Gernatt Asphalt Products, Inc. v. Town of Sardinia

Decision Date28 March 1996
Citation642 N.Y.S.2d 164,664 N.E.2d 1226,87 N.Y.2d 668
Parties, 664 N.E.2d 1226 In the Matter of GERNATT ASPHALT PRODUCTS, INC., Respondent, v. TOWN OF SARDINIA et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

David J. Seeger, Buffalo, and DiFilippo, Bennett & Daumen, East Aurora (Anthony DiFilippo, III, of counsel), for appellants.

Saperston & Day, P.C., Rochester (Gary J. O'Donnell, Frank T. Gaglione and Eric A. Fitzgerald, of counsel), for respondent.


SIMONS, Judge.

Petitioner challenges the legality of amendments to the Town of Sardinia's Zoning Ordinance which eliminated mining as a permitted use throughout the Town. The principal issues presented are whether: (1) the Town violated various statutory provisions relating to referral and public notice of the amendments when it enacted some but not all of the amendments that were proposed; (2) the New York State Mined Land Reclamation Law supersedes the Town's authority to amend its Zoning Ordinance in a manner that eliminates mining as a permitted use throughout the Town; and (3) the Town's action constituted impermissible exclusionary zoning. Also presented are secondary issues regarding the Town's compliance with procedures mandated by the State Environmental Quality Review Act (SEQRA) and the open meetings provisions of the Public Officers Law.

The Town of Sardinia is a small rural community located in western New York. Farming is the economic mainstay but it is rich in deposits of extractable minerals. Eight mines, covering over 600 acres, are presently located within the Town. These mining uses were lawful under the Town Zoning Ordinance adopted in 1969, which permitted mining in all R-A districts and, by incorporation, in all other districts in the Town. Town Board approval of a mining site was required, however, and approval was conditioned on consideration of the possible nuisance to neighbors of the proposed site and the miner's plan to restore the land after mining operations ceased.

Petitioner Gernatt has conducted mining operations at several sites within the Town for many years and presently owns three operating mines. In 1989, it acquired a 400-acre parcel of land known as the Gabel Thomas property. It has applied to the Department of Environmental Conservation (DEC) for the necessary State permit to mine the site but has not yet received one. Following petitioner's purchase of the Gabel Thomas site, the Town became concerned about the effect its development might have on this rural community, and took a number of steps to regulate the expansion of mining within its borders.

This litigation focuses on three ordinances introduced by the Town Board at its meeting August 18, 1993. The first two were adopted. Section 6.02(A)(5) of the existing Zoning Ordinance made quarries, clay, sand and gravel pits permitted uses in R-A districts, and the first ordinance adopted at the August meeting repealed that section. The second ordinance repealed section 7.07 which required approval of the Town Board to excavate. The third proposal, which designated quarries, clay, sand and gravel pits as specially permitted uses but only at sites currently authorized by DEC, was tabled for further study.

It is important to note three points about the Town's actions and the three proposed amendments: (1) the amendments as enacted did not prohibit or terminate existing mining operations throughout the Town--they continued as lawful, but nonconforming uses; (2) the only functional difference between the amendments as proposed and as enacted is the legal status of currently operating mines: while mining on existing sites is now a nonconforming use under the Town's Zoning Ordinance, had the amendments been adopted as proposed mining on existing sites would have been a specially permitted use; 1 and (3) even if all three proposed amendments had been enacted, new mining would not have been permitted in the Town, because proposed section 7.07 authorized special permits only for mining sites permitted by the DEC at the time the legislation was enacted.

Petitioner instituted this special proceeding seeking to annul the Board's adoption of the "repealer" amendments and to enjoin the Town from enforcing the nonconforming use provision of its Zoning Ordinance. It asserted nine causes of action and several grounds of illegality. Converting the proceeding to an action for declaratory judgment, Supreme Court rejected each of petitioner's claims and declared that the amendments had been validly enacted. On appeal, the Appellate Division concluded that because the amendments as adopted were different from the amendments as proposed, the notice and referral requirements of the Town Law, the General Municipal Law and Sardinia Town Ordinance § 12.01 were not satisfied. The Court further held that the adopted amendments were inconsistent with and preempted by the New York State Mined Land Reclamation Law, that the Town had engaged in unconstitutional exclusionary zoning and that the amendments had not been enacted in accordance with a comprehensive plan. The Appellate Division determined further that petitioner had standing to challenge the amendments as violative of SEQRA and that the Town had failed to comply with SEQRA, and it also concluded that the Town violated the Open Meetings Law.

We consider each of these grounds separately and, for the reasons that follow, we reverse the order of the Appellate Division.

I. Notice and Referral Requirements

Town Law § 264(1) and § 265(1) require a town board to give the public at least 10 days' notice of the time and place of the public hearing at which proposed amendments to a local zoning ordinance will be discussed so that those interested in the amendments may attend and participate in the hearing. To facilitate regional review of amendments to a local zoning ordinance, General Municipal Law § 239-m requires the local municipality to refer its proposed amendments to the county planning board. In addition, the Town of Sardinia Zoning Ordinance requires the Town Board to submit any proposed amendments to the Town Planning Board for its report and recommendation. Petitioner contends that the Town Board failed to comply with each of these notice and referral provisions.

After notifying abutting municipalities and publishing notice of the public hearing regarding the proposed amendments, and referring the proposed amendments to the Erie County Department of Environment and Planning, which responded with "no recommendation," and the Town Planning Board, which recommended adoption of the amendments, a public hearing and Town Board meeting were held on August 18, 1993. The hearing was well attended and lively, with substantial opposition to the amendments voiced by petitioner's representatives and others with interests in the mining industry and support for the legislation voiced by several residents of the community.

After the hearing ended, the Town Board convened its meeting to consider the proposed amendments. In light of comments made during the public hearing, Town Counsel suggested that the Board move into executive session. When the Board emerged from the executive session some 25 minutes later, the Town Supervisor announced that they had discussed "current and potential litigation." Counsel then recommended that the Board adopt the first two of the proposed zoning amendments (those repealing section 6.02[A][5] and 7.07) and table consideration of proposed section 7.07 establishing mining as a specially permitted use. The Board did so. To date, proposed section 7.07 has not been adopted by the Sardinia Town Board.

Petitioner's position is that the Town Board was required to enact either all or none of the three proposed amendments included in the public notice, or to renotice and rerefer the proposed amendments once it had determined to enact only two of them. It does not allege any procedural noncompliance with the notice or referral provisions, but contends that the substance of the notice and referrals actually given by the Town Board was inadequate because the recipients were alerted only that mining was to be changed from a permitted use throughout the Town to a specially permitted use, not that it would become a nonconforming use. 2

The public notice required by Town Law §§ 264 and 265 is notice of "the time and place" of the hearing in order that "the public shall have an opportunity to be heard" (Town Law § 264[1]; see also, Town Law § 130 [notice of action upon local ordinances must "in general terms describ(e) the proposed ordinance"]. The sufficiency of the notice is tested by whether it fairly apprises the public of the fundamental character of the proposed zoning change. It should not mislead interested parties into foregoing attendance at the public hearing (see generally, 1 Rathkopf, Zoning and Planning § 10.04).

A notice that describes the proposed change with reasonable precision will satisfy these purposes of the notice requirement (see, Coutant v. Town of Poughkeepsie, 69 A.D.2d 506, 510-512, 419 N.Y.S.2d 148; cf., Matter of Gardiner v. Lo Grande, 92 A.D.2d 611, 459 N.Y.S.2d 804, affd on other grounds 60 N.Y.2d 673, 468 N.Y.S.2d 104, 455 N.E.2d 663). When events subsequent to the publication of notice lead to an amendment that is substantially different from that which was noticed, new notice and opportunity to be heard may be required (Village of Mill Neck v. Nolan, 259 N.Y. 596, 182 N.E. 196; see, e.g., Callanan Rd. Improvement Co. v. Town of Newburgh, 6 Misc.2d 1071, 167 N.Y.S.2d 780, affd 5 A.D.2d 1003, 173 N.Y.S.2d 780). However, where the amendment as adopted is embraced within the public notice, the notice has satisfied its purpose of alerting the public to potential and contemplated revisions of the local ordinance, and the notice will generally be deemed sufficient (see, Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 10-11, 390 N.Y.S.2d 827, 359 N.E.2d 337).

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