Daily Archives: February 6, 2008

A race to the statute books?

[This is the last in my 4-part series of articles examining the history of the Gateway District and the implications of that history for our current Big Box battle.]

If the Geneseo Town Planning Board and Geneseo Town Board approve Newman Development Group’s Big Box plans, the 25 acre parcel at the northeast corner of 20A and Volunteer Road will be rezoned as a Planned Development District.

At that point, the legal question as to whether that rezoning is permissible will become ripe. The central issue to be considered in evaluating the appropriateness of that rezoning, or of any rezoning, is whether it was done in accordance with the planning of a particular community. That “planning,” the courts have ruled, includes not only the Comprehensive Master Plan of a community, if it has one, but also all other planning and zoning deliberations and documents that have been produced.

The legal logic here is strong: zoning cannot be changed to suit the whim or the latest scheme of policymakers, landowners, or developers. Rather, any changes must be in furtherance of a community’s vision. Zoning, therefore, can change only when that vision changes.

In the landmark 1968 case of Udell v. Haas, the New York Court of Appeals coined a phrase to describe rezoning done wrong. Municipalities, it ruled, cannot “race to the statute books” to change their zoning when a particular opportunity presents itself.

At issue in that case was a decision of the Village of Lake Success Board of Trustees to change a particular zoning district from business to residential A recommendation for such a change was made on the same day that a developer submitted an application for a commercial development the Board viewed as undesirable. The zoning change was enacted a month or so later.

In ruling against the zoning change, the Court stated that it “was not the result of a deliberate change in community policy, but was enacted without sufficient forethought or planning, and was not supported by any particular conditions existing in the area. This race to the statute books was not in accord with sound zoning principles….”

The parallels between Lake Success and Geneseo are close, though not perfect. The first public discussion of a PDD law occurred at the Town Board meeting of March 24, 2005, the same meeting at which Newman’s Big Box plans were unveiled. The PDD law was enacted less than four months later, over public opposition and the opposition of the Town Planning Board. Newman’s proposal could not have been considered without the PDD law.

Though the Town might argue that the surrounding land uses support Big Boxes in the Gateway, earlier articles in this series have clearly demonstrated that it was precisely those surrounding uses that the Town sought to avoid in the Gateway. The planning and zoning for the Gateway are explicit in their opposition to Big Boxes, their concern about traffic, sprawl, and 20A frontage development, and their view of the Gateway as a transitional zone between the intensive retail of the Village and the rural character of the Town.

No previous or subsequent laws, policies, or official pronouncements of the Board have withdrawn the stated concerns about traffic or the express opposition to Big Boxes in the Gateway. No evidence has been collected or presented to suggest those concerns are invalid or that Big Boxes are somehow now needed. Even the passage of the PDD law, the occasion for making statements about a new vision for the Gateway, was accompanied by little more than platitudes about flexibility.

Whether or not the Town laid the necessary foundation for enacting PDD zoning and, should it happen, rezoning the Gateway, cannot be said with certainty at this point.

However, insert “PDD law” for “ordinance No. 60” and what the Court wrote about Lake Success bears a close resemblance to Geneseo’s recent history: “This history of ordinance No. 60 must immediately raise doubts whether this race to the statute books was in accord with sound zoning principles or was a subversion of them for the process by which a zoning revision is carried out is important in determining the validity of a particular action taken.”