This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage. The property owners applied to the zoning board for the necessary variances, which was opposed by neighbors. Based largely on a statement by the Village attorney that similar applications had been granted in the past, the zoning board granted the application.
The neighbors brought an Article 78 proceeding challenging the variances and for the first time claimed that the lot in question did not have the required lot area. In modifying the decision of the Supreme Court, the Appellate Division held this issue should not have been considered as it was neither a question of law nor “apparent from the face of the record.” The Court noted that in an Article 78 proceeding the court’s review is “limited to the arguments and record adduced before the agency” and that a litigant is require to exhaust all possible relief through administrative review before resorting to the courts.
However the Court still remitted the case to the zoning board noting that it was not clear from the record that the zoning board had considered the five factor balancing test required by Village Law section 7-712 (b) in granting the variances. Further, on the contention that the zoning board was compelled to follow its precedent in granting similar variances, the Court found: “other than the conclusory statement from the Village Attorney, it was never established that applications for area variances involving similar factual circumstances had been granted in the past….”
The case acts as a reminder of two important and related points: (1) the zoning board has to make a clear record of the reasons for its decision and (2) those appearing before a zoning board have to make a clear record of the relevant issues. Absent a well developed record the court will either reject the arguments outright or remit the matter for further proceedings.