Articles

NBI Part I - Adoption and Amendment of Zoning Code

A ZONING PROCEDURE LAW

Villages, towns, and cities in New York have been given the power to regulate and restrict the size and setbacks of buildings and the location and use of buildings, structures, and land for commercial, residential, and other purposes; and to protect certain areas as national historic landmarks, special historic sites, places, and buildings for the purpose of conservation, protection, enhancement and perpetuation of those places of natural heritage, all as a part of a comprehensive plan and design.2 Generally, a zoning ordinance sets forth the “use” (the purposes for which land can or cannot be used3 ) and “area” (dimensional and physical requirements4 ) regulations for the different zoning districts within a municipality, and a zoning map sets forth the boundaries of the different zoning districts within the municipality and those specific areas, if any, that have been designated as historic districts.

1. STATUTORY AND CASE LAW LIMITATIONS.

Although a village has the right to adopt zoning regulations, that power is not unlimited. In addition to the previously mentioned requirement that the zoning constitute a comprehensive plan, discussed in further detail below, there are both federal and state statutes that further limit a village’s ability to zone the properties within its jurisdiction. The following are some examples.

Perhaps the most controversial federal legislation in this area is the “Religious Land Use and Institutionalized Persons Act of 2000.” [“RLUIPA”]. RLUIPA, in substance, provides that no municipality shall impose a land use regulation that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden is in furtherance of a “compelling governmental interest” and that it is the “least restrictive means” of furthering that compelling governmental interest. Additionally, RLUIPA provides that no municipality shall impose a land use regulation that (a) treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution, (b) totally excludes religious assemblies from a jurisdiction, or (c) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. The constitutionality of RLUIPA is still being challenged and it may be another year of two before the United States Supreme Court addresses that issue.5

Another such federal statute is the Federal Telecommunications Act of 19966 , which, among other things, provides that the regulation of the placement, construction, and modification of personal wireless service facilities shall not unreasonably discriminate among providers of functionally equivalent services or have the effect of prohibiting the provision of personal wireless services;7 and that no state or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission’s regulations concerning such emissions.” 8

There are many New York statutes which pre-empt local zoning, such as: the Alcoholic Beverages Control Law,9 with regard to businesses that sell alcoholic beverages; the Social Services Law,10 with regard to child day care facilities; the Mental Hygiene Law,11 which provides that community residences and family care homes established under the Mental Hygiene Law shall be deemed family units for the purposes of local laws and ordinances; and the Agricultural and Markets Law,12 which prohibits a municipality from unreasonably restricting farm operations within agricultural districts unless it can be shown that the public health or safety is threatened.

There is also case law in New York that further restricts local zoning with regard to public utilities,13 cellular telephone towers,14 religious institutions and schools,15 and attempts by municipalities to limit residential districts to single-family use16.

2. THE ADOPTION PROCEDURE

Villages may only adopt zoning regulations by local law.17 The requirements for adopting or amending zoning laws are set forth in different statutes and regulations.

The Municipal Home Rule Law [“MHRL”] sets forth the general requirements that must be followed by a municipality in adopting a local law. The proposed legislation must be introduced by a member of the board of trustees at a meeting of the board and the legislation has to be on the desk of the board members at least 7 days, exclusive of Sundays, prior to its final passage, or mailed, within the village, at least 10 days, exclusive of Sundays, prior to its final passage.18 The adoption of the legislation is subject to a public hearing on not less than 5 days’ public notice.19 Although only a departure in substance from the formula prescribed by statute will invalidate a municipal enactment,20 if substantive changes are made to the legislation, it cannot be adopted until after it has been in final form and either on the desks of, or mailed to, the board members the aforesaid requisite time period before they vote.21

The Village Law sets forth its own procedure for the adoption of amendments to zoning regulations, including a longer, 10-day, notice published in a newspaper of general circulation within the village and written notices to certain “public” authorities, municipalities, and commissions within certain distances from the land to be rezoned or otherwise regulated. 22

The General Municipal Law [“GML”] requires that the adoption of a comprehensive plan and certain zoning amendments be referred to the county planning commission before any action is taken by a municipality. The referral is required whenever a municipality is going to adopt a comprehensive plan and when a particular zoning amendment will affect property within five hundred feet of another municipality, certain recreational areas, roadways, drainage channels, municipally owned property, or agricultural districts.23 In substance, the board of trustees of the village may not adopt the rezoning until the county planning commission has had thirty days24 to make its recommendations. If the recommendation is against the amendment, the board of trustees must act by a majority plus one.

There may also be statutory limitations and requirements in your county or city charter or government law. However, the continuing validity of at least some of those limitations and requirements is questionable, especially when there is a clear inconsistency between those provisions of the charter and GML § 239-m, which has been held to have superseded such prior charter provisions.25 The County Government Law of Nassau County [“NCGL”] limits zoning authority to villages that had valid zoning laws prior to June 5, 1936, when the law took effect26 and requires the approval of the Nassau County Planning Commission with regard to any zoning changes within 300 feet of a town boundary or line between the municipality and an unincorporated area of a town.27 That required approval, however, has been found to have been superseded by GML § 239-m.28 As to villages, it also requires the approval of the town board for any zoning changes within 300 feet of the village’s boundary lines. Fortunately, such approval by the town board is deemed granted unless within thirty days, after a public hearing on notice to the village, the town board adopts a resolution disapproving the zoning by a two-thirds vote of the town board.29 However, based upon a recent decision, that provision also may be no longer valid.30 That decision held, in substance, that the State had indicated its intent to preempt the entire field of law with regard to the procedure to be followed by a city for the amendment of its zoning law and, therefore, the Utica City Code provision that required a three-fourths vote of the Common Council to amend the City Zoning Law when there is an adverse recommendation by the Planning Board, instead of a simple majority as required by the General City Law § 83(2), was invalid, null, and void.

As with any action involving real property within the state, the New York State Environmental Quality Review Act [“SEQRA”] must be considered when a village is going to rezone a parcel of property. Pursuant to SEQRA and the regulations adopted by the Commissioner of the Department of Environmental Conservation,31 the adoption of certain zoning regulations, such as the adoption of a municipality's land use plan, or the initial adoption of a municipality's comprehensive zoning regulations; the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district; or the granting of a zoning change, at the request of an applicant, for an action that meets or exceeds one or more of the thresholds given elsewhere within the section are deemed Type I actions,32 which presumptively, but not conclusively, require an environmental impact statement. 33

After the adoption of the local law, the law (exclusive of any map incorporated therein) must be entered in the board of trustees’ minutes and a copy, summary, or abstract thereof (exclusive of any map incorporated therein) must be published in the village’s official newspaper and a copy of such law with a summary or abstract of any map incorporated therein must be posted conspicuously at or near the entrance to the village clerk’s office, and affidavits of such publication and posting must be filed with the village clerk.34 The MHRL requires that the filing with the village clerk be within 20 days after the adoption of the local law and within said period the local law must also be filed with the Secretary of State.35 Although the MHRL provides that legislation does not become effective until the filing of the local law with the Secretary of State,36 the Village Law adds a provision with regard to zoning laws, which makes such legislation effective immediately as to a person who has been served personally with a certified copy of the law showing the date of its passage and entry in the board or trustees’ minutes. 37

3. THE RIGHTS OF CERTAIN PROPERTY OWNERS

A village, unlike a city,38 is not required to respond to a petition for rezoning.

In addition to the notice provisions discussed below, certain property owners not only have the right to be heard at the required public hearing prior to the adoption of any amendments to the village’s zoning laws, they also have the right to change the required vote to approve the amendment from a simple majority to two-thirds of the members of a three member board of trustees, or three-quarters of any other board of trustees, by presenting a petition in protest signed by the owners of twenty percent or more of the area of land:

a. included in the proposed change;

b. immediately adjacent to that land included in the proposed change, extending one hundred feet therefrom; or

c. directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.

The actual calculation of what constitutes such adjacent or opposite land may not always be clear. 39

4. PRACTICAL ISSUES

Zoning laws are amended for a reason. The zoning change is usually initiated by the village or a property owner (or a contract vendee of a property owner). A village may want to change the zoning to permit a particular use, such as senior citizen housing, or to provide for incentive zoning,40 or to prohibit a use, such as a fast food restaurant or a major discount store. A property owner, or its contract vendee, seeking a zoning amendment usually will have a specific project contemplated that requires the amendment.

5. ZONING AMENDMENT INITIATED BY A VILLAGE

The village, in initiating a zoning amendment, should first establish what it wants to permit, exclude, or modify. The language creating the permission, exclusion, or modification should be carefully drafted. For example, a municipality suddenly concerned that a fast food chain may open a franchise in the village may ask the village attorney to draft legislation prohibiting fast food restaurants. However, phrases such as “fast food” are not as descriptive as most people would think, and may have unintended consequences. While it may include a MacDonalds or a Burger King, it may also include bakeries, pizzerias, delicatessens, and many Chinese and other restaurants which have substantial take-out businesses. If you are trying to prohibit a Walmarts or a Home Depot, how do you continue to permit a small clothing boutique or a local hardware store? In order to properly draft an amendment to the zoning law to exclude a particular use, the village has to address its real concerns. Are those concerns aesthetics, traffic, litter, loitering, or something else? Rather than prohibit certain uses, would the village be better off making them conditionally permitted uses? If they are to be made conditionally permitted uses, the board of trustees or the zoning board of appeals, whichever body will be issuing the conditional use permits, will be able to exercise more particularized control over the subject use to specifically address the real concerns. If the issue is simply aesthetics, should the board consider design criteria for signs and facades, an architectural review committee, or some other aesthetic regulation? Aesthetics are a valid basis for zoning.41 If the board of trustees is going to make the use a conditionally permitted use and delegate to the zoning board of appeals the hearing and determination of the applications for such use, it must also set forth the criteria upon which such uses are to be judged, because a zoning board of appeals has no power to impose standards, requirements, or conditions which are not set forth in the zoning ordinance.42 If the board of trustees retains jurisdiction for the issuance of such conditional use permits, it will have broader discretion in reviewing those applications, and will be able to consider criteria not specifically set forth in the law.43

Zoning regulations, as legislative enactments, are presumed constitutional. While that presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation as unconstitutional.44

To withstand judicial scrutiny, a municipality's exercise of its zoning power must be founded upon a legislative delegation. Such a legislative delegation is found in Village Law § 7-700, which empowers a village board of trustees, for the purpose of promoting the health, safety, morals, or the general welfare of the community, to regulate and restrict buildings and other structures and land for trade, industry, residence or other purposes.45 Accordingly, if it can be shown that the zoning is not in furtherance of the community health, safety, morals, or the general welfare, it can be invalidated.46 It also may be invalidated if it is not reasonable,47 violates a property owner’s constitutional rights of free speech,48 or violates the preemptions set forth by federal or state laws, as noted above.

Some zoning amendments, such as setback lines, the minimum size of parcels, and floor area limitations may not require outside expert advice, but they do require some homework. Since the concept of a zoning regulation is a “comprehensive plan and design” a zoning regulation which would render a large portion of the existing area non-conforming would probably not be upheld under judicial scrutiny.49 For example, if a single family residential community was substantially comprised of homes on 5,000 square foot lots, with few lots left to be developed, an attempt to rezone the area to 7,500 square foot lots to prevent a few 10,000 square foot lots from being subdivided into 5,000 square foot lots and developed, might well be successfully challenged because it was in conflict with the development plans of the existing community.50 In substance, the law would result in creating what has been called “islands of conformity in a sea of nonconformity.” 51

When a board of trustees is considering a major amendment to its zoning, it is often helpful to have a professional planner assist it. That planner may have the expertise to assist the board in refining its general concepts and the village attorney in creating the final legislation. Additionally, the planner may be able to provide the necessary full environmental assessment form52 or environmental impact statement,53 to the extent that either may be necessary. Depending upon the project, environmental engineers or other environmental professionals may be required for their assistance in the preparation of those documents as well. If the board of trustees does not take a “hard look” at the environmental impacts of the rezoning, upon challenge, the legislation will be nullified in court.54

Although some zoning changes may have very little impact upon a community, other changes may have, or at least may appear to have, significant impacts. It is important in the latter case to involve the residents of the village through appropriate notices (which go beyond the required “legal notice”, which most residents will never see). That notice can be provided by word of mouth, but also by newsletters or flyers to the residents and advertisements in local papers. While the input of the residents is important, both to gather information and for political support, the board of trustees is not authorized to have a referendum on a proposed rezoning law.55

6. ZONING AMENDMENTS INITIATED BY A PROPERTY OWNER

When a property owner wants to initiate a zoning amendment, it usually has a specific project in mind. The best approach is usually to try to reach out informally to the mayor to try to garner the mayor’s support, at least tentatively. Informal discussions may then follow, including some or all of the trustees. Care must be taken if the discussions are not taking place at a public meeting, to be sure that a quorum of the board is not present, which would require notice under the Open Meetings Law. During those discussions, the project, and the rezoning initially contemplated by the property owner, may be modified to respond to the concerns of the board of trustees.

The initial application could be anything from an oral request, or a short letter, to a full blown presentation. If time is an issue, which it usually is when a developer with a conditional contract is involved, the more information that can be gathered before the meeting the better. That information can include, to the extent necessary, a professional planner as to how the proposed rezoning fits within the village’s comprehensive plan, or why that comprehensive plan should be changed to include the proposed rezoning; a traffic engineer to discuss the traffic impacts of the rezoning; an environmentalist to discuss wetlands, flora, fauna, and other environmental issues;56 historians, if landmarks or other historical sites are at issue, and builders, real estate brokers, appraisers, and/or other financial experts to discuss the economic viability of the proposed project and the economic impact the project would have upon the fair market value of the neighboring properties.

B. NOTICE ISSUES

There are additional, constitutional, notice requirements that must be addressed. The courts have recognized that prior to taking any action that would affect property protected by the Due Process Clause of the Fourteenth Amendment, a municipality must provide notice reasonably calculated to apprise property owners of the pendency of the action and afford them an opportunity to present their objections. Published notice is not always sufficient to inform those property owners when more effective means, such as mailed notice, is easily accomplished because the names and addresses of the property owners are known to the municipality and available on public records."57 Accordingly, it is strongly recommended that notice of any rezoning, if such rezoning is limited to a reasonable number of properties, be sent to the owners of such property owners of the public hearing to be held with regard to the proposed rezoning, and proof of such mailing (such as an affidavit) be maintained by the village clerk.

C. HEARING ISSUES

If the board of trustees proposes or entertains an application for an amendment to the zoning regulations, a public hearing is required. Although the initial presentation and discussion of the zoning amendment does not require a public hearing, the zoning amendment can only be implemented by a local law, and that local law will require a public hearing.

Usually, it is best to have the applicant (or if there is no applicant, the board of trustees) make a formal presentation as to the proposed rezoning and, if applicable, the proposed project to be implemented upon the rezoning taking effect. After the applicant has finished its presentation, the public has the right to be heard. Although everyone (including non-residents) seeking to be heard has that right, that right is not unqualified. Speakers may be limited to a specific period of time, so long as that time is reasonable, under the circumstances. Although there is a 1997 article in a NYCOM Bulletin58 stating that after a reasonable period, the hearing may be closed, even if some people have not yet spoken, NYCOM has backed off from that view and I cannot find any basis to support it. I highly recommend that if you think that the public hearing may become unnecessarily protracted, ground rules for the procedure of the public hearing be established in advance. The board can, if necessary or reasonable, institute or change those rules as the hearing proceeds, the time gets late, and the comments become redundant and/or argumentative. However, if practical, it is better to give everyone an equal opportunity to be heard, than to allow some more time than others, and then be challenged with an equal protection argument for either not allowing someone to speak, or for limiting that person’s time to speak more than others. For example, at the beginning of the hearing, the mayor could announce that every speaker will be given three minutes to be heard and that the public hearing will be closed at 11:00 p.m. and, if there are still people who have not been heard, the hearing will then adjourned to another night.

Remember that the public hearing is just that, a “hearing.” It is a time for the public to give the board of trustees its thoughts, information, and opinion with regard to the proposed rezoning. It is not necessarily a time for the public to cross-examine or even question the board, and the board is not required to respond. However, if the board is making the presentation, it may be wise, from a political perspective, to respond to inquiries as to what the Board seeks to accomplish by the rezoning; the board’s understanding of the positive and negative impacts of the rezoning; and the board’s rationale for the rezoning.

After the public has been given its fair opportunity to be heard, if the owner of the property, or its contract vendee, has initiated the proposed amendment, it is usually appropriate to have it respond.

Unless there is a reason to continue the public hearing, such as to give more people an opportunity to be heard or to gather further information, the public hearing should be closed. The board may then adopt or reject the proposed rezoning, table it for a future meeting, or amend it. Remember, as noted above, if the proposed rezoning is substantively amended, it cannot be adopted until, either, it is on the desks of the board members at least 7 days (excluding Sundays), or mailed to them, from within the Village, at least 10 days (excluding Sundays).59

D. STANDARDS

As has been stated, villages, towns, and cities have the power to regulate and restrict, among other things, the size and setbacks of buildings and the location and use of buildings, structures, and land for commercial, residential, and other purposes as a part of a comprehensive plan and design.60 The keywords are “comprehensive plan.” The fundamental concept of zoning is that a municipality has the right to require that property within its jurisdiction be developed in accordance with a comprehensive plan. Udell v. Haas61 is the leading case in New York in its explanation of the need for, and interpretation of, what constitutes a “comprehensive plan.”

The underlying concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence only if a municipality employs the insights and the learning of the philosopher, the city planner, the economist, the sociologist, the public health expert, and all the other professions concerned with urban problems.62 The almost universal statutory requirement that zoning conform to a “comprehensive plan” is a reflection of that view. That requirement mandates that consideration must be given to the needs of the community as a whole. In exercising their zoning powers, the board of trustees must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not merely to placate the whims of either an articulate minority, or even majority, of the community. Without a comprehensive plan there can be no rational allocation of land use. A comprehensive plan is the insurance that the public welfare is being served and that zoning does not become merely the result of a “Gallup poll.”

The requirement that zoning conform to a comprehensive plan protects property owners from arbitrary restrictions on the use of their property from the political pressure of residents. With the heavy presumption of constitutional validity that attaches to legislation purportedly under the police power, and the difficulty in judicially applying a “reasonableness” standard, there is danger that zoning may tyrannize individual property owners. Exercise of the legislative power to zone should be governed by rules and standards as clearly defined as possible, so that the zoning cannot operate in an arbitrary and discriminatory fashion, and that it will, in fact be directed to preserving the health, safety, welfare, and morals of the community. The more clarity and specificity required in the articulation of the premises upon which a particular zoning regulation is based, the more effectively will courts be able to review the regulation, and declare it ultra vires if it is not, in reality, “in accordance with a comprehensive plan."

Accordingly, when an amendment to a zoning code is being challenged, the village must be able to show that the change does not conflict with the community's basic scheme for land use. One of the key factors used by the courts in determining whether the statutory requirement has been met is whether forethought has been given to the village's land use problems. Where a board of trustees, after a careful and deliberate review of the present and reasonably foreseeable needs of the village, adopts a general developmental policy for the village as a whole and amends its zoning law in accordance with that plan, courts can have some confidence that the public interest is being served. However, the courts have noted that when a board of trustees adopts a zoning amendment to deal with various problems that have arisen, but gives no consideration to alternatives which might minimize the adverse effects of a change on particular landowners, and then calls in the experts to justify the steps already taken in contemplation of anticipated litigation, closer judicial scrutiny is required to determine whether the amendment conforms to the comprehensive plan.

Exactly what constitutes a "comprehensive plan" has never been made clear. The term "comprehensive plan" is not equated with a particular document, although a village may have one. Generally, the comprehensive plan is made up of the policies that may be garnered from the zoning actually adopted by the village, the zoning law itself and the zoning map, and any planning documents that it may have prepared and relied upon in adopting that zoning. The question generally is whether the zoning ordinance comprises a comprehensive plan, not whether it is in accordance with a comprehensive plan. New York cases have analyzed zoning ordinances in terms of consistency and rationality. When the issue is rezoning, the "comprehensive plan" requires that the rezoning should not conflict with the fundamental land use policies and development plans of the community.

I say “generally,” because there are statutory provisions for actually adopting a “comprehensive plan.” 63 Once a comprehensive plan is formally adopted pursuant to the provisions of the statute, all village land use regulations must be in accordance with that plan.64 The procedures for the adoption of a “formal” comprehensive plan are set forth in the statute,65 which also calls for periodic review. A formal comprehensive plan for a village is “encouraged, but not required”. 67

The Village Law to some extent establishes the “standards” for zoning by setting forth the purposes for zoning generally, to wit:

“such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, floods and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.” 68

___________________________

1 This paper summarizes the statutes referred to herein, and is merely a general outline for reference purposes. Before considering the adoption of any new zoning laws, you should review the referenced statutes for the complete provisions thereof and to assure that they have not been amended since the preparation of this paper.

2Village Law § 7-700, Town Law § 261, and General City Law § 20(24). For most of this paper, my statutory references will be limited to the Village Law, although similar, often identical, provisions with regard to zoning are set forth in the Town Law. With a few exceptions, I have not addressed the statutory references to the General City Law.

3 Village Law § 7-712(1)(a).

4Village Law § 7-712(1)(b).

5See, the decision of the District Court in Westchester Day School v. Village of Mamaroneck, 280 F. Supp. 2d 230 (S.D.N.Y. 2003), which upheld RLUIPA, but was subsequently, on appeal, vacated on other grounds, 386 F.3d 183 (2nd Circ. 2004), and Elsinore Christian Center v. City of Lake Elsinore, 291 F.Supp.2d 1083 (C.D.Cal. 2003), which found RLUIPA to be unconstitutional. I think Elsinore is the better of the two District Court decisions. On appeal, in Westchester, when vacating and remanding the matter, the Court of Appeals framed one of the ultimate issues that will eventually have to be determined by the United States Supreme Court:

“In our view, if RLUIPA means what the district court believes it does, a serious question arises whether it goes beyond the proper function of protecting the free exercise of religion into the constitutionally impermissible zone of entwining government with religion in a manner that prefers religion over irreligion and confers special benefits on it. See City of Boerne v. Flores, 521 U.S. 507, 537, 138 L.Ed.2d 624, 117 S.Ct. 2157 (1997) (Stevens, J., concurring). We have no need to decide the question at this time because the judgment must in any event be vacated for the reasons set forth in Parts 1 and 3 of this opinion. We nevertheless commend these considerations to the court's attention on remand.” 386 F.3d at 190.

6I recommend reviewing the manual entitled Planning and Design Manual for the Review of Applications for Wireless Telecommunications Facilities, A Practical Guide for Communities Managing Wireless Telecommunications Facilities Siting in New York State, March 2001, prepared by the Town of Pittsford under a contract with the New York State Department of State, Division of Local Government. Behan Planning Associates, LLC, consulting planners to the town coordinated the production of the report. Copies are available from New York State Department of State, Division of Local Government at 41 State Street, Albany, NY 12231, (518) 473-3355. Its web site is http://www.dos.state.ny.us. The manual can be downloaded from the web site at http://www.dos.state.ny.us/lgss/pdfs/telecom.pdf .

747 U.S.C. 332(c)(7)(B)(i).

8 47 U.S.C. 332(c)(7)(B)(iv).

9Alcoholic Beverage Control Law § 2. See, TJPC Restaurant Corp. v State Liquor Authority, 61 A.D.2d 441 (4th Dept. 1978) aff’d 48 N.Y.2d 884 (1979).

10Social Services Law § 390 (12).

11Mental Hygiene Law § 41.34 (f).

12Agriculture And Markets Law § 305-a. See Inter-Lakes Health v. Ticonderoga Town Bd., ___A.D.3D___, 786 N.Y.S.2d 643 (2nd Dept. 2004).

13Consolidated Edison Co., of New York v. Hoffman, 43 N.Y.2d 598 (1978).

14Cellular Tower Co., v. Rosenberg, 82 N.Y.2d 366 (1993).

15Cornell v. Bagnardi, 68 N.Y.2d 583 (1986).

16McMinn v. Oyster Bay, 66 N.Y.2d 544 (1985).

17Village Law § 20-2000.

18MHRL §20(4).

19MHRL §20(5).

20Alscot Investing Corp., v. Albert Laibach, 65 N.Y.2d 1042 (1985). The departures which were claimed to invalidate the local law were that it was not introduced by any member of the village board, that the board had not properly voted to hold a hearing on the law, that the text of the law as adopted was not in possession of board members for the period required by MHRL § 20 (4) prior to adoption, and that the text as adopted and contained in the minutes differs from the text filed with the Secretary of State. Important to note is that in making its decision declaring that the subject local law was valid, the court found that the text of the law as adopted had been in the possession of the board members well in advance of the 10-day period provided for MHRL § 20 (4).

21Tylec v. Niagara County Legislature, 175 A.D.2d 676 (4th Dept. 1991).

22Village Law § 7-706(2).

23GML §239-m.

24The time period for the planning commission to act starts from when a “full statement” is received. The commission may require “receipt” of the full statement up to 12 days prior to its meeting date. “Full statement” includes all materials required by and submitted to the board of trustees on the proposed rezoning, including a completed environmental assessment form and all other materials required by the board of trustees in order to make its determination of significance. The Nassau County Planning Commission interprets that provision to require the written findings after the final environmental impact statement [“EIS”] has been accepted. I question that interpretation based upon certain New York State’s environmental protection regulations [6 NYCRR 617.3 (c); see, generally, “SEQRA”, infra,], which implies that an application is complete when a negative declaration or a draft EIS has been accepted as satisfactory with respect to scope, content, and adequacy. The convoluted result of Nassau County’s position requires a board of trustees to accept the final EIS and make its findings before it receives the comments of the Planning Commission. To me, it appears that the clear intent of a coordinated review is to obtain those comments prior to the acceptance of the final EIS and the making of the written findings.

25We’re Associates Co., v. Bear, 35 A.D.2d 846 (2nd Dept. 1970), aff’d on op. of App. Div., 28 N.Y.2d 981 (2nd Dept. 1971); and Benderson Development Co. v. City of Utica, 781 N.Y.S.2d 880 (Sup. Ct. Oneida Co. 2004).

26NCGL § 1607.

27NCGL § 1608.

28We’re Associates Co., v. Bear, 35 A.D.2d 846 (2nd Dept. 1970), aff’d on op. of App. Div., 28 N.Y.2d 981 (1971)

29NCGL § 1608.

30Benderson Development Co. v. City of Utica, 781 N.Y.S.2d 880 (Sup. Ct. Oneida Co. 2004).

316 NYCRR Part 617, State Environmental Quality Review. They can be obtained on line at: http://www.dec.state.ny.us/website/regs/part617.html

326 NYCRR § 617.4

33The presumption is rebuttable, so long as the village takes a hard look at the environmental impacts. See generally, Incorporated Village of Poquott v. Cahill, 11A.D.3d 536 (2nd Dept. 2004).

34Village Law § 7-706 (5).

35MHRL § 27(1).

36MHRL § 27(3).

37Village Law § 7-706(7).

38General City Law § 83 requires the common council, within 90 days of its filing, to vote on a petition from the owners of 50% or more of the frontage in any district or part thereof requesting an amendment to the zoning laws.

39See, for example, Biedermann v. Town of Orangetown, 125 A.D.2d 465 (2nd Dept. 1986), which held that that part of the land adjacent to the property in question which lay in a municipally owned street should not be considered in calculating the total amount of area pursuant to the second category of land (i.e., land immediately adjacent to the subject premises extending 100 feet therefrom).

40Village Law § 7-703.

41People v. Stover, 12 N.Y.2d 462 (1963); see also, De Sena v. Bd. of Zon. Appls. Vil. of Hempstead, 45 N.Y.2d 105 (1978).

42Schlosser v. Michaelis, 18 A.D.2d 940 (2nd Dept. 1963).

43Lemir Realty Corp., v. Larkin, 11 N.Y.2d 20 (1962).

44Marcus Associates v. Town of Huntington, 45 N.Y.2d 501 (1978).

45Marcus Associates v. Town of Huntington, 45 N.Y.2d 501 (1978).

46Fulling v. Palumbo, 21 N.Y.2d 30, 33 (1967); and Westbury Trombo, Inc. v. Bd.of Tr. Village of Westbury, 307 A.D.2d 1043 (2nd Dept. 2003), where a law, aimed at fast food restaurants, prohibiting restaurants that were open between 11:00 p.m. and 6:00 a.m. was stricken because it was held that there was insufficient evidence to support the conclusion that the existence of a retail business that operates 24 hours a day in the vicinity of a residential area has any detrimental impact on the health, safety, welfare, or morals of the community.

47Fulling v. Palumbo, 21 N.Y.2d 30, 33 (1967).

48Islip v. Caviglia, 73 N.Y.2d 544 (1989).

49However see, Ifrah v. Utschig, 98 N.Y.2d 304 (2002), an area variance case involving an application to subdivide one lot into two lots. The amendment to the zoning from which the variances were sought caused 33 of 39 lots within 500 feet of the applicant’s lot to be rendered non-conforming. The applicant argued that the large percentage of lots rendered nonconforming by the rezoning proved that the rezoning was not in conformance with a comprehensive plan. In reversing the Appellate Division and reinstating the denial of the variance by the board of appeals, the Court of Appeals, in substance, held that lot size is not the only relevant factor when considering impacts on the character of a neighborhood, and that other considerations, such as traffic flow and safety, and parking impacts could also be considered.

50Udell v. Haas, 21 N.Y.2d 463 (1968).

51Fulling v. Palumbo, 21 N.Y.2d 30 (1967).

526 NYCRR 617.20, Appendices.

536 NYCRR 617.9.

54Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688 (1996).

55See generally, Op. NYS Comptroller, No. 91-58, with regard to the question as to whether or not the City of Lackawanna could hold an advisory referendum of a proposed site plan, and an opinion that a municipality cannot hold a referenda on any matter for which a referenda is neither authorized nor required by statute.

56The term “environment” is very broadly defined in the SEQRA regulations. See 6 NYCRR §617.2(l).

57Mennonite Board of Missions v. Adams, 462 U.S. 791, 795-796 (1983).

58NYCOM [New York Conference of Mayors] New York State Municipal Bulletin, September-October 1997, page 31.

59MHRL § 10(4).

60Village Law § 7-700, Town Law § 261, and General City Law § 20(24). General City Law § 20(25) uses the words “well considered plan.

61Udell v. Haas, 21 N.Y.2d 463 (1968).

62This paragraph and the following three paragraphs are a paraphrase of parts of Udell v. Haas, 21 N.Y.2d at pp. 469-472.

63Village Law § 7-722; Town Law § 272-a; and General City Law § 28-a.

64Village Law § 7-722(11).

65Village Law § 7-722(4) through (7).

66Village Law § 7-722(10).

67Village Law § 7-722(1)(h).

68Village Law § 7-704.

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