John Armentano | Farrell Fritz | April 23, 2019
Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets). Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings. This can be a particularly useful tool, when a property owner or developer is cited for zoning code violations that may shut down activities and force a timely and protracted court battle.
In fact, New York Town Law Section 267-a(6) provides a clear path for a stay to have zoning issues resolved before local zoning boards rather than in a judicial proceeding. N.Y. Town Law Section 267-a(6) and its correlating village and city law sections provide as follows:
6. Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the board of appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown (emphasis added).
In People v. Bell, 183 Misc.2d 61 (Justice Ct., Village of Tuckahoe 2000), the Village building inspector issued appearance tickets returnable in the Village’s Justice Court for (1) no certificate of occupancy, (2) change of use of land without obtaining a certificate of occupancy, (3) no site plan approval, and (4) no screening of activities. A jury trial was scheduled for September 28, 1999. On September 27, 1999, Bell Atlantic appealed the subject matter of the appearance tickets to the Zoning Board and claimed a stay under section 7-712-a(6) of Village Law (the correlating provision of Village Law regarding stays). The appeal by Bell Atlantic sought, among other things, to “overturn decision of the Village of Tuckahoe Building Inspector that the present use of the premises is a change of use that requires site plan approval and a certificate of occupancy for the premises.”
In Bell, the Village did not question Bell Atlantic’s ability to appeal the building department’s determination to the Board of Zoning Appeals, but challenged the stay of criminal proceedings in the Village Justice Court. In upholding the stay, the court rejected the Village’s position as exalting form over substance. The Court reasoned that the statute mandates a stay when the issue before the court and the Board of Zoning Appeals are the same, because the purpose of the statute is to obtain a definitive ruling from the Zoning Board of Appeals before making a judicial determination. This avoids conflicting rulings from a judicial determination and the Board of Zoning Appeals. The fact that the appeal did not originate with a denial of an application or notice of violation is immaterial. Id.
Based on Bell, it appears that any action or decision of the building department, even a criminal enforcement proceeding, is automatically stayed by appealing such action to the Zoning Board of Appeals, as a matter of law. This can be a powerful tools, when a property owner is faced with a potential court proceeding for zoning violations. This ability to “stop the clock” may in turn provide an ability to negotiate a practical solution.
It must be noted that appeals of decision by a zoning enforcement officer cannot be neglected. Such an appeal must be taken within sixty days after the filing of any order, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal. See, Town Law Section 267-a(5)(b).