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Government bodies with an administrative or quasi-judicial function, such as zoning boards of appeal, must generally adopt written findings before courts will review their determinations. In cases where such findings are absent, it is quite common for courts to remand so that a written record can be developed. However, when reviewing questions of strictly legal interpretation, such as the terms of a Town Code or Zoning Code, it is possible for courts to review the statute’s language in the first instance. The reason is that for a strictly legal question, there is no requirement for the court to grant deference, much as an appellate court would engage in de novo review a trial court’s purely legal determinations. This position, adopted in Toys “R” Us v. Silva, 89 N.Y.2d 411 (1996), reversed the doctrine in Emmerling v. Town of Richmond Zoning Bd. Of Appeals, 67 A.D.3d 1467 (4th Dep’t 2009) that held a zoning board’s interpretation should be affirmed unless contrary to the “clear wording” of the zoning code.

The implications of this are twofold. First, posing your issue as a purely legal question (when possible) provides an avenue for circumventing the strong deference zoning boards of appeal usually receive. Second, relying on legal questions can potentially speed up proceedings that lack a written record by avoiding the usual remand for further proceedings. That’s not to say this will always be an option; the fact remains that many such determinations are situation-specific. However, it is an option to keep in mind when possible.