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It was a packed house in the town hall auditorium, as the planning board convened to consider a controversial application for site plan approval.  As one of the neighbors concluded his remarks in opposition to the proposed development, he asked for a show of hands from the audience. “Raise your hand if you’re against this proposal.”  Nearly three-fourths of the people in attendance raised their hands.  Seems like this project should be a no-go, right?  Not necessarily.

What opposing neighbors often do not understand is that a planning board’s decision to approve or disapprove a site plan application must be based upon “substantial evidence” in the record. A denial can only be based upon a reason particular to the proposed project, rather than because of generalized community objections.  The same is true for a decision by a zoning board of appeals or ZBA. Planning and zoning boards may not base their decisions on generalized community objections.

Neighbors opposed to applications before planning or zoning boards also often argue that approval of a proposed application will lead to a reduction in their property values. However, when making this argument, the neighbors rarely provide any evidence for this contention. Courts will set aside a board’s denial if it is based on generalized and speculative complaints that are uncorroborated by any empirical data.  When the applicant presents expert opinion (e.g., traffic engineering report, real estate appraisal), courts have also held that this proof may not be disregarded in favor of generalized community opposition.

When a board approves an application in spite of neighborhood opposition, the neighbors who took the time to testify at a public hearing sometimes conclude that the board did not listen to their concerns, or worse, that the approval was somehow foreordained.  What opposing neighbors don’t realize is that these proceedings are not New England town meetings, where the majority of people in attendance get to determine the outcome.  Instead, planning and zoning boards are charged with carefully evaluating each application against a set of criteria or elements that vary depending on the particulars of the application, whether applicants are seeking variances or special use permits, or subdivision or site plan approval.

While a discussion of all the standards that may apply is beyond the scope of this article, many of the standards are easy to find.  Some standards—like the elements that apply to an application for a use or area variance—are set forth in state statutes (e.g., area variance elements are set forth in N.Y. Town Law § 267-b(3)(a); N.Y. Village Law § 7-712-b(3)(a); and N.Y. General City Law § 81-b(4)(a)).  The standards for other applications, such as site plan or special use permits, are required to be spelled out in the local zoning ordinance of the particular municipality.  Before appearing at a public hearing—whether to speak in favor or against an application—it is essential to review the applicable standards, and if necessary it may also be critical to present expert opinion or other competent evidence supporting your position.

It is also important to note that land use matters are also subject to the requirements of the State Environmental Quality Review Act (“SEQRA”).  Although many smaller applications may not require any formal review beyond the submission of a relatively simple environmental assessment form, some larger actions often trigger a more comprehensive review and the preparation of an environmental impact statement before a project may proceed.  Many projects also require referrals to county or regional planning commissions for additional review, depending on where the project is located, and whether or not it triggers statutory referral requirements.  Failure to follow SEQRA or the referral requirements by an applicant and the reviewing board may be fatal to an application.

Finally, any party unsatisfied with a decision of a municipal board may have the right to challenge the decision in court through an Article 78 Proceeding.  But, it is important to note that the concept of “exhaustion of administrative remedies” applies to this judicial review of planning or zoning board determinations.  This means that arguments or claims made in an Article 78 judicial review proceeding could be excluded if they were not first advanced before the planning board or the ZBA.

If you would like to schedule a consultation to discuss zoning or land use matters, please contact Peter J. Weishaar, Esq. at pweishaar@mccmlaw.com or 585.512.3542.  Mr. Weishaar’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of municipalities as special counsel in litigation matters.  He has also served as counsel to applicants and neighbors concerned about projects before planning and zoning boards.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.