Third Department Decides Novel Question of Law Relating to Zone Change Protest Petitions Under Town Law § 265
March 09, 2020
When landowners oppose a project that involves the rezoning of a neighboring property, they almost always have the opportunity to air their grievances through a public hearing process. If the rezoning is approved over their objections, landowners can sometimes seek judicial review of the board’s decision through an Article 78 proceeding.[i] However, there is another tool available to landowners that can affect the course of a board’s process before it makes its final decision. That tool is the protest petition authorized in Town Law § 265 and Village Law § 7-708.
If the reviewing board receives a valid protest petition before it votes on a proposed rezoning measure, approving the application requires a supermajority instead of the usual simple majority vote. This heightened threshold for approval can be game-changing, particularly on contentious projects that do not have the full support of the reviewing board. In Dodson v Town Board of the Town of Rotterdam, Docket No. 528898 (Feb. 20, 2020) (“Opn”), the Third Department faced a novel question of law concerning the application of the protest petition in practice.
Town Law § 265
Town Law § 265 provides that a town board may amend its local zoning regulations, restrictions and boundaries by simply majority vote, except in cases where the amendment is the subject of written protest signed by “(a) the owners of [20%] or more of the area of land included in such proposed change; (b) the owners of [20%] or more of the area of land immediately adjacent to that land included in such proposed change, extending one hundred feet therefrom; or (c) the owners of [20%] or more of the area of land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.” Town Law § 265(1)(a)-(c) (McKinney’s) (emphasis added).[ii] Thus, the validity of a protest petition turns on the area of land collectively owned by the subscribing landowners, and not the number of landowners who sign. Consequently, a protest petition that garners several hundred signatures may still not be sufficient if the subscribing landowners, together, do not own enough land within the 100’ radius under the statute.
The question before the Court in Dodson was how the 100-foot radius around the rezoned land should be drawn for purposes of determining the “area of land,” and thereby, the landowners needed to sign the protest petition to the Town Board.
In Dodson, the Respondent owned a 90-acre tract of agriculturally-zoned land, which it sought to develop into a senior living complex with health and other services for exclusive use by its residents. The Respondent made an application to the Town of Rotterdam Town Board (the “Town Board”) to rezone the majority of the property to senior living district (SLD), but excluded from the application a proposed 100-foot buffer designed to separate the rezoned area from the surrounding properties. Although the Respondent did not plan to rezone the buffer, it did propose certain improvements within it, including an emergency access driveway and emergency vehicle turnaround required under the NYS Uniform Fire Prevention and Building Code.
Before the Town Board could vote on the rezoning application, a collection of 90 landowners filed a protest petition pursuant to the Town Law. However, the Town Board rejected the petition as deficient based upon a finding that the landowners, collectively, owned only 10.22% of the lands immediately adjacent and none of the lands directly opposite, as measured from the edge of the rezoned area. The Town Board then went on to adopt a local law approving the partial rezoning of the property SLD. The landowners sued challenging the local law.
In their lawsuit, the plaintiff landowners claimed that the Town Board’s adoption of the local law was null and void because the Board adopted it by a simple majority vote when, according to the landowners, their petition had triggered the requirement for a supermajority. The landowners argued that the 100-foot radius should have been measured from the edge of the buffer, rather than from the edge of the rezoned area, because the buffer included improvements that were indispensable to the use of the rezoned area as SLD. Using that radius, the landowners owned more than 20% of the lands immediately adjacent to and opposite the Respondent’s project.
The issue reached the Third Department as an issue of first impression. The Court observed that, as a general matter, a property owner can protect their rezoning application from the supermajority requirement by creating a 100-foot buffer between their project (the rezoned area) and their property line. Opn at p. 6 (citing Matter of Eadie v Town Bd. Of Town of N. Greenbush, 7 NY3d 306 ). The question was whether the construction of the improvements within the buffer negated the buffer’s insulating effect. Per the Court’s decision, the answer to that question turns upon whether the improvements are essential to the use of the rezoned area and whether they serve any other use or purpose outside of the project. After reviewing available case law within the State and at least two decisions rendered by courts in Illinois and Arizona, the Court ruled that 100-foot radius should have been measured from the edge of the buffer, not the rezoned area. The Court wrote:
Here, it does not appear that the SLD can be used for its intended purpose without the Keator Drive emergency access way in the buffer zone, as the road – located at a certain minimum distance from other access ways – is required by the New York State Fire Prevention and Building Code. Local Law No. 7 states that access ways and utilities located outside the rezoned area do not require rezoning because they “will continue to serve the existing golf course as well as the proposed new uses in the [SLD].” While it may be true that other access ways in the non-rezoned area have previously served the golf course, that does not appear to be true of Keator Drive, which is presently both private and impassable beyond the terminus of the Town road. Moreover, the project plans call for a gate that will block the emergency access way at the point of access; accordingly, it does not appear that the emergency access way will be available to provide access to the golf course – which, in any event, lies on the opposite side of the SLD – or to serve any purpose other than access to the SLD in emergencies. Likewise, the record does not reveal that the 30-foot-wide emergency turnaround, which will also be constructed in the buffer zone, serves any purpose other than use for the SLD.
Accordingly, the SLD cannot be used for its intended purpose without improvements in the buffer zone that will serve only uses in the SLD and will provide no public benefit. Under these circumstances, we do not find that the purported buffer zone is sufficient to defeat the supermajority requirements of Town Law § 265.
Opn at p. 9-10.
Based upon these findings, the Court reversed the lower court’s decision and declared the law invalid.
The Dodson decision adds a subtle nuance to the use of buffers as a means of avoiding the possibility of a supermajority requirement on a rezoning application. A developer who plans to use the buffer for any purpose associated with their project must consider whether that use would expand the 100-foot radius for purposes of a protest petition and potentially negate the protection of the buffer. Finally, although Dodson was decided based upon Town Law § 265, it is likely the Court’s holding would be readily applied to protest petitions under Village Law § 7-708 as well based upon the analogous language and purpose of the statutes.
If you have any questions concerning this post, please feel free to contact the author. A copy of the Fourth Department’s Opinion and Order can be accessed by clicking the following link: Dodson Decision.
[i] A neighboring landowners challenge of a rezoning decision will in most cases face certain threshold issues that, if decided against them, will bar judicial review of the decision on its merits. Common issues include whether the landowner has standing and whether the landowner commenced their proceeding timely, within the statute of limitations.
[ii] The Village Law contains an analogous provision, except that it requires a two-thirds supermajority vote of the board members in villages having three trustees, and a three-fourths supermajority vote of the board members in all other villages. See Village Law § 7-708 (McKinney’s).