| Matter of Citizens for Responsible Zoning v Common Council of City ofAlbany |
| 2008 NY Slip Op 09303 [56 AD3d 1060] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Citizens for Responsible Zoning et al., Appellants,v Common Council of the City of Albany et al., Respondents. |
—[*1] John J. Reilly, Corporation Council, Albany (Jeffery V. Jamison of counsel), for CommonCouncil of the City of Albany and another, respondents. Lynch, Farrell & Hetman, P.L.L.C., Albany (Peter A. Lynch of counsel), for Thomas J.Burke, respondent. Whiteman, Osterman & Hanna, L.L.P., Albany (Thomas A. Shepardson of counsel), for 41Holland Avenue, LLC, respondent.
Kane, J. Appeal from a judgment of the Supreme Court (McNamara, J.), entered February20, 2007 in Albany County, which dismissed petitioners' application, in a combined proceedingpursuant to CPLR article 78 and action for declaratory judgment, to, among other things, reviewa determination of respondent Common Council of the City of Albany to approve an applicationby respondent Thomas J. Burke to rezone a certain parcel of land.
Respondent Thomas J. Burke, who leases a vacant 3.6-acre parcel from respondent 41Holland Avenue, LLC, applied to respondent City of Albany to change the zoning of the propertyfrom a commercial office district to a highway commercial district. When a proposed ordinancewas introduced, respondent Common Council of the City of Albany identified the proposedrezoning as an unlisted action under the State Environmental Quality Review Act (ECL art 8[hereinafter SEQRA]). After months of review, discussion and public hearings, the Common[*2]Council, as lead agency, issued a negative declarationpursuant to SEQRA and rezoned the property as requested by Burke.
Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment alleging that the Common Council incorrectly classified the proposedaction as unlisted, failed to take a "hard look" as required under SEQRA and engaged in illegalspot zoning. Respondents moved to dismiss the petition due to lack of standing. Supreme Courtpartially granted the motions, dismissing the claims of all petitioners except for threeindividuals.[FN*] After respondents filed their answers, the court dismissed the petition. Petitioners appeal.
Initially, we are satisfied that the remaining petitioners have standing (see Matter ofSun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406,413-414 [1987]), and that the challenge to the amendment of the zoning ordinance is not moot.
The Common Council correctly classified the proposed rezoning as an unlisted action forSEQRA purposes. Petitioners contend that this proposal involved changes to a 3.6-acre parceland 2.7 acres of the parcel were being physically altered, thus raising it above threshold levels tomake it a type I action (see 6 NYCRR 617.4 [b] [3], [6] [i]; [10]). Even assuming thatthis property was contiguous to a publicly owned recreation area, an alleged fact which is notconclusively established in the record, the rezoning of the parcel at issue would only be classifiedas a type I action if it involved the physical alteration of at least 2.5 acres (see id.). Therecord demonstrates that, while the entire 3.6-acre parcel will be affected by the rezoning, lessthan 2.5 acres will be physically altered if Burke develops the property as he proposed. Thus, theproposal was properly classified as an unlisted action.
In any event, respondents complied with the requirements for a type I action. Only a shortform environmental assessment form was required for an unlisted action, but Burke filed the fullenvironmental assessment form which must be filed for type I actions (see 6 NYCRR617.6 [a] [2], [3]). As lead agency, the Common Council was required to consider the samecriteria when making a determination concerning significant adverse environmental impactswhether the action was classified as type I or unlisted (see 6 NYCRR 617.7; see alsoMatter of Jaffee v RCI Corp., 119 AD2d 854, 855 [1986], lv denied 68 NY2d 607[1986]). Although type I actions are presumed to have a significant environmental impact,preparation of an environmental impact statement is not automatically required (see Matter ofCathedral Church of St. John the Divine v Dormitory Auth. of State of N.Y., 224 AD2d 95,100 [1996], lv denied 89 NY2d 802 [1996]; Matter of Jaffee v RCI Corp., 119AD2d at 855). The Common Council followed the procedural requirements and fulfilled itsobligations under SEQRA by issuing a written decision which revealed that it evaluated thenecessary criteria, took the required hard look at areas of environmental concern and explainedthe basis for its determination to issue a negative declaration (see Matter of Cathedral Churchof St. John the Divine v Dormitory Auth. of State of N.Y., 224 AD2d at 100; Matter ofAhearn v Zoning Bd. of Appeals of Town of Shawangunk, 158 AD2d 801, 803-804 [1990],lv denied 76 NY2d 706 [1990]).
To prevail on their allegation of illegal spot zoning, petitioners bore the burden of [*3]overcoming, beyond a reasonable doubt, the strong presumption ofvalidity attached to the Common Council's zoning determination (see Matter of Boyles vTown Bd. of Town of Bethlehem, 278 AD2d 688, 690 [2000]). Petitioners failed to meet thatheavy burden to prove that the rezoning constituted illegal spot zoning. That term "is defined asthe process of singling out a small parcel of land for a use classification totally different from thatof the surrounding area for the benefit of the owner of said property to the detriment of otherowners" (Matter of Daniels v Van Voris, 241 AD2d 796, 799 [1997]; see Matter ofBoyles v Town Bd. of Town of Bethlehem, 278 AD2d at 690). To determine whether azoning proposal falls within this definition, courts "may consider several factors, includingwhether the rezoning is consistent with a comprehensive land use plan, whether it is compatiblewith surrounding uses, the likelihood of harm to surrounding properties, the availability andsuitability of other parcels, and the recommendations of professional planning staff" (Matterof Save Our Forest Action Coalition v City of Kingston, 246 AD2d 217, 221 [1998]).
To utilize less space and better fit the streetscape, Burke scaled down his original proposal.While professional planners did not support his original plan, the record does not contain theiropinions on the revised plan. The parcel here was only 3.6 acres, but size alone is notdeterminative (see Matter of Boyles v Town Bd. of Town of Bethlehem, 278 AD2d at690). The City does not have a formal comprehensive plan, but the proposed use of this propertyfor a pharmacy and restaurant is consistent with the McDonald's restaurant on the adjacentproperty, and a tavern and two hotels approved for the same block. The residences that are nearthe property—those owned by the remaining petitioners—are separated by a steepchange in elevation covered in vegetation, blocking them from sight. Under the circumstances,the rezoning of this parcel was part of a thoroughly considered plan calculated to best serve thecommunity, and the approved use was not "totally different from that of the surrounding area"(Matter of Daniels v Van Voris, 241 AD2d at 799); thus, it did not constitute spot zoning(see Matter of Boyles v Town Bd. of Town of Bethlehem, 278 AD2d at 690-691;Matter of Save Our Forest Action Coalition v City of Kingston, 246 AD2d at 221).
In light of our decision affirming dismissal of the petition, the parties' remaining contentionsneed not be addressed.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: This Court dismissed Burke'sprior appeal from that nonfinal order (45 AD3d 1241 [2007]).