Agenda - Planning Commission - 10/05/2006

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Page 8 .:.- August 25, 2006 Z.B. Rezoning - Landowner creates buffer zone to thwart protests Only properties within 100 feet of the rezoning may complain Citation: Eddiev. Town Board of the Town of North Greenbush; Court of Appeals of New York, No. 99(2006) . NEW YORK (07/05/06) - The town of North Greenbush wanted to rezone a large area ofland to permit the landowner, Gallogly, to build a large retail development.' The zoning regulations required a "super-majority vote" if a written protest signed by the "owners of 20 percent or more of the area of land immediately adjacent to the land included in such proposed change, extending one hundred feet therefrom" was submitted. Eadie and other neighboring property owners filed a protest petition with the town. They claimed that the petition was effective because it was signed by the owners of more than 20 percent of the land located within 100 feet of the parcel affected by the rezoning. However, not all of the land in the parcel was affected by the rezoning; some of the land owned by Gallogly was not rezoned. A "buffer zone" between 200- and 400-feet wide was left between the rezoned portion of Gallogly's property and the property line. Measuring from the boundary of the rezoned area, the town determined that the protesting landowners did not own 20 percent of the land within 100 feet and, therefore, their petition was invalid. Eadie and the neighbors sued. The court ruled in favor of the town, fmding , that the complainers' property was not within 100 feet of the area to be rezoned. Eadie appealed, claiming that the 100 feet had to be measured from the boundaries of the parcel of which the rezoned area was a part. DECISION:Affinned. The 100 feet had to be measured from the boundary of the rezoned area, not the parcel of which the rezoned area was a part. The statute's language stated "land included in such proposed change," which could not be read to refer to land to which the proposed zoning change was inapplicable. Fairness and predictability were important concerns. Although this could allow landowners who obtained rezoning to insulate themselves against pro- test petitions by "buffer zoning" - in other words, leaving the zoning of a strip of property unchanged, as Gallogly did -:- there was nothing in the zoning regulations prohibiting this. The whole point of the 100-feet requirement was that, where a buffer of that distance or more existed, neighbors beyond the buffer zone were not entitled ~o force a super-majority vote. If Eadie's interpretation was the correct one, such a vote could be compelled by property owners within 100 feet of the boundary of even a'Very large parcel- even though these owners might be far away from any land that would be rezoned. @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048, 76 ( (, ( , (