Summary
recognizing town's authority as "any other ‘person ... aggrieved’ " to seek judicial review of zoning board of appeals' decision
Summary of this case from Metro. Gov't of Nashville & Davidson Cnty. v. Bd. of Zoning Appeals of NashvilleOpinion
Argued March 26, 1984
Decided May 15, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Robert W. Doyle, J.
Michael F. Mullen for appellants.
Robert J. Flynn for respondent.
Patrick A. Sweeney for Town Board of Town of Huntington.
Under the Town Law, a town zoning board of appeals has been exclusively empowered to grant or deny zoning variances. That power may not be circumvented or vitiated by permitting a town board to control the defense of zoning board determinations regarding a requested use variance. Therefore, when an article 78 proceeding has been brought against a zoning board of appeals to challenge the denial of a use variance, such a proceeding may not be settled by the town board, nor may the town board move to withdraw an appeal in that proceeding on behalf of the zoning board. The Town Board, in this proceeding, is a separate entity from the Zoning Board and may not eviscerate determinations of the Zoning Board or control the course of litigation against it.
In February 1982, the respondent Zoning Board of Appeals of the Town of Huntington denied an application by petitioner, Commco, Inc., for a use variance, which would have permitted it to convert an abandoned school building into a home for senior citizens. Petitioner then commenced this article 78 proceeding challenging the Zoning Board's decision, naming only the Zoning Board as respondent.
Supreme Court annulled the determination of the respondent. The Town Attorney, who represented respondent in the Supreme Court, filed a notice of appeal in the Appellate Division on behalf of the zoning board in October 1982. Thereafter, in January 1983, the Town Board of the Town of Huntington replaced the Town Attorney with its own special counsel and authorized settlement discussions with petitioner by the special counsel. When respondent realized that the Town Attorney was no longer representing it on the appeal, it also engaged special counsel to prosecute the appeal.
In late March 1983, special counsel for the Town Board entered into a stipulation of settlement with the petitioner providing for withdrawal of the appeal and resettlement and re-entry of the original article 78 judgment granting the variance with the additional imposition of certain restrictions on petitioner's project. The stipulation purports to be between the parties to the proceeding but, besides petitioner's attorney, is signed only in the name of the Special Town Attorney retained by the Town Board. It states that the Town Board directed that the litigation be settled in the interests of the Town of Huntington and that it can only be amended by resolution of the Town Board. Based upon the filing of this stipulation, the Appellate Division ordered the appeal dismissed on April 21, 1983, noting that there was no opposition to "respondent's" motion for leave to withdraw. However, neither the Zoning Board nor its attorney were parties to the settlement stipulation or the motion for leave to withdraw the appeal, nor did they have notice of the application. Respondent's motion to vacate the order authorizing withdrawal of the appeal was denied by the Appellate Division in June 1983. Leave to appeal was granted to the Zoning Board by this court.
The Town Board asserts that the Town Law grants it the authority to continue or settle all litigation concerning it or its agencies, including the denial of a use variance by the Zoning Board. This court holds that, in the instant case, the Town Law provides no such authority.
A town board is empowered to compromise or settle an action or proceeding with the approval of the court in which the action is pending, but this power only refers to an action "against the town" (see Town Law, § 68, subd 1). The Town Law also provides that "[a]ny action or special proceeding for or against a town" must be "in the name of the town" and that a town board may direct any town officer to institute, defend or appear in any action "in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town" (Town Law, § 65, subd 1). These provisions regarding a town board's power in litigation matters do not provide the necessary authority for this Town Board to settle the instant article 78 proceeding because it was not brought against the town. The town was never served with process, nor was it named as a party to the proceeding; it never prepared any pleadings, intervened or was substituted as a party. Indeed, the litigation could not have been brought against the Town Board alone because the Zoning Board was the only necessary party for the court to have jurisdiction to grant a judgment concerning the use of the premises (see Phillips v Village of Oriskany, 57 A.D.2d 110, 115). A town board is only a necessary party if the constitutionality or validity of its zoning ordinance is questioned (see Matter of Ozols v Henley, 81 A.D.2d 670, app dsmd 54 N.Y.2d 1023; Matter of Nassau Children's House v Board of Zoning Appeals, 77 A.D.2d 898; Matter of Lerrick v Egan, 54 A.D.2d 934). The ability to institute, defend or appear in any action in the name of the town does not mean that the Town Board may appear in the name of the Zoning Board.
Notwithstanding its apparent lack of power to settle this proceeding, the Town Board argues that, given its position as the "legislative, appropriating, governing and policy determining body of the town" (Town Law, § 51), the Legislature intended to allow the Town Board to control this type of litigation. As the legislative body which created the Zoning Board, the Town Board claims to have the power to act for respondent and the duty to do so in order to effect the best interests of the town, which here assertedly require the settlement and discontinuance of the appeal. Otherwise, in the Town Board's view, it could be forced to finance frivolous appeals at the will of respondent, to the possible fiscal ruination of the town. This argument is unpersuasive.
The respondent does not exist at the discretion or option of the Town Board but was created by it pursuant to a statutory mandate (see Town Law, § 267). While not a separate corporation, the respondent is a separate entity whose members serve with statutory powers and for statutorily specified periods of time and cannot be removed by the Town Board except "for cause and after public hearing" (Town Law, § 267, subd 1). It is undisputed that under this State's statutory scheme, the Zoning Board has been vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances (see Town Law, §§ 261, 267, subd 2; Jaffe v Burns, 64 A.D.2d 692; Blumberg v Town of North Hempstead, 114 Misc.2d 8) which are passed and enforced by the Town Board (see Town Law, § 261). When performing this function, as contrasted to its function of reviewing determinations by town administrative officials (see Town Law, § 267, subd 2), the Zoning Board acts in an administrative capacity independent from the Town Board. The respondent Zoning Board, while an agency of the municipality, nevertheless possesses an independent and direct interest in the litigation as a representative of the public interest in protecting the zoning system set up by the Town Board (see Town Law, §§ 261, 267, subds 2, 5; Matter of Corbett v Zoning Bd., 283 App. Div. 282, 285; cf. Rommell v Walsh, 127 Conn. 16; Cefalo v Board of Appeal, 332 Mass. 178). Acting in such a capacity, zoning boards have long been heard in this State's appellate courts arguing as appellants to sustain their zoning determinations (see, e.g., Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 N.Y.2d 801; Matter of Overhill Bldg. Co. v Delany, 28 N.Y.2d 449; Matter of Village of Bronxville v Francis, 206 Misc. 339, mod 1 A.D.2d 236, affd 1 N.Y.2d 839; Matter of Nassau Children's House v Board of Zoning Appeals, 77 A.D.2d 898, supra; Matter of Lerrick v Egan, 54 A.D.2d 934, supra; Matter of Trifaro v Zoning Bd., 45 A.D.2d 1015; Matter of Corbett v Zoning Bd., 283 App. Div. 282, 285, supra), as well as respondents (see, e.g., Matter of Rosbar Co. v Boards of Appeals, 53 N.Y.2d 623; Matter of Sierra Constr. Co. v Board of Appeals, 12 N.Y.2d 79; Matter of Village of Bronxville v Francis, 1 N.Y.2d 839, supra; Matter of Roginski v Rose, 97 A.D.2d 417; Bowman v Squillace, 74 A.D.2d 887, app dsmd 50 N.Y.2d 928). With the Town Board being concededly impotent to intrude on the respondent's power over the granting of variances, it could only be the respondent that may decide to defend its determination initially and through the appellate stages of a proceeding brought under CPLR article 78. To accept the dissenter's view of the "paramountcy" of the Town Board and permit it to control litigation arising from a zoning board's determination would be to permit a town board to effectively take over the function of making variance determinations, either by ordering the zoning board to decline to defend its determination, thereby permitting a default to be taken against it, or by refusing to permit an appeal from any reversal of the zoning board's determination. Indeed, carried to its logical extreme, the dissenter would permit the Town Board to settle any party's dissatisfaction with a determination of the Appeal Board, whether before or after the bringing of a lawsuit, thereby reducing its concededly exclusive power over variances to a sham. No meaningful distinction can be made between permitting the Town Board to act in place of the Appeal Board immediately after a determination and at any point along the continuum of judicial review of that determination. The Town Board should not be allowed to achieve indirectly what it has no authority to control directly.
When a Zoning Board acts as a judicial or quasi-judicial body in hearing appeals from the determinations of the town officers, it would not be able to appeal from a reversal of its own decision (see People ex rel. Steward v Board of R.R. Comrs., 160 N.Y. 202, 212; cf. Rommell v Walsh, 127 Conn. 16; Zoning Bd. v Dragon Run Terrace, 59 Del. 175).
As the dissent points out, the Town Board also performs functions which are in the public interest, for example drafting the zoning ordinances. However, this fact does not detract from the protective function of the Zoning Board in seeing that variances are determined so that "public safety and welfare [are] secured" (Town Law, § 267, subd 5).
Other jurisdictions with similar statutory schemes have also upheld the right of the Zoning Board to appeal from a reversal of its decision (see Rommell v Walsh, 127 Conn. 16; Zoning Bd. v Dragon Run Terrace, 59 Del. 175; Cefalo v Board of Appeal, 332 Mass. 178).
The Town Board's extensive powers in governing the town (see Town Law, § 51) are not undermined by its inability to determine the course of this litigation because the power to grant variances had already been delegated to the Zoning Board (see Town Law, §§ 261, 267, subd 2; Huntington Code, § 198-109). The Town Board still had a means of protecting what it felt to be the best financial interest of the town by seeking a reversal of the Zoning Board's decision through a direct appeal by an article 78 proceeding, as would any other "person * * * aggrieved" (see Town Law, §§ 65, 267, subd 7). In fact, aside from amending the zoning ordinance, that is the only means by which a town can seek to alter a zoning board's determination regarding a requested use variance (see Matter of Village of Bronxville v Francis, 206 Misc. 339, mod 1 A.D.2d 236, affd 1 N.Y.2d 839, supra; Bowman v Squillace, 74 A.D.2d 887, app dsmd 50 N.Y.2d 928, supra; Matter of Marshall v Quinones, 43 A.D.2d 436; Matter of Bachety v Volz, 65 Misc.2d 176, affd 39 A.D.2d 842; Matter of Town Bd. v Zoning Bd., 7 Misc.2d 210). Contrary to the inference that the dissent draws (dissenting opn, at p 273), the fact that the Town Board may eventually change the result of a Zoning Board determination through lawful means by appealing it or by amending the zoning ordinance does not militate in favor of granting the Town Board the power to ignore these procedures and control the determination at will. Permitting the Town Board to settle for the Zoning Board would eradicate the distinction between the two entities and undermine the legislative scheme established in the Town Law respecting the issuance of use variances (see Town Law, § 267, subd 7).
To the extent that the dissent attributes to this opinion any reliance on a construction of any "'officer, department [or] board'" in subdivision 7 of section 267 of the Town Law, as referring to the Zoning Board having the right to appeal from its own determination (see dissenting opn, at p 271), it is in error.
Finally, the Town Board argues that the respondent had no right to hire its own counsel because the necessary approval was not obtained from the Town Board. Although generally, such approval is necessary (see Town Law, § 65, subd 1), when the Town Attorney can no longer adequately represent the interests of a zoning board because of a conflict between itself and the town board, the zoning board is impliedly vested with the power to retain its own counsel (see Cahn v Town of Huntington, 29 N.Y.2d 451, 455). Such conflict may exist although there is not a direct suit by the town board or one of its members against the zoning board. Here, the Town Attorney was no longer representing the interest of respondent after the appeal was filed in the Appellate Division, nor was the Town Board's special counsel. Thus, respondent was justified in retaining its own counsel.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for consideration of the appeal.
Judges JASEN, JONES, and KAYE concur with Chief Judge COOKE; Judge MEYER dissents and votes to affirm in a separate opinion in which Judges WACHTLER and SIMONS concur.
Order reversed, etc.
Because the majority overemphasizes the procedural at the expense of the substantive aspects of this matter, misreads the pertinent provisions of the Town Law and adopts a position which is both contrary to the majority rule and, in my view, wrong as a matter of policy, I respectfully dissent.
Governance of a town is by section 51 of the Town Law placed in the Town Board which, under that law, is "the legislative, appropriating, governing and policy determining body of the town and shall have and exercise all such powers and duties as are conferred or imposed upon it or are necessarily incidental thereto which are consistent with the provisions of this article". Expressly dealt with in sections 65 and 68 of the law are the powers of the town to control litigation. Section 65 directs that "Any action or special proceeding for or against a town * * * shall be in the name of the town" and that "The town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town, in any of its rights or property." Subdivision 1 of section 68 specifically provides that "The town board of any town may compromise or settle: a. An action or proceeding against the town, with the approval of the court in which such action or proceeding is pending."
On the basis of those provisions there would seem to be little question that the Town Board is authorized to settle the instant special proceeding. The majority points, however, to the facts that the Town Board is not named as a party to the article 78 proceeding, that the Zoning Board represents the public interest in protecting the zoning system set up by the Town Board, and that the Town Board cannot take over the variance function of the Zoning Board. Viewed in proper perspective, however, these arguments are not persuasive.
That the Town Board is not a named party is a vestige of the in rem nature of certiorari, to which the only indispensible party defendant was the agency having custody of the record, provisions carried forward into the direction of CPLR 7802 (subd [a]) that the body or officer whose action may be affected be party to the proceeding, and of CPLR 7804 (subd [e]) that that body or officer file a certified transcript of the record of its proceedings ( Second Reformed Church v Board of Adj., 30 N.J. Super. 338; Gilliam v Etheridge, 67 Ga. App. 731; 3 Rathkopf, Zoning Planning, § 42.05, p 42-22). Though inconsistent to a degree with the provision of section 65 of the Town Law, that special proceedings involving the town be "in the name of the town," the inconsistency is more apparent than real, for in all but exceptional cases it is the Town Attorney who represents the Board in such proceedings (cf. Town Law, § 20, subd 2; § 65, subd 1). Moreover, the Town Board, the legislative body whose zoning ordinance is involved, may properly be named as a party or be permitted to intervene (CPLR 7802, subd [d]). The solution of the present controversy should not turn on the happenstance that the Town Board is or is not named as a party, the more so in view of section 65's direction that special proceedings "for or against a town, or for its benefit * * * be in the name of the town."
Thus in Cefalo v Board of Appeal ( 332 Mass. 178), on which the majority relies, the Massachusetts Supreme Judicial Court reasoned "that if the members of the board could not be made defendants there would be in many instances no one who could be made a defendant, and no suit could be brought" (at p 180).
The issue before us is whether the Town Board, in which is vested the power to zone (Town Law, § 261), or the Zoning Board of Appeals, appointed by the Town Board and given authority to vary or modify the zoning ordinance enacted by the Town Board, should control the disposition of the present appeal. In that context much of the case authority upon which the majority relies is at best of peripheral relevance. The fact that the town is a necessary party when the constitutionality of its zoning ordinance is put in issue ( Matter of Overhill Bldg. Co. v Delany, 28 N.Y.2d 449, and cases cited by the majority, at p 265) does not establish that the town's control of zoning within its borders, including variances from its ordinance, is subordinate to that of the Zoning Board of Appeals when constitutionality is not in issue.
Nor, for several reasons, is it germane that under the wording of subdivision 7 of section 267 of the Town Law an alderman, town councilman or building inspector has standing to review a decision of the Zoning Board of Appeals ( Bowman v Squillace, 74 A.D.2d 887; Matter of Marshall v Quinones, 43 A.D.2d 436; Matter of Bachety v Volz, 65 Misc.2d 176, affd 39 A.D.2d 842; cf. Blumberg v Town of North Hempstead, 114 Misc.2d 8). The implication the majority appears to draw from those cases is that if such persons come within the phrase "any officer, department, board of bureau" as used in subdivision 7 of section 267 of the Town Law, the Zoning Board of Appeals necessarily must. Because that wording deals only with who may seek first instance review of the Board's determination, the construction of the word "board" to include the Zoning Board of Appeals, and thus to give that Board authority to seek article 78 review of its own determination, hardly seems logical. Moreover, doing so would not settle the question before us — who has paramount authority to control such litigation — for the case law is clear that the town and its counterparts, cities and villages, also have standing to institute such a review proceeding ( Town of Greece v Smith, 256 App. Div. 886; Matter of City of Glen Cove v Buxenbaum, 17 A.D.2d 828; Matter of Village of Bronxville v Francis, 206 Misc. 339, mod on other grounds 1 A.D.2d 236, affd 1 N.Y.2d 839; Matter of Town Bd. v Zoning Bd., 7 Misc.2d 210) unless by express prohibition ( Matter of Helgar Realty Corp. v Commissioner of Environmental Conservation, 98 Misc.2d 56, affd 75 A.D.2d 1025) or necessary implication ( Matter of Community Bd. v Board of Estimate, 57 N.Y.2d 846, affg 88 A.D.2d 832), the governing statute otherwise provides.
The majority discerns an implied proscription from the cases holding that a Zoning Board of Appeals may appeal a court decision annulling the Board's determination, from the provisions of section 267 of the Town Law, providing for the establishment of the Board, and on the basis of the impotence of the Town Board to control the Zoning Board's variance decisions.
The appeal cases are not determinative of the present issue. As already noted, they arise largely from the confusion generated by the overlapping provisions of CPLR 7804 and section 65 of the Town Law, and a right of appeal in the Zoning Board can be found in the provisions of section 267 of the Town Law only by stretching its language unduly. Furthermore, in most of the cases relied on, the standing of the Zoning Board to appeal was not contested, and many are inconclusive because the Town Board was also a party (e.g., Matter of Calcagno v Town Bd., 291 N.Y. 701) or the Zoning Board was represented by counsel for the municipality and the court in refusing to dismiss the appeal because it was not taken by the Town Board was, in effect, simply recognizing that the interests of the Town Board and of the Zoning Board were the same ( Matter of Corbett v Zoning Bd., 283 App. Div. 282; see Matter of Ernst v Board of Appeals, 298 N.Y. 831; Matter of Robitzek Investing Co. v Murdock, 296 N.Y. 852).
The provisions of sections 261 and 267 of the Town Law, to which the majority refers as evidencing the Zoning Board's role "as a representative of the public interest in protecting the zoning system set up by the Town Board" (majority opn, at p 266), provide no stronger support. Zoning Boards were established because of the difficulty of drafting a perfect zoning ordinance, in order to provide flexibility and keep zoning legislation out of the courts (Anderson, The Board of Zoning Appeals — Villain or Victim?, 13 Syracuse L Rev 353, 355-357). True, though appointed by the Town Board, the members of the Zoning Board have a fixed term, can be removed only for cause and after a hearing, and cannot also serve as a member of the Town Board (Town Law, § 267, subd 1). But it is also true that the Zoning Board's powers are to be exercised "in accordance with general or specific rules" contained in the zoning regulations established by the Town Board (Town Law, § 261) and that its variance power as declared in subdivision 5 of section 267 is to be exercised "so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done" (emphasis supplied). Not only do the underscored words suggest that the Zoning Board's function is quasi-judicial rather than legislative or administrative, but Professor Anderson's study indicates that such boards have more often acted to protect property owners' rights than to protect the zoning system (13 Syracuse L Rev, at pp 354, 360, 369, 371, 376, 384-385). At best equivocal, the statutory provisions do not sustain the concept that the Zoning Board has been accorded paramountcy over the Town Board in the protection of the public interest.
Nor can too much weight be given the argument that the Town Board cannot dictate the Zoning Board's variances determination. As the majority concedes (at p 267), the Town Board has the ultimate control for it not only can appeal the Zoning Board's decision, but also reverse it by amending the zoning ordinance. Its doing so is, of course, subject to public scrutiny, but the fact that it has the final word strongly suggests that, notwithstanding the independence of the Zoning Board, it is the Town Board rather than the Zoning Board which is the protector of the public interest.
This follows, as well, from the fact that the Zoning Board has no responsibility for enforcement of the zoning ordinance as such, that function being vested in the Town Board or such local officer as it may designate (Town Law, § 268), and from the generally accepted rule that a Zoning Board acts in a quasi-judicial capacity and, although the public interest plays an important part in its decision-making, "has no interest, personal or official, in the matters which come before it other than to decide them" ( Zoning Appeals Bd. v McKinney, 174 Md. 551, 561). Though there are decisions to the contrary, the generally accepted rule is that a Zoning Board does not have a partisan role when one of its decisions is questioned or annulled on review by a court ( Board of Adj. v Kuehn, 132 Col 348; Gilliam v Etheridge, 67 Ga. App. 731, supra; Speck v Zoning Bd., 89 Ill.2d 482; State ex rel. Bringhurst v Zoning Bd., 198 La. 758; Inhabitants of Town of Boothbay Harbor v Russell, 410 A.2d 554 [Me]; Mayor of Baltimore v Borinsky, 239 Md. 611; City of Keene v Zoning Bd., 114 N.H. 744; DiCillo Sons v Chester Zoning Bd., 158 Ohio St. 302; Lansdowne Borough Bd. of Adjs. Appeal, 313 Pa. 523; National Dev. Corp. v Township of Harrison, 64 Pa. Commw. 54; Hassell v Zoning Bd., 108 R.I. 349; see 4 Anderson, American Law of Zoning [2d ed], § 25.20, pp 241-243; 8A McQuillin, Municipal Corporations [3d ed rev], § 25.342a, pp 500-501; Rathkopf, op. cit., § 42.05, pp 42-22 to 42-24; Ann., 13 ALR4th 1130), the municipality being held in such cases to be the proper party appellant. Important to note with respect to the cases contra, including those cited by the majority, are the facts that they hold no more than that a Zoning Board has sufficient interest to appeal, not that a municipality does not, and that in at least two ( Rommell v Walsh, 127 Conn. 16; and Cefalo v Board of Appeal, 332 Mass. 178), the report shows that the Zoning Board appeared by the Corporation Counsel, suggesting that there was no difference of view between the Board and the municipality. They, thus, are not determinative of the question being decided on this appeal.
The fact that the Zoning Board is a party to a proceeding to review its determination results from the procedural history of article 78 rather than a legislative intent to assign it an enforcement role. It acts only after a hearing (Town Law, § 267, subds 2, 5), and in ruling upon variance applications is directed to act not only in the spirit of the ordinance but also so that substantial justice will be done. It is not, however, as were the Land Commissioners involved in People ex rel. Burnham v Jones ( 110 N.Y. 509), the only authority upon which the public duty as to the matter in hand rests and should be accorded no right, apart from that of the municipality within whose jurisdiction it functions, to appeal from an order of a court annulling its determination, or to be heard on such an appeal ( People ex rel. Steward v Board of R.R. Comrs., 160 N.Y. 202, 212; People ex rel. Breslin v Lawrence, 107 N.Y. 607, 609; Matter of Quinn, 2 App. Div. 103, affd 152 N.Y. 89; see Matter of Rox v Doherty, 284 N.Y. 550, 553). Clearly, therefore, it should not be permitted to interfere with the Town Board's determination to withdraw the appeal.
The order of the Appellate Division permitting the appeal to be withdrawn should, therefore, be affirmed.