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The Comprehensive Plan Requirement

By Stewart E. Sterk

New York law has long required that zoning be in accordance with a comprehensive plan. Historically, the plan requirement has been toothless. Legislative efforts to invigorate the requirement have largely been ignored by the courts. Yet litigants continue to challenge zoning ordinances as inconsistent with a comprehensive plan. Matter of Bonacker Property LLC v. Village of East Hampton, NYLJ 1/25/19, p. 29, col. 2 (App Div, Second Dept.), represents one of the most recent examples.

The Bonacker Case

Landowners in the Bonacker case owned a large residential parcel in the Village of East Hampton. They challenged five local laws enacted in 2015, three of them affecting parcels on lots of 40,000 square feet or greater. The amendments reduced the maximum allowable gross floor area for one and two-family homes on these lots, reduced the maximum permitted lot coverage, and reduced the maximum floor area for accessory buildings. In addition to contending that the amendments were not consistent with the village's comprehensive plan, landowners contended — unsuccessfully — that the village had enacted the amendments in violation of SEQRA and without providing them with the requisite notice and opportunity to comment on the changes. They also sought damages for an alleged regulatory taking — an issue on which no party moved for summary determination, leading the Appellate Division to remand to Suffolk County Supreme Court.

With respect to the comprehensive plan requirement — the focus of this article — the court noted that the village had adopted a comprehensive plan, and conceded that any zoning amendments had to be consistent with that plan. But the court also held that if the amendment's validity were "fairly debatable," the municipality's judgment must control, and indicated that to prevail on a comprehensive plan challenge, the landowner had to establish a "clear conflict" between the amendment and the plan. In Bonacker, landowner failed to establish a clear conflict because the village's 2002 plan had recommended further limitations on gross floor area and coverage for residential structures and accessory buildings to ensure that residential development was "compatible with the scale of existing development."

The Plan Requirement More Generally

New York statutes have long required that zoning regulations "be made in accordance with a comprehensive plan." See, e.g., Village Law section 7-704. New York's courts, however, have not construed that mandate to require that zoning be consistent with any particular planning document. In Udell v. Haas, 21 N.Y.2d 463, the Court of Appeals indicated that the comprehensive plan requirement requires that "rezoning should not conflict with the fundamental land use policies and development plans of the community," and indicated that "these policies may be garnered from any available source, most especially the master plan of the community, if any has been adopted, the zoning law itself and the zoning map." Id. at 472. In Udell itself, the court invalidated a zoning amendment reclassifying land long zoned for business use when the amendment process was instituted the same day that landowner proposed development of his parcel. The amendment, which limited the parcel to residential use, was enacted less than 40 days after landowner first presented a preliminary sketch of his development. In finding that the village had not acted in accordance with a comprehensive plan, the court relied in part on recommendations by the village's own expert indicating that the disputed parcel was suitable for commercial use.

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