Town of East Fishkill Defeats Zoning Challenge

In a decision dated January 7, 2019, the New York Supreme Court, Dutchess County, dismissed a lawsuit challenging the Town of East Fishkill’s 2012 zoning code amendment allowing for remediation and redevelopment of former gas station properties in accordance with the bulk conditions that previously existed on the properties, without need for a special permit from the Town Zoning Board of Appeals. The goals of the amendment were not only to encourage economic revitalization along the Town’s main traffic corridors and to improve community character, but also to reduce environmental risks and improve environmental quality. The specific property at issue in the litigation, the former Thew Garage site located at 1071 Route 82, is one of the sites in the Town eligible for such remediation and redevelopment. The hybrid Article 78-declaratory judgment action was brought by Town residents and a business against the Town and Town Board, which were represented by Sive, Paget & Riesel.

The Honorable Christi J. Acker found that the 2012 amendment was not an instance of unlawful spot zoning. First, the 2012 amendment did not single out certain parcels for a use classification totally different from that of the surrounding areas, given the commercial nature of the locations of former gas station properties. For example, the subject property is located on a commercial section of Route 82, adjacent to the on-ramp to the Taconic State Parkway and across the street from a strip mall. Second, the court affirmed well-established case law that a zoning change affecting only one property does not, without more, constitute impermissible spot zoning. In any event, the 2012 amendment applied not just to the subject property but to the entire Town, and multiple other properties had already been remediated and redeveloped pursuant to the amendment by 2018. Finally, the court found that the petitioner-plaintiffs did not meet their burden of demonstrating that the 2012 amendment was in clear conflict with the Town’s comprehensive planning.

Justice Acker also found that the 2012 amendment was not adopted in violation of New York Municipal Home Rule Law (“MHRL”) § 22, which prohibits local laws from superseding any provision of a state statute unless the intention to do so is specified in certain terms within the local law. The petitioner-plaintiffs argued that the Town Board’s 2012 amendment superseded certain New York Town Law provisions granting zoning boards the authority to issue variances. The court found that the 2012 amendment did not supersede the Town Law because it did not grant a variance. Rather, it changed what can be developed as of right under the zoning code, without a special permit or variance—an action within the Town Board’s authority.

For additional information, contact Daniel Riesel or Alexis Saba