Posted by: Patricia Salkin | May 31, 2009

Modifications to Proposed Zoning Amendment Based on Input From Public Hearing Do Not Require Second Hearing

Following a public hearing on proposed amendments to a local zoning ordinance, the town board made modifications to the proposed amendment based upon, in part, the Petitioner’s objections. The modifications actually made the ultimate zoning classification more favorable to the Petitioner’s interests than what was originally proposed. Generally, where changes are made to a proposed zoning amendment after the close of a required and properly noticed public hearing, a new public hearing is not required if the “amendment as adopted is embraced within the public notice,” or where the amendment ultimately adopted is not substantially different from the amendment as noticed. In this case, the Town originally noticed a rezoning of Petitioner’s property from a one acre minimum lot size to a five acre minimum lot size. Ultimately, following the public hearing, rather than the zoning amendment providing for a 5-acre minimum lot size, the Board lowered it to a 3-acre minimum requirement. The appeals court said that this action was embraced within the original notice, and that the amendment as adopted was not substantially different from the amendment as noticed. Therefore, the notice requirements of Town Law sec. 264 were satisfied. Further, the appeals court disagreed with the trial court’s interpretation of the notice requirements set forth in the Town Code. The appeals court concluded that the language does not require notice and hearing on every modification to a proposed zoning amendment made after the conclusion of the properly noticed public hearing.

Benson Point Realty v. Town of East Hampton, 2009 WL 1477642 (N.Y.A.D. 2 Dept. 5/26/2009).

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_04229.htm


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