“You Can’t Fight City Hall!” You Can Try, But You May Not Win!

We all know what this cliché means, but is it true? Let’s group regulatory agencies such as zoning boards, tax assessor’s offices, buildings departments, licensing departments among others under the umbrella of regulatory agencies. Assume you make an appeal to lower your property taxes, get a building permit, a variance, a license, or some other request that requires “City Hall’s” approval and you’re denied. Do you have any recourse? The answer is yes! The vehicle for doing so is to commence an Article 78 (technically challenging your taxes is an Article 7) in the County’s Supreme Court. What this article will address are issues of land use, specifically in the Hamptons.

For his expertise, I had the opportunity to interview Jonathan Tarbet of the law firm Tarbet & Lester located in East Hampton, Long Island. Jonathan represents clients in land use and planning matters and real estate transactions. In addition to practicing law in Manhattan and in the Hamptons, Jonathan served as Assistant East Hampton Attorney representing the Zoning Board of Appeals.

Can you quantify the rate of increase in filings over the past five to ten years and explain some of the reasons for the increases?

JT: The filed Article 78s are the end result of the codes becoming more complex. For example, we now have gross floor area laws, clearing laws, FEMA revisions and a host of smaller band aid type changes meant to prevent McMansions. At the same time property values have at least doubled so people feel the need to maximize house size to justify what they are paying for the raw land. Local zoning boards struggle with high turnover among members and steep learning curves. Neighborhood associations often feel the need to sue on approvals to prevent what they consider to be destruction of the environment and property owners sue to protect what they consider to be their property rights.

What types of issues are the subjects of the filings and who is filing them?

JT: Many of the filed 78s have merit. Local attorneys are aware of the low chance of winning an Article 78 and frequently only bring an action if they feel a board acted truly arbitrarily and capriciously. Which does happen. Boards make hundreds of decisions a year and while they usually get it right, they do make mistakes. These are frequently not easy decisions to make and can be very complex.

What is the typical time frame from filing to a court decision?

JT: Twelve to fifteen months.

Who are the typical filers?

JT: Property owners, neighbors, and civic groups.

What is the success rate for an overturn of a regulatory agency’s decision?

JT: At the Supreme Court level 20%. At the Court of Appeals 50%.

How many Supreme Court decisions are appealed to the Appellate Division and finally to the Court of Appeals?

JT: 20% get appealed to the Appellate Division, almost none go to the Court of Appeals.

Differentiate between a request for a variance and a Special Permit?

JT: A variance is asking for permission to do something prohibited by a Code. A Special Permit is something permitted by code but requires oversight from a Planning or Zoning Boards to reduce potential impacts. Board members can struggle with this legal distinction.

Do the answers vary depending upon localities?

JT: Boards are constantly changing. Members are chosen by politicians. The best members are chosen without regard to political affiliation. When politicians appoint political insiders, you tend to get people who have an agenda. An agenda and lack of experience can lead to bad decisions.

Can the governmental agencies and the courts keep up with the pace and complexity of the process?

JT: Local governments have been lucky regarding legal talent. However, salaries for Town Attorneys have not kept pace. East Hampton just lost their Town Attorney. I feel finding a good attorney willing to work for what local governments pay is going to be a struggle going forward. Courts are absolutely flooded which is why it takes 15 months to get a decision.

Note: Article 78 Filings are made in the County Supreme Court. Appeals are brought to the County Appellate Division Courts and finally the New York Court of Appeals who may refuse to hear the appeal. The Supreme Courts are the lowest courts of jurisdiction, not to be confused with the United States Supreme Court. The law does not require representation by an attorney, just that you follow the prescribed procedures.