Development

AppDiv, Second Dept. (3-1 decision; majority memorandum; dissenting memorandum by Lifson, J.)

The City of Yonkers and its City Council appealed from the Supreme Court's grant of a judgment declaring an amendment to the City's Code invalid for failure to comply with General Municipal Law section 239-m, which requires supermajority approval of zoning amendments that affect real property within 500 feet of a municipal boundary. The Appellate Division affirmed, holding that an amendment to the code, which would eliminate the supermajority requirement was itself subject to that requirement.

A developer proposed an 81.4-acre mixed-use project within the City of Yonkers. The project would have required a zoning amendment. General Municipal Law section 239-m provides that when a zoning amendment affects real property within 500 feet of a municipal border, the amendment requires referral to a county planning board. When the county planning board recommends disapproval of such an amendment, approval requires the vote of a majority plus one in the municipality's legislative body. When the proposed amendment in this case was referred to the Westchester County Planning Board, that board recommended disapproval or substantial modification of the project, citing inability of roads in the area to accommodate the increased traffic the project would generate. The County Planning Board communicated that approval to the City Council. The City Council then voted, 4-3, to amend its zoning ordinance to eliminate the supermajority requirement. That vote was taken without a public hearing, and without referral to the County Planning Board. Landowners and the county brought separate actions to declare the amendment invalid, and Supreme Court issued a declaratory judgment invalidating the amendment. The City of Yonkers appealed.

In affirming, the Appellate Division majority held that the challenged zoning amendment resulted in a change in the regulations applying to all real property within the city, and therefore necessarily changed the zoning regulations applicable to real property within 500 feet of the city's boundary. As a result, the court held that section 239-m required referral of the amendment to the County Planning Board, and the city's failure to refer constituted a jurisdictional defect, which required invalidation of the amendment. Justice Lifson, dissenting, argued first, that procedural changes to the zoning ordinance did not fall within the scope of General Municipal Law section 239-m, and second, that section 239-m was superseded by the Westchester County Administrative Code, which indicated that the county's power to review was limited to changes in the use of specific property.

COMMENT

General Municipal Law '239-m requires a municipal board to refer any amendments affecting real property within 500 feet of the municipal border to the county board for comment; if the board disapproves or rejects a proposed amendment, the municipal board needs a supermajority to override the county board's decision. The Second Department has held that the statute applies to municipal legislation that applies across the board to all land within the municipality's borders. Thus, in Burchetta v. Town Board of Carmel, 167 AD.2d 339 (1990) the court invalidated a proposed regulation that applied to all real property within the municipality, observing that the regulation necessarily included property located within 500 feet of the municipal border and thus fell within the statutory framework of '239-m. Similarly, in Matter of Roanoke Sand & Gravel v. Town of Brookhaven, 24 AD.3d 783 (2005), the court held that a general moratorium on the acceptance and review of site plan applications constituted an action requiring referral under the statute. (See also Caruso v. Town of Oyster Bay, 172 Misc.2d 93 (1997), where a moratorium on the review and issuance of building permits was deemed an action requiring referral to the county planning board under '239-m.)

The municipal legislation in Burchetta, Roanoke, and Caruso involved substantive restrictions on land use. Justice Lifson, dissenting in Annabi, suggested that those cases, and section 239-m, were inapplicable to amendments to local procedures. He also noted that in a number of cases, courts have concluded that the Westchester County Code has superseded section 239-m. The state legislature enacted a number of the provisions in that code as special laws pursuant to section 2(12) of the Municipal Home Rule law, and in several cases, courts have held that a 'special' law supersedes the 'general' provisions of section 239-m. Thus, in 208 East 30th Street, the Second Department held that '277.61 of the Westchester County Code, trumped the conflicting '239-m. 208 East 30th Street Corp. v. Town of North Salem, 88 A.D.2d 281 (2d Dept. 1982). And in Bloom v. Town Board of Yorktown, the Second Department held that two zoning amendments, which complied with special '451 of the Westchester Administrative Code but not with '239-m were valid because the Westchester Code was enacted pursuant to section 40 of the Municipal Home Rule law, which allowed to Code to trump the state statute. 80 AD.2d 823 (1981).

Planning Board Members Not Disqualified

Matter of Eadie v. Town Board

NYLJ 1/17/08, p. 26, col. 1

AppDiv, Third Dept. (Opinion by Cardona, J.)

In an article 78 proceeding brought by neighbors challenging the planning board's issuance of a negative declaration under SEQRA and approving a site plan, neighbors appealed from the Supreme Court's dismissal of the petition. The Appellate Division affirmed, rejecting the argument that the vote of two members of the planning board were invalid.

Landowner sought to rezone property to build a retail shopping center. The Town Board modified the zoning code to include a new category of 'planned commercial' land use, and landowner then applied for site plan review of its project. The town planning board designated itself lead agency for SEQRA purposes, conducted public hearings, and agreed that unresolved issues would be addressed during a meeting scheduled for Jan. 9, 2006. In December, the town attorney resigned and the town board appointed her and another member to the planning board, both by a 3-2 vote. On Jan. 2, 2006, the town board, whose composition had changed as a result of the November elections, attempted to cancel the Jan. 9 planning board meeting, and to vacate the appointments of the two newly appointed planning board members, substituting new appointees. Landowner then sought to void the town board's actions vacating the appointments and canceling the meeting, and the Court issued a temporary restraining order requiring that the Jan. 9 meeting be conducted as scheduled, with the participation of the members appointed by the prior town board. The Planning Board met on Jan. 9, issued a negative declaration under SEQRA, and, by a vote of 5-1, approved the site plan application. Neighbors then brought this article 78 proceeding. The Court dismissed the proceeding and neighbors appealed.

In affirming, the Appellate Division first held that even if the planning board members appointed in December 2005 had not been legally appointed (because the positions had not been legally vacated), the Court order clothed their votes with 'color of authority.' The court then rejected neighbors' argument that the votes of the disputed members should be vacated for a conflict of interest because they had previously expressed favorable views with respect to retail development in the town. The court noted that neither member stood to gain any financial or proprietary benefit from the planning board's consideration of the project, and that there was no basis for annulling their votes. Finally, the court rejected neighbors' contention that the planning board had violated SEQRA by failing to have applicant prepare a supplemental environmental impact statement before approving the site plan. The court concluded that because the generic environmental impact statement prepared for the planning board adequately addressed traffic impact, there was no need for a supplemental environmental impact statement.

COMMENT

A conflict of interest invalidates the vote of a planning board member where the board member has a substantial financial interest in the decision before the board. Thus, in the Matter of Tuxedo Conservation & Taxpayers Ass'n v. Town Bd. of Tuxedo, 69 A.D. 2d 320, the court held that the Town Board's approval of a two hundred million dollar development project was invalid because the decisive vote was cast by a Board member who was likely to receive substantial financial gain by approval of the developer's project. The Board member was a vice president of an advertising agency that handled the account of the corporation that owned the developer's company. If the developer's application was approved, the Board member's advertising agency would likely obtain all the advertising contracts for the project.

Where a board member is an employee of a company that submits an application to the Board, the financial interest is direct enough to invalidate the board member's vote. In the Matter of Zagoreos v. Conklin, 109 A.D. 2d 281, Orange and Rockland Utilities sought to obtain municipal approval for construction of several structures. The court held that the Zoning Board's approval of the permit was invalid because the votes granting approval were cast by Zoning Board members who were employees of Orange and Rockland Utilities.

If the board member did not have a financial stake in the outcome of the board's decision, prior business dealings with the applicant do not require invalidating the vote of the board member. Matter of Parker v. Town of Gardiner Planning Bd., 184 A.D. 2d 937, lv denied 80 N.Y. 2d 761. In Parker, the petitioners contended that the Planning Board Chairperson should not have been permitted to vote on the application for a proposed subdivision because during the three years preceding the Board's vote on the application, the Chairperson's company had sold products to the applicant's company. The court determined that the Chairperson's prior financial dealings with the principal did not establish a conflict of interest because the financial interest amounted to, at most, 15% of his company's gross sales, and was unlikely to influence the Chairperson's judgment.

A prior statement of personal opinion does not invalidate the vote of a planning board member. Thus, in the Matter of Segalla v. Planning Bd. of the Town of Amenia, 204 A.D. 2d 332, the court concluded that a Board member's prior statement at a public hearing did not constitute a conflict of interest because it only involved personal opinion rather than financial interest and therefore, the court upheld the Planning Board's action. The petitioners had contended that the Board member's vote on the Master Plan was invalid because prior to being elected to the Board he had spoken publicly in opposition to including a particular zone in the Master Plan.

Code Amendment Subject to Supermajority Requirement

Annabi v. City Council

NYLJ 2/4/08, p. 29, col. 2

AppDiv, Second Dept. (3-1 decision; majority memorandum; dissenting memorandum by Lifson, J.)

The City of Yonkers and its City Council appealed from the Supreme Court's grant of a judgment declaring an amendment to the City's Code invalid for failure to comply with General Municipal Law section 239-m, which requires supermajority approval of zoning amendments that affect real property within 500 feet of a municipal boundary. The Appellate Division affirmed, holding that an amendment to the code, which would eliminate the supermajority requirement was itself subject to that requirement.

A developer proposed an 81.4-acre mixed-use project within the City of Yonkers. The project would have required a zoning amendment. General Municipal Law section 239-m provides that when a zoning amendment affects real property within 500 feet of a municipal border, the amendment requires referral to a county planning board. When the county planning board recommends disapproval of such an amendment, approval requires the vote of a majority plus one in the municipality's legislative body. When the proposed amendment in this case was referred to the Westchester County Planning Board, that board recommended disapproval or substantial modification of the project, citing inability of roads in the area to accommodate the increased traffic the project would generate. The County Planning Board communicated that approval to the City Council. The City Council then voted, 4-3, to amend its zoning ordinance to eliminate the supermajority requirement. That vote was taken without a public hearing, and without referral to the County Planning Board. Landowners and the county brought separate actions to declare the amendment invalid, and Supreme Court issued a declaratory judgment invalidating the amendment. The City of Yonkers appealed.

In affirming, the Appellate Division majority held that the challenged zoning amendment resulted in a change in the regulations applying to all real property within the city, and therefore necessarily changed the zoning regulations applicable to real property within 500 feet of the city's boundary. As a result, the court held that section 239-m required referral of the amendment to the County Planning Board, and the city's failure to refer constituted a jurisdictional defect, which required invalidation of the amendment. Justice Lifson, dissenting, argued first, that procedural changes to the zoning ordinance did not fall within the scope of General Municipal Law section 239-m, and second, that section 239-m was superseded by the Westchester County Administrative Code, which indicated that the county's power to review was limited to changes in the use of specific property.

COMMENT

General Municipal Law '239-m requires a municipal board to refer any amendments affecting real property within 500 feet of the municipal border to the county board for comment; if the board disapproves or rejects a proposed amendment, the municipal board needs a supermajority to override the county board's decision. The Second Department has held that the statute applies to municipal legislation that applies across the board to all land within the municipality's borders. Thus, in Burchetta v. Town Board of Carmel, 167 AD.2d 339 (1990) the court invalidated a proposed regulation that applied to all real property within the municipality, observing that the regulation necessarily included property located within 500 feet of the municipal border and thus fell within the statutory framework of '239-m. Similarly, in Matter of Roanoke Sand & Gravel v. Town of Brookhaven, 24 AD.3d 783 (2005), the court held that a general moratorium on the acceptance and review of site plan applications constituted an action requiring referral under the statute . ( See also Caruso v. Town of Oyster Bay, 172 Misc.2d 93 (1997), where a moratorium on the review and issuance of building permits was deemed an action requiring referral to the county planning board under '239-m .)

The municipal legislation in Burchetta, Roanoke, and Caruso involved substantive restrictions on land use. Justice Lifson, dissenting in Annabi, suggested that those cases, and section 239-m, were inapplicable to amendments to local procedures. He also noted that in a number of cases, courts have concluded that the Westchester County Code has superseded section 239-m. The state legislature enacted a number of the provisions in that code as special laws pursuant to section 2(12) of the Municipal Home Rule law, and in several cases, courts have held that a 'special' law supersedes the 'general' provisions of section 239-m. Thus, in 208 East 30th Street, the Second Department held that '277.61 of the Westchester County Code, trumped the conflicting '239-m . 208 East 30th Street Corp. v. Town of North Salem, 88 A.D.2d 281 (2d Dept. 1982). And in Bloom v. Town Board of Yorktown, the Second Department held that two zoning amendments, which complied with special '451 of the Westchester Administrative Code but not with '239-m were valid because the Westchester Code was enacted pursuant to section 40 of the Municipal Home Rule law, which allowed to Code to trump the state statute. 80 AD.2d 823 (1981).

Planning Board Members Not Disqualified

Matter of Eadie v. Town Board

NYLJ 1/17/08, p. 26, col. 1

AppDiv, Third Dept. (Opinion by Cardona, J.)

In an article 78 proceeding brought by neighbors challenging the planning board's issuance of a negative declaration under SEQRA and approving a site plan, neighbors appealed from the Supreme Court's dismissal of the petition. The Appellate Division affirmed, rejecting the argument that the vote of two members of the planning board were invalid.

Landowner sought to rezone property to build a retail shopping center. The Town Board modified the zoning code to include a new category of 'planned commercial' land use, and landowner then applied for site plan review of its project. The town planning board designated itself lead agency for SEQRA purposes, conducted public hearings, and agreed that unresolved issues would be addressed during a meeting scheduled for Jan. 9, 2006. In December, the town attorney resigned and the town board appointed her and another member to the planning board, both by a 3-2 vote. On Jan. 2, 2006, the town board, whose composition had changed as a result of the November elections, attempted to cancel the Jan. 9 planning board meeting, and to vacate the appointments of the two newly appointed planning board members, substituting new appointees. Landowner then sought to void the town board's actions vacating the appointments and canceling the meeting, and the Court issued a temporary restraining order requiring that the Jan. 9 meeting be conducted as scheduled, with the participation of the members appointed by the prior town board. The Planning Board met on Jan. 9, issued a negative declaration under SEQRA, and, by a vote of 5-1, approved the site plan application. Neighbors then brought this article 78 proceeding. The Court dismissed the proceeding and neighbors appealed.

In affirming, the Appellate Division first held that even if the planning board members appointed in December 2005 had not been legally appointed (because the positions had not been legally vacated), the Court order clothed their votes with 'color of authority.' The court then rejected neighbors' argument that the votes of the disputed members should be vacated for a conflict of interest because they had previously expressed favorable views with respect to retail development in the town. The court noted that neither member stood to gain any financial or proprietary benefit from the planning board's consideration of the project, and that there was no basis for annulling their votes. Finally, the court rejected neighbors' contention that the planning board had violated SEQRA by failing to have applicant prepare a supplemental environmental impact statement before approving the site plan. The court concluded that because the generic environmental impact statement prepared for the planning board adequately addressed traffic impact, there was no need for a supplemental environmental impact statement.

COMMENT

A conflict of interest invalidates the vote of a planning board member where the board member has a substantial financial interest in the decision before the board. Thus, in the Matter of Tuxedo Conservation & Taxpayers Ass'n v. Town Bd. of Tuxedo, 69 A.D. 2d 320, the court held that the Town Board's approval of a two hundred million dollar development project was invalid because the decisive vote was cast by a Board member who was likely to receive substantial financial gain by approval of the developer's project. The Board member was a vice president of an advertising agency that handled the account of the corporation that owned the developer's company. If the developer's application was approved, the Board member's advertising agency would likely obtain all the advertising contracts for the project.

Where a board member is an employee of a company that submits an application to the Board, the financial interest is direct enough to invalidate the board member's vote. In the Matter of Zagoreos v. Conklin, 109 A.D. 2d 281, Orange and Rockland Utilities sought to obtain municipal approval for construction of several structures. The court held that the Zoning Board's approval of the permit was invalid because the votes granting approval were cast by Zoning Board members who were employees of Orange and Rockland Utilities.

If the board member did not have a financial stake in the outcome of the board's decision, prior business dealings with the applicant do not require invalidating the vote of the board member. Matter of Parker v. Town of Gardiner Planning Bd., 184 A.D. 2d 937, lv denied 80 N.Y. 2d 761 . In Parker, the petitioners contended that the Planning Board Chairperson should not have been permitted to vote on the application for a proposed subdivision because during the three years preceding the Board's vote on the application, the Chairperson's company had sold products to the applicant's company. The court determined that the Chairperson's prior financial dealings with the principal did not establish a conflict of interest because the financial interest amounted to, at most, 15% of his company's gross sales, and was unlikely to influence the Chairperson's judgment.

A prior statement of personal opinion does not invalidate the vote of a planning board member. Thus, in the Matter of Segalla v. Planning Bd. of the Town of Amenia, 204 A.D. 2d 332, the court concluded that a Board member's prior statement at a public hearing did not constitute a conflict of interest because it only involved personal opinion rather than financial interest and therefore, the court upheld the Planning Board's action. The petitioners had contended that the Board member's vote on the Master Plan was invalid because prior to being elected to the Board he had spoken publicly in opposition to including a particular zone in the Master Plan.