Posted by: Patricia Salkin | December 21, 2018

NY Appellate Court Reverses Annulment of Rezoning Finding Notice was Sufficient

The Town of Hamburg granted an application to rezone Wetzel’s parcel of land to allow the construction of a clustered patio-home project (project).  Neighbors appealed and the Supreme Court annulled decision. The appellate court found that the court below erred in annulling the rezoning determination based on the purported failure of the Town Board to comply with Town Law § 264.  Specifically, this Section of law requires a public hearing and an opportunity to be heard with at least 10 days notice.   Here, the notice indicated it was for 29.29 acres of vacant land rather than the 24.24 acres actually under consideration The Court noted, that “The sufficiency of the notice is tested by whether it fairly apprises the public of the fundamental character of the proposed zoning change. It should not mislead interested parties into foregoing attendance at the public hearing” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 678 [1996] ).  The court said that, “Here, the notice relating to the rezoning application announced a public hearing on the adoption of an amendment to the Town’s Zoning Code with respect to a specified. We conclude, however, that the notice was sufficient and that the court therefore erred in failing to dismiss the fourth cause of action.”

Further, the Court found nothing in the record supporting the court’s conclusion that a member of the public could reasonably have been misled by the erroneous description of the acreage and thereby caused to fording the public hearing. The court also found that the record did establish that, before taking final action on the proposed rezoning, the Town Board did refer the matter to the Erie County Department of Environment and Planning (ECDEP) for review in compliance with General Municipal Law § 239–m, and the ECDEP’s failure to issue a recommendation within 30 days of “receipt of a full statement of such proposed action” permitted the Town Board to make a final determination on the rezoning application (General Municipal Law § 239–m [4][b]).

Lastly, the court agreed that petitioners failed to demonstrate that a “clear conflict” exists between the Town’s comprehensive plan and the rezoning determination.

Johnson v Town of Hamburg, 2018 WL 6714375 (NYAD 4 Dept. 12/21/2018)

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