Posted On: June 30, 2012

Zoning Amendment to Aid One Property Is Not Spot Zoning, Nor Did It Violate SEQRA or GML

The Appellate Division found that a zoning amendment adopted "primarily" to assist one property owner is not spot zoning. In the Matter of Marcus v. Bd. of Trustees of the Village of Wesley Hills, the Court found that while " there is no doubt that the Local Law was adopted primarily for the benefit of the plant nursery and arborist business operated by Ira Wickes and Rockland Tree Expert, Inc., doing business as Ira Wickes Arborist (hereinafter together Wickes), zoning changes are not invalid merely because a single parcel is involved in or benefitted by said changes (see Rodgers v Village of Tarrytown, 302 NY at 124)."

In upholding the local law the Court found that the use was compatible with other uses in the area and the Village's comprehensive plan. Significantly, the Court noted that two other properties in the Village could meet the requirements under the challenged amendment. Further the, Court held: "there is no evidence in the record that Wickes's use of the property in compliance with the Local Law and a special permit issued thereunder would be detrimental to owners of other properties in the area..."

In addressing SEQRA issues, the Court found that the issuance of a negative declaration was In conformity with the regulations and also noted, "the Board's deferral of site-specific review of certain environmental issues to the Village's Planning Board, upon its consideration of individual special permit applications, was no less protective of the environment (see 6 NYCRR 617.3[g][1])."

Finally, in interpreting the requirements of General Municipal Law, the Court held:

"There is no merit to the petitioners' contention that the Local Law should be annulled due to the Board's failure to timely file a report of the final action it had taken in connection with the Local Law with the Rockland County Department of Planning within 30 days after the final action pursuant to General Municipal Law § 239-m(6). Under the circumstances of this case, where the Board otherwise complied with the referral provisions of General Municipal Law § 239-m and there is no claim of prejudice, the Board's failure to timely file a report of the final action with the Rockland County Department of Planning after adopting the Local Law was a mere procedural irregularity (cf. Matter of Zelnick v Small, 268 AD2d 527, 529; Matter of Ernalex Constr. Realty Corp. v City of Glen Cove, 256 AD2d 336, 338)."

-Steven Silverberg

Posted On: June 28, 2012

Court of Appeals Upholds SEQRA Negative Declaration for Rezoning

The New York Court of Appeals upheld the determination by the New York City Department of City Planning to issue a negative declaration under the State Environmental Quality Review Act (SEQRA) for a rezoning of a portion of Brooklyn. In Matter of Chinese Staff and Workers Association v. Burden, the Court found that the issuance of the negative declaration by the Department of Planning did not abuse it's discretion.

The Court noted:

":An agency's "initial determination under . . . SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment" (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986]). "In making its initial determination, the agency will study many of the same concerns that must be assessed in an EIS, including both long- and short-term environmental effects" (Farrell, 100 NY2d at 190). Where an agency determines that an EIS is not required, it will issue a "negative declaration" (id.). "Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion" (id. [internal quotation marks and brackets omitted])."

The Court Conluded "the DCP neither abused its discretion nor was arbitrary or capricious when it issued a negative declaration determining that the proposed rezoning in this case would have no significant adverse effect on the environment. In its EAS, DCP identified the relevant areas of environmental concern, took a hard look at them and made a reasoned elaboration of the basis for its determination."

-Steven Silverberg