OML AO 5603 December 21, 2018
FROM: Robert J. Freeman, Executive Director
CC: Zoning Board of Appeals, Town of Southampton (KCowell@southamptontownny.gov)
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
I have received your letter in which you sought an opinion “on the matter of the procedures used by the Southampton Zoning Board of Appeals” as described in a recent edition of the Southampton Press.
Mr. Grossman, a member of the Board, in the words of the article, indicated that “the ZBA, as a non-legislative body, is not bound by the same standards as the Town Board.” In his words, he expressed the view that “We have a different way of doing things” and that “There’s no requirement to do a public discussion of any kind.”
I disagree with the views that he expressed, and in fact, the Open Meetings Law was amended in an effort to ensure that the deliberations of zoning boards of appeal are conducted in public. In this regard, I offer the following.
By way of background, numerous problems and conflicting interpretations arose under the Open Meetings Law as originally enacted with respect to the deliberations of zoning boards of appeals. In §108(1), the Open Meetings Law had exempted from its coverage "quasi-judicial proceedings". When a zoning board of appeals deliberated toward a decision, its deliberations were often considered "quasi-judicial" and, therefore, outside the requirements of the Open Meetings Law. As such, those deliberations could be conducted in private. Nevertheless, in 1983, the Open Meetings Law was amended. In brief, the amendment to the Law indicates that the exemption regarding quasi-judicial proceedings may not be asserted by a zoning board of appeals. As a consequence, zoning boards of appeals are required to conduct their meetings pursuant to the same requirements as other public bodies subject to the Open Meetings Law, such as town boards.
Due to the amendment, a zoning board of appeals must deliberate in public, except to the extent that a topic may justifiably be considered during an executive session or in conjunction with an exemption other than §108(1).
As stated in the Legislative Declaration appearing in §100 of the Open Meetings Law:
“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it” (emphasis added).
To attempt to convey the foregoing in a constructive manner, a copy of this opinion will be sent to the Zoning Board of Appeals.I hope that I have been of assistance.