Constitutional Challenges to Zoning Subject to Very High Standard
July 29, 2019
A recent Supreme Court decision, In the Matter of Preserve Our Brooklyn Neighborhoods v. City of New York, demonstrates the difficulty a litigant faces when challenging a zoning determination on constitutional grounds. The petitioners are “an incorporated association of community members” from the Fort Greene area of Brooklyn (the “Petitioners”), who oppose proposed development in their community in the interest of preserving its historical character. The respondents are the City of New York (the “City”) and the developers for the proposed project.
In June of 2018, the City Council passed a resolution which changed the zoning regulations in the Fort Greene community, as well as an area adjacent to it known as the Special Downtown Brooklyn District (the “SDBD”). The SDBD “was established in 2001 ‘to provide a transition between the ever expanding downtown commercial core of Brooklyn and the low rise community of Fort Greene.’” Fearing that development in Fort Greene and its surrounding areas would jeopardize the historical significance and character of the community, the Petitioners brought an action under Article 78 of the New York Civil Practice Law and Rules (“CPLR”) challenging the resolution.
The Petitioners asserted that the City Council’s decision to pass the resolution was “arbitrary, capricious and violative of law, constituting unlawful spot zoning,” and that the resolution violated both State and City environmental laws. Unfortunately for the Petitioners, their CPLR Article 78 challenge was time-barred by the four-month statute of limitations applicable to such actions. However, as the Court noted, the Petitioners’ action was more than just a typical challenge to an administrative determination. Here, because the resolution’s constitutionality was at issue, the four-month limitations period could not serve as a bar to the action in its entirety. As such, the Court considered the Petitioners’ contention that the resolution was unconstitutional spot zoning.
Before addressing the merits of the Petitioners’ claim, the Court noted the standard applicable to constitutional challenges to zoning. Because “[z]oning is a legislative act, . . . it is presumptively constitutional (Asian Americans for Equality v. Koch, 72 NY2d 121 ).” Accordingly, a party challenging a zoning regulation on constitutional grounds must establish “unconstitutionality beyond a reasonable doubt,” and “[a] zoning resolution will be upheld if ‘there is a reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end’ (id at 132 quoting McMinn v. Town of Oyster Bay, 66 NY2d 544  [internal quotations omitted]).” This is an extremely high standard to meet.
The Petitioners’ constitutional claim rests on the argument that the resolution constitutes “spot zoning,” which the Court of Appeals has defined as “‘the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners’ (Rodgers v. Tarrytown, 302 N.Y. 115, 123, 96 N.E.2d 731, 734 ).”
The Court here found it undeniable that the development plans in the resolution were “well-considered” and “calculated to serve the general welfare of the community,” and the Petitioners failed to demonstrate otherwise. Although the Petitioners raised their personal concerns regarding the historical character of the Fort Greene area, they failed to establish a legally significant argument as to why the resolution was unconstitutional. The Court swiftly rejected Petitioners’ claim that the resolution was unconstitutional spot zoning simply by virtue of the fact it would provide a financial benefit to the developers of the proposed project. The Court said that such financial gain “is the very nature of capitalism,” and that fact alone does not constitute spot zoning. As the Court stated, the Petitioners’ “mere dissatisfaction” with the resolution and the proposed development is not sufficient grounds to strike down a zoning law as unconstitutional. The Petitioners failed to show that the resolution was unconstitutional beyond a reasonable doubt, and therefore, their challenge was rejected and their petition denied.
When considering a zoning challenge on constitutional grounds, it is important to be cognizant of the high bar a litigant must satisfy, and understand that without sufficient evidence demonstrating unconstitutionality, such a challenge is unlikely to succeed.
 The Petitioners appealed the Supreme Court’s decision to the Appellate Division, First Department on July 2, 2019, and that appeal is currently pending.