The Appellate Division, Second Department, in Chestnut Ridge Associates, LLC v 30 Sephar Lane, Inc. 169 A.D.3d 995, 2019 N.Y. Slip Op. 01388 [2d Dept 2019], modified a decision of the Supreme Court, Rockland County, which, inter alia, annulled a determination of the Village of Chestnut Ridge (“Chestnut Ridge”) Zoning Board of Appeals (“Chestnut Ridge ZBA”) and awarded costs and attorneys’ fees for violations of New York’s Open Meetings Law. The appeals court affirmed the trial court’s finding that the Chestnut Ridge ZBA’s determination should be annulled because it was without jurisdiction to consider whether a use variance is required; however, the appeals court reversed the trial court’s decision to award costs and attorneys’ fees for a violation of New York’s Open Meetings Law because an improperly noticed meeting was open to the public and the ultimate determination was adopted at a publicized, public meeting.

The facts of this case, set forth in great detail by the trial court, are quite provocative. In 2007, Steve’s Lawn, Inc. and 30 Sephar Lane Corp. (collectively, “Steve’s”) purchased the subject property (“Property”), which hosts a landscaping business. The Property is zoned within the LO (Laboratory-Office) District, the use provisions for which have been interpreted to permit landscaping businesses (i.e. landscaping storage as an accessory use to an office). Notably, more than a dozen landscaping businesses operate within this district and without municipal interference.

Directly across the street, Chestnut Ridge Associates, LLC (“Associates”) owns a largely vacant 14.6-acre parcel. Associates has been unsuccessfully seeking to develop its parcel for more than two decades, and invested $90,000,000 towards these efforts. Apparently, Associates either wanted the Property or wanted Steve’s to stop operating its landscaping business thereon because it interfered with Associate’s development plans. In early 2008, Associates pressured the Chestnut Ridge Mayor (“Mayor”) to shut down Steve’s business, and the Village Board of Trustees (“Trustees”) ordered the Code Enforcement Officer (“Officer”) to issue an appearance ticket to Steve’s for operating without site plan approval.

The Officer issued the ticket under protest, informing the Mayor and the Trustees that it was his opinion that landscaping operation is a permitted use within the LO District and upon the Property. The Officer withdrew the ticket prior to disposition. During the pendency thereof, nevertheless, Steve’s submitted an application to the Chestnut Ridge Planning Board for, among other things, construction of a storage structure. In October 2009, the Chestnut Ridge Planning Board concluded that Steve’s application might need an area variance – but it would not need a use variance for the landscaping business. Steve’s submitted an application to the Chestnut Ridge Zoning Board of Appeals (“Chestnut Ridge ZBA”) for an area variance concerning setbacks for the new structure.

After Steve’s submitted its site plan application and around the time Steve’s submitted the area variance application to the Chestnut Ridge ZBA, the Trustees enacted a local law expressly making landscaping a permitted use within the LO District. However, seemingly as a result of Associates’ input, the local law also provided it did not apply to properties that were the subject of applications filed with the Chestnut Ridge Planning Board prior to its enactment. The trial court noted that it was clear this local law applied only to the Property and “was enacted for no other reason than to benefit [Associates] at Steve’s expense.

Moreover, based upon Associates’ opposition to Steve’s area variance application, the Chestnut Ridge ZBA sought to determine whether the landscaping use is permitted. In September 2011, Steve’s counsel served a Notice of Claim upon the Chestnut Ridge ZBA in connection therewith, and requested to withdraw the area variance application. The Chestnut Ridge ZBA refused and demanded that Steve’s address the issue of their jurisdiction to consider the use issue. Steve’s neither responded nor made further appearances.

Associates, then, requested that the Chestnut Ridge ZBA interpret whether Steve’s landscaping storage is a permitted use. The Chestnut Ridge ZBA obliged, held at least one meeting not open to the public (and without entering executive session) in order to secretly discuss Associates’ request,[1] and hosted a public hearing on the issue. In January 2012, the  Chestnut Ridge ZBA issued a resolution that the local law did not apply to the Property and that Steve’s landscaping storage is not a permitted use. Thereafter, Steve’s commenced a hybrid action/proceeding to, among other things, annul the Chestnut Ridge ZBA’s determination.[2]

In Steve’s hybrid case, the trial granted Steve’s petition and annulled the Chestnut Ridge ZBA’s determination on grounds that it is jurisdictionally defective: “ZBA’s have only appellate jurisdiction . . . Here, Steve’s invoked the jurisdiction of the [Chestnut Ridge ZBA] by filing its area variance application. It then withdrew it. The [Chestnut Ridge ZBA] purported to disregard the withdrawal. Other than evidencing [their] bad faith, such refusal had no legal effect.” Moreover, neither Chestnut Ridge nor Associates cite any authority to compel Steve’s to pursue an area variance it no longer desired. When Associates filed its interpretation request, there was nothing for the Chestnut Ridge ZBA to review. Even assuming Steve’s did not withdraw its area variance application, the result would not change because Steve’s – the applicant – sought an area variance; the issue of its use was never before the Chestnut Ridge ZBA, and Associates did not seek to appeal from any pending determination regarding Steve’s use.

The trial court also annulled the Chestnut Ridge ZBA’s determination for violations of the Open Meetings Law, where the board held at least one meeting which was not open to the public and during which the board discussed Associates’ request for a use interpretation concerning Steve’s landscaping business at the Property. The trial court also noted the Chestnut Ridge ZBA’s bad faith: “[H]aving decided to put Steve’s out of business at [Associates’] behest, it is not surprising that [the Chestnut Ridge ZBA] did not want to discuss the same before the public.”

On appeal, the Appellate Division affirmed the annulment of the Chestnut Ridge ZBA’s decision, based upon its non-jurisdiction. Without a determination from the building inspector or other administrative official charged with enforcement of the zoning code, zoning boards are without jurisdiction to consider an application for an interpretation of the code. In addition, although the Appellate Division also found that the record supported a finding that the Chestnut Ridge ZBA violated the Open Meetings Law by hosting a workshop without giving notice of the meeting, Steve’s did not establish good cause to annul the Chestnut Ridge ZBA’s determination on that ground. While improperly noticed, the meeting was open to the public and the determination was adopted at a publicized public meeting and was the subject of a number of prior public meetings.

[1] There is some discrepancy about this meeting; the trial court found it was held in secret, but the appeals court found  that the meeting only improperly noticed and actually open to the public.

[2] In 2010, Associates commenced a separate action seeking a permanent injunction against Steve’s operation of its landscaping business at the Property.