APPELLATE DIVISION REAFFIRMS FUNDAMENTAL RULE THAT A PETITIONER CANNOT RAISE NEW CLAIMS IN A CPLR ARTICLE 78 PROCEEDING THAT WERE NOT INITIALLY RAISED AT THE ADMINISTRATIVE LEVEL

Land Use

The Appellate Division, Second Department, has reaffirmed the fundamental rule that a Petitioner in an Article 78 proceeding cannot raise new claims to the Court that were not originally raised at the administrative level.  In the Matter of Brian Kearney v. Village of Cold Spring Zoning Board of Appeals, 2011 N.Y. Slip. Op. 02881. Article 78 proceedings are available to review administrative decision making.  In the context of a decision of a board of zoning appeals to grant or deny a variance, the standard of review is whether the decision of the Board was arbitrary and capricious.  In this regard, the function of the Court is to review the administrative record and determine whether there was a rational basis for the zoning board’s decision.  As the Courts have stated many times, the decision will only be set aside when the record reveals that the board acted illegally or arbitrarily, or abused its discretion.

If the Petitioner raises claims in the Article 78 proceeding that were not raised before the administrative board, the Court will not consider those claims in determining whether the administrative decision was arbitrary or capricious.

In the Kearney case, the Petitioner challenged the Board’s decision to deny area variances that would allow the construction of a single family home on a lot that was one quarter the size otherwise required by the Village Code.  In challenging the Zoning Board’s determination, the Petitioner, at the Supreme Court level, requested that the Supreme Court determine that the Code’s dimensional requirements for the lot did not apply under a certain exception in the village Code referred to by the parties as the “small lot exception.”  The Supreme Court determined that the “small lot exception” applied and ordered the Zoning Board to grant the variances.  The Zoning Board appealed to the Appellate Division.  The Appellate Division held that the Supreme Court was wrong in considering the Petitioner’s claim that the property was exempt under the “small lot exception.”  The Appellate Division found that the Petitioner raised these claims of entitlement to the “small lot exception” for the first time in the Article 78 proceeding, and that they were not raised at the administrative level.  From the record, it appears that before the Zoning Board, the Petitioners had communicated their opinion to the Board that they did not require variances because their property was exempt from the dimensional requirements under the “small lot exception.”  However, they also expressly informed the Board at the public hearing on their application that they were “not asserting in the context of this proceeding…that they were entitled to apply the small lot exception,” but instead were only seeking variances.  As a result, the Zoning Board’s findings and decision were limited to the question of entitlement to variances and did not address the question of whether the property was exempt under the “small lot exception” provision of the Code.  Accordingly, the Appellate Division found that the claim of exemption was precluded from judicial review.

The lesson here is clear.  An applicant for administrative relief, whether before a zoning board or any other administrative agency, must raise any and all claims during the course of the administrative proceedings in order to preserve the claims for review in an Article 78 proceeding.  The failure to raise those claims and fully document them before the board, will preclude judicial review at a later date.

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