Reaffirmation of Spot Zoning Standards

Land Use

“The power to zone is derived from the Legislature and must be exercised in the case of towns and villages in accord with a ‘comprehensive plan’  (see, Town Law § 263Village Law § 7–704) or in the case of cities in accord with a ‘well considered plan’ (General City Law § 20 [25] ).”  Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 131 (1988).  This requirement “not only insures that local authorities act for the benefit of the community as a whole but protects individuals from arbitrary restrictions on the use of their land.”  Id.  When a municipality fails to follow this requirement, the Court can invalidate a rezoning as illegal “spot zoning”.  The Court defines spot zoning as “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 [citations omitted], ‘spot zoning‘ is the very antithesis of planned zoning.”  Rodgers v. Village of Tarrytown, 302 N.Y. 115, 123 -124 (1951).  When a litigant seeks to challenge a rezoning through litigation, a common allegation is that the rezoning constituted illegal spot zoning.  Thus, many decisions have been written on this subject and the law is well established.

In a decision dated, June 27, 2012, the Appellate Division, Second Department, upheld the validity of Local Law No. 3 of 2006 (the “Local Law”) of the Village of Wesley Hills (the “Village”), which amended the Village Code to allow arborist services, landscape services, and/or wholesale nurseries to lawfully exist within the R-35 zoning district by special use permit.  Marcus v. Board of Trustees of Vil. of Wesley Hills, 2012 NY Slip Op 05175, 1.  Specifically, the Court found, inter alia, that the Local Law did not constitute illegal spot zoning based upon well established New York precedent.  See Rodgers v. Village of Tarrytown, 302 N.Y. 115 (1951).

By way of background, this case involves a property in the Village of Wesley Hills that respondents Ira Wickes and Rockland Tree Expert, Inc., doing business as Ira Wickes Arborist (“Wickes”) operate as a plant nursery and arborist business located in a residential zoning district of the Village.  Previously, Wickes and the Village had been involved in litigation over the issue of whether the use of the premises constituted a pre-existing nonconforming use.  See Wickes v. Kaplan, 304 A.D.2d 769 (2d Dept. 2003).  In that litigation, Court upheld the Village Board of Zoning Appeals’ determination that Wickes use was not a legal nonconforming use.  Thereafter, the Village and Wickes entered into a so-ordered stipulation of settlement, which provided, in relevant part, that Wickes would be permitted to continue to operate the business while the Village determined whether it was proper to enact legislation to permit the use to continue.  Marcus v. Board of Trustees of Vil. of Wesley Hills, 62 A.D.3d 799, 800 (2d Dept. 2009).  The stipulation further provided that if the Village determined it would not enact any such legislation, Wickes would wind down its business and discontinue its illegal use of the premises.  Id.

At a public meeting on June 13, 2006, the Board of Trustees of the Village adopted a resolution to enact the Local Law.  Id. at 801.

Petitioners / plaintiffs (“Petitioners”) are the owners’ residential real property near the Wickes premises, who oppose Wickes continued use of the premises as a nursery / arborist business.  Petitioners commenced the instant action, a hybrid Article 78 / Declaratory Judgment Action, to challenge the adoption of the Local Law alleging that, inter alia, the adoption constituted illegal spot zoning.  Id.

At the trial court level, the Supreme Court agreed with the Petitioners and granted the Petition finding the Local Law constituted illegal spot zoning.  However, the Supreme Court’s holding was reversed on appeal.  The Appellate Division found that the Local Law was valid and was not illegal spot zoning.  Specifically, the Court stated:

‘The Local Law [, which added] Arborist Services, Landscape Services, and/or Wholesale Nurseries’ as a special permit use within the R-35 zoning district’ (Matter of Marcus v Board of Trustees of Vil. of Wesley Hills, 62 AD3d at 801) did not allow for a use which was totally different from that allowed in the surrounding area and was in conformity with the comprehensive plan of the Village of Wesley Hills (see Rodgers v. Village of Tarrytown, 302 NY 115; Matter of Stone v. Scarpato, 285 AD2d 467). Although there is no doubt that the Local Law was adopted primarily for the benefit of the plant nursery and arborist business operated by Ira Wickes and Rockland Tree Expert, Inc., doing business as Ira Wickes Arborist (hereinafter together Wickes), zoning changes are not invalid merely because a single parcel is involved in or benefitted by said changes (see Rodgers v. Village of Tarrytown, 302 NY at 124). In any event, the Local Law applies to all parcels in the R-35 zoning district which meet certain requirements, and it is undisputed that the special permit it authorizes could be utilized by two other properties within the Village (id.). Also, there is no evidence in the record that Wickes’s use of the property in compliance with the Local Law and a special permit issued thereunder would be detrimental to owners of other properties in the area (id.).

Because the Village’s enactment of the Local Law did not fall under the long established definition of spot zoning as set forth in Rodgers v. Village of Tarrytown the Appellate Division found that the Local Law was valid and did not constitute spot zoning.  Thus, over sixty years after being decided, the Court of Appeals decision in Rodgers v. Village of Tarrytown remains controlling precedent in cases involving allegations of spot zoning.

The Appellate Division’s decision in this case can be found on the Courts website and can be accessed by clicking on the link below:

Marcus v. Board of Trustees of Vil. of Wesley Hills, 2012 NY Slip Op 05175

 

One Response to “Reaffirmation of Spot Zoning Standards”

  1. Robert B. Price Says:

    Thanks a bunch for this on-point citation. This speaks directly to an issue before the Planning Board of the Town of Knox, Albany County, NY. Our situation is almost exactly the same: a non-conforming use in a Residential District which the Town ignored for at least three years and then when it was badgered by a group of activists to legitimize the entity belated took the entity to Town Court to shut them down for being a non-conforming use.

    The Planning Board was asked to review the situation and responded that since the Town was culpable in not enforcing its own Zoning Ordinance, it should allow the use to continue with some reasonable restrictions. Whether they will accept our recommendations remains to be seen.

    Bob Price
    Chairman
    Planning Board
    Town of Knox, Albany County, NY
    518.895.8954

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