To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York

Judicial review is particularly important in the case of special use permits (also known as special exceptions), where a statute or ordinance specifically allows the sought-after use, but zoning boards have the semi-discretionary power to deny the permits. Zoning boards may not simply deny a special use permit at their discretion because of community opposition-a decision to deny must be accompanied by substantial evidence.
This Note will demonstrate the importance of maintaining a higher level of scrutiny in judicial review of cases involving zoning board denials of special permits than in other types of zoning cases (specifically those involving denials of variances), and will examine how a trio of recent cases decided by the New York Court of Appeals seems to have eroded this distinction. Part I provides general background about zoning and illustrates New York’s statutory scheme governing zoning boards and their review by courts. Part II discusses the difference between special permits and variances and their respective reviews by courts by exploring the relevant statutes and some illustrative cases. Part III explores three zoning cases recently decided by the New York Court of Appeals. Part IV assesses the likely impact of those cases, and analyzes both the importance of judicial review and the possible impact of the courts’ failure to develop a clear framework for dealing with appeals of zoning board decisions. Finally, Part V of the Note proposes that the courts adopt a distinctly different standard of review for cases in which a zoning board denies a special permit, and that the legislature establish Courts of Zoning Appeals to heighten judicial oversight of the zoning process.

Elliot Gardner

Cardozo Public Law, Policy and Ethics Journal

May 2004

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