As many property owners may know, zoning restrictions can have a significant impact on how a property can be used and improved. A zoning board of appeals (“ZBA”) is an independent board whose decisions impact a landowner’s property rights and can frequently affect the value of the property. Municipalities have authority to charge fees for the ZBA’s functions. However, there are limits on such fees of which landowners should be aware.
The ZBA is authorized to take certain actions, which occur following a public hearing:
- Area Variances. Zoning restrictions place requirements on the dimensions and ratios of improvements on properties (for example, lot area, floor area ratio, height, setbacks and frontage). If an owner is denied a building permit because the proposed improvement does not meet dimensional requirements, an owner can apply to the ZBA for an “area variance” to exempt them from the requirements.
- Use Variances. Zoning restrictions place limitations on how a property can be used (e.g., for residential, commercial, industrial and/or manufacturing uses). Owners who want to use their property in a way that is otherwise prohibited by the zoning may apply to the ZBA for a “use variance” exempting them from the prohibition.
- Special Permits. Certain uses of property are permitted, but because the use may raise safety, environment or traffic concerns, ZBA approval is necessary before a permit can be granted.
- Challenges to a Building Permit: If a municipality issues a building permit which another owner believes should not have been issued, the owner can challenge the building permit by appealing its issuance to the ZBA.
- Interpreting Local Law. If a local law, often relating to zoning and other property matters, is ambiguous or unclear, an application can be made to the ZBA to interpret the law.
Depending upon the particular application and its impact on the neighborhood, the applicant may need to submit parking or traffic studies, architectural or engineering studies, expert testimony, legal memoranda or other detailed information. Such efforts entail significant expense and time to prepare and review.
Municipalities typically require payment of a fee in order to file and process a ZBA application. Fees are typically based upon the type of application being considered. For example, applications requiring expert review or legal argument are more time-consuming and costly and may be associated with a higher fee. Similarly, applications by owners who seek to legalize an existing illegal structure by obtaining a retroactive variance often require more effort and scrutiny and may be subject to a higher fee.
However, some municipalities have actually attempted to charge an applicant for all of their expenses, requiring them to pay the ZBA’s administrative costs, such as stenographers, meeting space, transcripts, and expenses of lawyers and experts who review the application on the ZBA’s behalf. These fees can be an extraordinary burden, especially when added to the applicant’s own legal and expert fees, and can impede the right to seek review by the ZBA.
These attempts are strictly scrutinized as there are limitations on the fees that can be charged to an applicant. New York’s highest court, the Court of Appeals, in Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor, criticized and rejected a ZBA’s attempt to shift all of its costs to the applicant. That Court, and subsequent courts, have determined that a ZBA’s attempt to charge all of its fees is improper and held that (1) fees must be reasonably necessary, and not merely convenient to the ZBA (such as charging applicants for meeting space, legal fees and stenographer), (2) fees cannot be open-ended, unpredictable and potentially unlimited, and (3) fees must be based on reliable studies of the historical average costs of different types of applications.
Additionally, where other owners are challenging a building permit that has been issued improperly, they cannot be charged the same fee as other types of applicants since it would impede their ability or willingness to enforce their rights.
Landowners anxious to receive a permit or variance should be aware of the fees to be imposed and scrutinize whether they are proper, and should seek legal counsel to assist in doing so. If the fees being charged to them are excessive and improper, it is important to challenge the fees in order to avoid waiving the right to challenge them before a court on appeal.
Read more about our zoning and land use practice.
This post does not constitute legal advice or establish an attorney-client relationship.