Can a New York town cut off the right of an adjoining property owner to appeal a building permit to the zoning board of appeals?

Plain-English summary

The Town of Southampton had a local zoning law (Southampton Town Code § 330-165) that defined the categories of matters its Zoning Board of Appeals could hear. Read narrowly, the local law arguably blocked an adjoining property owner from appealing a building permit or certificate of occupancy to the ZBA. The town attorney asked the AG whether that limitation was consistent with Town Law § 267-a(4), which describes the ZBA's jurisdiction and opens with the phrase "[u]nless otherwise provided by local law or ordinance."

The AG said no. The prefatory "unless otherwise provided" language was about adding non-appellate matters to the ZBA's portfolio (such as special-use permit applications), not about subtracting from the ZBA's appellate role.

The text. Town Law § 267-a(4) says the ZBA's jurisdiction "shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law" enacted under Article 16. The appeal "may be taken by any person aggrieved." Setting the "unless otherwise provided" clause aside for a moment, the statute is unambiguous: appeals to the ZBA from zoning-officer decisions, available to any aggrieved person.

The statutory scheme. Article 16 of the Town Law requires every town that adopts a zoning law to have a ZBA. Town Law § 267-a(5) requires the zoning officer to file every order, decision, interpretation, or determination. Section 267-a(4) and (5) together set a specific time frame for taking an appeal. None of that makes sense if a town could pick and choose which appeals to allow.

The legislative history. The 1991 amendments (L. 1991, ch. 692) recodified the laws on town and village ZBAs. The Sponsor's Memorandum and the Department of State Memorandum both described the goal as recodifying and clarifying, with one specific purpose being to "provide a long-needed clarification of zoning board of appeals appellate power." The "unless otherwise provided" clause replaced a much older formulation that had been read to allow towns to delegate original jurisdiction (over special-use permits, for example) to the ZBA. Cases like Jewel Equities Corp. v. Armenia Zoning Bd. of Appeals and Huntington v. Otten Pontiac confirmed that practice. The 1991 amendment carried that flexibility forward but did not erase the mandatory appellate role. Commentators (Terry Rice's Practice Commentaries and Patricia Salkin's Land Use Regulation treatise) read the statute the same way.

The home rule overlay. Town Law § 267-a is a "general law" under Municipal Home Rule Law § 2(5), because it applies alike to all towns. Local laws must be consistent with general state laws unless adopted under a town's "supersession authority" with proper invocation. Municipal Home Rule Law § 22 requires explicit statements of supersession intent. Southampton had not invoked supersession, and the AG did not reach whether a town could supersede § 267-a's appellate grant. (Cohen v. Bd. of Appeals of Village of Saddle Rock held that the parallel ZBA legislation on area variance standards was a statewide rule that pre-empted village supersession of that subject. Stone Landing Corp. v. Bd. of Appeals of Village of Amityville followed Cohen.)

The bottom line in the Southampton context: an adjoining landowner aggrieved by a building permit had standing to appeal to the ZBA under Bonded Concrete v. Zoning Bd. of Appeals of Town of Saugerties. To the extent the local code blocked such an appeal, it was inconsistent with Town Law § 267-a and invalid. The AG did not interpret Southampton's code; it limited the analysis to the consistency question, leaving local interpretation to local officials.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did 'unless otherwise provided by local law' mean in Town Law § 267-a(4)?
A: That a town could give its ZBA additional jurisdiction over non-appellate matters, like special-use permits or area variances. It did not authorize cutting back the appellate jurisdiction the statute mandates.

Q: Can a neighbor appeal a building permit to the ZBA?
A: Yes. Bonded Concrete v. Zoning Bd. of Appeals of Town of Saugerties held that adjacent landowners aggrieved by the issuance of a certificate of occupancy had standing to appeal to the ZBA under § 267-a. The statutory language refers to appeals by "any person aggrieved."

Q: Could a town supersede this rule under home rule?
A: The AG did not reach that question. Cohen v. Bd. of Appeals of Village of Saddle Rock had held that a parallel piece of the 1991 ZBA legislation (the area-variance standards) was statewide and preempted local supersession. Whether the appellate-jurisdiction provision is similarly statewide was left open.

Q: How would a town properly invoke supersession authority if it tried?
A: Municipal Home Rule Law § 22 requires an explicit statement of supersession intent. Southampton had not made that statement, so the AG took the local law as a non-supersession local law, which had to be consistent with the state statute.

Q: What did the 1991 amendments change?
A: They recodified Town Law § 267 (and the parallel Village Law § 7-712) into modern sections (Town Law §§ 267, 267-a, 267-b, 267-c; Village Law §§ 7-712, 7-712-a, 7-712-b, 7-712-c). One purpose was to clarify the ZBA's appellate power. The prefatory "unless otherwise provided" clause carried forward the practice of giving ZBAs additional non-appellate jurisdiction by local ordinance.

Background and statutory framework

Article 16 of the Town Law governs town zoning. Section 267(2) requires every zoning town to have a ZBA. Section 267-a defines the ZBA's jurisdiction, with subdivision (4) on appellate jurisdiction and subdivision (5) on the filing of zoning-officer determinations and the timing of appeals. Sections 267-b and 267-c address area and use variances and special permits, and 267-c addresses a related procedural matter. The Village Law contains a parallel set of sections (§ 7-712 through § 7-712-c).

Pre-1991, Town Law § 267(2) provided that the ZBA "shall hear and decide appeals" and "shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance." That structure was understood to allow original jurisdiction by local ordinance (for example, special-use permits), as in Jewel Equities Corp. and Huntington v. Otten Pontiac. The 1991 recodification (L. 1991, ch. 692) replaced that with the modern "unless otherwise provided" formulation, intending to clarify rather than expand or restrict.

Home rule analysis: N.Y. Const., art. 9, § 2(c) and Municipal Home Rule Law § 10(1) require local laws to be consistent with general state laws. Section 2(5) defines a "general law" as one applying alike to all counties (or cities, towns, or villages). Section 267-a applies alike to all towns and is therefore general. Cohen and Stone Landing Corp. are the leading recent decisions on the preemptive force of the 1991 ZBA recodification on related subjects.

Citations and references

Constitution:

• N.Y. Const., art. 9, § 2(c)

Statutes:

• Municipal Home Rule Law § 2(5) (general law definition)
• Municipal Home Rule Law § 10 (home rule grant)
• Municipal Home Rule Law § 22 (supersession statement)
• Town Law § 267(2) (ZBA required for zoning towns)
• Town Law § 267-a (ZBA jurisdiction)
• Town Law § 267-b, § 267-c (related ZBA procedures)
• Village Law § 7-712, § 7-712-a, § 7-712-b, § 7-712-c (parallel village ZBA scheme)
• L. 1991, ch. 692 (recodification)

Cases:

• Cohen v. Bd. of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003)
• Bonded Concrete v. Zoning Bd. of Appeals of Town of Saugerties, 268 A.D.2d 771 (3d Dep't 2000)
• Barron v. Getnick, 107 A.D.2d 1017 (4th Dep't 1985)
• Jewel Equities Corp. v. Armenia Zoning Bd. of Appeals, 114 A.D.2d 353 (2d Dep't 1985)
• Huntington v. Otten Pontiac, Inc., 43 A.D.2d 857 (2d Dep't 1974)
• North Bay Assocs. v. Hope, 116 A.D.2d 704 (2d Dep't 1986)
• Sherman v. Frazier, 84 A.D.2d 401 (2d Dep't 1982)
• Stone Landing Corp. v. Bd. of Appeals of Village of Amityville, 773 N.Y.S.2d 103 (2d Dep't 2004)

Other authorities:

• Sponsors' Mem., reprinted in Bill Jacket for ch. 692 (1991)
• Department of State Mem., reprinted in Bill Jacket for ch. 692 (1991)
• Terry Rice, Practice Commentaries to Town Law § 267-a, 61 McKinney's Cons. Laws of N.Y. at 259 (2004)
• Patricia E. Salkin, Land Use Regulation, in 2 New York Practice Guide: Real Estate § 16.03[4][f], § 16.06(3)(a) (2003 ed.)
• 1979 Op. Att'y Gen. (Inf.) 170
• Op. Att'y Gen. (Inf.) No. 99-36

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-4_pw_0.pdf

Original opinion text

N.Y. CONST, ART. IX § 2(c); MUNICIPAL HOME RULE LAW §§ 10, 22; TOWN LAW, ART. 16, §§ 267(2), 267-a, 267-b, 267-c; VILLAGE LAW §§ 7-712, 7-712-a, 7-712-b, 7-712-c; L. 1991, CH. 692.

Town Law § 267-a(4) permits a town to pass local laws or ordinances enabling its zoning board of appeals to hear non-appellate matters, but does not authorize a town to restrict the appellate jurisdiction of its zoning board of appeals.

May 5, 2004

Kimberly A. Judd
Senior Assistant Town Attorney
Town of Southampton
116 Hampton Road
Southampton, NY 11986

Informal Opinion
No. 2004-4

Dear Ms. Judd:

You have asked whether a local law limiting the appellate jurisdiction of the Town of Southampton's Zoning Board of Appeals ("ZBA") is consistent with Town Law § 267-a(4), which describes the jurisdiction of local zoning boards of appeals. You have advised us that the Town has a local law, Southampton Town Code § 330-165, which could be interpreted as precluding the owner of an adjoining property from appealing to the ZBA the granting of a building permit or certificate of occupancy. Your question is whether Town Law § 267-a(4)'s prefatory language "[u]nless otherwise provided by local law or ordinance" authorizes such a local law.

We conclude that this language was not intended to permit a town to restrict the appellate jurisdiction of its ZBA, but rather was intended to allow towns to give local ZBAs the jurisdiction to hear non-appellate matters, such as applications for special permits, in addition to appeals. Thus, to the extent your local law is interpreted as precluding an appeal that would otherwise be available under section 267-a, it is inconsistent with the state law and consequently invalid.

ANALYSIS

We begin with an analysis of the language of Town Law § 267-a, which provides:

Unless otherwise provided by local law or ordinance, the jurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the town (emphasis added).

Setting aside the underlined prefatory language, the plain language of the statute provides that the jurisdiction of a zoning board of appeals is "appellate only" and limited to hearing appeals from and reviewing orders, decisions and determinations of the local zoning officer. That is, section 267-a does not grant a zoning board of appeals original jurisdiction to decide zoning applications. Instead, the statute limits the board's jurisdiction to reviewing determinations made by the official charged with enforcing zoning laws (typically the zoning administrator), "[u]nless otherwise provided by local law or ordinance." The prefatory language thus appears to refer to local laws or ordinances that give a zoning board of appeals additional jurisdiction over non-appellate matters, not to local laws that restrict the ZBA's appellate jurisdiction.

This reading of the statute is consistent with the overall statutory scheme governing zoning boards of appeals. A town that adopts a zoning law under Town Law Article 16 must have a zoning board of appeals. See Town Law § 267(2). Section 267-a of the Town Law also provides that every order, requirement, decision, interpretation or determination of the zoning official must be filed. See Town Law § 267-a(5). It further authorizes any aggrieved person to appeal such decisions to the zoning board of appeals, and provides a specific time frame for taking those appeals. Id. § 267-a(4),(5). These provisions indicate that the Legislature intended zoning boards of appeals to have broad appellate jurisdiction. An interpretation of section 267-a as providing for mandatory appellate jurisdiction, while authorizing additional non-appellate jurisdiction as local conditions require, is thus consistent with the broader legislative scheme.

This interpretation is also consistent with the legislative history of Town Law § 267-a. The previous state law provision governing the jurisdiction of a zoning board of appeals provided that such board "shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this article. It shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance." Former Town Law § 267(2) (emphasis added). Consistent with the former provision, ZBAs were sometimes delegated by local ordinance original jurisdiction over specific matters such as special use permits, in addition to the grant of appellate authority under state law. See Barron v. Getnick, 107 A.D.2d 1017, 1018 (4th Dep't 1985); Jewel Equities Corp. v. Armenia Zoning Bd. of Appeals, 114 A.D.2d 353, 354 (2d Dep't 1985); Huntington v. Otten Pontiac, Inc., 43 A.D.2d 857 (2d Dep't 1974).

The 1991 amendment enacting section 267-a, which deleted the underlined language and added the prefatory phrase, "unless otherwise provided by local law or ordinance," was part of a recodification and clarification of the state laws governing the powers and duties of town and village zoning boards of appeals. See Sponsors' Mem., reprinted in Bill Jacket for ch. 692 (1991), at 19. One of the specific purposes of the bill was to "provide a long-needed clarification of zoning board of appeals appellate power." Dept. of State Mem., reprinted in Bill Jacket for ch. 692 (1991), at 26. The amended language thus served to clarify that section 267-a grants local ZBAs only appellate review power, while allowing local governments to also delegate original jurisdiction over certain matters through local legislation.

Finally, we note that commentators on section 267-a have uniformly interpreted it to provide for mandatory appellate jurisdiction, while allowing the town board to give its zoning board of appeals original jurisdiction over certain designated matters. See Terry Rice, Practice Commentaries to Town Law § 267-a, 61 McKinney's Cons. Laws of N.Y. at 259 (2004); Patricia E. Salkin, Land Use Regulation, in 2 New York Practice Guide: Real Estate § 16.03[4][f] (2003 ed.).

You have indicated that your local zoning law could be interpreted as precluding the owner of any adjoining property from appealing to the ZBA the granting of a building permit or certificate of occupancy. As noted, section 267-a contains a broad grant of appellate review authority; it refers to hearing appeals from any order, decision, interpretation or determination of the local zoning administrator from any person aggrieved. See also Town Law § 267-a(5). It is well-accepted that an adjacent landowner who is aggrieved by the granting of a building permit or certificate of occupancy has standing to appeal the issuance of the permit to the zoning board of appeals. See, e.g., Bonded Concrete v. Zoning Bd. of Appeals of Town of Saugerties, 268 A.D.2d 771, 772 (3d Dep't 2000); Patricia E. Salkin, Land Use Regulation in 2 New York Practice Guide: Real Estate § 16.06(3)(a). Thus, to the extent your local law is interpreted as precluding such an appeal, it is inconsistent with Town Law § 267-a.

Further, inasmuch as section 267-a is a general law for home rule purposes, see Municipal Home Rule Law § 2(5), local laws must be consistent with its provisions, unless authorized by and adopted under a town's "supersession authority." See N.Y. Const. art. 9, § 2(c); Municipal Home Rule Law § 10(1); 1979 Op. Att'y Gen. (Inf.) 170.

We thus conclude that Town Law § 267-a(4) grants local ZBAs mandatory appellate jurisdiction. The statute authorizes municipalities to supplement this appellate jurisdiction with non-appellate matters, such as special permit applications, through the enactment of local laws or ordinances, but it does not authorize municipalities to limit the ZBA's appellate jurisdiction.

The Attorney General renders formal opinions only to officers and departments of the State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

Laura Etlinger
Assistant Solicitor General
In Charge of Opinions

By: ______
Carol Fischer
Assistant Solicitor General