Citations
- 40 N.Y.2d 158
Full opinion text
Fuchsberg, J.
The question before us is whether a local government may require applicants for variances and special use permits before its board of zoning appeals to pay certain costs incurred by the board in the course of reaching its determination.
In a prior appeal between the parties, we held that the plaintiff was entitled to a variance and a special use permit for the property it had purchased in the village (38 NY2d 283). At issue now is the village’s Ordinance 22, which specifies that any applicant for a variance or a special use permit, other than one seeking a variance in connection with a single-family residence, shall, in addition to a set fee of $60 for the variance and $50 for the permit, pay the actual costs incurred by the board in passing on the matter. Section 1 of the ordinance specifically states that such costs may include: "(a) Advertising (b) Stenographic minutes of meetings (c) Engineering costs (d) Inspection costs (e) Legal fees (f) Recording fees.” No precise amounts or ceilings are spelled out.
The village is a small one, almost exclusively residential. The application of the plaintiff, a religious corporation which purchased improved property for use primarily as a house of worship and religious school, provoked strong and organized opposition amongst its prospective neighbors. Consequently, presumably because of the special interest engendered, the board of appeals hired a hall for the hearings instead of holding them at a member’s home as had been customary, retained its own legal counsel, and ordered that the proceedings be stenographically recorded rather than following its more usual and less expensive practice of taping them. It also required that the minutes be transcribed and a copy provided for each of the five board members.
Save for the stenographer’s attendance and recording fee, which the plaintiff was called upon to pay directly, the other items were charged against a fund which the plaintiff was required to deposit in advance with the village. The costs so charged were $2,561.50, of which $2,322.20 represented legal fees. The direct payment to the stenographer amounted to an additional $1,000. Since no credit was given for the $110 in fees for filing the variance and use permit applications, the total cost to the plaintiff was $3,671.50.
In this declaratory judgment action, the plaintiff does not raise any question about the reasonableness of the rates at which each of the items was incurred. Instead, it contends that the village is without statutory authority to impose such open-ended costs upon an applicant before the board. On its motion for summary judgment, made pursuant to CPLR 3212, Special Term found that the charges for publication of notice, for stenographic attendance and recording, and for engineering and inspection fees were properly levied and that, to the extent section 1 provided for them, it was valid. It disallowed the charges for the board’s legal fees, for the rental of the meeting hall, and those for transcribing and providing copies of the minutes, holding that section 1 could not authorize them. However, it left open the disposition of the last item until there had been a factual determination of whether the transcribing and copying had been at the instance of the board or of the plaintiff. The Appellate Division affirmed the ensuing judgment without opinion. Both sides having now appealed to us, for the reasons which follow we uphold the order of affirmance.
Preliminarily, it should be noted that the board of zoning appeals is a quasi-judicial body created by State law (Village Law, § 7-712). It provides a forum for the mitigation of harsh effects which zoning laws may have in exceptional cases (see 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 17.07-17.12, pp 731-736; Bassett, Zoning Practice in the New York Region: Comprising a Series of Aids to the Practice of Zoning, a Statement Regarding the Application of Zoning in New York City, and a Model State Enabling Act with Annotations [1926]; cf. Katz v Board of Appeals of Vil. of Kings Point, 21 AD2d 693; Weiss v Village of Lindenhurst, 144 NYS2d 228; Daly v Eagan, 77 Misc 2d 279). As we earlier decided (38 NY2d 283, 290-291, supra), this plaintiff had indeed brought before the board a case of hardship entitling it to relief from overrestrictive ordinances. In doing so, it had not sought to be endowed with a mere benefit, but had pressed for the vindication of a right.
That a right rather than a benefit is being pursued is of special significance in the context of this case. It is no doubt at the heart of