Posted by: Patricia Salkin | November 27, 2009

City Exempt from Its Own Zoning Regulations

In 2001, the City of Saratoga Springs (NY) created an investigatory task force to study the feasibility of creating an indoor recreational facility.  The site initially chosen was replaced with a second site in 2008, which was property owned by the City.  The City declared it would be the lead agency for purposes of environmental review and following such review, the City issued a negative declaration under the State Environmental Quality Review Act (SEQRA).  Thereafter, the planning board issued site plan approval, sparking a challenge by adjacent property owners who alleged, among other things, that the City failed to take the required “hard look” under SEQRA and that the City Council violated the City’s zoning ordinance.

Initially the trial court issued a temporary restraining order preventing the City from moving forward on the construction, but after finding in favor of the City, the order was vacated and the petitioners appealed.  The appellate court affirmed,  In quickly dismissing the City’s claim that the petitioners failed to stay the construction pending the appeal, the Court noted that the City’s construction had not proceeded beyond the point where it could not be “readily undone, without undue hardship,” noting that only six months had transpired and that the project was not neither near completion nor substantially completed.  The Court further found that the City did take the required hard look under SEQRA.

With respect to the claim that the City violated its own zoning ordinance by not obtaining approval from the City’s own zoning board of appeals, the Court noted that the zoning ordinance provides in relevant part that zoning board approval is not required by any action “proposed by any agency, department, branch or division of New York State…which involves the exercise of direct governmental function, consistent with the purposes and jurisdiction of such agency, department branch or division of the New York State.”  In agreeing with the trial court, the appeals court held that the City constitutes a political subdivision of the State and was therefore exempt from the requirements of its own zoning ordinance. 

Mirabile v. City of Saratoga Springs, 2009 WL 3763822 (N.Y.A.D. 3 Dept. 11/12/2009).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2009/506902.pdf


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