Court May Not Compel Town Board To Consider Zone Change Application
A court may not require a town board to reach a determination on, or even consider an application for a zoning change. In Matter of Richard M. Wolff v. Town/Village of Harrison, the Appellate Division Second Department dismissed petitioner’s request for judgment compelling the town board to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.
The petitioner had applied for a zone change and the town board had refused to make a decision on the request. The petitioner commenced an Article 78 proceeding seeking to compel the town board to make a decision on the requested zone change. The court reasoned that the petitioner’s Article 78 proceeding could only be brought to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (writ of mandamus). Since the amendment of a zoning ordinance is a purely legislative function, a court may not compel a board to consider or decide upon a zoning change by ordering a writ of mandamus. In addition, the court recognized that the statute establishing the procedure for zone changes vests broad legislative power in a town board and does not require the board to vote upon every application for a zoning change.