Cohen v. Bd. of Appeals

CourtNew York Court of Appeals
Writing for the CourtCIPARICK, J.
Citation100 N.Y.2d 395,795 N.E.2d 619,764 N.Y.S.2d 64
Decision Date02 July 2003
PartiesIn the Matter of JACK COHEN, Respondent, v. BOARD OF APPEALS OF THE VILLAGE OF SADDLE ROCK, Appellant. In the Matter of FRANK RUSSO et al., Respondents, v. IRVING BLACK et al., Constituting the Board of Appeals of the Village of North Hills, Appellants.

100 N.Y.2d 395
795 N.E.2d 619
764 N.Y.S.2d 64

In the Matter of JACK COHEN, Respondent,
v.
BOARD OF APPEALS OF THE VILLAGE OF SADDLE ROCK, Appellant.
In the Matter of FRANK RUSSO et al., Respondents,
v.
IRVING BLACK et al., Constituting the Board of Appeals of the Village of North Hills, Appellants

Court of Appeals of the State of New York.

Argued June 3, 2003.

Decided July 2, 2003.


100 N.Y.2d 396
Meyer, Suozzi, English & Klein, P.C., Mineola (A. Thomas Levin and Jayson J.R. Choi of counsel), for appellant in the first above-entitled proceeding

100 N.Y.2d 397
Respondent precluded in the first above-entitled proceeding

James D. Cole, Albany, and Riele J. Morgiewicz for Association of Towns of the State of New York and another, amici curiae in the first above-entitled proceeding.

Meyer, Suozzi, English & Klein, P.C., Mineola (A. Thomas Levin and Jayson J.R. Choi of counsel), for appellants in the second above-entitled proceeding.

Albanese & Albanese LLP, Garden City (Bruce W. Migatz and Diana C. Prevete of counsel), for respondents in the second above-entitled proceeding.

Chief Judge KAYE and Judges SMITH, GRAFFEO and READ concur with Judge CIPARICK; Judge ROSENBLATT dissents and votes to reverse in a separate opinion.

100 N.Y.2d 398
OPINION OF THE COURT

CIPARICK, J.

The issue in these separate appeals is whether the State preempted the field of area variance review when it enacted Village Law § 7-712-b (3). This question requires us to consider the right of localities to govern in matters of purely local concern in the context of the Legislature's transcendent interest in regulating matters of statewide importance (see Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989]). We conclude that Village Law § 7-712-b (3) evinces an intent by the Legislature to preempt the field of area variance review.

Petitioners, Jack Cohen and the Russos (Frank and Jamie), applied to their respective Village authorities for area variances. Cohen sought a variance from certain Village of Saddle Rock zoning requirements as a prerequisite to obtaining a permit to build a single-family home on his unimproved oceanfront lot. The Russos applied for a height variance in order to install an 11-foot wrought iron gate in the driveway of their North Hills residence. In both cases, a Village building inspector denied the applications and petitioners appealed to their local Boards of Appeals. Both Boards denied the appeals, finding that petitioners failed to demonstrate "practical difficulties" or "undue hardship" in complying with existing zoning requirements.1

Cohen commenced a CPLR article 78 proceeding seeking to annul the determination of the Saddle Rock Board of Appeals,

100 N.Y.2d 399
claiming that the Board should have reviewed his application using the "balancing" test contained in Village Law § 7-712-b (3) (b), which had preempted the practical difficulty or undue hardship standard contained in the Village Code. Supreme Court agreed, invalidating section 150-24 (B) of the Saddle Rock Code, and annulled the determination of the Board. The court remanded the matter for reconsideration consistent with Village Law § 7-712-b (3). On appeal, the Appellate Division affirmed, concluding that the Legislature intended Village Law § 7-712-b to preempt enactment of conflicting local laws (297 AD2d 38 [2002]).2 We now affirm

The Russos followed a similar course, Supreme Court also granting their article 78 petition, annulling the determination of the North Hills Board of Appeals and remanding the matter to the Board for a new determination consistent with Village Law § 7-712-b. The Appellate Division affirmed (297 AD2d 381 [2002]), citing its contemporaneous decision in Matter of Cohen (supra). We now affirm.

As a matter of constitutional and statutory delegation, local governments are authorized to legislate in enumerated areas of local concern, subject to the Legislature's overriding interest in matters of statewide concern (see NY Const art IX; Statute of Local Governments). Although local laws that are inconsistent with state laws are generally invalid, the Municipal Home Rule Law allows incorporated villages to amend or supersede provisions of the Village Law as they relate to zoning matters.

100 N.Y.2d 400
Thus, a village has the power to amend or supersede "any provision of the village law relating to the property, affairs or government of the village * * * unless the legislature expressly shall have prohibited the adoption of such a local law" (see Municipal Home Rule Law § 10 [1] [ii] [e] [3]). The Village Law provision at issue here does not contain an express prohibition against amendment or supersession.

The supersession power, however, is subject to additional limitation. A village cannot supersede a state law where "a local law is otherwise preempted by State law" (Kamhi v Town of Yorktown, 74 NY2d 423, 430 [1989], citing Albany Area Bldrs. Assn., 74 NY2d 372 [1989]). Indeed,

"[t]he preemption doctrine represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies `the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern.' Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field" (Albany Area Bldrs. Assn., 74 NY2d at 377 [emphasis added and citations omitted]).

The Legislature may expressly state its intent to preempt, or that intent may be implied from the nature of the subject matter being regulated as well as the scope and purpose of the state legislative scheme, including the need for statewide uniformity in a particular area. A comprehensive and detailed statutory scheme may be evidence of the Legislature's intent to preempt (see Albany Area Bldrs. Assn., 74 NY2d at 377). This Court will examine whether the State has acted upon a subject and whether, in taking action, it has demonstrated a desire that its regulations should preempt the possibility of discordant local regulations (see Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500, 508 [1991]).

Village Law § 7-712-b (3), which deals with area variances, provides that "[a local] zoning board of appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such local law, to grant area variances as defined herein. * * * In making its determination, the zoning board of appeals shall

100 N.Y.2d 401
take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant" (Village Law § 7-712-b [3] [a], [b]). The statute contains five additional factors to be considered on each review: (1) whether granting a variance will produce an undesirable change in the character of the neighborhood or create a detriment to nearby properties; (2) whether the benefit sought by the applicant can be achieved by some feasible method other than a variance; (3) whether the requested variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on physical or environmental...

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31 practice notes
  • Chwick v. Mulvey
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...power is subject to a fundamental limitation by the preemption doctrine ( see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619). In pertinent part, the home rule provision provides that "every local government shall have power ......
  • Robinson Twp. v. Pa. Pub. Util. Comm'n
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 19, 2013
    ...for the “best interests of the health, safety and character of their communities,” Cohen v. Bd. of Appeals of Village of Saddle Rock, 100 N.Y.2d 395, 764 N.Y.S.2d 64, 795 N.E.2d 619, 624 (2003) (emphasis added); see also City of Edmonds, 514 U.S. at 732, 115 S.Ct. 1776;Village of Euclid, 27......
  • N.Y. Bankers Ass'n, Inc. v. City of N.Y., No. 15 Civ. 4001(KPF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 7, 2015
    ...377, 547 N.Y.S.2d 627, 546 N.E.2d 920 (1989), or there is otherwise a "conflict between local and State law," Cohen v. Board of Appeals, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619 (2003) (quotation omitted).B. Analysis1. The RBA Is RegulatoryAs the Second Circuit has explained, "[......
  • Bank v. Petitioner
    • United States
    • New York Court of Appeals
    • June 28, 2011
    ...statutory scheme may be evidence of the Legislature's intent to preempt” ( Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619 [2003] [emphases added] [state law governing review of area variances preempted contrary local law] ).A......
  • Request a trial to view additional results
31 cases
  • N.Y. Bankers Ass'n, Inc. v. City of N.Y., No. 15 Civ. 4001(KPF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 7, 2015
    ...N.Y.S.2d 627, 546 N.E.2d 920 (1989), or there is otherwise a "conflict between local and State law," Cohen v. Board of Appeals, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619 (2003) (quotation omitted).B. Analysis1. The RBA Is RegulatoryAs the Second Circuit has explained, &......
  • Chwick v. Mulvey
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...power is subject to a fundamental limitation by the preemption doctrine ( see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619). In pertinent part, the home rule provision provides that "every local government shall have p......
  • Robinson Twp. v. Pa. Pub. Util. Comm'n
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 19, 2013
    ...for the “best interests of the health, safety and character of their communities,” Cohen v. Bd. of Appeals of Village of Saddle Rock, 100 N.Y.2d 395, 764 N.Y.S.2d 64, 795 N.E.2d 619, 624 (2003) (emphasis added); see also City of Edmonds, 514 U.S. at 732, 115 S.Ct. 1776;Village of Euclid, 27......
  • Bank v. Petitioner
    • United States
    • United States Court of Appeals (New York)
    • June 28, 2011
    ...statutory scheme may be evidence of the Legislature's intent to preempt” ( Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619 [2003] [emphases added] [state law governing review of area variances preempted contrary local law] ).A......
  • Request a trial to view additional results

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