| Matter of Bergami v Town Bd. of the Town of Rotterdam |
| 2012 NY Slip Op 05692 [97 AD3d 1018] |
| July 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of Lori Bergami et al., Appellants, v TownBoard of the Town of Rotterdam et al., Respondents. |
—[*1] Katherine A. McGuirl, Schenectady, for Town Board of the Town of Rotterdam, respondent. Donald Zee, PC, Albany (Andrew T. Brick of counsel), for Maria Iovinella and others,respondents.
Stein, J. Appeal from a judgment of the Supreme Court (Drago, J.), entered May 2, 2011 inSchenectady County, which dismissed petitioners' application, in a proceeding pursuant to CPLRarticle 78, to, among other things, review a determination of respondent Town Board of theTown of Rotterdam amending its comprehensive plan to include a rezoning of certain realproperty.
Respondents Maria Iovinella, Robert Iovinella and Aladin Properties, LLC (hereinaftercollectively referred to as Aladin) own two adjacent parcels of real property—a 2.34-acreparcel improved by a house and a barn and a one-acre vacant lot—located in the Town ofRotterdam, Schenectady County (hereinafter the subject property). Petitioners are nearbyresidential property owners. In December 2001, respondent Town Board of the Town ofRotterdam adopted a comprehensive plan pursuant to Town Law § 272-a that allegedlyincluded, among other things, a change in the zoning designation for the subject property fromagricultural to either industrial [*2]or light industrial.[FN1]However, inasmuch as the Town Board never took further legislative action to rezone theproperty, it remained zoned as agricultural.
In the years subsequent to the adoption of the comprehensive plan, the Town continued toexamine its zoning policies and various land use studies were completed as part of the Town'sefforts to implement such plan. As relevant here, the subject property was within the lands thatwere examined in a 2004 study—which included, among other things, the area around Exit25A of the Thruway (hereinafter the Exit 25A study)—and was part of a proposed land usemap (hereinafter the Exit 25A map) of the Exit 25A study area. The Exit 25A map indicated thatthe land use zoning classification of the subject property would be changed from industrial toprofessional office residential (hereinafter POR),[FN2]a use which would allow professional offices to be intermingled with residential uses, so long asthey are housed in existing residential structures. In February 2009, the Town Board adopted aresolution that amended the comprehensive plan to incorporate the Exit 25A study and Exit 25Amap. However, once again, the Town Board did not take any further legislative action to amendthe zoning of the subject property in accordance with the comprehensive plan.
In March 2009, Aladin applied to the Town Board for a change of zoning for the subjectproperty to B-2, a general business zone.[FN3]Thereafter, public hearings were held before the Town's planning commission, at which Aladinand others appeared. In March 2010, the Town Board adopted Resolution No. 107.10, whichconsisted of a negative declaration of environmental impact pursuant to the State EnvironmentalQuality Review Act (see ECL art 8 [hereinafter SEQRA]) with regard to the rezoning.The Town Board also adopted Resolution No. 108.10, which approved the rezoning of thesubject property to B-2. Petitioners then commenced this CPLR article 78 proceeding seeking toannul the Town Board's determination to amend the Town's zoning law, Exit 25A map andcomprehensive plan and to set aside the Town's declaration that the rezoning had no significanteffect on the environment. Supreme Court dismissed the petition and this appeal ensued.
Petitioners first claim that the rezoning of the subject property impermissibly conflicts withthe Town's comprehensive plan. A town's zoning determination is entitled to a strongpresumption of validity; therefore, one who challenges such a determination bears a heavyburden of demonstrating, "beyond a reasonable doubt, that the determination was arbitrary andunreasonable or otherwise unlawful" (Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town ofRotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Matter of Town of Bedford vVillage of Mount Kisco, 33 NY2d 178, 186 [1973]; Matter of Citizens for Responsible Zoning v Common Council of City ofAlbany, 56 AD3d 1060, 1062 [2008]). Generally, town land use [*3]regulations must be in compliance with a town's comprehensiveplan in order to limit ad hoc or "spot" zoning, which affects the land of only a few without properconcern for the needs or design of the entire community (see Matter of Gernatt Asphalt Prods.v Town of Sardinia, 87 NY2d 668, 685 [1996]). Thus, in reviewing whether a zoning changeis contrary to a town's comprehensive plan, we must ultimately consider, among other things,whether the change "conflict[s] with the fundamental land use policies and development plans ofthe community" (id. [internal quotation marks and citations omitted]). In our view,petitioners have not met their burden of showing such a conflict here.
The record reflects that the Town's rezoning of the subject property was consistent with theoverall land use policies and development plans as enunciated in the comprehensive plan andwas adopted for the legitimate governmental purpose of benefitting the community as a wholethrough economic development (see Asian Ams. for Equality v Koch, 72 NY2d 121, 131[1988]; Matter of Rossi v Town Bd. ofTown of Ballston, 49 AD3d 1138, 1144 [2008]). The Exit 25A study area was identifiedas appropriate for commercial and industrial growth and designated for future industrial growthwhich, under the Town's amended comprehensive plan that was adopted after exhaustive studies,represented the Town's position as to the highest and best use for this area. The subject propertyis located on Route 7, within 500 feet of the on-ramps of an interstate highway at its intersectionwith the Thruway, directly across from property zoned B-2—containing a truck stop andfast-food restaurants—and surrounded on three sides by business and commercial zones.Thus, although the fourth side adjacent to the subject property—where petitioners'properties are located—is zoned for agricultural use and includes single family residentialparcels, petitioners have not demonstrated that the Town has impermissibly "singl[ed] out asmall parcel of land for a use classification totally different from that of the surrounding area"(Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at1362 [internal quotation marks and citations omitted]; accord Matter of Baumgarten v Town Bd. of Town of Northampton, 35AD3d 1081, 1084 [2006]). The mere fact that the Exit 25A map proposed that the subjectproperty be zoned POR does not render the Town Board's determination inconsistent with theoverall scheme as evidenced in the comprehensive plan (see Matter of Rotterdam Ventures,Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at 1362). Accordingly, on this record,we cannot say that petitioners have met their heavy burden of showing that the determination wasimproper due to a conflict with the comprehensive plan.
Nevertheless, we find merit to petitioners' argument that the Town Board failed to complywith the substantive requirements of SEQRA in that it did not identify the relevant areas ofenvironmental concern, take a hard look at them and make a reasoned elaboration of the basis forits determination (see Matter ofRiverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232 [2007];Matter of Shop-Rite Supermarkets, Inc.v Planning Bd. of the Town of Wawarsing, 82 AD3d 1384, 1385 [2011], lvdenied 17 NY3d 705 [2011]). "As a matter of environmental law, rezoning is an 'action'subject to SEQRA" (Matter of Neville v Koch, 79 NY2d 416, 426 [1992] [citationomitted]; see Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam,90 AD3d at 1361; Matter of Argyle Conservation League v Town of Argyle, 223 AD2d796, 797 [1996]). "Furthermore, in determining whether a given action 'may' have a significanteffect on the environment, the agency should consider reasonably related effects of the action,including other simultaneous or subsequent actions which are: (1) included in any long-rangeplan of which the action under consideration is a part; (2) likely to be undertaken as a resultthereof; or (3) dependent thereon" (Matter of Defreestville Area Neighborhoods Assn. vTown Bd. of Town of N. Greenbush, 299 AD2d 631, 633 [2002] [internal quotation marksand citations omitted]).[*4]
Here, the notice of determination relied extensively on aletter provided to the Town Board just two days earlier by Aladin's engineer. Although the noticereferences, among other things, the Exit 25A study, such study does not comprehensively addressthe potential environmental issues specifically related to the effects of a B-2 zoning designationof the subject property. For example, there is no indication in the record that petitioners' concernsregarding the potential loss of a "buffer zone" between their residential properties and thecommercial and industrial zones along Route 7 were addressed in any meaningful way.Moreover, while the Exit 25A study indicated that the traffic generated in a B-2 zone wouldmake it one of the most traveled zones, the notice of determination identified no significant noiseor visual impacts resulting from the requested rezoning. Additionally, despite a general statementin the notice of determination that Aladin's application information was transmitted to allinvolved agencies and that comments and concerns from those agencies had been addressed,there is no evidence in the record of what those comments and concerns entailed or how theywere addressed. In fact, while the notice of determination identifies relevant areas ofenvironmental concern, rather than making an actual assessment of the potential impact of theproposed zoning changes as it should have (see Matter of Brew v Hess, 124 AD2d 962,964 [1986]; compare Matter of Neville v Koch, 79 NY2d at 427; Matter of ArgyleConservation League v Town of Argyle, 223 AD2d at 797-798), the Town Board completelydeferred any consideration of criteria set forth in 6 NYCRR 617.7 (c) and 617.11 (d) until thesubmission of an actual proposed site plan. Because the Town Board failed to take the requisitehard look at the environmental impacts of development of the subject property for commercialuse, both the negative declaration and the resolution that rezoned the property must be annulled(see 6 NYCRR 617.3 [a]; Matter of Defreestville Area Neighborhoods Assn. v TownBd. of Town of N. Greenbush, 299 AD2d at 633-636).
The parties' remaining contentions have been considered and are either academic or withoutmerit.
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as found that respondent TownBoard of the Town of Rotterdam took the requisite hard look prior to making a negativedeclaration; petition granted to that extent and Resolution Nos. 107.10 and 108.10 annulled; and,as so modified, affirmed.
Footnote 1: Inasmuch as the 2001comprehensive plan is not in the record before us, we cannot ascertain the exact proposed zoningdesignation change.
Footnote 2: POR is a completely newproposed zoning designation, which has never been included in the Town's zoning law(see Code of the Town of Rotterdam ch 270).
Footnote 3: Of the two business zoningdesignations that exist in the Town's zoning code, B-2 is the less restrictive zone (seeCode of the Town of Rotterdam, ch 270, art X).