Gernatt brought this suit to annul the board's actions and to enjoin the town from enforcing the nonconforming-use provision of its zoning ordinance. At trial, the supreme court rejected all of Gernatt's claims and found the amendments valid. The appellate division held that, "because the amendments as adopted were different from the amendments as proposed, the notice and referral requirements of the Town Law, the General Municipal Law and Sardinia Town Ordinance § 12.01 were not satisfied." Moreover, the appellate division held that "the adopted amendments were inconsistent with and preempted by the New York State Mined Land Reclamation Law [Envtl. Conserv. Law § 23-2701 (McKinney 1984)], the town had engaged in unconstitutional exclusionary zoning and . . . the amendments had not been enacted in accordance with a comprehensive plan." Finally, the appellate division concluded that "the Town had failed to comply with [the State Environmental Quality Review Act Envtl. Conserv. Law § 8-101], and ... violated the Open Meetings Law [Pub. Off. Law § 101]."
In this case, the public was advised that the repealer provisions "would eliminate mining as a permitted use anywhere within the Town of Sardinia" and that the Special Permit provision "would designate those mines . . . in operation at the time of the adoption of the new § 7.07 . . . as permissible use in the district within which they lie."
The referrals to the County Board and Town Planning Board were sufficient as well. Gen. Mun. Law § 239-l (McKinney 1986) notes the purpose of referral to the county planning board as to permit its review of and recommendation on the proposed action "as an aid in coordinating such zoning action and planning among municipalities by bringing pertinent inter-community and county wide considerations to the attention" of the municipality. Referral allows the Town Planning Board to consider municipal planning issues that may not otherwise come to the attention of the Town Board. Both the County Board and Town Planning Board were clearly notified that the effect of the amendments, both as proposed and enacted, limits mining operations in the town to currently existing mining sites.
The areas of substantive concern to both the County Board and Town Planning Board include traffic, population density, community appearance and facilities, and other matters within the domain and concern of the planning board. Gen. Mun. Law § 239-1. The difference between the amendments as proposed and as enacted was a functional difference related to the legal status of the use of currently operating mine sites. After the repeal of § § 6.02.A.5 and 7.07, currently operating mines continued to operate lawfully as newly-designated, non-conforming uses.
The supercession clause of the MLRL as originally enacted expressly superseded "all other state and local laws relating to the extractive mining industry . . . [except] local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein." Envtl. Conserv. Law § 23-2703(2) (McKinney 1984) (amended 1991). The court addressed the issue of preemption under the original MLRL in Frew Run Gravel Prods. Inc. v. Town of Carroll, 71 N.Y.2d 126 (N.Y. 1987), concluding that the MLRL did not preempt a local zoning ordinance that limited mining activities to certain zoned districts. The court in Frew Run distinguished between zoning ordinances and ordinances that merely regulate mining activities. The court further held that the MLRL was not intended to preempt zoning ordinances, because they are intended to regulate land use generally as opposed to local ordinances, which regulate mining activities directly. Gernatt.
In 1991 the supercession clause of the MLRL was amended and now reads, "[T]his title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from enacting or enforcing local zoning ordinances or laws which determine permissible uses in zoning districts." Envtl. Conserv. Law § 23-2703(2) (McKinney 1984 & Supp. 1995). Gernatt contended that the amended MLRL supercession clause preempts the amendments made to the Town of Sardinia's local zoning ordinance. The court held that the MLRL "does not preempt the Town's authority to determine that mining should not be a permitted use of land within the Town, and to enact amendments to the local zoning ordinance in accordance with that determination." The distinction in Frew Run and the amended provision of the MLRL, along with the legislative history, led the court to conclude that the Legislature did not intend for the MLRL to limit municipalities and their "broad authority to govern land use." Gernatt.
The court determined that the challenged amendments to the Sardinia Zoning Ordinance, which eliminate mining as a permitted use within the town, were constitutional under its decision in Berenson v. Town of New Castle, 38 N.Y.2d 102 (N.Y. 1975), despite their exclusionary appearance. According to the court, Berenson held that the primary goal of a zoning ordinance is to provide for the development of a balanced, cohesive community that will make efficient use of the municipality's land. The court emphasized that Berenson stands for the proposition that a community may not use its zoning power to entrench the socioeconomic status quo by preventing low income citizens from establishing residency in a municipality.
The court explained that the Berenson decision does not prohibit a municipality from using its zoning power to exclude industrial uses. Even assuming that the Berenson test applies to industrial uses, Gernatt could not complain that it suffered from impermissible exclusionary zoning. First, the amendments to the zoning ordinance did not prevent the petitioner from operating its existing mines within the municipality. Second, with respect to the amendments' prohibition against developing new mines, the court concluded that the petitioner had no vested right to have the zoning ordinance continue unadjusted. The Town Board has authority to effect zoning changes for the benefit of the community as long as it exercises its police power rationally.
Zoning in Accordance With a Comprehensive Plan
The court concluded that the challenged amendments were made in accordance with a comprehensive plan, referring to the requirement as stated in Udell v. Haas, 21 N.Y.2d 463 (N.Y. 1968), Town Law § 263 (McKinney 1987), Village Law § 7-704 (McKinney 1996), and Gen. City Law § 20(25) (McKinney 1989). The court explained that the fundamental purpose behind the requirement that zoning be conducted in accordance with a comprehensive plan is to guard against ad hoc zoning that may harm the few without proper regard to the structure of the community as a whole. Courts may discern the comprehensive plan from an examination of all evidence of a municipality's land use policies. Here, the comprehensive plan was manifested in Sardinia's zoning ordinance from its original enactment. In 1969, the town had authorized mining as a matter of right. In 1993, the town began restricting the extension of mining operations into new areas in response to environmental and other concerns about the growth of the mining industry within the municipality. This evidence verifies that the Town Board did not act irrationally or engage in ad hoc zoning. Furthermore, Gernatt did not offer any evidence that the curtailment of growth in the mining industry was contrary to the general welfare of the community or its land use policies.
The court rejected the claim that the town's SEQRA review lacks validity because it was prepared with a view toward adopting the "special permit" amendments, not the "nonconforming use" amendments ultimately adopted. The special permit provision, if enacted, would not have had independent environmental effects raised under SEQRA to the ordinance as it now exists. Thus, the court concluded that the SEQRA review conducted with respect to the special permit amendment was equally applicable to the amendments as adopted.
The court also rejected the petitioner's claim that the SEQRA review was conducted too hastily to be valid, explaining that the board's ability to conduct its review quickly does not establish its inadequacy as a matter of law. The court cited the record reflecting the Town Board's identification of relevant areas of environmental concern and its performance of the requisite "hard look" examination, noting that rapid review does not evidence caprice in cases when the action proposed offers only environmental benefits.
New York requires zoning ordinances to reflect a balanced consideration for regional housing needs. Berenson v. Town of New Castle, 38 N.Y.2d 102 (N.Y. 1975). Several other states have a similar requirement including California (Associated Home Builders v. City of Livermore, 135 Cal. Rptr. 41 (Cal. 1976)), Washington (Save a Valuable Environment (SAVE) v. City of Bothell, 576 P.2d 401 (Wash. 1978)), and New Hampshire (Britton v. Town of Chester, 595 A.2d 492 (N.H. 1991)). The Berenson test prevents a municipality from improperly using the zoning power to keep minorities or economically disadvantaged groups out of a community. This type of zoning is termed "exclusionary zoning" and is unconstitutional under Berenson. But New York does not extend this test to zoning ordinances that effect industrial uses of land.
There are very few reported cases that address the issue of whether a municipality may use its zoning power to exclude industrial uses. In Pennsylvania, however, a zoning ordinance that totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality. Beaver Gasoline Co. v. Zoning Hearing Bd., 285 A.2d 501 (Pa. 1971).
Zoning in Accordance With a Comprehensive Plan
As part of its police power, a state may enact zoning restrictions on the use of land. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). States must implement enabling legislation to grant zoning power to individual municipalities within the state. To this end, most states have enacted the Standard Zoning Enabling Act (SZEA). Under the language of the SZEA, municipalities must effect zoning legislation in accordance with a comprehensive plan.
Courts have attempted to specify what a municipality must do to create a plan. Initially, many courts took the position that a plan could be found in almost any source. Zoning ordinances themselves could constitute a comprehensive plan. Thus, towns were not required to write a separate plan, and in fact, any official plan was seen as a "non-binding guide." See, e.g., Barrie v. Kitsap County, 613 P.2d 1148 (Wash. 1980); Saenger v. Planning Comm'n, 308 A.2d 175 (Pa. Commw. Ct. 1973)). Whatever its source, a plan only needed to be reasonable. See Kozesnik v. Township of Montgomery, 131 A.2d 1 (N.J. 1957). Several states, including New York, continue to hold this view. See Udell v. Haas, 21 N.Y.2d 463 (N.Y. 1968), and Iowa Coal Mining Co. v. Monroe County, 494 N.W.2d 664 (Iowa 1993). For example, the court in the present case stated that the challenged zoning ordinances enacted by the Town of Sardinia "are, by their very nature, in accord with [a] comprehensive plan."
This view contradicts the current trend in other jurisdictions. Several courts and legislatures now require municipalities to write a separate plan prior to the creation of zoning ordinances. See Cal. Gov't Code § 65300 (West 1983), Fla. Stat. Ann. § 163.3171 (West 1990), and Machado v. Musgrove, 519 So.2d 629 (Fla. Dist. Ct. App. 1987)). In Texas, plans are no longer viewed as merely advisory; instead, any written plan is binding as law on the municipality that wrote it. Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. Ct. App. 1989).
For example, one should know the fine line between permissible and impermissible notices to the public about hearings of its concerns. In zoning, "[t]he sufficiency of the notice is tested by whether it fairly apprises the public of the fundamental character of the proposed zoning change." Id. An additional notice and opportunity to be heard is required if "events subsequent to the [initial] publication of notice lead to an amendment that is substantially different from that which was noticed." Id. Unfortunately, the court did not promulgate a method to determine the scope of legal variation from a proposed action that conforms to its fundamental character, rather than differs substantially from it. Be aware that the court did hold that a change in law resulting in a different legal status from that proposed does not necessarily fall into the latter category.
Despite the Fourteenth Amendment's characterization of corporations as persons, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985), the New York Court of Appeals does not equate business with humanity. Case law "intended to prevent a municipality from improperly using the zoning power to keep people out [does not] prevent the exclusion of industrial uses." This is especially so if the industrial use is prospective, not existing, and if the zoning law preventing new industrial uses is a rational exercise of police power.
The upside for New York businesses who wish to prevent sudden changes in zoning laws is the flexible application of the State Environmental Quality Review Act. It allows an owner of property economically harmed by a change in zoning law to bolster the effort to prevent the change if the town taking action did not ensure satisfaction of SEQRA. The attitude of the court: give a dog a bone.