MATTER OF YELLOW LANTERN KAMPGROUND v. Town of Cortlandville

• Decision Date: 28 November 2000
• Citation: 279 A.D.2d 6,716 N.Y.S.2d 786
• Parties: In the Matter of YELLOW LANTERN KAMPGROUND et al., Appellants,<BR>v.<BR>TOWN OF CORTLANDVILLE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

279 A.D.2d 6

716 N.Y.S.2d 786

In the Matter of YELLOW LANTERN KAMPGROUND et al., Appellants,

v.TOWN OF CORTLANDVILLE et al., Respondents.

MERCURE, J. P.

November 28, 2000.

J. Mark McQuerrey, Hoosick Falls, for appellants.

Folmer & Hartnett, Cortland (John B. Folmer of counsel), for Town of Cortlandville and another, respondents.

Bond, Schoeneck & King, L. L. P., Syracuse (Kevin M. Bernstein of counsel), for Suite-Kote Corporation, respondent.

PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ., concur.

OPINION OF THE COURT

MERCURE, J. P.

Respondent Suit-Kote Corporation (hereinafter respondent) owns three parcels of real property in the Town of Cortlandville, Cortland County. It has operated an asphalt plant on one of the parcels since the early 1960's. An over-all revision of the Zoning Ordinance of respondent Town of Cortlandville in 1968 resulted in a rezoning of the area of the Town south of Lorings Crossing Road between the Tioughnioga River and State Route 13, including respondent's property, from industrial to business. Respondent's operation has continued as a nonconforming use since that time, but appears to have increased in volume and scope under the terms of several variances granted by the Town of Cortlandville Zoning Board of Appeals.^[1] A further over-all revision of the Zoning Ordinance conducted in 1986 left intact the property's business zoning.

In November 1998, respondent made application to the Town Board for the rezoning of all three parcels from business to industrial. In that connection, respondent submitted a five-year plan for certain proposed plant modifications^[2] and also sought the Town Board's issuance of an aquifer protection district special permit and site plan approval from respondent Town Planning Board. Subsequently, the Town Planning Board referred respondent's requests to the County Planning Board. The County Planning Department thereafter recommended approval of the site plan and aquifer permit applications along with conditions, and recommended that the request for the zoning change be returned for local determination. Those recommendations were adopted by the County Planning Board on December 16, 1998. In January 1999, the Town Board declared itself the lead agency under the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) for the zoning change request and for review of the site plan and aquifer permit applications.

On February 17, 1999, the Town Board conducted a public hearing on respondent's applications. At the conclusion of the hearing, the Town Board completed part 2 of an environmental assessment form (hereinafter EAF), which classified various impacts as either small to moderate or potentially large. The Town Board did not complete part 3 of the EAF, but nonetheless issued a negative declaration upon its findings that the concerns identified in the EAF could be mitigated by respondent's compliance with the site review and aquifer permit process to be conducted in the future, as well as complying with applicable State and Federal regulations.

On February 23, 1999, the Town Planning Board held a hearing, at which it heard comments on respondent's proposal, respondent's negative impacts on the community and a possible alternative location for the plant. At the conclusion of the hearing, the Town Planning Board recommended approval of the site plan and the aquifer permit with conditions but recommended the rezoning of only the parcel upon which respondent's business was being conducted, i.e., parcel 22, consisting of 13.34 acres of land fronting on Lorings Crossing Road. On February 24, 1999, the Town Board approved the zoning change for all three of respondent's parcels except for one acre fronting on Route 13. On March 3, 1999, the Town Board conducted a hearing on respondent's aquifer permit and subsequently approved the application. The Town Board then adopted Local Laws, 1999, No. 2 of the Town of Cortlandville codifying the zoning change.

In March 1999, petitioners, a seasonal campground located on Route 13 that abuts one of the disputed parcels and its owner, commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking, inter alia, to annul the Local Law upon the grounds that the zoning change constituted impermissible "spot zoning" and that the Town Board violated SEQRA by failing to complete part 3 of the EAF and by issuing the equivalent of a conditional negative declaration. Following joinder of issue, respondent moved for summary judgment. Finding that the Town Board had complied with all applicable SEQRA requirements and that there was a rational basis for the zoning change, Supreme Court granted the motion and dismissed the petition/complaint against all respondents. Petitioners appeal.

Initially, we agree with petitioners' contention that the Town Board engaged in impermissible spot zoning in approving the zoning change. The classic definition of spot zoning, as enunciated by the Court of Appeals in the case of Rodgers v Village of Tarrytown (302 NY 115), 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 * * *, `spot zoning' is the very antithesis of planned zoning" (id., at 123-124 [citations omitted]).

Among the factors to be considered in evaluating a claim of spot zoning are "whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of professional planning staff" (Matter of Save Our Forest Coalition v City of Kingston, 246 AD2d 217, 221). No single factor is dispositive and "the ultimate test is `whether the change is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community'" (id., at 221, quoting Matter of Daniels v Van Voris, 241 AD2d 796, 799).

In this case, the Town Board engaged in no reasoned consideration of any of the foregoing factors but instead grounded its determination solely on the economic benefit the community would derive from respondent's continued, and possibly expanded, operation and its conclusion that the rezoning would not adversely affect surrounding uses because, even absent the requested rezoning, respondent would still be operating its business as a nonconforming use. As properly recognized by petitioners, that kind of reasoning would justify the transformation of substantially any nonconforming use into a conforming one by the facile device of rezoning the affected parcels. Rezoning on that basis impermissibly "rewards the nonconforming user, contravenes the strong policy intended to achieve the ultimate elimination of nonconforming uses * * * and diminishes the effectiveness of the comprehensive zoning plan" (Matter of Augenblick v Town of Cortlandt, 104 AD2d 806, 815 [Lazer, J., dissenting], revd on dissenting mem below 66 NY2d 775 [citations omitted]).

Admittedly, a decision to rezone can be motivated by a desire to promote economic development (see, Matter of Save Our Forest Coalition v...