A joint Village-Town Comprehensive Plan must be completed before new zoning laws, either pro-drilling or anti-gas drilling (the principal current focus of disagreement between Village and Town board members) or any other industrial process can be approved or implemented.
Following is the John A. Coon local government technical report, recommended by the Chenango County Planning Board, explaining the rules that must be followed:
Zoning and the
JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES
NEW YORK STATE
Andrew M. Cuomo
DEPARTMENT OF STATE
Cesar A. Perales
Secretary of State
Reprint Date: 2011
NEW YORK STATE DEPARTMENT OF STATE
99 WASHINGTON AVENUE
ALBANY, NEW YORK 12231-0001
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Historical Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Early Challenges to Zoning.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
The Zoning Enabling Laws.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
In Accordance with a Comprehensive Plan.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Environmental Reviews and Zoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Spot Zoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Regional Housing and the Comprehensive Plan.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Evidence of Comprehensive Planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Adoption of a Comprehensive Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
THE COMPREHENSIVE PLAN
New York’s zoning enabling statutes (the state statutes which give cities, towns and villages the power to enact local zoning laws)1 all require that zoning laws be adopted in accordance with a comprehensive plan. The comprehensive plan should provide the backbone for the local zoning law.
To understand the power to zone, one must understand the comprehensive plan. While the State enabling laws provide both a general definition of a comprehensive plan, the adoption of a formal plan under these statutes is voluntary .
Communities that choose not to utilize the formal process provided
in the State enabling statutes must nonetheless comply with the
older, more general statutory requirement that zoning must comport
with a “comprehensive plan”. They do this by referring to the
substantial body of court decisions which historically have provided
New York’s understanding of the comprehensive plan.
This publication describes how the terms “comprehensive plan”
came into being, analyzes case law to determine how the courts
have defined the term, and explains how a formal comprehensive
plan is adopted under the enabling statutes.
In describing the historical development of zoning and the events precipitating the adoption of New
York’s first zoning enabling act, Edward M. Bassett wrote:
It may fairly be said, however, that the zoning enabling act embodied in the New
York City charter and the building zone resolution of that city constituted the first
comprehensive zoning of height, area, and use in this country.
Bassett described earlier land use regulations as having a single purpose only–such as to establish height limitations, or to prohibit certain uses.
The concept of comprehensiveness, both as to purposes and geographical scope, instead distinguished the first modern zoning laws. It was their comprehensiveness, though, that caused early proponents of zoning to fear whether those laws could withstand constitutional attack. Conversely, it was that very same comprehensiveness that ultimately protected the laws from declarations of unconstitutionality. The concept of comprehensiveness still applies, in the statutory requirement that zoning be adopted in accordance with a comprehensive (or “well considered”) plan.
Town Law §272-a
Village Law §7-722
General City Law §28-a
Early Challenges to Zoning
Common law has long recognized that certain uses of property were, or could be, so undesirable that neighboring landowners, or the community as a whole, had the right to request their termination.
Thus arose the theory of nuisance. Although governmental regulation 5 of the use of property through zoning has gone well beyond common-law nuisance, the landmark United States Supreme Court case upholding zoning, Euclid v. Ambler Realty Co., looked to traditional nuisance law as a foundation to determine whether government possessed the power to restrict the use of land by legislative act:
Thus the question whether the power exists to forbid the erection of a building of a
particular kind or for a particular use, like the question whether a particular thing is
a nuisance, is to be determined, not by an abstract consideration of the building or of
the thing considered apart, but by considering it in connection with the circumstances
and the locality….A nuisance may be merely a right thing in the wrong place, – like
a pig in the parlor instead of the barnyard. If the validity of the legislative
classification for zoning purposes be fairly debatable, the legislative judgment must
be allowed to control.
The Court looked to states’ case law and, most importantly for this analysis, to the works of planning experts of the time:
The matter of zoning has received much attention at the hands of commissions and
experts, and the results of their investigations have been set forth in comprehensive
reports. These reports, which bear every evidence of painstaking consideration,
concur in the view that the segregation of residential, business, and industrial
buildings will make it easier to provide fire apparatus suitable for the character and
intensity of the development in each section; that it will increase the safety and
security of home life; greatly tend to prevent street accidents….
If these reasons, thus summarized, do not demonstrate the wisdom or sound policy
in all respects of those restrictions which we have indicated as pertinent to the
inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it
must be said before the ordinance can be declared unconstitutional, that such
provisions are clearly arbitrary and unreasonable, having no substantial relation to the
public health, safety, morals, or general welfare.
The comprehensive scope of the City of Euclid’s zoning law was used in the Supreme Court’s decision to justify its finding of constitutionality, but the door was left open for constitutional challenge should a different community’s zoning law be found to lack a substantial relationship to public health, safety, morals or general welfare. It was left to future decisions and fact situations to provide further detail and clarity as to what that relationship really means.
The Zoning Enabling Laws
Early zoning enabling laws were fashioned with the view that zoning risked being declared
unconstitutional because it had the potential to severely limit
zealously-guarded property rights.
8 To safeguard against that outcome, the drafters required the actual regulations to be based on a logical and “comprehensive plan” for the betterment of the
whole community. The comprehensive plan was to provide the
means to connect the circumstances and the locality to the
zoning law. It was, and is, insurance that the law bears a
“reasonable relation between the end sought to be achieved by
the regulation and the means used to achieve that end.”
The comprehensive plan requirement also provided the means
to remove the planning process from immediate political
considerations and allow for more objective analysis of
community growth and need:
Inasmuch as [the zoning laws] have an intimate effect upon land they should be
framed so far as possible with the knowledge and cooperation of the landowners. The
enabling act requires preparatory procedure to make sure that the system is worked
out as a coordinated whole. This involves the appointment of a zoning commission
to prepare the proposed ordinance and zoning map, the making of a preliminary report
to the local legislative body, the holding of preliminary hearings thereon, and the
holding of a public hearing by the legislative body. The ordinary state enabling act
provides checks and precautions to prevent hasty and impulsive changes.
In Accordance with a Comprehensive Plan
In New York, the zoning enabling acts continue to require that zoning be undertaken “in accord with a well considered plan”11 or “in accordance with a comprehensive plan.”
12 Unless the town, city or village has adopted a comprehensive plan document using the more recently-enacted statutes described later herein), local officials must refer to the extensive body of case law to determine how zoning can meet the more general “comprehensive plan” requirement.
“Comprehensive” has been defined as “covering a matter under consideration completely or nearly completely: accounting for or comprehending all or virtually all pertinent considerations”.
13 “Plan” has been defined as “a method of achieving something: a way of carrying out a design:….a detailed and systematic formulation of a large-scale campaign or program of action….”
14 Put together, the words “comprehensive plan” intimate that the method proposed must be capable of being discerned and it must be inclusive. Case law has agreed.
From a planner’s perspective, a plan is inclusive and comprehensive when it addresses a wide range of planning issues, perhaps through a series of component, topic-related plans. These components could include such matters as transportation patterns and future needs, natural and built resource inventories, and population trends. From a lawyer’s point of view, the comprehensive plan is
insurance that the ordinance bears a “reasonable relation
between the end sought to be achieved by the regulation and the means
used to achieve that end.”
it is inclusive when it has been enacted after and in accordance with careful study and consideration, and when it carries out a greater purpose of the community.
A common theme in the cases interpreting the requirement that zoning be in accordance with a comprehensive plan is that the zoning law (or amendment) be carefully studied before it is enacted. In Thomas v. Town of Bedford, the New York Court of 15 Appeals upheld a rezoning from residential to research-office use, finding that it had been enacted after careful study and consultation with experts and after extensive public hearings. In another decision, Udell v. Haas, the Court of Appeals stated that “one
of the key factors” to be used by the courts in determining whether zoning is “in accordance with a comprehensive plan” is whether forethought has been given to the community’s land use issues.
The court went on to say:
Where a community, after a careful and deliberate review of “the present and
reasonably foreseeable needs of the community”, adopts a general developmental
policy for the community as a whole and amends its zoning law in accordance with
that plan, courts can have some confidence that the public interest is being served
Another court has stated:
The phrase “in accordance with a comprehensive plan” may be understood to mean
(1) conforming to a master plan, (2) broad in scope of coverage, (3) all inclusive in
control of use, height and area, or (4) internally consistent zoning based on a rational
Where a local government can show that suitable studies and deliberations preceded adoption of thezoning law amendment, the potential that a zoning action will be found to reflect comprehensive planning increases. To this end, environmental assessments and impact statements can support a conclusion that a local zoning enactment “reflected a sufficient degree of comprehensiveness of planning.”
Environmental Reviews and Zoning
The State Environmental Quality Review Act (SEQRA) requires expansive environmental review and thoughtful consideration of alternatives to governmental actions.19 Since SEQRA’s enactment in the mid-1970’s, court challenges to zoning actions have often been based both on comprehensive planning grounds as well as on grounds involving SEQRA compliance.
The process of evaluating environmental impacts under SEQRA, “affords an excellent opportunity for the local decision maker to weigh factors that courts have traditionally used in looking at whether an underlying context of comprehensive planning was maintained.”20 The adoption and amendment of zoning laws are “actions” for purposes of SEQRA.21 Prior to undertaking most actions, a government agency must determine their potential “significance” by evaluating the possible significant adverse environmental impacts the action may have.
22 If the agency determines that the action may include the potential for at least one significant adverse environmental impact, then it must require the preparation of an environmental impact statement (EIS).23 An EIS “must assemble
relevant and material facts upon which an agency’s decision is to be made. It must analyze the significant adverse impacts and evaluate all reasonable alternatives.”
Compliance with SEQRA has been defined by the courts to require that a governmental agency take a “hard look” at the record, which includes potential environmental impacts and alternative decisions, and make a “reasoned elaboration of the basis for its decision.”
25 This standard is similar to the Udell v. Haas requirement for “careful and deliberate review” as evidencing comprehensive planning (discussed above). Perhaps for this reason, the courts have upheld zoning law amendments where they have found evidence that a local legislative body studied a well-prepared EIS prior to adoption of the zoning amendment.
Perhaps the most important theme in the leading cases
interpreting the requirement that zoning be in accordance with a
comprehensive plan is the language in those cases indicating that
the courts will look to see whether zoning is for the benefit of the
whole municipality. This requirement does not, however,
preclude future zoning amendments that “respond to changed
conditions in the community…”. The question is whether the
change “conflict[s] with the fundamental land use policies and
development plans of the community … ”.
27 Against this background principle, the concept of improper “spot zoning”
Spot zoning refers to the rezoning of a parcel of land to a use
category different from the surrounding area, usually to benefit a single owner or a single
development interest. Size of the parcel is relevant, but not determinative. Illegal spot zoning occurs whenever “the change is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community. ”
A review of the relevant cases reveals that spot zoning is the antithesis of zoning undertaken in accordance with a well-considered plan. The landmark case in the field of spot zoning is Rodgers v. Village of Tarrytown,29 in which the Court of Appeals defined the rezoning of relatively small parcels of land in terms of the comprehensive planning requirement:
Thus, the relevant inquiry is not whether the particular zoning under attack consists
of areas fixed within larger areas of different use, but whether it was accomplished
for the benefit of individual owners rather than pursuant to a comprehensive plan for
the general welfare of the community”
The fact that a rezoning will benefit a landowner will not on its own invalidate the action, so long as the action accords with a comprehensive plan. But to be in accordance with the plan, the rezoning must also further some clearly identified public purpose. In Save Our Forest Action Coalition, Inc. v. City of Kingston, a 107-acre parcel within a residential district was rezoned “light industrial” in order to accommodate a local manufacturing firm and the local development corporation. The court rejected a spot zoning challenge:
The question of whether a rezoning constitutes “spot zoning” should be answered by determining whether the rezoning was done to benefit individual owners rather than
pursuant to a comprehensive plan for the general welfare of the community
Here, the primary motivation for the zoning amendment was to support local
economic development through retention of the City’s largest employer and to reap
associated economic and tax benefits in connection with the development of a
business park. The determination was made after an extensive review process,
including a consideration of the impact on adjoining residential areas, consistency
with existing zoning plans, environmental concerns and the availability of other
suitable sites….In our view, the record discloses that sufficient “forethought has been
given to the community’s land use problems”…. and that there was a “reasonable
relation” between the rezoning determination and the worthwhile goal of improving
the economic health of the community….[citations omitted].31
If the record shows that the zoning amendment seeks to accomplish valid public purposes and that “sufficient forethought” has been given it, the comprehensive plan requirement is met, even where the zoning amendment provides distinct treatment to a relatively small parcel.
If the evidence reveals that the rezoning was not enacted to benefit the community as a whole, or was enacted without regard to the community, the rezoning will fail to meet the
comprehensive plan requirement.
Regional Housing and the Comprehensive Plan
Zoning must be enacted to benefit the community, but what
constitutes a “community” when housing is at issue?
In 1975, the Court of Appeals decided the case of Berenson v.
Town of New Castle34 which broadened the concept of
comprehensive plans to include an assessment of regional housing
needs. Although the case is often cited for its impact on so-called
“exclusionary zoning” practices, the decision actually extends the
statutory mandate that zoning be in accordance with a comprehensive plan.
The zoning law in question in Berenson excluded multi-family residential housing as a permitted use in any zoning district in the town. The court recognized the right of a municipality to set up various types of use zones, with no requirement that each must contain some sort of housing balance. The court stated that its concern was not whether each zone was a balanced entity, but instead whether the municipality itself was to be “a balanced and integrated community.” The court then proceeded
to lay down a test for this determination, the first branch of which was that a “properly balanced and well-ordered plan for the community” had been provided (citing Udell v. Haas, supra). It is the second branch of the test that expands the concept of comprehensive plans, namely, whether a zoning law demonstrates that consideration is given to regional needs and requirements. The court stated that:
….There must be a balancing of the local desire to maintain the status quo within the
community and the greater public interest that regional needs be met. Although we
are aware of the traditional view that zoning acts only upon the property lying within
the zoning board’s territorial limits, it must be recognized that zoning often has a
Zoning regulations should be based on a comprehensive plan which examines the
housing needs of the community and the region 7
Substantial impact beyond the boundaries of the municipality. Thus, the court, in examining an ordinance, should take into consideration not only the general welfare
of the residents of the zoning township, but should also consider the effect of the
ordinance on the neighboring communities.
The “regional needs” portion of the Berenson decision has not been expanded beyond consideration of regional housing needs, much less does it require that a particular development project include low-income housing.
36 Instead, the question is whether the needs of both the community itself and
the region have been accommodated somewhere in the zoning law.37
Evidence of Comprehensive Planning Finally, how may a comprehensive plan be discerned? A comprehensive plan need not be a single document. It need not be a formally adopted plan.
38 Instead, the question of whether an inclusive
scheme of action exists or has been undertaken is a conclusion reached only after considering an entire complex of facts, rather than by looking for a single planning document. For instance, the courts may find evidence of a plan in the zoning law itself, if the regulations set out in the law form
a coherent pattern that furthers a land use policy that benefits the entire community.
39 In Asian Americans for Equality v. Koch, the Court of Appeals stated:
A well-considered plan need not be contained in a single document; indeed, it need not
be written at all. The court may satisfy itself that the municipality has a well-considered
plan and that authorities are acting in the public interest to further it by examining all
available and relevant evidence of the municipality’s land use policies…
Environmental reviews, environmental impact
statements, and SEQRA findings “provide a
constant source of readily identifiable considerations
by which all those involved in the planning process
can measure the background progress and effect of
land use decisions”.41 Legislative findings relating to
the adoption of a zoning law could evidence the
plan,42 as could minutes of the legislative body43 and
relevant studies.44 A previously-adopted master plan
or comprehensive plan may show evidence of
comprehensive planning.45 In Town of Bedford v.
Village of Mount Kisco the Court of Appeals held
….zoning changes must indeed be consonant
with a total planning strategy, reflecting consideration of the needs of the
community….What is mandated is that there be comprehensiveness of planning,
rather than special interest, irrational ad hocery. The obligation is support of
comprehensive planning, not slavish servitude to any particular comprehensive plan.
Indeed sound planning inherently calls for recognition of the dynamics of change
Examples of where courts have found
evidence of comprehensive planning
P a zoning law
P environmental reviews & findings
P legislative findings relating to
adoption of a law or ordinance
P minutes of the legislative body
P previously adopted plan
What must such evidence show? The “courts have required the municipal governing body to zone
in accordance with a land use policy which is in the interest of the overall community.”47 The local
governing body must show that it has given “some thought to the community’s land use problems”48
and, implicitly, must have fashioned its zoning as a regulatory means to address these problems:
The function of land regulation is to implement a plan for the future development of
the community….Its exercise is constitutional only if the restrictions are necessary to
protect the public health, safety or welfare. The requirement of a comprehensive or
well-considered plan not only insures that local authorities act for the benefit of the
community as a whole but protects individuals from arbitrary restrictions on the use
of their land…. .49
The connection between planning and regulation serves both the underlying constitutional need to
find a reasonable relationship between the ends sought to be achieved and the means chosen, as well
as the strong underlying policy concern that regulation through zoning should serve the entire
community. The “challenged zoning resolution itself need not be a well-considered plan, as long
as it is in accord with one.”50
Adoption of a Comprehensive Plan
Until the 1990’s, the court-fashioned definitions
of “comprehensive plan” alone provided
guidance to towns, villages and cities as they
drafted and enacted zoning laws. While these
definitions provide guidance in determining
whether a zoning law has a rational basis, they
do not require or allude to a particular process
for developing a plan. Recent statutory change
has filled that void.
Chapter 209 of the Laws of 1993 amended the
zoning enabling statutes to define a
“comprehensive plan” and provide an optional
process for adopting one. Under these
provisions a comprehensive plan:
….means the materials, written and /or
graphic, including but not limited to
maps, charts, studies, resolutions,
reports and other descriptive material
that identify the goals, objectives,
principles, guidelines, policies,
standards, devices and instruments for
the immediate and long-range
protection, enhancement, growth and
What may a comprehensive plan address?
• Goals, objectives and policies for the
immediate and long-range enhancement
growth and development of the
• Existing and proposed land uses, and
• Agricultural uses, historical resources,
cultural resources, natural resources,
coastal resources and sensitive
• Population, demographic and socioeconomic
• Transportation facilities
• Utilities and infrastructure
• Housing resources and needs
• Other governmental plans and regional
• Economic development;
• Proposed means to implement goals,
objectives and policies.
development of the town located outside the limits of any incorporated village or
Adoption of a comprehensive plan under the current State zoning enabling provisions is voluntary.
If a city, town or village chooses to utilize the process, the resulting plan may range from a set of
policy or vision statements to a very lengthy document composed of many subject-specific
component plans (e.g., components relating to transportation, natural resources, historic resources,
or population statistics). Once an actual plan is adopted, however, all land use regulations must be
in accordance with it. This usually means 52 (though it is not mandated) that plan adoption is
followed by the adoption of a series of zoning laws designed to “implement” the comprehensive
plan. For these communities, then, the statutory requirement that zoning be “in accordance with a
comprehensive or well-considered plan refers to the comprehensive plan pursuant to Town Law,
§272-a, Village Law, §7-722 or General City Law, §28-a, as the case may be. For those
communities which choose not to adopt a comprehensive plan pursuant to these statutes, the
traditional court-fashioned definition continues to apply. 53
A comprehensive plan may include, “at the level of detail adapted to the special requirements of the
[community],” statements of goals, objectives or policies, transportation facilities, agricultural
practices, housing resources, existing land uses, educational and cultural facilities, parklands,
economic strategies and anything else consistent with the orderly growth and development of the local government.54 While the governing board
ultimately adopts the plan, that board has several
options for the plan’s preparation: it may either prepare
the plan itself, or instead delegate that function to the
local planning board or to a “special board” created for
the purpose. If prepared by a planning board or special
board, that board must refer the proposed plan to the
Local governments considering adopting a
comprehensive plan must follow SEQRA procedures
as early in their deliberations as possible.56 Adoption
of a comprehensive plan is a “Type 1 Action” for
purposes of SEQRA review, meaning that it is an
action “more likely to require the preparation of an
EIS.”57 The local governing body, as the agency
responsible for adopting the plan, must be the “lead
agency”, and is therefore responsible for assuring and
documenting that SEQRA requirements are met.58
The board preparing the comprehensive plan must hold one or more public hearings and other
meetings, as it deems necessary, to assure full opportunity for citizen participation.59 Additionally,
the governing body must hold a public hearing on the proposed plan prior to its adoption.60
The proposed comprehensive plan must be submitted to the appropriate county or regional planning
agency for review under General Municipal Law, §239-m.61 Adopted plans and amendments are
Benefits of a comprehensive plan
P Provides a process for
resources, long range
community needs, and
commonly held goals
P Provides a process for
P Provides a blueprint for future
filed with the municipal clerk and with the county planning agency. 62 Adopted62 comprehensive
plans must be reviewed periodically by the local government that has adopted it.63
Once a comprehensive plan is adopted using the State zoning enabling statutes, all land use
regulations of the community must be consistent with the comprehensive plan. In the future, the plan
must be consulted prior to adoption or amendment of any land use regulation. In addition, other
governmental agencies that are considering capital projects on lands covered by the adopted
comprehensive plan must take the plan into consideration.64
New York requires that zoning be adopted in accordance with a well-considered or comprehensive
plan. This requirement reflects both underlying constitutional considerations and a public policy that
views zoning as a tool to plan for the future of communities. Over the years, the New York courts
have defined the comprehensive plan to be the governing body’s process of careful consideration and
forethought, resulting in zoning that is calculated to serve the community’s general welfare.
During the 1990’s the zoning enabling statutes were amended to provide a process for adoption of
a comprehensive plan–a formal planning document that can provide goals and objectives for the
community. Once the plan is adopted, the community’s land use regulations must be consistent with
it. For those communities that choose not to adopt a formal plan according to the statutes, the
requirement that zoning be “in accordance” with a comprehensive plan still applies, but the longstanding,
court-fashioned definition of comprehensive planning continues.
1. General City Law §20(25); Town Law §263; Village Law §7-704.
2. Bassett, Edward M., Zoning: The Laws, Administration, and Court Decisions During the First
Twenty Years (1940) p. 23.
3. Id. at pp. 22-23.
4. See note 1.
5. Rohan, Patrick J., Zoning and Land Use Controls (1998) §16.02.
6. Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).
7. Id., at 394.
8. See Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359, 370, fn 4 (1972), app.
dism. 409 U.S. 1003 (1972).
9. Fred F. French Investing Co., Inc. v. City of New York, 39 N.Y.2d 587, 596 (1976), app.
dism., 429 U.S. 990 (1976).
10. Bassett, supra, p. 28.
11. Gen. City Law §20(25).
12. Town Law §263; Village Law §7-704.
13. Webster’s Third New International Dictionary (Unabridged), 2002.
15. 11 N.Y.2d 428 (1962).
16. 21 N.Y.2d 463, 470 (1968).
17. Udell v. McFadyen, 40 Misc.2d 265, 267 (Sup. Ct., Nassau Co., 1963), citing Haar, In
Accordance With a Comprehensive Plan, 68 Harvard Law Review 1154.
18. Daniels v. Van Voris, 241 A.D.2d 796, 798 (3rd Dept., 1997).
19. Environmental Conservation Law, Art. 8; Title 6, Official Compilation of Codes, Rules and
Regulations of the State of New York (NYCRR) Part 617. Earlier zoning cases held, on
comprehensive planning grounds alone, that deliberate and careful consideration of proposed
zoning actions should include a review of reasonable alternatives. See Udell v. Haas, supra. See
also Northeastern Environmental Developers v. Town of Colonie, 72 A.D.2d 881 (3rd Dept.,
1979). app. dism. 49 N.Y.2d 800 (1980).
20. See Damsky, Sheldon W., SEQRA and Zoning Law’s Requirement of a Comprehensive
Plan, 46 Albany Law Review 1292, 1297 (1982).
21. 6 NYCRR §617.2(b)(3).
22. 6 NYCRR §617.7.
23. 6 NYCRR §617.7(a)(1).
24. 6 NYCRR §617.9(b)(1).
25. This is commonly referred to as the “hard look” test. See H.O.M.E.S. v. New York State
Urban Development Corp., 69 A.D.2d 222 (4th Dept., 1979) and Neville v. Koch, 173 A.D.2d 323
(1st Dept., 1991), aff’d 79 N.Y.2d 416 (1992); Matter of Jackson v. New York State Urban
Development Corp., 67 N.Y.2d 400 (1986); Akpan v. Koch, 75 N.Y.2d 561 (1990), mot. to am.
den., 76 N.Y.2d 846 (1990); Kahn v. Pasnik, 90 N.Y.2d 569 (1997).
26. See Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996);
Skenesborough Stone, Inc., v. Village of Whitehall, 254 A.D.2d 664 (3rd Dept., 1998); Akpan v.
27. Gernatt Asphalt Products, Inc. v. Town of Sardinia, supra at 685, citing Udell v. Haas,
supra at 472.
28. Collard v. Village of Flower Hill, 52 N.Y.2d 594, 600 (1981), citing Rodgers v. Village of
Tarrytown, 302 N.Y. 115, 124 (1951).
29. 302 N.Y. 115 (1951).
30. Id., at 124.
31. 246 A.D.2d 217, 221-222 (3rd Dept., 1998).
32. Similarly, floating zones–which are zoning districts created within the text of a zoning law
for placement on the map at a later time–have been upheld in the face of spot-zoning claims,
where it was shown that comprehensive planning supported the change. See Beyer v. Burns, 150
Misc.2d 10 (Sup. Ct., Albany Co., 1991).
33. Cannon v. Murphy, 196 A.D.2d 498 (2nd Dept., 1993); Schoonmaker Homes-John Steinberg,
Inc. v. Village of Maybrook, 178 A.D.2d 722 (3rd Dept., 1991), lv. to app. den., 79 N.Y.2d 757
(1992); Lazore v. Board of Trustees of Village of Massena, 191 A.D.2d 764 (3rd Dept., 1993);
Daniels v. VanVoris, supra; Rye Citizens Committee v. Board of Trustees for the Village of Port
Chester, 249 A.D.2d 478 (2nd Dept., 1998).
34. 38 N.Y.2d 102 (1975).
35. Id. at 110-111.
36. In Gernatt Asphalt Products, Inc., supra, at 685, the Court of Appeals specifically declined
to expand the Berenson test for exclusionary zoning to encompass industrial uses.
37. Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 133 (1988).
38. Neville v. Koch, supra.
39. In Gernatt Asphalt Products, Inc. supra, at 685, the Court of Appeals found that “[t]he
amendments at issue in this case are, by their very nature, in accord with the comprehensive plan
manifested in the Zoning Ordinance of the Town of Sardinia originally enacted.”
40. Asian Americans for Equality, supra at 131.
41. Damsky, supra at 1297; Schoonmaker Homes, supra; Rye Citizens Committee, supra.
42. This was the case in Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178 (1973). See
also Gernatt Asphalt Products, Inc., supra, at 684-686. Conversely, in Eggert v. Town Board of
the Town of Westfield, 217 A.D.2d 975, 977 (4th Dept., 1995) the relevant zoning amendment
was struck down for failure to comply with the comprehensive plan requirement with the
explanation that, “… [t]he record does not contain any detailed explanation by the Town Board
for changing the permitted uses in the district… .”
43. Lazore, supra.
44. Cohen v. Vecchio, 197 A.D.2d 499 (2nd Dept., 1993), lv. to app. den. 83 N.Y.2d 751 (1994).
45. Tilles Investment Co. v. Town of Huntington, 74 N.Y.2d 885 (1989). The decision also
implies that subsequent amendments to a zoning ordinance need not indicate an intent to
abandon a previously-adopted plan. Note, however, that the latter principle would not apply to a
comprehensive plan adopted under the current enabling statutes (see inset, p. 1). Where the
current statutes are used to adopt a plan, all further land use actions (including zoning
amendments) must comport with the plan.
46. 33 N.Y.2d 178, 188 (1973).
47. Damsky, supra at 1295.
48. Eggert, at 181.
49. Asian Americans for Equality, supra at 131.
50. Neville v. Koch, supra at 324.
51. Town Law, §272-a(2)(a); similar definitions exist for villages (Village Law, §7-722(2)(a))
and cities (General City Law, §28-a(3)(a)).
52. Town Law, §272-a(11); Village Law, §7-722(11); General City Law, §28-a(12).
53. The new statutes specify that “[n]othing herein shall be deemed to affect the status or
validity of existing master plans, comprehensive plans, or land use plans.” Town Law, §272-
a(1)(h); Village Law, §7-722(1)(h); General City Law, §28-a(2)(h).
54. Town Law, §272-a(3); Village Law, §7-722(3); General City Law, §28-a(4).
55. Town Law, §272-a(4); Village Law, §7-722(4); General City Law, §28-a(5).
56. Town Law §272-a(8); Village Law §7-722(8); General City Law §28-a(9). See King v.
Saratoga Board of Supervisors, 89 N.Y.2d 341 (1996).
57. 6 NYCRR §617.4(a), (b)(1).
58. 6 NYCRR §§617.2(u), 617.6(b), 617.7(a), 617.9(a), 617.11. See also Matter of Coca-Cola
Bottling Co. v. Board of Estimate, 72 N.Y.2d 674 (1988).
59. Town Law, §272-a(6); Village Law, §7-722(6); General City Law, §28-a(7).
60. Id. Note that a lead agency may hold a public hearing under SEQRA, after acceptance of a
draft EIS. See 6 NYCRR §617.9(a)(4). This hearing may be held concurrently with hearings
under the zoning enabling laws so long as both statutory time periods for notice of the hearings
are met. See 6 NYCRR §617.9(a)(4). As to the SEQRA hearing, note the post-hearing comment
period. See 6 NYCRR §617.9(a)(4)(iii).
61. Town Law §272-a(5)(b); Village Law §7-722(5)(b); General City Law, §28-a(6)(b).
62. Town Law §272-a(12); Village Law §7-722(12); General City Law §28-a(13).
63. Town Law §272-a(10); Village Law §7-722(10); General City Law §28-a(11).
64. Town Law, §272-a(11)(b); Village Law, §7-722(11)(b); General City Law, §28-a (12)(b).