Albert J. Pirro, Jr.
Albert J. Pirro, Jr. ()

I recently read Anthony S. Guardino’s “Spot Zoning Challenges Rarely Are Successful,” published May 23, 2017 in the New York Law Journal.

While Mr. Guardino is quite correct, there are a number of practical, although somewhat “outside the box” approaches which the land use practitioner should consider.

The term “spot zoning” describes a zoning amendment which is invalid because it is not in accord with a comprehensive or well considered plan and is, therefore, invalid. Little Joseph Realty v. Town Board of Town of Babylon, 52 A.D.3d 478 (2d Dep’t 2008); Udell v. Haas, 21 N.Y.2d 463 (1968).

The court in a spot zoning challenge must decide whether the zoning amendment is calculated to serve the general community or is designed primarily to satisfy the petitioning landowner. Jackson & Perkins Co. v. Martin, 12 N.Y.2d 1082 (1963). If the later, it is unconstitutional. Where an applicant’s property is the only parcel to benefit, spot zoning has taken place. Indeed, evidence of the fact that the general community is not served by the zoning amendment makes plain that the local law violates Jackson & Perkins. Further, a demonstration that the environmental impacts are significant and present unmitigated adverse environmental effects to the community are important arguments to support a spot zoning claim.

As a preamble, the issue before a court is whether the action of a municipality in the adoption of a zone change is in accord with a comprehensive plan or whether it was designed solely for the benefit of a particular property owner to the detriment of the public at large. Kravits v. Plenge, 84 A.D.2d 422 (4th Dept. 1982). While a number of concomitant variables are relevant in a traditional spot zoning review, ultimately it comes down to “whether the change in zone is other than a well-considered and comprehensive plan calculated to serve the general welfare of the community.” Daniels v. Van Voris, 241 A.D.2d 796, 799 (3d Dept. 1997). The adoption of zoning ordinances must be in accord with a comprehensive plan, or at least comprehensive planning. N.Y. Town Law §263.

Spot zoning is the singling out of a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of the property and to the detriment of other owners. Kravitz v. Plenge, 84 A.D.2d 422 (4th Dept. 1982); Dauernheim v. Town Bd. of Town of Hempstead, 33 N.Y.2d 468; Rodgers v. Village of Tarrytown, 302 N.Y. 115 (1950).

Typically, the attorney for a land owner who seeks a change in zone will do so by creation of a special exception use permit process in an existing zoning district with general and special conditions and siting criteria. The reason for the special exception use permit approach is that it is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” Kinderhook Development v. City of Gloversville Planning Board, 88 A.D.3d 1207, 1208 (2d Dept., 2011). The advocate for the zoning amendment will retain planning experts hired to demonstrate compatibility with the existing master plan and to discuss actual development in the municipality (the comprehensive plan). In addition, experts will be employed to demonstrate compliance with the general and special considerations regarding the issuance of the special permit once the local law is adopted.

While the practitioner attacking this process usually argues that the zoning amendment is not in accord with the comprehensive plan, this single approach is typically unsuccessful. Instead, the spot zoning claim is best developed around other factors and the availability of other parcels for the proposed project. Save Our Forest Coalition v. City of Kingston, 246 A.D.2d 217 (3d Dept. 1998). The issue of project “need” is a factor often overlooked by a spot zoning advocate. Project need should be raised as part of the proposed zoning amendment’s review pursuant to Article 8 of the Environmental Conservation Law and its implementing regulations, the State Environmental Quality Review Act (SEQRA).

Zoning regulations stem from the police power. Pacific Blvd. Associates v. Long Beach, 48 A.D.2d 857 (2d Dep’t 1975) motion den. 38 N.Y.2d 766 (1975). The adoption of zoning regulations are subject to SEQRA. N.Y. Town Law §264(3).

If the court determines that there was a failure to comply with SEQRA, i.e., “the body or officer failed to perform a duty enjoined upon it by law” or “a determination was made in violation of lawful procedure” (CPLR 7803[1], [3], [30]), then any “action” taken must be declared null and void Williamsburg Around the Bridge Block Ass’n v. Giuliani, 223 A.D.2d 64, 74 (1st Dept. 1996).

In Doremus v. Town of Oyster Bay, 274 A.D.2d 390 (2d Dept. 2000), the court held that the Town Board failed to meet its obligations under SEQRA when it approved, pursuant to a consent order, an application to rezone a parcel from single family on two acres to a more intense zone with 270 single family homes.

The court held that the consent order was not exempt from SEQRA since exemptions for court actions do not apply to “Type I” actions (citing Abate v. City of Yonkers, 254 A.D.2d 517 (2d Dept. 1999); 6 NYCRR 617.5[c][37]). Having failed to meet its obligations under SEQRA, the court annulled the resolution rezoning the property and vacated the consent order.

In addition to attacking the proposed local law on a spot zoning challenge through the SEQRA process, a practitioner must review the proposed zoning amendment for its uniformity for each class or kind of buildings in the zoning district being amended. See N.Y. Town Law §262.

To this end, environmental assessment and impact statements are needed to support the determination that a local zoning amendment was in accord with a comprehensive plan. Daniels v. Van Voris, 241 A.D.2d 796, 798 (3d Dept., 1977).

The review of the alternatives to the proposed action in the SEQRA process has been characterized as “the heart of the SEQRA process.” Matter of Sharwangunk Mnt. Envtl. Assn. v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 276 (3d Dept. 1990).

N.Y. Environmental Conservation Law §8-0109(1) provides:

Agencies shall … act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact process.

See 6 NYCRR §617.9(b)(5)(v)).

An agency’s failure to consider alternatives in sufficient detail defeats SEQRA’s purpose “to promote efforts which will eliminate damage to the environment and enhance human and community resources … .” N.Y. Environmental Conservation Law §8-0101.

Indeed, SEQRA specifically provides that this range of “alternatives” must include a “no action alternative” to evaluate impacts and comparisons of other impacts. See SEQRA Handbook, 10th Edition 2010 at 126.

“No Action” is the equivalent to “No Build” where the proposal’s environmental impacts are compared to the existing development on the project site or alternatively the availability of further development on the site under existing zoning. In this regard the spot zoning challenge requires a careful analysis of whether the project proposed through a text amendment is needed, and, if so, whether all adverse environmental impacts are sufficiently mitigated. Through the SEQRA process the benefit to the individual property owner vis-à-vis the public at large is best analyzed.

The Court of Appeals has held that the degree of detail with which each alternative must be discussed “will vary with the circumstances and nature of each proposal.” See Webster Assoc. v. Town of Webster, 59 N.Y.2d 228 (1983).

With regard to the issue of whether the proposed text amendment is in accord with a comprehensive plan, deliberate and careful consideration of the proposed text amendment should include a review of reasonable alternatives. See Udell v. Haas, 21 N.Y.2d 463 (1968); Northeastern Environmental Developers v. Town of Colonie, 72 A.D.2d 881 (3d Dept., 1979) app. dismissed 49 N.Y.2d 800 (1980). The obvious implication is that SEQRA intends that a full environmental review is required in accord with ECL Article 8, 6 N.Y.C.R.R. Part 617. In addition to SEQRA, the issue of zoning uniformity should be analyzed.

Town Law §262 permits the municipality to create distinct zoning districts subject to the important restriction that zoning regulations must “be uniform for each class or kind of buildings throughout each district … .”

It is fundamental that a municipality only derives its zoning powers from grants from the state. In this regard the mandate of Town Law §262 must be met.

This uniformity requirement is intended to assure that all property owners within a zoning district are treated equally. Augenblick v. Town of Cortlandt, 104 A.D.2d 806, 814 (2d Dept. 1984) (Lazer, J. dissenting), rev’d on dissent below, 66 N.Y.2d 775 (1985).

In Augenblick, an amendment to the list of uses permitted in a zoning district which authorized an asphalt plant on one parcel was invalidated for violation of the uniformity requirement.

It should be noted that enactment of a local law through a special exception use permit is not a “per se” violation of Town Law §262. See, e.g., Green Point Sav. Bk. v. Bd. of Zoning Appeals of the Town of Hempstead, 281 N.Y. 534 (1939) appeal dismissed 309 U.S. 633.

Notwithstanding, pursuant to Town Law §262, an ordinance which permitted mobile homes or two family homes on specified parcels within a residential district, and not others, was held invalid. See, e.g., Jackson & Perkins Co. v. Martin, 12 N.Y.2d 1082 (1963), Klebetz v. Ramapo, 109 Misc.2d 952 (Sup. Ct. Rockland Co., 1981) (a zoning ordinance which permitted two-family semi-attached residences in only one portion of an R-15 zone was found to violate Town Law §262); Callahan Rd. Improvement Company v. Town of Newburgh, 6 Misc.2d 1071 (Sup. Ct., Ulster Co., 1957) affirmed, 5 A.D.2d 1003 (2d Dept. 1958) (a zoning ordinance which permitted quarries in a specified section of a district and not others held invalid); Gilchrist v. Village of Great Neck Plaza, 300 N.Y.619 (1949) (an ordinance which permitted certain types of retail use on certain stated streets or roadways, but not others within a zoning district held invalid).

In addition, to the extent the local law in question limits the applicability of its provisions to persons or parties in a particular ownership capacity, it violates the fundament rule that zoning deals with land use and “not the person who owns or occupies it.” Matter of St. Onge v. Donovan, 71 N.Y.2d 507, 515 (1988). Further the Court of Appeals has made clear that such a patent deficiency cannot be cured by remand since it constitutes prima facie evidence of spot zoning. See Matter of Dexter v. Town Bd. of Gates, 36 N.Y.2d 102, 105 (1975).