Residents of the Village of East Williston have prevailed (for now) over the East Williston Union Free School District’s plan to install a six-foot tall perimeter fence at the North Side School in the Village of East Williston, Nassau County. On October 4, 2019, Judge Sharon M.J. Gianelli handed down a Decision and Order (‘Decision”) enjoining the School District from completing construction of the fence until it receives a determination from the “local zoning body.” However, actually getting that approval could be another battle for the School District because the fence exceeds the maximum height allowed under the Village’s zoning laws. Consequently, the School District will likely need an area variance—a discretionary approval—from the Village Zoning Board.

The controversy in Cuomo v. The East Williston Union Free School District (Nassau County Index No. 611616/2019) revisits the issue of whether and to what extent a school district is (or is not) exempt from local zoning regulations. As Judge Gianelli’s decision makes clear, school districts do not enjoy “blanket and absolute immunity” from zoning. Decision at p. 14. Rather, the answer to the immunity question turns on whether there is a conflict between the local zoning and any state law or regulation on the same issue. Id. If no conflict exists, local zoning regulations will likely apply.

The legal precedent Judge Gianelli cites in Cuomo also touches upon the related and important topic of how school districts are to be treated, generally, when seeking local zoning approvals, such as special permits and variances. As a general rule, schools are entitled to “[g]reater flexibility than would attach to applications [ ] made by commercial institutions.” Matter of Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 AD3d 179, 185 (3d Dept 2017) (citing Matter of Lawrence Sch. Corp.v. Lewis, 174 AD2d 42 [2d Dept 1992]). In other words, schools are entitled to “special treatment” based on a “presumption that religious [and] educational uses of property are always in furtherance of the public health, safety and morals.” Cornell Univ. v. Bagnardi, 68 NY2d 583, 589 (1986) (cited in Matter of Ravena). The finger on the scale tips even further toward favorable zoning treatment where the imposition of reasonable conditions can counteract or mitigate any adverse impacts associated with the requested approval. Id. at 596.

The foregoing rule, of course, is not absolute. As the Court of Appeals wrote in Cornell University,

The controlling consideration … must always be the over-all impact on the public’s welfare. Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects. The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.

68 NY2d at 595 (internal citations omitted).

The Third Department’s decision in Matter of Ravena provides an apt example of this doctrine in practice. There, the school district sought variances from the local zoning board of appeals to legalize an electronic sign it installed adjacent to a public road. After concluding that the district was indeed subject to the respondent town’s zoning regulations, see 156 AD3d at 182-185, the court ruled that the zoning board of appeals’ decision denying the district’s request for variances was rationally based on traffic safety concerns created by the sign. Id. at 185-85. Accordingly, the school district’s challenge of the denial was properly dismissed. Id. at 186.

A fundamental issue for the School District in Cuomo was that it never applied for a building permit for its fence in the first place. Therefore, to the extent the District might be entitled to greater flexibility of the Village’s zoning laws, it is still an open question whether the Village will approve a perimeter fence that exceeds the height restriction applied in the rest of the community.

According to the Decision, the School District has appealed Judge Gianelli’s injunction against completion of the fence to the Appellate Division. Decision at p. 5. The case is, therefore, an evolving matter with more to come.

A copy of Judge Gianelli’s Decision and Order is available on the NYS Unified Court System’s website at (search: 611616/2019, click on Index Number, click on “Show efiled Documents”).