Greenburgh’s civic leaders say a Town Board proposal to charge civic associations retroactively for appealing interpretations of the Town’s zoning code by the building inspector is malicious, spiteful and probably unlawful.
The controversy began this summer when the Edgemont Community Council and the Council of Greenburgh Civic Associations together filed an appeal of the building inspector’s ruling that an assisted living facility proposed in a residential neighborhood in Edgemont on less than the required four acres and nearly a mile from the nearest state or county road did not need any zoning variances.
Under the Town’s zoning law, adopted nearly three years ago, assisted living facilities may be located in residential neighborhoods in unincorporated Greenburgh, provided, however, the site is at least four acres and is located “within 200 feet of a state or county right-of-way, excluding parkways and interstates.”
The ECC and CGCA’s appeal was to the Zoning Board of Appeals, which is required by law to review appeals of interpretations of the zoning law by the building inspector. But the town attorney’s office instructed the secretary to the Zoning Board that no appeal could be filed by the civic associations without first paying a $500 fee.
However, the rules established by the Zoning Board more than 30 years ago, and posted on the Town’s website when the appeal was filed this past August, say civic associations are not required to pay any fees.
The rule states, “No fee shall be required for any application or appeal made by a bona fide civic association of the Town or by any officer, department, board or bureau of the Town.”
In the 1990s, the CGCA filed an appeal of the building inspector’s interpretation and no fees were required. More recently, the building inspector himself asked the Zoning Board for an interpretation of the law, and so did the late Steve Belasco, former chair of the Zoning Board. In neither case, consistent with the longstanding rule, were any fees charged to either of them either.
Not wanting to file an untimely appeal because of a dispute over the fee, ECC president Bob Bernstein paid the $500, but the ECC and the CGCA both lodged a protest with the Town Board, demanding that the fee be refunded.
Initially, town board members said they would refund the fee and a motion to do so was made at the Town Board’s meeting on September 9, 2015.
But town attorney Tim Lewis objected and no town board members were willing to second the motion until Mr. Lewis could brief them on the reasons why he felt no refund should be made.
Concerns were then aired by town board members about the need to recoup the cost of the Town’s having paid for legal notice of the ZBA appeal and the possibility that the Town might have to pay for the transcript of the hearing itself.
Under the Town’s rules, these “pass through” costs are all considered “fees” — but even if they weren’t, the retroactive application of an exception, without prior public notice, for certain “pass through” costs, would still raise questions as to whether the proposal is lawful.
On December 9, 2015, after months of delay, the Town Board finally put on its agenda a resolution to change the policy of exempting of civic associations from a portion of the $500 fee – but made the entire policy retroactive to December 23, 2008.
The $500 fee consists of a $100 “legal fee,” $200 for the cost of a “public hearing notice” and $200 for the cost of a public hearing transacript.
Under the new policy, the Town Board will only charge civic associations for the legal notice and stenographer fees, totaling $400, and will refund at the conclusion of the appeal that portion of the amounts not expended for such fees, if any.
Civic leaders seeing the proposal for the first time cried foul, calling the retroactive application of the new policy to December 23, 2008 both “malicious” and “spiteful.”
Mr. Bernstein said the retroactive application of the proposal runs afoul of legal principles set forth in State Comptroller Legal Opinion 92-18 as well as rulings in a number of New York cases.
He said the proper thing for the Town Board to do, having had a policy that didn’t require a fee to be paid for more than 30 years, is adopt a new policy and make it prospective only, so that civic association would henceforth know the rules the game and won’t be able to argue that town officials are simply using the new rules to target civic leaders they don’t like or agree with.
Under state comptroller legal opinion 92-18, the retroactive imposition of a fee for a short period is generally valid unless “in light of the nature of the fee and the circumstances in which it is imposed, the retroactivity is so harsh and oppressive as to violate constitutional due process guarantees.”
“Whether the retroactive imposition of a fee is ‘harsh and oppressive’ is a question of degree, requiring a balancing of the equities. In balancing the equities, the factors that may be considered are the forewarning to the persons required to pay the fee of a change in law and the reasonableness of their reliance on the old law; the length of the retroactive period; and the public purpose for retroactive application.”
Here, there was no forewarning to the public that the Town Board intended after more than 30 years to change its policy, and it was reasonable for civic leaders to rely on a decades-long practice of exempting civic associations and town officials from such fees, when such rule had actually been posted in writing on the Town’s website at the time the appeal was filed. What is more, the period of retroactivity here is not short, but goes back seven years.
The town board’s stated purpose for going back seven years, to December 23, 2008, was that was when the Town Board last amended its fee schedule to begin charging the $500 fee – but there was nothing in that amendment that even hinted that the Town Board was planning to eliminate the long standing exemption for civic associations. Accordingly, the public was never on notice that a change in policy was even contemplated.
The reason for the long-standing exemption in fees for civic association, as well as town officials, has to do with long-standing principles of good government.
Bona fide civic associations and town officials are not generally regarded as appellants who have the same financial stake in the outcome of an appeal as an applicant or a neighboring resident. Accordingly, their interests are generally considered strictly with making sure the interpretation of the law is correct.
If the building inspector’s interpretation of the law is incorrect, then having a civic association bring the matter to the attention of the Zoning Board of Appeals to get it corrected does a public service, which Greenburgh, by exempting civic groups from the filing fees, wanted to encourage.
By the same token, if the building inspector’s interpretation of the zoning law is upheld, but the civic association believes the ruling is inconsistent with the Town Board’s intent, the appeals process creates the record that may be needed to get the Town Board to correct the statute to more accurately reflect what was intended.
The same principles applies to exempting the building inspector and other town officials, such as the former zoning board chair, from doing the exactly same thing. It is all in the interest of promoting the public good at the local level.
The state comptroller’s opinion relied in particular part on rulings by the State Supreme Court in Manhattan, entitled Wittenberg v. City of New York, 135 A.D.2d 132 (1st Dep’t 1988), aff’d 73 N.Y.2d 753, and the Court of Appeals in Replan Development Inc. v. Department of Housing Preservation and Development of the City of New York, 70 N.Y.2d 451 (1988).
These principles are still good law. For example, in a case decided in 2011, in James Square Associates v. Mullen, 91 A.D.3d 164 (4th Dep’t 2011), an appellate court uphold the unconstitutionality of a retroactive application of a taxing measure, where the public had no reason to believe the law would be changed. A similar ruling was reached by an appellate court in 2012, which held that because the public had no notice that a change was being contemplated, the retroactive change in the law amounted to a taking of property in violation of constitution. See In the Matter of WL v. Department of Economic Development, 97 A.D.3d 3 24 (3d Dep’t 2012).
At the Town Board meeting on December 9, Mr. Bernstein asked the town board to hold over the matter, citing the existence of troubling legal precedents that Mr. Bernstein said he was certain the Town Board had not considered, and Town Supervisor Paul Feiner agreed.
But the matter is on the agenda once again for December 16.
Mr. Bernstein said civic leaders he’s spoken to believe that the “fix is in” on the Shelbourne application and that the Town Board’s decision after several months not to refund 100% of the filing fee is intended to send civic leaders a message that their appeal of the building inspector’s interpretation is not appreciated. Last week, after the ECC objected, the Town Board removed $204,000 in projected revenue for next year’s budget that town officials were attributing to the Shelbourne project.
Mr. Feiner maintains that he personally hasn’t made up his mind on the Shelboune project, but many civic leaders are skeptical and believe that the Town Board as a whole has already made up its mind to approve the project no matter what objections the ECC may raise. Consistent with that belief, without even waiting for the outcome of the civic groups’ ZBA appeal, the Planning Board last month recommended that the Town Board approve a special permit to grant Shelbourne permission to build its assisted living facility in Edgemont.