On May 21, 2013, the Town of Brookhaven adopted Local Law No. 26, which amends Brookhaven Town Code § 85-38 by imposing a supermajority vote of Brookhaven Town Board members in those instances where a written petition, commonly known as a “Protest Petition” is filed by town property owners opposing a change of zone application. According to the Town, the purpose of the Amendment is to give people of the Town a stronger voice in the development of their communities.
By all appearances, this enactment caused quite a stir in the media among the land use community, developers and residents alike. Questions quickly arose such as: What is a “Protest Petition”? Who can file a “Protest Petition” and does this signal the possible demise of successful Change of Zone applications?
The answers to these questions are discussed below, but suffice it to say, as the title of this blog post indicates – Brookhaven Town’s supermajority change of zone local law is not novel or new, nor will it likely signal the demise of change of zone applications. The fact of the matter is that for decades, New York State Town Law § 265 has provided this identical supermajority vote when a “Protest Petition” is presented in opposition to a change of zone application.
In fact, when the Town of Brookhaven enacted Section 85-38, the Town availed itself of its powers under §10 of the Municipal Home Rule Law and §10 of the Statute of Local Governments by specifically declining to impose a supermajority vote requirement when presented with a protest petition. Instead, the Town opted to impose a mere simple majority vote to override a protest petition. Hence, the Town of Brookhaven just recently decided to conform to the longstanding state law set forth at Town Law § 265, which requires a supermajority vote of Town Board members when considering a change of zone application subject to a protest petition. So what is a Protest Petition?
A protest petition is a written petition submitted to the municipal government in opposition to a change of zone application and signed by twenty percent (20%) of the property owners who either: (1) own property contained within the area which is the subject of the proposed zone change; (2) own property within one-hundred (100) feet immediately adjacent to the land proposed for the zone change; or (3) own property directly opposite the land proposed for the zone change and extending one-hundred (100) feet from the street frontage of such opposite lands. See, Town Law § 265. Consequently, the potential pool of change of zone objectors eligible to file a protest petition is limited to those property owners located in the subject zone change area, or within just one-hundred feet thereof.
Moreover, in Eadie v. Town Board of Town of North Greenbush, 7 N.Y.3d 306 (2006), the Court of Appeals affirmed the Third Department’s reversal of the trial court’s finding that a property owner seeking a zone change could not “buffer” the surrounding one-hundred (100) feet with property that it also owned thereby precluding a protest petition. In reversing the trial court and affirming the Third Department’s findings, the Court of Appeals held that “[t]he power to require a supermajority vote is dependent on the distance of one’s property from land that will actually be affected by the change. Landowners who obtain rezoning can insulate themselves against protest petitions by “buffer zoning” i.e. leaving the zoning of a strip of property unchanged.” Id. at 306. The Court of Appeals specifically determined that the reconfiguration of lot lines to avoid a protest petition, whether undertaken in good faith or bad faith is irrelevant. Id. at 315. The ultimate goal of a protest petition is to protect only those property owners located within the zone change area, or within one-hundred feet thereof. Hence, providing a one-hundred foot buffer of land surrounding the proposed zone change area will summarily defeat the requirement for a supermajority vote under Town Law § 265 and the newly revised Brookhaven Town Local Law adopted at § 85-38.
So, what does this all mean for land use practitioners, developers and the property owners who may be affected by a zone change? In my opinion, not much. As it applies to Brookhaven Town and other towns, as well as villages that impose a supermajority vote requirement in the wake of a protest petition; before the supermajority vote requirement is triggered, at least twenty percent (20%) of the property owners located within the proposed zone change area, or within one-hundred feet thereof, must file a written petition. As discussed above, a protest petition can be summarily defeated by the applicant’s use of “buffer zoning.” Likewise, municipalities that have historically entertained change of zone applications on their own motion should be prepared for the possibility that a protest petition could be used by property owners as a sword against the municipality in an effort to defeat a change of zone that is otherwise desired by the municipal board.
The question then becomes, will Brookhaven Town’s new local law requiring a supermajority vote of the Board when a protest petition is presented in connection with a change of zone really reflect the community’s input as the Town desires? Perhaps the next contentious change of zone application will provide us with that answer. Stay tuned for the update.