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A CONTRACT BETWEEN A LANDOWNER AND A TOWN THAT PURPORTS TO BIND TOWN BOARDS ELECTED IN THE FUTURE WITH RESPECT TO A PETITION FOR REZONING VIOLATES THE TERM LIMITS RULE; A CONTRACT WHICH PURPORTS TO LIMIT A TOWN’S REZONING REVIEW PROCESS VIOLATES THE PROHIBITION AGAINST CONTRACT ZONING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the contract entered into between plaintiff property owner and the town board and town planning board violated the term limits rule and the prohibition against contract zoning. The contract purported to prohibit the town from terminating its review of the petition to rezone the land (to allow construction of multi-family residences) until the final determination on the merits. The contract purported to bind town boards elected in the future, which violates the term limits rule. And the contract purported to commit the town board to a specific course of action for review of the zoning petition, which violates the prohibition of contract zoning:

The provision of the [contract] states in relevant part that the Town Board “shall not terminate its review of the [plaintiff’s] Zoning Petition, and the Project in general, until it reaches a final determination on the merits in its legislative judgment regarding the best interests of the Town based upon empirical data and other objective factual bases.” This provision, which attempts to constrain the Town Board’s decision-making process regarding its zoning responsibilities, implicates the Town Board’s governmental and legislative powers, as enacting zoning ordinances is a significant function of local government … . * * *

The plaintiff fails to acknowledge that while [the contract] may indicate that nothing … limits the Town Board in the exercise of its legislative power, that statement is qualified by the language that states “except as otherwise provided herein,” thus eviscerating the import of the preceding language. The fact that the [contract] may not mandate a particular outcome does not mean … that it fails to violate the term limits rule. * * *

… [T]he plain language of the [contract] commits the Town Board to a review of the plaintiff’s zoning petition, and purports to forbid termination of the review process until the Town Board reaches a final determination on the merits. Such determination must be based upon “empirical data and other objective factual bases.” Such language evidences that the [contract] was clearly meant to commit the Town Board to a specific course of action with respect to the review process of the zoning petition. Hudson View Park Co. v Town of Fishkill, 2024 NY Slip Op 05332, Second Dept 10-30-24

 

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