Spot Zoning — Claims May Be Avoided By Engaging In Bona Fide Planning

January 27, 1999

In planning an attack on an amendment to an existing zoning ordinance, in addition to the usual claims of confiscation, failure to comply with a comprehensive plan, and violation of civil rights, one must consider whether the amendment to the zoning ordinance constitutes what is known as “spot zoning.” As described by the New York Court of Appeals, spot zoning, which is the very antithesis of planned zoning, is “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.”/1
In analyzing whether a rezoning of a particular parcel is indeed spot zoning, the ultimate question is whether the zoning was accomplished for the benefit of an individual owner rather than in accordance with a comprehensive plan/2 for the general welfare of the community. A case decided a number of years ago by the Court of Appeals epitomizes spot zoning./3

Single Beneficiary

That case arose when Wegman Enterprises, Inc., petitioned the Town Board of the Town of Gates to rezone about 12 acres of land from an R-8A residential classification to a B-1 commercial classification. Wegman sought the change to permit it to develop the site as a retail shopping center for a Wegmans Food Market and other stores. After a hearing, the town board resolved to rezone the property, but imposed a series of conditions on the rezoning. One condition was that the application to construct the shopping center “shall inure to the benefit of Wegman Enterprises, Inc., only, and for that specific purpose only.”

Some property owners brought an article 78 proceeding challenging the zoning change, contending that it amounted to spot zoning. The Court of Appeals agreed.

The Court noted that the “fundamental rule” of zoning is that it deals basically with land use and not with the person who owns or occupies it. Thus, the Court stated, although it is proper for a zoning board to impose appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or special permit, such conditions and safeguards must be reasonable and relate only to the real estate involved without regard to the person who owns or occupies it.

The Court then found that the town board’s resolution that provided that the rezoning of the land in question “shall inure to the benefit of Wegman Enterprises, Inc., only” was plainly personal to Wegman itself and did not relate to the use of the property. This “patent deficiency” was “prima facie evidence of spot zoning in its most maleficent aspect,” the Court concluded.

That a local government amends a zoning plan through the impetus of one who would financially benefit by its enactment does not necessarily establish the result as impermissible spot zoning./4 This is especially the case when a municipality makes a change after appropriate planning and environmental studies and reports and hearings at which consultants and other expert witnesses testify on the record and both proponents and opponents of the proposed amendment are permitted to be heard. Put differently, courts will not find spot zoning when a local government revises a zoning ordinance as the result of comprehensive planning conducted with expert assistance and in accordance with statutory requirements,/5 so long as the planning studies are bona fide, not sham, and are supported by substantial evidence. That rule is reflected in a recent decision by the Appellate Division, Third Department./6

That case involved the Town of East Greenbush in upstate New York, which had adopted a comprehensive development plan in February 1993 that envisioned that 90 acres of mostly undeveloped land located on Mannix Road, east of Exit 9 of Interstate Route 90, would be in a low density residential zone. The plan also contemplated that land on Mannix Road that was west of I-90 would remain in a corporate office/regional commercial district.

In July 1993, the town board proposed to rezone the property east of I-90 from residential/agricultural to corporate office/regional commercial. At the conclusion of the environmental review process mandated by the State Environmental Quality Review Act/7 the town board approved the amendment, placing a portion of the property in a corporate office only district and the remainder in a corporate office/regional commercial district.

Thereafter, owners of property on or near the Mannix Road land challenged the town board’s action, claiming that it was not in accordance with the town’s comprehensive plan.

The court emphasized that the amendment was “the product of considerable study” and “reflected a sufficient degree of comprehensiveness of planning.” It pointed out that the impetus for the town board to enact the amendment was the opening of I-90 and the Exit 9 interchange, which greatly improved accessibility to the town from adjacent urban areas. This resulted in the establishment of corporate offices and several manufacturing and research facilities in various areas of the town, including on the portion of Mannix Road west of I-90.

These circumstances, the court pointed out, led the town board to conclude that the corporate office/regional commercial district should be extended to the Mannix Road property that was east of the Exit 9 interchange. Moreover, the court added, the board further was influenced by the county’s master plan, which recommended that municipalities along the I-90 corridor make provisions in their land use regulations for commercial and light industrial uses in the land surrounding the interchanges.

It is important to note that experts testifying at a hearing in favor of a zoning change must testify to the correct issues. One case involved a zoning change to allow a particular property in the City of Rochester to be used as a hotel./8 The change was adopted after investigations into uses for the existing building at the site, community needs, compatibility of the proposed use to the community character, and hearings at which interested parties were able to express both support and opposition.

In an action which they filed challenging the amendment to the zoning regulation, opponents of the change established that property values in the vicinity of the property would be affected by conversion to a hotel and that the amendment was proposed by individuals with a financial interest in its outcome. They also introduced testimony from an expert that surrounding property values would change if the hotel were constructed.

The court pointed out, however, that a change in surrounding property values, standing alone, did not demonstrate that the amendment conflicted with Rochester’s existing comprehensive plan. At most, the court concluded, all that the opponents established was that the enactment of the amendment was fairly debatable, and in such an instance, it said, legislative judgment must control.

Conclusion

Indeed, opponents to a zoning change have a heavy burden to meet to overcome the “strong presumption of validity” that attaches to the legislative determinations of a town board or municipality when it passes zoning ordinances./9 Although courts certainly have struck down changes to zoning ordinances on spot zoning grounds,/10 including on occasion when the property was not “small” in size/11 as the Court of Appeals has suggested,/12 local governments and developers should be able to defeat such claims by taking appropriate steps to study and hold hearings on the zoning change. As one court has stated, a determining factor in deciding whether a zoning change is spot zoning or is part of a comprehensive plan “is whether forethought has been given to the community’s land use problems.”/13 Once again, the record of the rezoning is critical.

NOTES: 1. Rodgers v. Tarrytown, 302 N.Y. 115, 123 (1951). 2. New York law has no precise definition of the term comprehensive plan nor has that term been equated with any particular written document. See Kravetz v. Plenge, 84 A.D.2d 422 (4th Dep’t 1982); see also John M. Armentano, “The Comprehensive Plan,” New York Law Journal, May 4, 1994 at 5. 3. Dexter v. Town Board of Gates, 36 N.Y.2d 102 (1975). 4. See, e.g., Kravetz v. Plenge, supra at 430. 5. See, e.g., Goodrich v. Town of Southampton, 39 N.Y.2d 1008, 1009 (1976). 6. Daniels v. Van Voris, 241 A.D.2d 796 (3d Dep’t 1997). 7. ECL Article 8. 8. Kravetz v. Plenge, supra. 9. See, e.g., Goodrich v. Town of Southampton, supra at 1009 (1976). 10. See, e.g., Blumberg v. Yonkers, 21 A.D.2d 886 (2d Dep’t 1964), aff’d 15 N.Y.2d 791 (1965). 11. See, e.g., Cannon v. Murphy, 196 A.D.2d 498 (2d Dep’t 1993) (107 acres); cf. Daum v. Meade, 65 Misc.2d 572, 577 (Sup.Ct. Nassau Co. 1971) (“rezoning of a tract as large as that involved herein [163 acres] and located as it is, is not the equivalent of ‘singling out a small parcel of land for a use classification totally different from that of the surrounding area'”). 12. Rodgers v. Tarrytown, supra at 123 (1951). 12. Kravetz v. Plenge, supra at 429.

John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use, and environmental matters, including litigation.

This article is reprinted with permission from the January 27, 1999 edition of the New York Law Journal.

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