Posted On: July 22, 2012

Rezoning Consistent With Comprehensive Plan But Failed to Comply With SEQRA

A Court found that the rezoning of a single parcel, although different from the designation in the comprehensive plan, was still consistent with that plan. However, the Court held the town board did not fully comply with SEQRA. In Matter of Bergami v. Town Board of the Town of Roterdam, the Appellate Division reversed the lower court finding that the Town Board, as lead agency, had failed to take the requisite "hard look" under SEQRA.

The Town Board had previously adopted and then amended a comprehensive plan that ultimately called for rezoning the area of the town including the subject property to a professional office zone. Yet, the Town Board never adopted those modifications to the local zoning law. In 2009 the property owner applied for a rezoning to the business district. Ultimately, the town board issued a SEQRA negative declaration and amended the zoning of the parcel to business.

Neighboring property owners challenged the action as spot zoning. However the Court found the action was not spot zoning noting:

"The Exit 25A study area was identified as appropriate for commercial and industrial growth and designated for future industrial growth which, 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 property is located on Route 7, within 500 feet of the on-ramps of an interstate highway at its intersection with the Thruway, directly across from property zoned B-2 — containing a truck stop and fast-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 residential parcels, petitioners have not demonstrated that the Town has impermissibly "singl[ed] out a small 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 at 1362 [internal quotation marks and citations omitted].... The mere fact that the Exit 25A map proposed that the subject property be zoned POR does not render the Town Board's determination inconsistent with the overall scheme as evidenced in the comprehensive plan....Accordingly, on this record, we cannot say that petitioners have met their heavy burden of showing that the determination was improper due to a conflict with the comprehensive plan."

Yet, the Court reversed the adoption of the rezoning because the Court found the Town failed to comply with SEQRA. The Court stated:

"... the Town Board failed to comply with the substantive requirements of SEQRA in that it did not identify the relevant areas of environmental concern, take a hard look at them and make a reasoned elaboration of the basis for its determination..."

-Steven Silverberg