conclusion would be contrary to the purpose and intent of the underlying statutory scheme and would conflict with other operative features of the statute's core overview procedures, especially the threshold burden of notice and supply of necessary materials for review. Thus, we approach the statute's provisions sequentially and give the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions. It is axiomatic that such an approach is preferred (e.g., Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208), especially when an opposite interpretation would lead to an absurd result that would frustrate the statutory purpose (see, e.g., Matter of Schmidt v Roberts, 74 N.Y.2d 513, 520; Matter of State of New York [Abrams] v Ford Motor Co., 74 N.Y.2d 495, 500; Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 675; New York State Bankers Assn. v Albright, 38 N.Y.2d 430, 437).
The statute begins with the imposition of a triggering burden on the local zoning board: "Upon receipt of an application for a variance * * * the local government body or officer having jurisdiction thereof shall give written notice thereof to the [APA] together with such pertinent information as the agency may deem necessary." Notification and necessary information for APA to perform its specific and unifying overview review are the principal aims of Executive Law § 808 (3), as evidenced both by its textual primacy (McKinney's Cons Laws of NY, Book 1, Statutes § 130) and the Legislature's manifest intent in the Adirondack Park Agency Act (Executive Law art 27). When the statute is read contextually, we discern that the enactors of the statute contemplated and probably preferred that the APA would review local variance grants during the 30-day limbo period, assuming APA has been properly notified and informed with the necessary materials to do the critical job entrusted to it.
To "preserv[e] the priceless Adirondack Park through a comprehensive land use and development plan," the Adirondack Park Agency "serve[s] [this] supervening State concern transcending local interests" by "prevent[ing] localities within the Adirondack Park from freely exercising their zoning and planning powers" by reviewing and even undoing zoning variances granted by local governments (Wambat Realty Corp. v State of New York, 41 N.Y.2d 490, 494-495). The APA is charged with an awesome responsibility and the Legislature has granted it formidable powers to carry out its task (see generally, Executive Law art 27). A recent advisory report — already the subject of vibrant debate — concludes that the importance and urgency of the APA's mission may require even broader powers on its part (see, Report by Commission on Adirondack Park in Twenty-First Century, at 69 [Apr. 1990]). It is inconceivable that the drafters of the present statute, while lessening the customary finality of local government control of the use of land within their own borders, would at the same time deliver back to local regulatory units a frustrative tool to open and close the 30-day APA review "window" by unilateral action or inaction. Thus, despite the skewed and inartful interlock of the statute's several provisions, the threshold burden remains on the local boards to notify and supply necessary data to the APA. Otherwise, meaningful APA review could be prevented by failing to notify of a variance grant, for example, until the eve of the expiration of the 30-day period or until after it had passed. That would lead to absurd results and would sap the APA of its legislatively delegated authority (see, e.g., Matter of Schmidt v Roberts, 74 N.Y.2d, supra, at 520; Matter of State of New York [Abrams] v Ford Motor Co., 74 N.Y.2d, supra, at 500; Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d, supra, at 675; New York State Bankers Assn. v Albright, 38 N.Y.2d, supra, at 437). Equally frustrative would be the withholding of the relevant record of proceedings upon which to make a meaningful and timely review. If the 30-day period is to be triggered automatically by a variance grant without the threshold, functional prerequisites having been satisfied, the locality's statutory and regulatory duties to promptly notify and promptly inform the APA would be rendered literally meaningless and useless (Executive Law § 808; 9 N.Y.CRR 582.6 [b]).
Petitioners argue that extending the 30-day period of review by a commencement date running from the date when the APA has notice and necessary materials creates uncertainty and swings the time pendulum too far in APA's favor, giving it an opportunity to indefinitely delay the effective date of a variance by merely requesting cumulative or unnecessary materials. Although these are not insignificant concerns and are complicated further by the plain language of the core part of the statute relied on by petitioners, a ready response is available. First of all, the record here shows the opposite. The APA acted properly, promptly and persistently in accordance with its mandate. Moreover, the availability of CPLR article 78 review to challenge any potential manipulation or misuse of the trust reposed in the APA's vast review and enforcement responsibilities, as well as the advisory APA opinion mechanism for variance applicants (see, 9 N.Y.CRR 582.6 [c]), provide counterbalancing, reasonable remedies and checks and balances. We note finally in this respect that the furnishing to APA of notice and full materials quickly in order to "start the clock" and fix the review period remains always with the local zoning body and property owners.
"`[I]n the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle.'" (Ferres v City of New Rochelle, 68 N.Y.2d 446, 451, quoting People v Ryan, 274 N.Y. 149, 152.) The purpose of preserving the Adirondack Park is served not only by a centralized process of review of zoning variances, but by procedural assurances that the reviews will be adequate and meaningfully consistent with statutory prescriptions and prerequisites designed to protect all parties and interests. We therefore read the statute in the progressive order the sentences were put together and as an integrated procedural package. By doing so, we construe the 30-day time limitation of Executive Law § 808 (3) as commencing no later than on the receipt by the APA of notice of a variance grant, along with necessary materials promptly and reasonably requested by the APA which are pertinent to meaningful review.
The Legislature — on its own initiative or at the instance of the APA, local government units, property owners or other interested persons — may find it appropriate and necessary to reexamine and fine tune the procedural mechanisms of this important land use oversight review protection, especially since the Legislature will no doubt be examining related and transcendent issues involving the Adirondack Park arising out of the recent, plenary report of the Commission on the Adirondack Park in the Twenty-First Century, dated April 1990.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and HANCOCK, JR., concur with Judge BELLACOSA; Judge TITONE dissents and votes to reverse in a separate opinion.
Order affirmed, with costs.
While the judicial construction of legislative enactments includes consideration of their "spirit and purpose" and "`legislative intent is the great and controlling principle'" (Ferres v City of New Rochelle, 68 N.Y.2d 446, 451), courts are not free to supplement statutory language with additional, judicially conceived requirements. Since that is precisely what the majority has done in this case and since, in my view, such judicial augmentation is not necessary for the rational implementation of the statutory scheme as it is written, I respectfully dissent.
As the majority acknowledges, the language in the statute at issue here is unambiguous. Locally issued variances affecting land use within the designated Adirondack Park area "shall not take effect for thirty days after the granting thereof" and "[i]f, within such thirty day period, the [Adirondack Park Agency (APA)] determines that such variance * * * was not based upon the appropriate statutory basis of practical difficulties or unnecessary hardships, the agency may reverse the local determination" (Executive Law § 808 [emphasis supplied]).
The 30-day period in which the APA must act is thus not left undefined; rather, it is specifically made coextensive with the 30-day period during which the granted variance remains ineffective. Indeed, the Legislature's use of the term "such thirty day period" demonstrates a deliberate choice to use the same time span for determining the period within which both events must occur (see, McKinney's Cons Laws of NY, Book 1, Statutes § 254, at 418 ["the word `such,' when used in a statute, must, in order to be intelligible, refer to some antecedent, and will generally be construed to refer to the last antecedent in the context"]). Accordingly, the "ambiguity" that ordinarily justifies a judicial construction supplementing or filling in the interstices of a legislative enactment is not present here.
Moreover, the court's own view of what method would best implement the underlying statutory policies cannot be cited as an alternative justification. "[R]ules of construction are invoked only when the language used leaves [the statutory] purpose and intent uncertain or questionable[;] [t]hey cannot be resorted to for the purpose of enabling the courts to enlarge or extend the legislative design or intent." (People ex rel. New York Cent. Hudson Riv. R.R. Co. v Woodbury, 208 N.Y. 421, 425; accord, Eaton v New York City Conciliation Appeals Bd., 56 N.Y.2d 340.) "[T]o interpret a statute where there is no need for interpretation, to conjecture about or add to * * * words having a definite meaning * * * are trespasses by a court upon the legislative domain" (McKinney's Statutes § 76, at 168). This is especially so where, as here, the judicially chosen method conflicts with the explicit legislative design.
The rules of construction mandating avoidance of absurd consequences and frustration of legislative purpose also cannot fairly be invoked here. It is true, as the majority observes, that the most natural reading of the statute as drafted could result in the impairment of meaningful agency review where a locality fails, by design or neglect, to notify the APA of a variance grant. However, such impairment is, at most, a mere weakness in the legislative design; it is certainly not the sort of "absurd consequence" or complete frustration of the legislative goal that is typically cited as a ground for judicial redrafting. Indeed, the problem the majority perceives may well be illusory, since the APA's statutory authority can easily be construed as entitling it to "reverse" a local variance grant as "not based upon * * * practical difficulties or unnecessary hardships" (Executive Law § 808) in cases where the absence of an adequate record prevents it from concluding otherwise.
Apparently, that is precisely what the APA did in this case when on July 19th it reversed the local Zoning Board of Appeals initial decision on the ground that a complete record of the evidence had not been provided.
Further, there is no sound reason to assume that the legislative "gap" the majority perceives and rushes to fill was unintentional. The Legislature has itself provided for mandatory written notice to the agency and the provision of necessary "pertinent information" "[u]pon receipt of an application for a variance" (Executive Law § 808). Since the Legislature made explicit provision for notice at the initiation, but not the conclusion, of the local variance application process, it seems probable that the Legislature meant to create a system in which the APA, once having been notified of a particular application, would assume the responsibility of monitoring its progress. Such monitoring would ensure that an approval would not slip by unnoticed, even if the locality did not provide the APA with timely formal notice. Indeed, the absence of any legislative requirement that such postgrant formal notice be provided at all militates against a construction that relies on such notice as an event triggering the running of the agency's deadline.
Moreover, the Legislature has provided a vehicle for addressing any concerns the APA may have about the inclination of a specific locality to cooperate with that agency's State-level review of variance grants. The "variance grants" to be reviewed under Executive Law § 808 (3) are variances from "approved local land use program[s]" (emphasis supplied). Such programs must be "approved" by the APA and "administered and enforced as provided for" (Executive Law § 808; see, § 807). Thus, to the extent that there is concern about prompt notification to facilitate APA review, the matter can readily be resolved, within the express legislative design, by inclusion of appropriate regulations in the "local land use program" itself.
Finally, by superimposing a solution of its own devising, the majority has opened up several new anomalies and problems which will, no doubt, require further judicial tinkering in the future. For example, although the majority has squarely held that the 30-day period for the APA to act commences to run "on the receipt by the APA of notice of [the] variance grant, along with necessary materials promptly and reasonably requested by the APA" (majority opn, at 423), its opinion leaves unclear whether the same rule is to apply to the running of the 30-day waiting period during which the variance grant remains "ineffective" under Executive Law § 808 (3). Presumably, the time periods for these two occurrences must be coextensive, since there would otherwise exist a period of "limbo" for the property owner during which its variance would be legally "effective" but would remain subject to reversal by the State administrative agency.
Regardless of its ultimate resolution of the above-mentioned question, the majority's holding has paved the way for a whole new class of litigation to resolve what constitutes a "prompt" and "reasonable" agency request for "material" that is "necessary" and "pertinent to meaningful review." Such a result is particularly objectionable in this context, since it will lead to a degree of uncertainty that is unacceptable in the area of land use decisions. Landowners who have succeeded in obtaining variances from local governments will be required either to comply indefinitely with the APA's requests for further information or to commence article 78 proceedings to compel the agency to decide the matter before it on the basis of the information it already has. The courts will then have to determine, on a case-by-case basis, whether the additional agency request was "reasonable" and, if not, when the agency's time for taking action, in fact, began to run. This is an unrealistic and overly burdensome approach to the problem of assuring "meaningful" APA review.
The majority's interpretation of Executive Law § 808 (3) also gives the APA, anomalously, more discretion to delay in the approval of individual variances from local land use programs than it has in the far more environmentally significant area of approving class A and B regional projects. The agency's discretion to request additional information in the latter area, which is governed by Executive Law § 809, is limited by the detailed rules and deadlines set forth in that section. Executive Law § 809 (2) (b), for example, provides that "[o]n or before fifteen calendar days after the receipt of [an] application" the agency must notify the project sponsor whether it deems the application complete. If additional information is needed, the statute provides that "[t]he submission * * * of the requested additional information shall commence a new fifteen calendar day period for agency review * * * for the purposes of determining completeness" (id.). On the other hand, if the agency fails to mail a notice of incompleteness within 15 days of its receipt of the application, "the application shall be deemed complete" (id; see also, Executive Law § 809 [c] [agency request for additional information during review of application by permit holder for renewal or modification "shall not extend any time period for agency action contained in this section"]).
The existence of such detailed rules governing the postponement of the deadlines for the agency to act under Executive Law § 809 when it perceives a need for more information suggests to me that the omission of similar provisions in Executive Law § 808 (3) was not a mere legislative oversight. Furthermore, the minutely detailed provisions in Executive Law § 809 suggest that if there are to be such postponements under section 808 (3), they ought to be governed by legislatively designed rules, and not by such imprecise standards as the "reasonableness" or "promptness" tests the majority has devised.
There is no dispute that the goal of the APA Act to "preserv[e] the priceless Adirondack Park through a comprehensive land use and development plan" and the legislatively chosen method of accomplishing that goal by "prevent[ing] localities within the Adirondack Park from freely exercising their zoning and planning powers" (Wambat Realty Corp. v State of New York, 41 N.Y.2d 490, 494-495; see, majority opn, at 421) are both laudable and deserving of judicial support. The precise issue presented here, however, is not whether the Legislature's goals are to be advanced as a general matter, but rather whether the Legislature has established procedures for handling variance applications that are workable and sufficiently clear to permit their implementation. Since I conclude that it has, I cannot concur in my colleagues' analysis. If, upon further review, the Legislature deems its own scheme to be as deficient as the majority believes, it remains free to make the necessary statutory alterations.
In sum, I would hold that the APA's November 14th reversal of the Zoning Board of Appeals decision was untimely and was therefore ineffective. Accordingly, I vote to reverse the Appellate Division order and grant the petition.