A Decision without Recourse? The Unique Hurdle When Pursuing Zone Changes and Zoning Amendments
April 27, 2020
In the land use and zoning arena, discussion of article 78 proceedings is commonplace. They are, after all, the primary mechanism for challenging decisions on the full litany of land use applications (i.e. subdivisions, site plans, variances, special permits, etc.). An aggrieved party seeking to overturn a board’s decision is given a window of time in which to seek judicial review of the board’s process. If the reviewing court finds the board’s decision to be arbitrary, capricious and/or an abuse of discretion, or made without lawful procedure, the court will declare the decision null and void. See N.Y. C.P.L.R. § 7803 (McKinney’s). The ability to seek judicial review of a land use decision through the article 78 process is available in virtually all cases, except perhaps for one.
Unlike the other land use approvals mentioned above, an applicant’s request for a change of zone for their property or for a beneficial amendment to an existing zoning ordinance may be rejected out of hand without any consideration. Moreover, summary rejection of such requests is not subject to judicial review through an article 78 proceeding. The reason zoning amendments are treated differently is borne from the fact that zoning ordinances are part of a municipality’s local code, and as such, are subject to change solely through local legislative action. See Town Law §§ 261, 265 (McKinney’s); Village Law §§ 7-700, 7-708 (McKinney’s) (granting town boards and village boards of trustees, respectively, exclusive authority to adopt and amend zoning regulations within their municipal boundaries).
The Second Department visited upon this issue in its recent decision in Matter of Hampshire Recreation LLC v Village of Mamaroneck, ___ AD3d __ (Mar. 25, 2020). In Hampshire Recreation, the petitioners filed two applications requesting that the respondent village board of trustees (the local legislative body) change the zoning on certain real property in the village from its existing designation to “Open Space/Residential Community District.” The village board rejected and refused to consider either application. After being rejected a second time, the petitioners filed a hybrid article 78 proceeding through which they sought (among other relief) an order compelling the village board to consider their request.
In response to petitioners’ challenge, the village respondents filed a motion seeking dismissal of the petitioners’ demand for compulsory review of the zone change application. The lower court denied the motion, leading to respondents’ appeal. On appeal, the Second Department issued a brief and to-the-point opinion overturning the lower court and dismissing the petitioners’ demand for consideration of their zone change application. The Court wrote:
The amendment of a zoning ordinance is a purely legislative function. (Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 433; see Matter of Neddo v Schrade, 270 NY 97, 103; see also Matter of Southern Dutchess Country Club v Town Bd. of Town of Fishkill, 25 AD2d 866). The Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change. Thus, in the present case, the Village Board’s determinations not to consider the plaintiffs’/petitioners’ applications were a legislative function not subject to review under CPLR article 78. ____AD3d ____ at *2 (internal citations and quotations omitted).
The Court’s decision in Hampshire Recreation is consistent with a number of the court’s prior holdings on this same issue. See e.g. Structural Tech., Inc. v Foley, 56 AD3d 677, 678 (2d Dept 2008); Soc’y of New York Hosp. v Del Vecchio, 123 AD2d 384 (2d Dept 1986), aff’d, 70 NY2d 634 (1987); Norman v Town Bd. of Town of Orangetown, 118 AD2d 839 (2d Dept 1986). A local legislative body’s prerogative to summarily reject applications seeking a change of zone and/or zoning amendment presents a unique obstacle for any project that does not fit within the existing zoning classification on the project site. Such applications may be dead right out of the gate, if the local legislative body–whether it be a town board or village board of trustees–has no interest in entertaining a zoning change and/or zoning amendment. It should be noted, however, that where a local legislative body does consider a decide zone change and/or zoning amendment application, that body’s decision is then subject to article 78 review. See e.g. Greenport Group LLC v Town Bd of the Town of Southold, 167 AD3d 575 (2d Dept 2018) (challenging the town board’s decision to change petitioners’ property to low-density residential).
A copy of the Second Department’s decision in Hampshire Recreation can be accessed by clicking the following link: Mtr of Hampshire Rec v Mamaroneck. If you have any questions or comments on this post, please feel free to contact me.