A special proceeding pursuant to New York Civil Practice Law and Rules (“CPLR”) Article 78, specifically Section 7803(3), is the vehicle for challenging determinations of a body or officer. Section 7803(3) sets forth the all-too-familiar question raised: whether the determination was arbitrary and capricious, an abuse of discretion, or contrary to law. In the land use context, these challenges are commonly brought against municipal zoning board and planning board determinations. The record created during proceedings before the board, and produced to the Court, is critical for how the determination will be reviewed.

A. Review Is Limited to the Record.

The Court’s review is limited to whether a determination was rational (i.e. not arbitrary, etc.), and the Court will not substitute its judgment for that of the board. Because the Court’s role is limited to determining whether the board acted rationally, judicial review is limited to the facts and arguments adduced before the board when it acted (Margulies v Town of Ramapo, 226 AD3d 783, 785 [2d Dept 2024]; Veteri v Zoning Bd. of Appeals of Town of Kent, 202 AD3d 975, 978 [2d Dept 2022]). The facts and arguments adduced comprise the record of proceedings. If review were not confined to the record, then judicial review of whether the board’s determination was rational would be rendered meaningless because the Court’s review could consider things that the board did not consider.

B. Facts and Materials Outside the Record Will Not Be Considered.

Put another way, materials and arguments not presented to the board will not part of the record. The reviewing Court will not consider materials and arguments that are not part of the record, commonly referred to as dehors or “outside” the record. So, whatever your party status, you should ensure that the facts and materials that support your position, as well as the arguments you desire to make, are presented and submitted to the board as part of the record.

C. Boards Must Produce a Complete Record, or “Certified Return,” for Review.

When a board’s determination is challenged and the board answers the petition, the board must simultaneously file “a certified transcript of the record of the proceedings under consideration (CPLR 7804[e]) – generally referred to as the “certified return.” If the board does not include the complete record, the Court may order the board to supply any defects or omissions.

Significantly, review of a challenge/determination based on an incomplete return is reversible error (Petty v Sullivan, 131 AD2d 762, 763 [2d Dept 1987]; Dupree v Scully, 100 AD2d 966, 967 [2d Dept 1984]; see also Captain Kidd’s Inc. v New York State Liquor Auth., 248 AD2d 791, 792 [2d Dept 1998] [withholding decision and directing the supply of defects, and noting “[u]nless omissions and gaps in a transcript do not preclude significant review of the case, it has been held that it is in error to review a matter based on an incomplete return”]).

Takeaways: (1) Attorneys and parties must ensure that they submit and present all facts and arguments desired in support of their positions – not only to put their best foot forward to prevail before the board, but also to ensure that the supporting materials are within the Court’s purview on review. (2) Attorneys and parties (including boards) must ensure that the certified return is complete so that the Court’s review is not subject to reversal on appeal.