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December 28, 1998

 

Mr. Daniel J. Kress
Zoning and Building Coordinator
City of Geneva
P.O. Box 273
Geneva, NY 14456

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.

Dear Mr. Kress:

I have received your memorandum of December 10. In your capacity as Zoning and Building Coordinator for the City of Geneva, you indicated that the Zoning Board of Appeals asked you to seek an opinion concerning "whether or not a Zoning Board of Appeals can go into executive session in the course of a public meeting to discuss pending litigation." Apparently the attorney for an applicant for a zoning variance contended that the Zoning Board has no right to enter into executive session.

In this regard, I offer the following comments.

First, I would conjecture that the attorney may recall an amendment to the Open Meetings Law that precludes zoning boards of appeal from deliberating toward a decision in private. By way of background, numerous problems and conflicting interpretations arose under the Open Meetings Law as originally enacted with respect to the deliberations of zoning boards of appeals.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 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. Stated differently, 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).

Second, under the circumstances that you described, I believe that the Zoning Board could validly have conducted an executive session. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the grounds for entry into an executive session.
Unless one or more of those topics arises, a zoning board of appeals must deliberate in public. Pertinent to the matter is §105(1)(d), which permits a public body to enter into executive session to discuss "proposed, pending or current litigation." Since the Board discussed an Article 78 proceeding in which its action was challenged, I believe that it could validly have conducted an executive session.

I hope that the foregoing serves to clarify your understanding of the Open Meetings Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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