Jewish Reconstructionist Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor

• Decision Date: 15 June 1976
• Citation: 40 N.Y.2d 158,386 N.Y.S.2d 198
• Parties: , 352 N.E.2d 115 JEWISH RECONSTRUCTIONIST SYNAGOGUE OF the NORTH SHORE, INC., Respondent- Appellant, v. INCORPORATED VILLAGE OF ROSLYN HARBOR et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 198

386 N.Y.S.2d 198

40 N.Y.2d 158, 352 N.E.2d 115

JEWISH RECONSTRUCTIONIST SYNAGOGUE OF the NORTH SHORE, INC., Respondent- Appellant, v. INCORPORATED VILLAGE OF ROSLYN HARBOR et al., Appellants-Respondents.

Court of Appeals of New York.

June 15, 1976.

George C. Pratt and Samuel S. Tripp, Williston Park, for appellants-respondents.

John M. Farrell, Jr., Rockville Center, for respondent-appellant.

FUCHSBERG, Judge.

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 N.Y.2d 283, 379 N.Y.S.2d 747, 342 N.E.2d 534). 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. ¹ 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. ² 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 A.D.2d 693, 250 N.Y.S.2d 469; Weiss v. Village of Lindenhurst, Sup., 144 N.Y.S.2d 228; Daly v. Eagan, 77 Misc.2d 279, 353 N.Y.S.2d 845). As we earlier decided (38 N.Y.2d 283, 290--291, 379 N.Y.S.2d 747, 754--755, 342 N.E.2d 534, 539--540, 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 the reason why, as the zoning expert and commentator whose work was instrumental in the formulation of the State enabling legislation (see Village Law, § 7--712; Town Law, § 267) has noted, the appellate jurisdiction of the board in hardship cases is fully and independently developed in our State statutes and not subject for its existence to the vagaries of the presence or absence of supplemental local enactment (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), at pp. 24--25). Correspondingly, an ordinance should be scrutinized more carefully for its inhibitions against the pursuit of such a right as distinguished from a benefit. For the justification which underlies fee structures has most often been expressed as a visitation of the costs of special services upon the one who derives a Benefit from them (see Matter of Hanson v. Griffiths, 204 Misc. 736, 124 N.Y.S.2d 473; City of Buffalo v. Stevenson, 207 N.Y. 258, 100 N.E. 798; People v. Malmud, 4 A.D.2d 86, 164 N.Y.S. 204; People v. Brooklyn Garden Apts., 283 N.Y. 373, 28 N.E.2d 877; Fox v. Kern, Sup., 12 N.Y.S.2d 561).

Significant also is that the legislation under which villages set up boards of zoning appeals does not specify how their expenses are to be paid (Village Law, § 7--712, subd. 1). In analogous situations, we have held that the Legislature's mandate carries with it an implied limited delegation of power to the local government to enact ordinances Necessary to carry out the legislative plan (see Village of Carthage v. Frederick, 122 N.Y. 268, 25 N.E. 480; City of Buffalo v. Stevenson, 207 N.Y. 258, 100 N.E. 798, Supra). The question thus still remains whether the provisions of the ordinance under which the charges in this case were exacted went beyond the bounds of the limited authority to the village.

The open-ended, indeed unlimited, nature of the fees which it authorizes therefore makes the ordinance vulnerable to attack on the ground that it overreaches the State statute's implied grant of power to the village. For when the State's jealously guarded police power is delegated to a local government or to its agencies, it must be accompanied by standards which guide and contain its use (Matter of Fink v. Cole, 302 N.Y. 216, 97 N.E.2d 873; 8200 Realty Corp. v. Lindsay, 27 N.Y.2d 124, 313 N.Y.S.2d 733, 261 N.E.2d 647; Matter of Small v. Moss, 279 N.Y. 288, 295, 18 N.E.2d 281, 283; City of Amsterdam v. Helsby, 37 N.Y.2d 19, 27, 36, 371 N.Y.S.2d 404, 407, 415, 332 N.E.2d 290, 292, 298). As a consequence, when the power to enact fees is to be implied, the limitation that the fees charged must be reasonably necessary to the accomplishment of the statutory command must also be implied (City of Buffalo v. Stevenson supra, 207 N.Y. at pp. 261--262, 100 N.E. at pp. 799--800). ³

The fees also 'should be assessed or estimated on the basis of reliable factual studies or statistics' (9 McQuillan, Municipal Corporations, § 26.36, p. 89; see, also, Bon Air Estates v. Village of Suffern, 32 A.D.2d 921, 302 N.Y.S.2d 304; Matter of Hanson v. Griffiths, 204 Misc. 736, 124 N.Y.S.2d 473, Supra; People v. Malmud, 4 A.D.2d 86, 164 N.Y.S.2d 204, Supra). Put another way, the yardstick by which the reasonableness of charges made to an applicant in an individual case may be evaluated is the experience of the local government in cases of the same type. Without the safeguard of a requirement that fees bear a relation to average costs, a board would be free to incur, in the individual case, not only necessary costs but also any which it, in its untrammeled discretion, might think desirable or convenient, no matter how oppressive or discouraging they might in fact be for applicants.

That is not to say that classes of applicants may not be established. Experience may indicate that average costs justify distinctions among different kinds of applicants, describable by objective criteria such as, for instance, whether they are involved in residential as distinguished from nonresidential uses. Or categories may revolve around such determinants as the size or value of the property at issue. Where classifications are rational, fees for each class may be based on its average (see Matter of Hanson v. Griffiths, supra, upholding classifications of filing fees in Surrogate's Court by the size of the estate involved). Thus, if a village can demonstrate that a class of applicants generally requires a board to incur costs greater than those usually attendant upon applications for those in another classification, it may establish such a class and may establish its fee schedule accordingly.

But, obviously, a fee is...