Posted by: Patricia Salkin | January 12, 2018

NY Appellate Court Finds Owner Sufficiently Alleged a Cognizable Claim for Reverse Spot Zoning and Dismisses Takings Claim in Ripeness Grounds

This post was authored by Matthew Loeser, Esq.


In 2001 the Town Board adopted a comprehensive plan finding that the subject property, 530 acres of land that was vacant and enjoyed easy access to the highway, would be appropriate for mixed use resort development. The Town Board simultaneously enacted a zoning law that placed the subject property within a planned resort-office (PRO) district.  Subsequently, in 2014, after it was revealed that a large residential and commercial project was proposed for the property, the Town issues a moratorium and then amended its zoning to place the property in the Mountain Greenbelt District, where such proposed use would not be permitted.


The property owner brought combined article 78 proceeding and declaratory judgment action against the town and town board, in which petitioner challenged the rezoning of property on the basis that it: conflicted with the comprehensive plan; occurred after a deficient State Environmental Quality Review Act (SEQRA) review; and constituted illegal spot zoning. The Supreme Court of Sullivan County found the owner’s claims were not ripe for judicial review, and the owner appealed.

On appeal, Petitioner claimed that the Town Board’s decision to rezone the subject property arbitrarily disregarded the comprehensive plan’s finding that a planned resort community was appropriate for the subject property. The record reflected that the 2015 report proposed the rezoning in order to address changed conditions in keeping with the spirit of the comprehensive plan. While the court noted that municipalities are free to alter their zoning regulations, and although it was debatable whether petitioner could ultimately establish that the Town Board’s decision to change its zoning ordinance was arbitrary and unreasonable, since there was no documentary evidence to refute this allegation, the petitioner was found to have a cognizable claim.


With respect to petitioner’s regulatory takings claim, the appellate court agreed with the Court below that it was not ripe for review. Specifically, the Court found that the petitioner did not allege that is sought just compensation for the purported taking.

Petitioner next contended that the subject property was “arbitrarily singled out for different, less favorable treatment than neighboring properties in a manner that was inconsistent with a well-considered land-use plan” so as to constitute discriminatory reverse spot zoning. Specifically, citing the record, petitioner alleged that the Town Board rejected recommendations to rezone other property in a PRO district as a Mountain Greenbelt (MG) district – in which petitioner’s use would have been prohibited – and limited its exertions to the area around the subject property without explanation. The court determined that these allegations were sufficient to state a cognizable claim for reverse spot zoning.

Lastly, the record showed that in the Town Board’s review, the Town Board explained why the changes would have either positive or neutral effects on a range of concerns that included, contrary to petitioner’s allegations, housing availability and economic development.

Accordingly, the court held that because the Town Board took a hard look at the environmental impacts of the zoning changes in determining that a negative declaration was appropriate, and petitioner provided no substantive assertions to the contrary, the Supreme Court of New York properly dismissed the SEQRA claim.

WIR Associates, LLC v Town of Mamakating, 157 A.D. 3d 1040 (3 Dept. 1/4/2018)


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