Opinion 18-181

December 11, 2018

Digest:         A village justice whose spouse is a member of the zoning board of appeals may preside in village code enforcement matters even if the defendant has sought or will seek a zoning variance, as long as (1) the zoning board of appeals is not a party to the proceeding and (2) its members are not likely to be called as witnesses.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(i)-(iii); 100.3(E)(1)(e); Opinion 92-39.

Opinion:

         A part-time village justice’s spouse has been appointed to the village zoning board of appeals. The judge asks us to reconsider Opinion 92-39, which says a part-time judge is disqualified, subject to remittal, in “any case of the zoning [b]oard where the spouse has participated in the decision at issue.” The judge presides in cases involving alleged code violations, which are commenced by the village building inspector and prosecuted by the village prosecutor. The zoning board is not a party to these or other proceedings in the village court. Instead, when an alleged land use violation charge can be cured by a zoning variance, the case is adjourned to allow the defendant to seek a variance from the zoning board. If the zoning board retroactively approves the variance, the pending case is typically disposed by negotiated plea.¹ If the zoning board denies the requested variance, the defendant may bring an article 78 challenge in the supreme court. The judge can foresee no circumstances in which a zoning board decision could be challenged in the village court or where the zoning board would be deemed a party to a code violation proceeding in village court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself from any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge’s spouse is “a party to the proceeding” or “an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][i]-[ii]), is “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]), or has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

         As the village justice explains it, we concur that his/her impartiality cannot reasonably be questioned in a code violation matter merely because his/her spouse participated in a zoning board decision to approve or disapprove a requested variance. If the zoning board approves the retrospective variance, the matter typically goes forward with a plea favorable to the defendant. If the zoning board declines to grant the requested variance, the defendant may either accept the zoning board’s decision and go forward in the village court or contest the decision in supreme court. In none of these typical scenarios will the zoning board be a party or witness before the village court, nor will its decision be contested before this village justice.

         Therefore, a town or village justice whose spouse is a member of the local zoning board of appeals may preside in local code enforcement matters even if the defendant has sought or will seek a zoning variance, as long as (1) the zoning board of appeals is not a party to the proceeding and (2) its members are not likely to be called as witnesses. Neither disclosure nor disqualification is required.

         Opinion 92-39 is hereby modified consistent with this opinion.

______________________

¹ The judge is not aware of any trials on land use charges in the past decade or more.