Gernatt Asphalt Products, Inc. v. Town of Sardinia

• Decision Date: 03 February 1995
• Parties: Matter of GERNATT ASPHALT PRODUCTS, INC., Appellant, v. The TOWN OF SARDINIA, Philip D. Feraldi, Supervisor, Town of Sardinia, Gerard F. Bockhahn, Audrey M. Reidel, Walter F. Schiener, Jr., and Betty A. Wiedemann, Constituting the Town Board of the Town of Sardinia, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 395

622 N.Y.S.2d 395

208 A.D.2d 139

Matter of GERNATT ASPHALT PRODUCTS, INC., Appellant, v. The TOWN OF SARDINIA, Philip D. Feraldi, Supervisor, Town of Sardinia, Gerard F. Bockhahn, Audrey M. Reidel, Walter F Schiener, Jr., and Betty A. Wiedemann, Constituting the Town Board of the Town of Sardinia, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 3, 1995.

Devorsetz, Stinziano, Gilberti, Heintz & Smith, P.C., Laurel J. Eveleigh, William J. Gilberti and Patricia A. Serventi; and Hancock & Estabrook, by Stewart Hancock, Jr., Syracuse, for appellant.

David J. Seeger, Buffalo and DiFilippo, Bennett & Dauman, Anthony DiFilippo, III, East Aurora, for respondents.

Before GREEN, J.P., and BALIO, FALLON, CALLAHAN and BOEHM, JJ.

FALLON, Justice:

Petitioner, Gernatt Asphalt Products, Inc. (Gernatt), appeals from a judgment of Supreme Court that converted its CPLR article 78 proceeding seeking to annul amendments to the Town of Sardinia Zoning Ordinance to an action for declaratory judgment and declared that the aforesaid amendments had been validly and constitutionally enacted.

Gernatt contends on appeal that respondents (Town) improperly adopted those amendments to the Zoning Ordinance because they were different from the proposed amendments, thereby violating the notice requirements of Town Law §§ 264 and 265, and the reference requirements of General Municipal Law §§ 239-l and 239-m and Town of Sardinia Zoning Ordinance § 12.01. Gernatt further contends that the Town violated the Open Meetings Law (Public Officers Law §§ 100-111) and the State Environmental Quality Review Act (SEQRA) (ECL 8-0101--8-0117; 6 NYCRR part 617). Gernatt contends that the amendments to the Zoning Ordinance are superseded by and inconsistent with the Mined Land Reclamation Law (MLRL) (ECL 23-2701--23-2723; 6 NYCRR parts 420-426), are a departure from the comprehensive plan of the Town, and are unconstitutional exclusionary zoning.

Gernatt has mined in the Town of Sardinia for approximately 20 years. It currently has several operating mines. In 1989 Gernatt purchased certain property known as "Gabel Thomas" and applied to the Department of Environmental Conservation (DEC) for a permit to mine the land. In August 1993 the Town amended its Zoning Ordinance to prohibit mining everywhere within the Town and relegated presently operating mines to nonconforming uses of land.

Prior to August 1993 the Town allowed quarries, as well as clay, sand and gravel pits, as permitted uses in its R-A (Residential and Agricultural) Districts (Town Zoning Ordinance § 6.02[A][5]; § 7.07). On July 14, 1993, the Town Board held a meeting in response to information relating to the Gabel Thomas mining site received from GeoHydroCycle, Inc., a company specializing in groundwater investigations. The Board discussed GeoHydroCycle's report and agreed to continue to work with that company. At that meeting the Board resolved to propose certain amendments to the Zoning Ordinance and to authorize, inter alia, a duly noticed public hearing on the proposed amendments for August 18, 1993, and further resolved to schedule a duly noticed special Board meeting to be held after that public meeting.

As proposed, the amendments would repeal Town Zoning Ordinance § 6.02(A)(5) and § 7.07 and would designate as a permissible use mining permitted by a valid permit issued by the DEC pursuant to the MLRL and a special use permit issued by the Town. In July 1993 the Town gave notice to abutting municipalities and counties concerning the proposed amendments.

On July 27, 1993, the Erie County Division of Planning replied to the submission of the Town's proposed amendments by expressly making "No recommendation". On August 4, 1993, the Town Planning Board recommended the amendments. On August 5, 1993, the Town gave the public notice of the proposed amendments as well as of the time and place of the public hearing. The hearing was conducted on August 18, 1993.

After the hearing was closed, the Board opened its regular meeting to discuss the proposed amendments. At the suggestion of the Town's attorney, the Board went into executive session. When the Board reconvened its regular meeting, it resolved to accept the Environmental Assessment Form and the Negative Declaration on the proposed amendments as presented by the Town Supervisor. The Board then resolved, however, to adopt only that part of the amendments that would repeal Zoning Ordinance § 6.02(A)(5) and § 7.07 and it tabled for further discussion the remaining portion of the proposed amendments.

I. Town Law §§ 264 and 265

Under Town Law § 264(1) and § 265(1), a town may amend its zoning regulations only after a public hearing on those amendments, duly noticed in a local newspaper for at least 10 days; under Town Law § 264(2), such written notice must be served within the same time period upon the clerk of any municipality or county within 500 feet of the property to be affected by the proposed amendments. Under Town Law § 264(3), the town must also comply with General Municipal Law §§ 239-l and 239-m "relating to review by a county, metropolitan or regional planning board", as well as SEQRA and its implementing regulations, "and any other general laws relating to land use and any amendments thereto." That notice requirement imposes a high standard of clarity upon the municipality:

" ' "The notice must be clear and unambiguous. It must be readily intelligible to the intended reader, the average citizen at large" ' (Coutant v. Town of Poughkeepsie, 69 AD2d 506, 511 , citing Vizzi v. Town of Islip, 71 Misc2d 483, 485 . In passing on the sufficiency of a notice, the meaning must be ascertained through the eyes of a lay person who is presumed to lack the technical knowledge of a zoning expert. 'A purported notice which fails to adequately describe the contemplated change in zoning is not notice' (Coutant v Town of Poughkeepsie, supra, [69 A.D.2d] at p 512 ; Albright v. Town of Manlius, 34 AD2d 419, 426 . Where there is doubt as to the sufficiency of the notice, such doubt will be resolved against the notice (Paliotto v. Town of Islip, 31 Misc2d 447 , revd on other grounds 22 AD2d 930 "

(Matter of Gardiner v. Lo Grande, 92 A.D.2d 611, 612, 459 N.Y.S.2d 804, affd. 60 N.Y.2d 673, 468 N.Y.S.2d 104, 455 N.E.2d 663).

Moreover, where an enacted amendment to a zoning regulation varies substantially from that which was proposed, the enacted amendment must be declared null and void (Matter of Gardiner v. Lo Grande, supra, 92 A.D.2d at 612-613, 459 N.Y.S.2d 804; Village of Mill Neck v. Nolan, 233 App.Div. 248, 249, 251 N.Y.S. 533, affd. 259 N.Y. 596, 182 N.E. 196). That rule applies even to a situation where the enacted amendment is less restrictive than the proposed amendment upon which the public hearing was held; "[t]he power of [a town board] to amend [a zoning] ordinance is delimited by the stated purpose in the notice of hearing" such that, although "[a] slavish and technical adherence to the notice is not required", "there cannot be substantial and extensive deviations from the expressed objectives of the public hearing" (Callanan Road Improvement Co. v. Town of Newburgh, 6 Misc.2d 1071, 1072-1073, 167 N.Y.S.2d 780, affd. 5 A.D.2d 1003, 173 N.Y.S.2d 780, citing Village of Mill Neck v. Nolan, supra ). In Callanan Road Improvement, the court annulled a new zoning ordinance that banned quarrying in all but one area of the town even though the proposed ordinance would have banned quarrying throughout the town.

Here, the proposed Special Use Permit Amendments were indeed different from the adopted Prohibition of Mining Amendments. Whereas the former would have generally banned mining in the Town but for permissible uses in certain districts subject to special use permit requirements, the latter succinctly and completely banned mining throughout the Town. Accordingly, Supreme Court should have annulled the adopted amendments, inasmuch as interested parties such as Gernatt neither had proper notice of those amendments nor an opportunity to debate them at a public hearing. It was manifestly unfair for the Town to ban all new mining, including mining at Gabel Thomas when it had appeared that nonconforming uses could be maintained by special use permits.

II. General Municipal Law §§ 239-l and 239-m

General Municipal Law §§ 239-l and 239-m provide that, prior to enacting a zoning ordinance (or an amendment to a zoning ordinance, as here), the municipality must refer the proposed amendment to the County Planning Board; if the County Planning Board disapproves, a supermajority vote of the Town Board is required to enact the amendment (Baader v. Town Bd. of Town of Aurelius, 171 A.D.2d 1046, 1048, 568 N.Y.S.2d 991). The thrust of those provisions is that there be a coordinated review of the effects of the zoning change by local, county and state authorities. More than a decade ago, the Court of Appeals explained the rationale underlying the review and reporting function of a county planning agency in this context:

"The function of the statement of reasons, perhaps even to a greater extent than the ultimate recommendation, is to assure both that the members of the referring body may be informed and aided in their determination of appropriate action to be taken with respect to the zoning proposal and that the residents of the municipality, too, may have the benefit of the deliberations and conclusion of the regional planning agency in their formulation and expression of community sentiment and comment"

(Matter of Voelckers v. Guelli, 58 N.Y.2d 170, 176, 460 N.Y.S.2d 8, 446 N.E.2d 764, affg. 87 A.D.2d 1009, 450 N.Y.S.2d 249).

Indeed, the failure to refer a proposed amendment or new ordinance to the pertinent county or regional planning department is a jurisdictional defect requiring that the adoption of the proposed amendment or new ordinance be annulled (Matter of Ferrari v. Town of Penfield...