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THE TOWN’S SEQRA NEGATIVE DECLARATION REGARDING THE EXPANSION OF A CAMPGROUND WAS ARBITRARY AND CAPRICIOUS; THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND THE CAMPGROUND CONSTITUTED ILLEGAL CONTRACT ZONING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town planning board’s adoption of negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) with respect to the expansion of a campground (BBFC) was arbitrary and capricious. The Second Department further found that the development contract between the town and BBFC constituted illegal contract zoning:

The Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites, and adopted the negative declaration based largely upon its finding that the campground had been operating 154 campsites—albeit illegally—for many years. Under the circumstances, the Planning Board’s adoption of the negative declaration was arbitrary and capricious.

… [T]he development agreement entered into between the Town Board and BBFC constituted illegal contract zoning. “[N]o municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties” … . The test is whether the development agreement committed the Town to a specific course of action with respect to a zoning amendment … . The Town Board agreed to amend the zoning code to permit 210-day occupancy limit, a change from the current 120-day occupancy limit, in exchange for BBFC’s agreement that the 210-day occupancy limit would apply to all of the campsites, including the original 74 approved campsites. This was an agreement binding on BBFC to give a form of consideration in exchange for legislative action and to limit the Town Board’s authority to change the bulk requirements in the zoning code until such time as BBFC would not be negatively affected by such change … . Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03112, Second Dept 6-3-20

In the same matter, the Second Department determined the granting of an area variance for the campground, based upon the nonconforming campsites which had already been constructed, was arbitrary and capricious. Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03113, Second Dept 6-3-20

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