Bergami v. Town Bd. of the Town of Rotterdam

• Citation: 97 A.D.3d 1018,2012 N.Y. Slip Op. 05692,949 N.Y.S.2d 245
• Parties: In the Matter of Lori BERGAMI et al., Appellants, v. TOWN BOARD OF the TOWN OF ROTTERDAM et al., Respondents.
• Decision Date: 19 July 2012
• Court: New York Supreme Court Appellate Division

97 A.D.3d 1018
949 N.Y.S.2d 245
2012 N.Y. Slip Op. 05692

In the Matter of Lori BERGAMI et al., Appellants,
v.
TOWN BOARD OF the TOWN OF ROTTERDAM et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 19, 2012.

[949 N.Y.S.2d 246]

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany (Jeffrey S. Baker of counsel), for appellants.

Katherine A. McGuirl, Schenectady, for Town Board of the Town of Rotterdam, respondent.

Donald Zee, PC, Albany (Andrew T. Brick of counsel), for Maria Iovinella and others, respondents.

Before: PETERS, P.J., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.

STEIN, J.

[97 A.D.3d 1018]Appeal from a judgment of the Supreme Court (Drago, J.), entered May 2, 2011 in Schenectady County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Town Board of the Town of Rotterdam amending its comprehensive plan to include a rezoning of certain real property.

Respondents Maria Iovinella, Robert Iovinella and Aladin Properties, LLC (hereinafter collectively referred to as Aladin) own two adjacent parcels of real property—a 2.34–acre parcel improved by a house and a barn and a one-acre vacant lot—located in the Town of Rotterdam, Schenectady County (hereinafter the subject property). Petitioners are nearby residential property owners. In December 2001, respondent Town Board of the Town of Rotterdam adopted a comprehensive plan pursuant to Town Law § 272–a that allegedly included, among other things, a change in the zoning designation for the subject property from agricultural to either industrial or light industrial.¹ However, inasmuch as the Town Board never took further legislative action to rezone the property, it remained zoned as agricultural.

In the years subsequent to the adoption of the comprehensive plan, the Town continued to examine its zoning policies and various land use studies were completed as part of the Town's efforts to implement such plan. As relevant here, the subject property was within the lands that were examined in a 2004 study—which included, among other things, the area around Exit 25A of the Thruway (hereinafter the Exit 25A study)—and was part of a proposed land use map (hereinafter the Exit 25A map) of the Exit 25A study area. The

[949 N.Y.S.2d 247]

Exit 25A map indicated that the land use zoning classification of the subject property would be changed from industrial to professional office residential[97 A.D.3d 1019](hereinafter POR),² a use which would allow professional offices to be intermingled with residential uses, so long as they are housed in existing residential structures. In February 2009, the Town Board adopted a resolution that amended the comprehensive plan to incorporate the Exit 25A study and Exit 25A map. However, once again, the Town Board did not take any further legislative action to amend the zoning of the subject property in accordance with the comprehensive plan.

In March 2009, Aladin applied to the Town Board for a change of zoning for the subject property to B–2, a general business zone.³ Thereafter, public hearings were held before the Town's planning commission, at which Aladin and others appeared. In March 2010, the Town Board adopted Resolution No. 107.10, which consisted of a negative declaration of environmental impact pursuant to the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) with regard to the rezoning. The Town Board also adopted Resolution No. 108.10, which approved the rezoning of the subject property to B–2. Petitioners then commenced this CPLR article 78 proceeding seeking to annul the Town Board's determination to amend the Town's zoning law, Exit 25A map and comprehensive plan and to set aside the Town's declaration that the rezoning had no significant effect on the environment. Supreme Court dismissed the petition and this appeal ensued.

Petitioners first claim that the rezoning of the subject property impermissibly conflicts with the Town's comprehensive plan. A town's zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, “beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful” (Matter of Rotterdam Ventures, Inc. v. Town Bd. of the Town of Rotterdam, 90 A.D.3d 1360, 1361–1362, 935 N.Y.S.2d 698 [2011];see Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, ...