A recent decision by New York’s Appellate Division, Second Department, serves as a reminder of the importance of promptly filing administrative determinations, holding required duly noticed public hearings, and the consequences of failing to do so.
In Corrales v. Zoning Board of Appeals of the Village of Dobbs Ferry, Livingston Development Group in November 2012 submitted an application for the development of twelve condominiums. The Building Department forwarded the application to the Planning Board, which conducted a public hearing after which it recommended approval subject to certain conditions. The Village Board of Trustees, which retained site plan approval authority, granted site plan approval conditioned on, among other things, the applicant obtaining approval from the Architectural and Historic Review Board (the “AHRB”).
Thereafter, the applicant applied to the AHRB, which denied its application. The applicant appealed the denial to the Zoning Board of Appeals (“ZBA”). While that appeal was pending, neighbors – one of whom did not receive notice of the Planning Board’s earlier public hearing – asserted that the proposed condominium use was not permitted in the zoning district. The neighbors’ attorney also raised this issue at a subsequent meeting of the AHRB, during which the assistant building inspector gave the opinion that the proposed use complied with applicable zoning regulations.
The neighbors, viewing the assistant building inspector’s oral opinion as an official “determination,” filed an appeal with the ZBA. It ruled that in forwarding to the Planning Board the applicant’s original application when it was first filed two years earlier, the building inspector “inherently” determined that the use was permitted, “even though there was no written determination to that effect.” Since the neighbors did not file an appeal within 30 days of that “inherent” determination, the ZBA ruled that their appeal in 2014 was untimely.
The neighbors then filed an Article 78 proceeding in the Supreme Court, Westchester County, and additionally sought declaratory relief. The Supreme Court granted summary judgment to the neighbors, annulled the ZBA’s dismissal of their appeal on the use issue, and remitted the matter to the ZBA for a new hearing. The Appellate Division affirmed, finding that the building inspector’s action in November 2012 forwarding the site plan application to the Planning Board was not disclosed to the public and therefore was not properly “filed” at the time the alleged “inherent” decision was made. State law governing administrative determinations requires that a “determination of the administrative official charged with the enforcement of the zoning local law shall be filed in the office of such administrative official within five business days from the day it was rendered” or, if provided by resolution of the Village Board of Trustees, in the Village Clerk’s office. Village Law § 7-712-a.(5)(a). The 30-day appeal period commences upon such filing.
Here, the Appellate Division, Second Department, ruled that the ZBA improperly dismissed the appeal since the “inherent” decision from which the appeal was taken had not been filed as required by law. As a result, the neighbors’ appeal could not have been untimely and a new hearing was ordered. The implications for the applicant and other developers are enormous, given that the status of the proposed use became subject to appeal some three years after the site plan application was initially filed and some two years after it was approved.
This case serves as an important reminder that in New York the act of filing, whether it be an administrative determination or a decision of a planning board or zoning board of appeals, is the action which commences the appeal period. Although this is clearly stated in the governing statute and in most zoning codes, it is surprising how often decisions are not filed at all, are improperly filed, or are untimely filed. Ultimately, it is the applicant which is at substantial risk should there be an appeal which would have been commenced too late if the underlying determination had been timely filed. Therefore, it is important to verify that all decisions are properly and timely filed, as part of the normal course of due diligence for any development.
Finally, the neighbors also asserted a second claim that the site plan approval was jurisdictionally defective and thus void because the Village Board of Trustees did not hold a duly noticed public hearing as required by Village Code § 300-28.G. The Supreme Court and the Appellate Division, Second Department, concurred that the Village Board of Trustees failed to conduct a duly notice public hearing as required by law, and therefore lacked jurisdiction to approve the applicant’s site plan. Under New York state law, most errors in providing notice of a public hearing which is conducted (like failing to notify one of the property owners on the notice list), are not considered jurisdictional and often will not result in the invalidation of a hearing. However, this case illustrates that the utter failure to provide any notice of a public hearing on the site plan application before the Village Board of Trustees constitutes a fundamental jurisdictional defect and the approval granted was deemed void. This again illustrates the importance of adhering to procedural requirements, or risking severe consequences.
The importance of following procedural requirements, including timely filing decisions and properly noticing land development applications, is paramount in assuring that a project is protected from future challenges and appeals, and that the appropriate rights timely vest in the developer and its project. This decision clearly highlights the pitfalls of not tracking and confirming the filing of decisions as part of due diligence by the developer, and of not holding a duly noticed public hearing when required by law.