New York
Student Article
Development Standards, Local Boards
EPA Region 2
Local Government Authority to Impose Conditions On Private
Development Proposals
In this article, Solloway examines the authority of local governments to impose
conditions on private development proposals. Solloway discusses variances that local
governments can make in order to allow a special use not ordinarily permitted in a certain
zone. Solloway argues that the unifying characteristic of the powers granted to the local
governments is that those powers allow the local governments to mitigate any adverse
impacts of development proposals through the imposition of conditions.

Student Article

                       Cozata Solloway
                      Research Assistant
                     Land Use Law Center
                        Summer, 1995

       The private ownership of land in this country has always been subject to the

“implied obligation that the owner‟s use of it shall not be injurious to the community.”1

However, it was not until 1926, in Euclid v. Ambler Realty Co.,2 when the Supreme Court

upheld zoning as valid exercise of the state‟s police power, that the full implications of

the rights of government to regulate the use of land began to emerge. The Court believed

that the dangers associated with uncontrolled development justified government

regulation of the land use in order to protect the “public health, safety, morals, and

  Mugler v Kansas, 123 U.S. 623, 665 (1887) (holding the a Kansas statute prohibiting the
manufacture of alcohol was not unconstitutional).
  272 U.S. 365 (1926).

general welfare.”3      The Court also recognized that land use regulations, once imposed,

would not remain static but would be altered over time to meet changing conditions:

          [W]hile the meaning of constitutional guarantees never varies, the scope of
          their application must expand and contract to meet new and different
          conditions which are constantly coming within the field of their operation.
           In a changing world, it is impossible that it should be otherwise.4

With this seal of constitutional approval, Euclidian zoning has become the dominant

means of regulating the use of land and preserving the quality of life in the United States.

          Euclidian zoning generally separates incompatible land uses into distinct zoning

districts. Thus, each district allows one or more types of land use and has attendant

restrictions that reflect that type of use. So, for a single family residential district there

may be height restrictions imposed to prevent an owner from building a structure that

would not fit in with the general character of the neighborhood. Taken alone, however,

the imposition of zoning districts creates a rigid regime of land use control that fails to

recognize the unique character of (or the problems associated with) individual properties.

In an effort to ameliorate the harsh consequences of the strict application of zoning

regulations, most zoning ordinances include a full range of mechanisms designed to add

flexibility to the process. These include area variances, use variances, special use permits,

and, in some instances, rezoning. Other zoning mechanisms allow local governments to

review the specific impacts of development proposals which would otherwise not be

addressed.        These tools include subdivision approval and site plan review.         The

emergence of environmental laws has also provided local governments with an

opportunity to review development proposal impacts.            Thus, SEQRA provides an

additional tool of addressing adverse impacts through its environmental review process.

    Id. at 394.

         The unifying characteristic of all of these tools is that they allow local

governments to mitigate any adverse impacts of development proposals through the

imposition of conditions.       However, local government authority in this area is not

unfettered. In the context of the zoning tools mentioned above, the actions of a local

government entity must comport with the authority granted that body under the state

enabling statute. Authority under each zoning tool has been further modified by case law.

         SEQRA adds another potential layer of authority for local governments to impose

conditions. However, SEQRA review always takes place in the context some type of land

use decision. The SEQRA process creates an atmosphere where a local government,

acting as a lead agency, is able to impose significant conditions if supported by a

substantial record and a factual evidence.       Nevertheless, conditions imposed under

SEQRA must be “practicable and reasonably related to the impacts identified” during the

environmental review process.5 Nevertheless, from a practical standpoint, the procedural

requirements of SEQRA may allow municipalities to impose conditions as mitigation

measures that would otherwise be difficult to justify.


         A.      Introduction

         In the context of local land use regulation, conditions have been described by one

New York court in the following manner:

        Conditions imposed as an incident of approval in a developmental permit
     control system are a major weapon in a planner's arsenal. Conditions allow

    Id. at 387.
    6 N.Y.C.R.R. 617.3(b).

    flexibility and fairness in land use and development control decisions, and provide
    the ability to deal with problems such as traffic congestion, something barely
    contemplated under zoning schemes . . . .
        The most common utilizations of conditions in land use and development
    decisions occur in nondiscretionary determinations which are made subject to
    conditions publicly specified in advance, e. g., special permits, or discretionary
    determinations subject to stipulated conditions, e. g., variances or site plan
    approval . . . .
        In New York, the use of reasonable conditions as a land control device has
    been long upheld.6

New York statutory law provides for the imposition of conditions during various land use

approval processes including variances, site plans and special permits.7 Municipalities

are also allowed to exact park land or money in lieu thereof under their subdivision

approval authority.8

       However, even where there is no express authority, courts have recognized an

inherent power in local governments to condition approval. In 1980, in Holmes v. Town

of New Castle,9 the Appellate Division recognized a local planning board‟s inherent

authority to condition a permit approval even where state law did not expressly address

the issue:

        This section [of State law] provided towns with the option of delegating to
    their planning boards the power to approve site plans and special permits. With
    respect to site plan review, the power to condition is not explicitly set forth in the
    statute. Nevertheless, given the planning board's power to deny the application
    outright, it would seem logically to follow that a planning board may validly
  Holmes v. Town of New Castle, 78 A.D.2d 1, 14-15, 433 N.Y.S.2d 587, 596 (2nd Dept. 1980)
(citations omitted).
  See N.Y. VILLAGE LAW § 7-712-b(4) (McKinney 1996), N.Y. TOWN LAW § 267-b(4)
(McKinney Supp. 1996), N.Y. GEN. CITY LAW § 81-b(5) (McKinney Supp. 1996) (variances);
N.Y. VILLAGE LAW § 7-725-a(4) (McKinney 1996), N.Y. TOWN LAW § 274-a(4) (McKinney
Supp. 1996), N.Y. GEN. CITY LAW § 27-a(4) (McKinney Supp. 1996) (site plans); N.Y. VILLAGE
LAW § 7-725-b(4) (McKinney 1996), N.Y. TOWN LAW § 274-b(4) (McKinney Supp. 1996),
N.Y. GEN. CITY LAW § 27-b(4) (McKinney Supp. 1996) (special permit).
  N.Y. VILLAGE LAW § 7-730(4) (McKinney 1996), N.Y. TOWN LAW § 277(4) (McKinney
Supp. 1996), N.Y. GEN. CITY LAW § 33(4) (McKinney Supp. 1996).
   78 A.D.2d 1, 14-15, 433 N.Y.S.2d 587, 596 (2nd Dept. 1980).

     impose reasonable conditions on the approval of a site plan, both as an
     accommodation to the applicant and to further the health, safety and general
     welfare of the community.
         The Town of New Castle has elected to delegate the responsibility for site plan
     review to its planning board . . . . Concomitantly it has specifically conferred upon
     such board the power to attach conditions to its approval of a site plan application
     as in conformance with its review standards . . . . There is no doubt, therefore,
     that the board was authorized to approve the petitioners' site plan conditionally.10

Similarly, in Church v. Town of Islip,11 the Court of Appeals held that a local legislature

could attach conditions to a rezoning of property even where the conditions only affected

a single property.

        Generally, the conditions imposed must be within the general delegation of

authority from the state as protecting the public‟s health, safety, morals and general

welfare. Additionally, where the local legislature has delegated authority to the board of

appeals or the planning board, the ordinance may expressly limit the type or scope of

conditions available for the board to impose. Otherwise, courts will recognize the

inherent authority of the local board to condition land use applications and look to see

whether the board‟s action was consistent with goals of the local ordinance.12

        However, New York case law provides general parameters which must be

followed when imposing conditions. First, the local agency must clearly specify the

conditions being imposed.13 Thus, the property owner should not be left in any doubt as

   Holmes, 78 A.D.2d at 11-13, 433 N.Y.S.2d at 594-95.
   8 N.Y.2d 254, 168 N.E.2d 680, 203 N.Y.S.2d 866 (1960).
   See Bernstein v. Village of Matinecock, 60 Misc.2d 470, 302 N.Y.S.2d 141 (Sup. Ct., Nassau
County 1969) (noting that a local “[b]oard may have inherent power even in the absence of a
specific ordinance provision to impose reasonable conditions”); Pearson v. Shoemaker, 25
Misc.2d 591, 202 N.Y.S.2d 779 (Sup. Ct., Rockland County 1960) (holding that a local zoning
board of appeals “has the inherent power . . . to impose reasonable conditions and restrictions as
are directly related and incidental to the proposed use of the property and which are not
inconsistent with the provisions of the local ordinance”).
   Sabatino v. Denison, 203 A.D.2d 781, 610 N.Y.S.2d 383 (3d Dept. 1994).

to the extent of the use permitted. Second, those conditions should also be reasonably

related to the impacts of the proposal being considered.14 Two relatively recent U.S.

Supreme Court decisions suggest that judicial scrutiny in this area will be heightened in

the future.15   In Nollan v. California Coastal Commission,16 the Court held that a

condition will not amount to a taking where the condition substantially advances the

legitimate state interest sought to be promoted.17 In other words, there must be an

“essential nexus” between the condition imposed and the stated purpose of imposing such

a restriction.18 “The absence of a sufficient credible record substantiating the reason for a

condition subjects such a condition to invalidation.”19

        Later, in Dolan v. City of Tigard,20 the Court extended the Nollan holding further.

Writing for the majority, Justice Rehnquist stated:

         Under the well settled doctrine of “unconstitutional conditions,” the
     government may not require a person to give up a constitutional right - here the
     right to receive just compensation when the property is taken for a public use - in
     exchange for a discretionary benefit conferred by the government where the
     property sought has little or no relationship to the benefit.21

The Court defined the task as a two step process: pursuant to Nollan, the court “must first

determine whether the „essential nexus‟ exists between the „legitimate state interest‟” and

the permit condition exacted by the city; then, if a nexus exists, the court must decide if

there is a “rough proportionality” between the condition imposed and the impacts of the

   Holmes, 78 A.D.2d at 12-13, 433 N.Y.S.2d at 595.
   For more information on the issue of constitutional regulatory takings see Understanding the
Limits to Exercising the Police Power in Land Use Decisions (on file with the Land Use Law
Center at Pace University School of Law).
   483 U.S. 825 (1987).
   Id. at 835-36.
   Id. at 840.
   Terry Rice, Practice Commentaries, N.Y. VILLAGE LAW § 725-a (McKinney 1996).
   114 U.S. 2903 (1994).

proposed development on the community.22

       Understanding the limits to the type of conditions that can be imposed in any

particular land use matter is best understood by referring back to the type of land use

decision under consideration. Thus, when the issue before the zoning board of appeals is

whether a local property owner should be granted a use variance, the test for granting a

use variance, and the extent of the authority of the board in deciding the matter, as well as

particular facts relating to the matter itself, will determine what conditions are


       B.      Conditions Through Variance Approval

               Introduction and Statutory Authority

       New York Law expressly authorizes local zoning boards of appeal to grant

variances.23 For a use variance the applicant must show “unnecessary hardship.” 24 To

demonstrate “unnecessary hardship” the applicant must show (1) he cannot realize a

reasonable return, (2) the hardship is unique to his property, (3) the variance will not alter

the essential character of the neighborhood, and (4) the hardship is not self created.25

Additionally, and most significantly in relation to conditions, the statute mandates the

   Id. at 2316-17.
   Id. at 2317-19.
   N.Y. VILLAGE LAW § 7-712-b(2)-(3) (McKinney 1996), N.Y. TOWN LAW § 267-b(2)-(3)
(McKinney Supp. 1996), N.Y. GEN. CITY LAW § 81-b(3)-(4) (McKinney Supp. 1996). A “„[u]se
variance‟ shall mean the authorization by the zoning board of appeals for the use of land for a
purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.”
N.Y. GEN. CITY LAW § 81-b(1)(a). An “„[a]rea variance‟ shall mean the authorization by the
zoning board of appeals for the use of land in a manner which is not allowed by the dimensional
or physical requirements of the applicable zoning regulations.” N.Y. GEN. CITY LAW § 81-
   N.Y. VILLAGE LAW § 7-712-b(2); N.Y. TOWN LAW § 267-b(2); N.Y. GEN. CITY LAW § 81-
   N.Y. VILLAGE LAW § 7-712-b(2); N.Y. TOWN LAW § 267-b(2); N.Y. GEN. CITY LAW § 81-

granting of the minimum variance necessary to alleviate the hardship.26 Consequently, in

granting the minimum variance, the board may impose conditions to protect the “essential

character of the neighborhood.” However, the conditions should not be so burdensome

as to deprive the owner of a “reasonable return.”

       For an area variance the applicant must show that that the benefit he or she will

receive outweighs the detriment to the surrounding community.27 The board must weigh

the following factors: (1) whether an undesirable change to the character of the

neighborhood or a detriment to surrounding properties will result from the grant of the

variance; (2) whether the benefit sought by the applicant can be achieved by alternate

means; (3) whether the requested variance is substantial; (4) whether the variance will

have an adverse impact on the physical or environmental on the surrounding community;

and (5) whether the difficulty was self created.28 Again, in granting the variance the

board must grant the minimum variance necessary.

       Town Law, Village Law, and General City Law expressly authorizes the local

board of appeals to impose conditions on a variance approval:

       The board of appeals shall, in the granting of both use variances and area
   variances, have the authority to impose such reasonable conditions and restrictions
   as are directly related to and incidental to the proposed use of the property. Such
   conditions shall be consistent with the spirit and intent of the zoning ordinance or
   local law, and shall be imposed for the purpose of minimizing any adverse impact
   such variance may have on the neighborhood or community.29
The statutory language is helpful in delineating what appropriate conditions are.

   N.Y. VILLAGE LAW § 7-712-b(2)(c); N.Y. TOWN LAW § 267-b(2)(c); N.Y. GEN. CITY LAW §
   N.Y. VILLAGE LAW § 7-712-b(3); N.Y. TOWN LAW § 267-b(3); N.Y. GEN. CITY LAW § 81-
   N.Y. VILLAGE LAW § 7-712-b(3)(b); N.Y. TOWN LAW § 267-b(3)(b); N.Y. GEN. CITY LAW §
   N.Y. VILLAGE LAW § 7-712-b(4); N.Y. TOWN LAW § 267-b(4); N.Y. GEN. CITY LAW § 81-

Conditions must be:

        1. Reasonable;

        2. Directly related to the proposed use of the property;

        3. Consistent with the local zoning ordinance and other local laws; and

        4. Imposed for the purpose of minimizing the impact on the surrounding


               New York Case Law for Conditions Imposed on Variances

        In a relatively recent case, St. Onge v. Donovan,30 the Court of Appeals discussed

the imposition of conditions on variance approval at length. The court consolidated two

cases in its opinion. In the first case, St. Onge v. Donovan, the petitioners had requested

a site plan approval to continue to use the property as a real estate business, the same use

the prior owners had engaged in.31        However, the planning board denied approval

determining that the use variance under which the prior owner had used the property

terminated upon a transfer of ownership pursuant to a restrictive condition on the original

variance approval.32 The petitioners appealed to the zoning board of appeals but gained

no relief.33

        In the second case, Driesbaugh v. Gagnon, the petitioners contested certain

conditions attached to the grant of a use variance for one of two properties owned by the

petitioners in the area.   The property owners who operated automobile repair shops at

each location in the town contested a condition that prohibited more than two non-

   71 N.Y.2d 507, 522 N.E.2d 1019, 527 N.Y.S.2d 721 (1988).
   Id. at 512, 522 N.E.2d at 1020, 527 N.Y.S.2d at 722.
   Id. at 512, 522 N.E.2d at 1020, 527 N.Y.S.2d at 722.

employee vehicles during working hours outside the repair shop requiring a variance.34

They also contested a condition that required them to discontinue using the second

property as a repair shop.35

        The court began by recognizing that a local zoning board has the authority to

impose “„appropriate conditions and safeguards in conjunction with a change of zone or a

grant of variance or special permit‟” but those conditions must be “„reasonable and relate

to the real estate without regard to the person who owns or occupies it.‟”36 The court

warned that local boards were particularly prone to making their determinations based on

the user and not the use in the case of variance and special permit approvals because a

single property/owner is involved.37       However, the court identified several typical

conditions that could attach to a variance approval:

         Such conditions might properly relate “to fences, safety devices, landscaping,
     screening and access roads relating to period of use, screening, outdoor lighting
     and noises, and enclosure of buildings and relating to emission of odors, dust,
     smoke, refuse matter, vibration noise, and other factors incidental to comfort,
     peace , enjoyment, health or safety of the surrounding area.”38

Conditions can also include “restrictive covenants relating to the maximum area to be

occupied by buildings.”39

        The court also outlined inappropriate conditions.         A zoning board may not

condition a variance upon a dedication of land that is not under consideration.40

   Id. at 512, 522 N.E.2d at 1021, 527 N.Y.S.2d at 723.
   St. Onge, 51 N.Y.2d at 514, 522 N.E.2d at 1021-22, 527 N.Y.S.2d at 724-25.
   Id. at 514, 522 N.E.2d at 1022, 527 N.Y.S.2d at 724-25.
   Id. at 515, 522 N.E.2d at 1022, 527 N.Y.S.2d at 725 (quoting Dexter v. Town Board, 36
N.Y.2d 102, 324 N.E.2d 870, 365 N.Y.S.2d 506 (1975)) (emphasis added).
   Id. at 515, 522 N.E.2d at 1022, 527 N.Y.S.2d at 724.
   St. Onge, 51 N.Y.2d at 516, 522 N.E.2d at 1023, 527 N.Y.S.2d at 725.
   Id. at 516, 522 N.E.2d at 1023, 527 N.Y.S.2d at 725
   Id. at 516, 522 N.E.2d at 1023, 527 N.Y.S.2d at 725 (citing Gordon v. Town of Clarkstown,
126 Misc.2d 75, 481 N.Y.S.2d 275 (Sup. Ct., Rockland County 1984).

      Conditions that attempt to regulate the details of the operation of the enterprise rather

      than the use of the property are not proper.41 Thus, conditions should only be aimed at

      addressing the adverse impacts resulting from the grant of the variance.

                Applying these principles to St. Onge, the court held that a condition that

      automatically terminates the variance upon a transfer of ownership “bares no relation to

      the proper purposes of zoning” because it “focuses on the persons occupying the property

      rather than the use of the land or the possible effects of that on the surrounding area.”42

      The court upheld the grant of the variance no longer subject to the contested condition.

                In Driesbaugh, the court reiterated that any conditions imposed on a variance

      issued for a property must relate “solely to that property.”43 Thus, the court determined

      that the condition requiring the owner to close down the other repair shop was invalid

      because it was completely unrelated to “the potential impact of that use on neighboring


                “In seeking a variance for a specific parcel petitioner should not have been

      required to forfeit valuable property rights merely because he happened to own other

      property in the same community.”45 However, the court upheld the parking condition

      attached to the variance. The court felt that the number of vehicles parked on the

      property could adversely affect the character of the surrounding community, a district

      which was classified as agricultural /residential.46

The holdings in St. Onge serve as a valuable lesson for municipalities that overstep their

           Id. at 517, 522 N.E.2d at 1023, 527 N.Y.S.2d at 725.
           St. Onge, 51 N.Y.2d at 517, 522 N.E.2d at 1023, 527 N.Y.S.2d at 725.
           Id. at 517, 522 N.E.2d at 1024, 527 N.Y.S.2d at 726.
           Id. at 517, 522 N.E.2d at 1024, 527 N.Y.S.2d at 726 (emphasis added).
           Id. at 517, 522 N.E.2d at 1024, 527 N.Y.S.2d at 726.
           St. Onge, 51 N.Y.2d at 517, 522 N.E.2d at 1024, 527 N.Y.S.2d at 726.

authority in conditioning variance approvals. The court invalidated certain improper

conditions, and, in doing so, granted the variances in both instances without giving the

zoning boards of appeal a chance to reconsider the variance applications. Thus, any

concerns that the boards may have had in light of this holding by the court will not be


        In Gordon v. Town of Clarkstown,47 the court struck a variance condition that

required the owner to dedicate a portion of her land to the county because it constituted a

taking of her property. The land in question fronted a road which the board believed was

not sufficiently wide to deal future needs in the town. However, there were no existing

plans to widen the road at that time. The court held that the condition bore no relation to

variance sought by the property owner.48

        Despite the St. Onge and Gordon holdings it is important to remember that the

board of appeals retains significant authority to condition variance approval. In reviewing

a decision of the zoning board of appeals on a variance application, the court will

presume that the decision was correct.49 The same presumption extends to any conditions

attached to a variance approval.

        A zoning board may grant a variance on condition that the variance will lapse if

the variance is not acted upon within a certain time but only where the condition relates to

the use of the property.50 Additionally, the board may condition approval based on

   126 Misc.2d 75, 481 N.Y.S.2d 275 (Sup. Ct., Rockland County 1984).
   Id. at 76, 481 N.Y.S.2d at 277. The court was careful to point out that such a condition might
very well be appropriate when approving a large subdivision where the development imposed
additional burdens on the surrounding community.
   Finger v. Levenson, 163 A.D.2d 477, 558 N.Y.S.2d 163 (2nd Dept. 1990).
   See Holthaus v. Town of Kent, 209 A.D.2d 698, 619 N.Y.S.2d 160 (2nd Dept. 1994). It is
interesting to note the state legislature, in 1993, deleted authority to impose conditions
concerning the duration of a variance. From the holding in the Holthaus case, a timed variance

aesthetic reasons alone. For example, in Hubshman v. Henne,51 the Appellate Division

upheld a requirement that the owner create a buffer of shrubbery to protect the quiet

enjoyment of the neighbors.52         In Nardone v. Town of Lloyd,53 the court upheld

requirements that the owner provide a number of parking spots and remove a shed to

alleviate the adverse impact on offsite parking due to the proposed development of the


        The requirement that the board grant the minimum variance necessary suggests

that conditions may be quite harsh at times and still be valid. Thus, in Finger v.

Levenson,54 the court upheld a condition on a use variance that restricted the use of a

building as an antique store to no more than 25% of the total floor space in the building.

As the area was zoned for single family use, the court determined that the condition was

“reasonably related to the purposes underlying the zoning code.”55

        There is some indication that courts will be less deferential to conditions imposed

on variance when the use involves a religious activity. In Matter of Young Isreal of North

Woodmere v. Town of Hempstead, the court struck down conditions imposed by the town

in granting use and area variances to the owner.56 The owner operated a synagogue in a

single family house in a residential area. Operation of the synagogue violated local

ordinance requirements. In response, the landowner sought and was granted a variance

for off street parking and side-yard setback requirements, however, several conditions

may still be possible under the general authority to condition approval.
   42 A.D.2d 732, 345 N.Y.S.2d 669 (2nd Dept. 1973).
   The court struck down several other conditions as being arbitrary and capricious. One
included a requirement that the owner place a green vinyl covered fence and posts in place of the
existing fence.
   144 A,D,2d 807, 534 N.Y.S.2d 771 (3d Dept. 1988).
   163 A.D.2d 477, 558 N.Y.S.2d 163 (2nd Dept. 1990).
   Id. at 478, 558, N.Y.S.2d at 165.

were attached to the variance for off street parking.57 These conditions included limiting

membership to 50 families , prohibiting the performance of any bris, limiting the size of

the audience during any particular service.58 The Court struck down these and other

conditions and held that religious institutions were entitled to more flexibility in going

before the local planning board.59 In reaching its decision, the court noted that offstreet

parking would not be a problem as members were not permitted to drive on the Sabbath

and most lived near by the synagogue anyway.

         The lesson drawn from these cases is that conditions may be imposed as long as

those conditions fairly relate to the impacts of the variance requested. Conditions that

address these impacts can easily be seen to fulfill the statutory mandate to grant the

minimum variance necessary to alleviate the burden on the property owner.

         A. Conditions Through Special Permit

                Introduction and Statutory Authority

         By definition, a special use permit envisions that some conditions may be

necessary before granting the permit. New York statutory law defines a special use

permit as:

     Id. at 3.

       an authorization of a particular land use which permitted in a zoning
       ordinance or local law, subject to requirements imposed by such zoning
       ordinance or local law to assure that the proposed use is in harmony with
       such zoning ordinance or local law and will not adversely affect the
       neighborhood if such requirements are met.60

Thus, in order to ensure that such requirements are met, reasonable conditions may have

to be imposed. The authority to grant a special use permit may be delegated by the local

legislature to the planning board or other administrative body.61

       The purpose of allowing a special use permit authority is important to understand

the conditions that can be imposed on the issuance of a permit. The “use” is a permitted

use under the ordinance. However, certain aspects of the use require it to meet additional

requirements before its location can be properly approved. Therefore, the special use

permit process allows the planning board to zero in on the specific impacts of a project.

       The context of a special use permit is an important indication of what an

appropriate condition might be. For example, the difference between a variance and a

special permit is an important distinction. A use requiring a variance is considered

incompatible with other uses in the surrounding area whereas a special permit use is

facially considered compatible as long as certain requirments are met.

       A variance is an authority to a property owner to use property in a manner
       forbidden by the ordinance while a special exception allows the property
       owner to put his to a use expressly permitted by the ordinance. The
       inclusion of the permitted use in the ordinance is tantamount to a
       legislative finding that the permitted use is in harmony with the general
       zoning plan and will not adversely affect the neighborhood.62

This language suggests that the conditions imposed on a special use permit generally

   N.Y. VILLAGE LAW § 7-725-b(1) (McKinney 1996), N.Y. TOWN LAW § 274-b(1) (McKinney
Supp. 1996), N.Y. GEN. CITY LAW § 27-b(1) (McKinney Supp. 1996).
   N.Y. VILLAGE LAW § 7-725-b(2), N.Y. TOWN LAW § 274-b(2), N.Y. GEN. CITY LAW § 27-
   North Shore Steak House v. Village of Thomaston, 30 N.Y.2d 238, 244, 331 N.Y.S.2d 645,

should be less burdensome than those imposed on a variance.

        Once the planning board, an administrative body, finds that the proposed use of

the property meets all of the standards necessary for a permit then the permit must be

issued. However, certain conditions maybe attached to the permit approval to alleviate

some of the adverse effects of such a use on the surrounding area. In fact, the imposition

of reasonable conditions is expressly authorized by the statute:

        The authorized board shall have the authority to impose reasonable
        conditions and restrictions as are directly related to and incidental to the
        proposed special use permit. Upon its granting of said special use permit,
        any such conditions must be met in connection with the issuance of
        permits by applicable enforcement agents or officers of the

Those conditions relate to the standards to be met for the special permit as they reflect the

primary concerns of allowing the use in that area.

                New York Case Law for Conditions Imposed on Special Use Permits

        As discussed above, the local legislature may delegate special permit authority to

the planning board or other administrative board, or retain approval authority itself.

Typically, authority is delegated to the planning board. Where it is delegated, the zoning

ordinance must set forth unambiguous standards to guide the planning board in reviewing

a permit application.64     Thus, although the planning board may impose reasonable

649, 282 N.E.2d 606, 606 (1972).
   N.Y. VILLAGE LAW § 7-725-b(4), N.Y. TOWN LAW § 274-b(4), N.Y. GEN. CITY LAW § 27-
   See Concordia Collegiate Inst. V. Miller, 301 N.Y. 189, 93 N.E.2d 632 (1950). However,
where the legislature retains permit approval authority, standards need not be formulated.
         Where . . . the power to pass upon applications for special exceptions is reserved to
    the legislative body, no standards need be established in the ordinance . . . and that may

conditions on the permit approval, the conditions imposed “cannot go beyond the

ordinance, which is the source of the Board‟s power.”65 As with any land use decision,

conditions imposed on a special use permit approval must be directly related and

incidental to the proposed use of the property66 and the conditions must be sufficiently

clear and definite to remove any doubt as to the allowed use.67

       In Bernstein v. Village of Matinecock,68 the court defined the limits to the

authority of a local board of appeals to impose conditions on a special use permit. The

case revolved around an application to use certain property as a nursery school. The

board‟s decision to deny the permit had been previously annulled by the court.69 The

board subsequently approved the permit subject to numerous conditions. The court noted

that the conditions imposed by the board of appeals cannot go beyond the limit of the

ordinance itself.70 Additionally, the conditions “must be sufficiently clear and definite

that the permitee and his neighbors are not left in doubt concerning the extent of the use

permitted.”71 And, the basis for imposing those conditions must also be stated to allow

proper review.72

       The court also noted that the board‟s authority to condition approval on remand

    consider the benefits and disadvantages of a particular use in a particular location and
    may impose reasonable conditions designed to minimize any undesirable effects the use
    might have on the surrounding community.
Woodbury Taxpayers Ass‟n v. American Inst. of Physics, Inc., 104 Misc.2d 254, 258-59, 428
N.Y.S.2d 158, 161-62 (Sup. Ct., Nassau County 1980).
   Bernstein v. Village of Matinecock, 60 Misc.2d 470, 473, 302 N.Y.S.2d 141, 146 (Sup. Ct.,
Nassau County 1969).
   Pearson v. Shoemaker, 25 Misc.2d 591, 202 N.Y.S.2d 779 (Sup. Ct., Rockland County 1960).
   Conmar Builders v. Village of Upper Brookville, 43 Misc.2d 577, 251 N.Y.S.2d 521 (Sup. Ct.,
Nassau County 1964).
   Bernstein v. Village of Matinecock, 60 Misc.2d 470, 473, 302 N.Y.S.2d 141, 146 (Sup. Ct.,
Nassau County 1969).
   Id. at 472-73, 302 N.Y.S.2d at 145.
   Id. at 473, 302 N.Y.S.2d at 145.
   Id. at 474, 302 N.Y.S.2d at 146.

may be limited by either its own prior proceeding or by the remand judgment itself.73

Both res judicata and the rule against splitting causes of action are generally applicable to

administrative proceedings.74 Thus, a board waives its right to condition approval on

“grounds it could have but did not urge in the earlier determination” unless the remand

judgment requires it to do so.75 Additionally, a remand judgment may expressly limit the

board‟s discretion when the agency has been given the opportunity to exercise its

discretion but has failed to do so.76

          Applying these rules to the facts of the case, the court held that the agency‟s

discretion to conditions the approval was not limited by the remand judgment because the

board of appeals never had a chance to exercise its discretion to condition the approval as

its prior determination merely denied the permit outright. “[A]n order which prevented

the [b]oard from exercising discretion with respect to matters not previously considered

would be . . . beyond the power of the Court to make.”77 Thus, the board was free to

impose conditions.

          However, the court invalidated a number of conditions on several other grounds.

The court struck down a restriction on the hours of operation of the school because “they

apply to the details of the operation of the business and not to the use of the premises.”78

On the other hand, the court upheld a restriction limiting operation of the school from

September 1st to June 30th because the nursery school fell within the definition of “private

     Bernstein, 60 Misc.2d at 474, 302 N.Y.S.2d at 146.
     Id. at 474, 302 N.Y.S.2d at 146.
     Id. at 474, 302 N.Y.S.2d at 146-47.
     Bernstein, 60 Misc.2d at 474, 302 N.Y.S.2d at 146.
     Id. at 474-75, 302 N.Y.S.2d at 147 (citations omitted).
     Id. at 475-76, 302 N.Y.S.2d at 148.
     Id. at 476, 302 N.Y.S.2d at 148.

school” under the ordinance for the purposes of a special use permit application.79

          The court invalidated several conditions because they were beyond the scope of

the zoning ordinance. For example, the court struck down a requirement that a six foot

chain link fence and a double row of evergreens be placed around the premises because

the ordinance authorized such a buffer “only „where necessary to protect adjoining

residential properties‟” and the presence of nursery school children did not pose a threat

to those properties.80       The court also made an important distinction between the

administrative powers of the board of appeals and the legislative powers of the town

board in relation to the imposition of conditions. The court acknowledged such a buffer

requirement made by the Town Board would be sustained as a condition of rezoning.81

Thus, local governments can retain more discretion to impose conditions by leaving

authority to grant special permits with the local legislature. Finally, the court held that

the board could not limit the special use permit to a term of two years in the absence of

any evidence that such a term was reasonable.82

          New York courts consistently frown on efforts by local governments to control the

details of the operation of the use of land. For example, in Old Country Burgers Co., Inc.

v. Town of Oyster Bay,83 the court invalidated a meal time restriction imposed by the

zoning board in granting a special use permit which essentially prohibited the operation

of the drive through window during meal time hours.84 The court noted the lack of

evidence to support the restriction:

     Bernstein, 60 Misc.2d at 476, 302 N.Y.S.2d at 148-49.
     Id. at 477-78, 302 N.Y.S.2d at 148.
     Id. at 477, 302 N.Y.S.2d at 149-50.
     Id. at 478, 302 N.Y.S.2d at 150.
     160 A.D.2d 805, 553 N.Y.S.2d 843 (2nd Dept. 1990).
     Id. at 806, 553 N.Y.S.2d at 844.

         The zoning board attempted to justify this restriction by claiming that the
         operation of this window would significantly increase the existing traffic
         flow. However we note in this respect that there was no showing that the
         proposed use would have a greater impact on traffic than other uses which
         are unconditionally permitted in the area . . . . We find the imposition of
         this condition was no more than an impermissible attempt to regulate the
         details of the operation of the petitioner's enterprise . . . and conclude that
         upon this record it cannot be said that the so-called "meal-time restriction"
         was proper.85

         However, the point at which a board improperly crosses over from conditioning

an approval to regulating the details of the operation is not always clear. In Bernstein, the

court allowed the board to prohibit operation of the nursery school during the summer

months because the nursery school necessarily fell within the definition of private school

under the ordinance. However, in Summit School v. Neugent,86 the court invalidated a

restriction on a permit to operate a school which prohibited any summer camp or vacation

activities because it “represent[ed] a wholly unauthorized attempt to intrude upon the

teaching functions of the school.”87

         Ultimately, appropriate conditions are determined by the surroundings facts and

circumstances of each case. The local board must concentrate on the proposed use and the

location of the proposed use. Particular attention must be given to the issue of whether

the conditions relate to impacts resulting from the unique nature the special use or

whether those impacts would also result from a permitted as of right use. Certainly, the

vary nature of special use permit suggests that some conditions may be necessary to

preserve the character of the neighborhood. However, the process involved in approving

a permit invites boards, especially where the board is an administrative body, to overstep

its authority because, after all, the use is considered appropriate for that area.

     Id. at 806, 553 N.Y.S.2d at 844.
     82 A.D.2d 463, 442 N.Y.S.2d 73 (2nd Dept. 1981).

Additionally, as Bernstein warns, even where a case is remanded to the local board for

reconsideration, the board‟s options may be severely limited in some instances.

          A. Conditions Through Subdivision Approval

                  Introduction and Statutory Authority

     Id. at 470, 442 N.Y.S.2d at 78.

       New York statutory law sets forth specific authorization for municipalities to

review the subdivision of undeveloped areas.88 The law authorizes the establishment of

such local review “[f]or the purpose of providing for the future growth and development

of the [municipality] and affording adequate facilities for the housing, transportation,

distribution, comfort, convenience, safety, health and welfare of its population.”89 Thus,

subdivision review is primarily concerned with the issue of whether there are adequate

facilities to support the development once it has been completed. This question provides

an important indication as to the conditions that can be attached during the review

process. In fact, the statutes explicitly authorize local governments to set aside a portion

of the property under consideration as parkland, or money in lieu thereof, “suitably

located for playground or other recreational purposes.”90 The planning board must make

a finding to support its determination that parkland is necessary.        Additionally, the

planning board may request money in lieu thereof only after it finds that the parkland

cannot be provided for within the property under review.91 This grant of authority is not

exclusive and does not preclude the imposition of other reasonable conditions.

               New York Case Law for Conditions Imposed during

               Subdivision Review

       As mentioned above, New York case law allows municipalities to “impose

reasonable conditions to mitigate demonstrable defects in [a developer‟s subdivision]

   N.Y. VILLAGE LAW § 7-728, 7-730 (McKinney 1996), N.Y. TOWN LAW § 276, 277
(McKinney Supp. 1996), N.Y. GEN. CITY LAW § 32, 33 (McKinney Supp. 1996).
   N.Y. VILLAGE LAW § 7-728(1), N.Y. TOWN LAW § 276(1), N.Y. GEN. CITY LAW § 32(1).
   N.Y. VILLAGE LAW § 7-730(4), N.Y. TOWN LAW § 277(4), N.Y. GEN. CITY LAW § 33(4).
   N.Y. VILLAGE LAW § 7-730(4)(c), N.Y. TOWN LAW § 277(4)(c), N.Y. GEN. CITY LAW §

proposal.”92 Any conditions imposed must reasonably relate to adverse impacts from the

proposed subdivision rather than some blanket prohibition. Many of the cases involving

conditions on subdivision approval involve conditions imposed that simply do not fairly

relate to the subdivision proposed. In Brous v. Village of Southhampton,93 the court held

improper a planning board‟s conditioning of a subdivision approval on a restriction that

prohibited the addition of a second story to an existing building on one of the proposed


        We find that the subject condition, which constituted a blanket prohibition
        on the expansion of the beach house in its present location, is unreasonable
        since it fails to seek to ameliorate any demonstrable adverse effects
        attributable to the petitioners' proposed use of the land.94

        A local agency cannot impose conditions based on the generalized complaints of

local citizens. In Fitzner v. Beach,95 the Planning Board for the Town of Clifton Park

denied a preliminary subdivision approval of seven lots in part because the developer

refused to adopt a "contingency plan" to indemnify neighboring property owners against

any potential water shortage. After concerns were raised at a public hearing about the

potential impact of the developers proposal on the local water supply, pumping tests were

performed under the supervision of both the Town‟s and the developer‟s engineers.96 The

developer also engaged hydrogeological experts to assess the problem.97 All of the

experts concluded that the development would have “no significant impact” on the

   Fitzner v. Beach, 174 A.D.2d 798, 800, 571 N.Y.S.2d 119, 121 (3d Dept. 1991).
   191 A.D.2d 553, 594 N.Y.S.2d 816 (2nd Dept. 1993).
   Id. at 555, 594 N.Y.S.2d at 818. The court also felt that the Planning Board‟s decision
amounted to no more than a re-re-enforcement of a similar restriction imposed by the Zoning
Board in granting an area variance. The court believed that the record showed that the Planning
Board‟s decision “evidenced a lack of independent judgment.” Id.
   174 A.D.2d 798, 800, 571 N.Y.S.2d 119, 121 (3d Dept. 1991).
   Id. at 798-99, 571 N.Y.S.2d at 120.
   Id. at 799, 571 N.Y.S.2d at 120.

groundwater supply to the surrounding area.98 However, in response to local pressure, the

Planning Board requested that the developer formulate a contingency plan to deal with

any shortfall in water supply in the future.99 The developer refused and the approval was


          The court began by looking at the evidence on both sides of the issue and noted

that even the Town Engineer concluded the additional wells due the development would

not have an impact on the existing supply.100 The court concluded that “it was improper

to disregard expert testimony offered by petitioners in favor of generalized community

objections . . . Such complaints or unsubstantiated fears cannot serve to justify

respondent's denial of petitioners' application.”101 The court continued:

          although respondent is empowered under appropriate circumstances to
          impose reasonable conditions to mitigate demonstrable defects in
          petitioners' proposal . . . , no reasonable basis exists to impose such a plan
          under the circumstances present here.102

However, unlike the holding in St. Onge, the court, in setting aside the Planning Board‟s

determination, remitted the matter rather than directing the Planning Board to issue final


          Similarly, in Black v. Summers,104 the court overturned a decision by the planning

board to condition a subdivision approval on a prohibition on any further development on

a portion of the property which was not part of the development proposal at that time.

Relying on the record, the court found no indication that further development of that

    Id. at 799, 571 N.Y.S.2d at 120.
    Fitzner, 174 A.D.2d at 799, 571 N.Y.S.2d at 120.
     Id. at 799, 571 N.Y.S.2d at 120.
     Id. at 799-800, 571 N.Y.S.2d at 121.
     Id. at 800, 571 N.Y.S.2d at 121.
     Id. at 800, 571 N.Y.S.2d at 121.
     151 A.D.2d 863, 542 N.Y.S.2d 837 (3d Dept. 1989).

portion “would be problematic or that any adverse effects from such development could

not be satisfactorily overcome” and, thus, the condition was “‟not reasonably designed to

mitigate any demonstrable defects‟” of the proposal.105 And, in Valmont Homes, Inc. v.

Town of Huntington,106 the court held as arbitrary and capricious a condition imposed on

a subdivision approval which required the developer to build a sidewalk abutting the

perimeter for the safety of children walking to school when all of the homes faced the

interior of the development.

          However, extensive conditions are upheld where there is a rational basis in the

record to support their imposition. In Koncelik v. Town of East Hampton,107 the court

reinstated conditions on a subdivision approval deleted by the lower court.           The

conditions related to the need to protect an extensive area of undisturbed forest and

numerous important plant species and the need for a common driveway easement to

ensure access to subdivision lots. The court noted that the planning board had based

those conditions on the topographical constraints and other natural features of the


          The Planning Board is empowered to assure the health, safety, and general
          welfare of the people of the Town of East Hampton. In doing so, it must
          consider standards and appropriate specifications in accordance with the
          Comprehensive Plan, the Town Code, and the rules and regulations of
          various coordinating agencies.108

          Thus, municipalities can properly impose conditions that relate to the adverse

impacts the proposed subdivision. When there is no rational basis in the record for a

condition or the condition is merely based on unsubstantiated public opinion, the court

      Id. at 865, 542 N.Y.S.2d at 839.
      89 Misc.2d 702, 392 N.Y.S.2d 806 ( Sup. Ct., Suffolk County 1977).
      188 A.D.2d 469, 590 N.Y.S.2d 900 (2nd Dept. 1992).
      Id. at 470-71, 590 N.Y.S.2d at 902.

will strike it down. Additionally, efforts by a planning board to achieve some other

public purpose unrelated to the actual development proposed are improper.

       A. Conditions Though Site Plan Approval

               Introduction and Statutory Authority

       New York statutorily authorizes municipalities to review and approve site plans109

A site plan is defined under the statutes as “a rendering, drawing or sketch prepared to

specifications and containing necessary elements, as set forth in the applicable ordinance

or local law which shows the arrangement, layout and design of the proposed use of a

single parcel of land as shown on said plan.”110 The general purpose of such review is to

insure that the proposed development will proceed in harmony with the character of the

surrounding area and to ensure that natural resources will be protected.       The local

legislature may delegate site plan approval authority to the planning board or other

administrative agency.111

       The statutes also authorizes municipalities to impose reasonable conditions on site

plan approvals:

       The authorized board shall have the authority to impose such reasonable
       conditions and restrictions as are directly related to and incidental to a
       proposed site plan112

Additionally, any conditions imposed must be met at the time of the issuance of a

building permit.

    N.Y. VILLAGE LAW § 7-725-a (McKinney 1996), N.Y. TOWN LAW § 274-a (McKinney
Supp. 1996), N.Y. GEN. CITY LAW § 27-a (McKinney Supp. 1996).
    N.Y. VILLAGE LAW § 7-725-a(1), N.Y. TOWN LAW § 274-a(1), N.Y. GEN. CITY LAW § 27-
    N.Y. VILLAGE LAW § 7-725-a(2), N.Y. TOWN LAW § 274-a(2), N.Y. GEN. CITY LAW § 27-
    N.Y. VILLAGE LAW § 7-725-a(4), N.Y. TOWN LAW § 274-a(4), N.Y. GEN. CITY LAW § 27-

                 New York Case Law for Conditions Imposed during

                 Site Plan Approval

          In order to survive a challenge to conditions on approval of a site plan they must

be supported by empirical evidence in the record. In Castle Properties Co. v. Ackerson a

property owner sought review of certain conditions attached to a site plan approval for an

office/warehouse building. The conditions related to perceived traffic problems in the

future and a requirement that the owner install permanent fountains within drainage

basins located on the property for aesthetic reasons. The court struck down all of the

traffic conditions imposed because the “record provide[d] no evidentiary basis for these

conditions imposed.”113       The court also struck down the requirement to construct

fountains because the record failed to show a need for the fountains or consideration of

any less costly alternatives were considered.114 However, the case was remitted to the

Planning Board for reconsideration.115

          There must be rational basis in support of the site plan condition. Thus, in Janiak

v. Town of Greenville,116 the court upheld a restriction on a site plan approval for a

hunting preserve that prohibited the use of any weapon other than a shotgun. The court

determined that the restriction had a rational basis because “rifles are capable of firing

bullets in excess of the length and width of the property.”117 However, in Clinton v.

Summers,118 struck down a condition requiring a fence and posted sign warning people to

      Id. at 787, 558 N.Y.S.2d at 336.
      Id. at 787-88, 558 N.Y.S.2d at 337.
      Id. at 788, 558 N.Y.S.2d at 337.
      159 A.D.2d 436, 552 N.Y.S.2d 436 (1990).
      Id. at 574, 552 N.Y.S.2d at 436-37.
      144 A.D.2d 145, 534 N.Y.S.2d 473 (3d Dept. 1988).

stay away from a nearby lake front.         The court determined that the condition was

unreasonable because there was nothing in the record to support the perceived problem.

In fact, evidence showed that a swimming pool located on the property would have the

effect of drawing people away from the lake front.119

          Another important authority for local governments to consider is the supersession

authority120 which allows local governments to overcome state law in certain instances.

This possibility is explained in Kamhi v. Town of Yorktown.121 In Kamhi, the Town

Board, pursuant to a local law, imposed as a condition, a recreation fee of $47,550, on a

site plan approval for condominium development.122              The developer challenged the

imposition of this condition. The Court of Appeals first held that the local law allowing

the board to require parkland or money in lieu of pursuant to a site plan approval was

inconsistent Town law concerning site plan authority. However, the court then addressed

the issue of whether the local law could stand under the supersession authority.

          Under the Municipal Home Rule Law, the supersession authority allows a town to

“amend or supersede, in its local application, „any provision of the town law relating to

the property, affairs or government of the town or to other matters in relation to which

and to the extent to which it is authorized to adopt local laws by this section,

notwithstanding that such provision is a general law, unless the legislature expressly shall

have prohibited the adoption of such a local law.‟”123 “When municipalities act within

their supersession authority, even local laws that are inconsistent with the Town Law may

be valid. Indeed, inconsistency is a premise of the supersession authority, for there is

      Id. at 148, 534 N.Y.S.2d at 475.
      N.Y. MUNICIPAL HOME RULE LAW § 10 (Mckinney 1994).
      74 N.Y.2d 423, 547 N.E.2d 346, 548 N.Y.S.2d 144 (1989).
      Id. at 426, 547 N.E.2d at 347, 548 N.Y.S.2d at 145.

otherwise little need of the power to amend or supersede State law”124 The court warned:

“Local lawmaking power under the supersession authority is of course in all instances

subject to the State's transcendent interest where the Legislature has manifested such

interest by expressly prohibiting a local law . . . , or where a local law is otherwise

preempted by State law.”125

          The court noted that the supersession authority would be appropriate under the

facts presented by the case. The developer‟s proposal involved a large condominium

development which did not require subdivision approval. Thus, site plan approval was

the only mechanism for the town to review the proposal. Town Law allowed the town to

demand recreational parkland under subdivision approval but not under site plan

approval. “The Supersession authority permits the Town to correct this anomaly.”126

However, the court held the local law had not superseded Town Law because the Town

had not stated its intention “with definiteness and explicitness” to do so.127

          A. Conditions Through Rezoning


      Id. at 429-30, 547 N.E.2d at 349, 548 N.Y.S.2d at 147.
      Id. at 430, 547 N.E.2d at 349, 548 N.Y.S.2d at 147.
      Kamhi, 74 N.Y.2d at 430, 547 N.E.2d at 349, 548 N.Y.S.2d at 147.
      Id. at 432, 547 N.E.2d at 350, 548 N.Y.S.2d at 149.
      Id. at 434, 547 N.E.2d at 352, 548 N.Y.S.2d at 150.

        Municipalities may rezone property in accordance with a comprehensive plan to

meet the changing needs of the community.128 As rezoning is a legislative act, the

decision to rezone rests with the local legislature. A rezoning may relate to a broad area

or involve single property. Rezoning applied to a single property is subject to a challenge

that the rezoning constituted an illegal spot zoning. However, rezoning a single parcel of

land is not necessarily a spot zoning. By definition, such a rezoning will not be an illegal

spot zoning if it is in accordance with a comprehensive plan and furthers the general

welfare of the community.129

        Typically, in the case of a single property, the owner/developer may apply to have

her property rezoned so she can proceed with a development proposal that would

otherwise not be allowed.130 Although there is no explicit statutory authority to impose

conditions case law has upheld conditional rezoning as falling within the general grant of

authority by to state to local governments to regulate land use:

        Conditional rezoning is a means of achieving some degree of flexibility in
        land-use control by minimizing the potentially deleterious effect of a zoning
        change on neighboring properties; reasonably conceived conditions
        harmonize the landowner's need for rezoning with the public interest and
        certainly fall within the spirit of the enabling legislation.131

    N.Y. VILLAGE LAW § 7-708 (McKinney 1996), N.Y. TOWN LAW § 265 (McKinney Supp.
1996), N.Y. GEN. CITY LAW § 83 (McKinney Supp. 1996).
    Rodgers v. Tarrytown, 302 N.Y. 115, 123-24, 96 N.E.2d 731, 734-35 (1951). A spot zoning
will occur when the rezone only benefits the individual owner of the property. Id.
    The developer may choose to seek to rezone his property rather than apply for a use variance,
for example, for several reasons. The developer may not be able to demonstrate the necessary
hardship for a use variance. This may not be a problem in seeking to have property rezoned. The
focus in a rezoning context is on the needs of the community and whether the rezoning will be in
accordance with a comprehensive plan rather than on the particular hardship of the existing
zoning on the owner of the property. On a practical level, the developer may be more
comfortable going before the town board rather than the zoning board of appeals which oversees
the issuance of variances. Finally, a rezone may be the only option left for the developer, after
being denied an application for a variance or special use permit.
    Collard v. Village of Flower Hill, 52 N.Y.2d 594, 602, 421 N.E.2ds 818, 822, 439 N.Y.S.2d
326, 330 (1981) (citing Church v. Town of Islip, 8 N.Y.2d 254, 168 N.E.2d 680, 203 N.Y.S.2d
866 (1960).

The simple fact that a town board could have rezoned a property without any restrictions

is not a reason to invalidate rezoning when reasonable conditions are attached.132

        However, because conditional rezoning is a legislative act, it is subject to a

challenge that the rezoning constituted illegal contract zoning. The issue here is whether

the local legislature, in rezoning the developer‟s property, has bargained away some of its

zoning power.133     For example, a town board could not agree to never rezone that

particular property again in the future. Similarly, the town board could not agree to never

amend any of the conditions imposed on the rezoning in light of changed


                New York Case Law on Conditional Zoning

        As mentioned above, conditional rezoning is a valid exercise of local government

authority.   Since rezoning is a legislative act, it is “entitled to strongest possible

presumption of validity.”135      Additionally, where the developer agrees to conditions

imposed by the town board as a prerequisite to a change of zoning, there is no reason for

the developer to contest those conditions later.136 Thus, in Church v. Town of Islip, the

Court of Appeals upheld the imposition of conditions on a rezoning from residential use

    Church v. Town of Islip, 8 N.Y.2d 254, 259, 168 N.E.2d 680, 683, 203 N.Y.S.2d 866, 869
    See Church v. Town of Islip, 8 N.Y.2d 254, 168 N.E.2d 866, 203 N.Y.S.2d 866 (1960). A
related subject is development agreements whereby a municipality and an developer enter into a
contract over a proposed development. Under this contract both the developer and the
municipality are bound by the agreement. This, sounds perilously close to contract zoning,
however, as long as the municipality does not bargain away any of its right to zone in the future
such agreements are proper. See Halleran v. City of New York, 132 Misc.2d 73, 228 N.Y.S. 116
(Sup. Ct., New York County 1928).
    See Thomas v. June, 194 A.D.2d 842, 598 N.Y.S.2d 615 (3d Dept. 1993).
    Church, 8 N.Y.2d at 258, 168 N.E.2d at 869, 203 N.Y.S.2d at 682.
    Id. at 259, 168 N.E.2d at 869, 203 N.Y.S.2d at 683.

to allow business use. The conditions included a requirement that the developer execute

restrictive covenants on the maximum area to be developed and a requirement mandating

fences and shrubbery around the boundary of the property.137 The court upheld those

conditions because they served the needs of the surrounding residential community while

meeting the needs of expanded growth in the area.

          One of the primary concerns of any attempt to condition a rezoning application is

that the municipal board will be tempted to establish a condition personal to the user

rather than the use of the property. Such conditions are clearly improper. The Court of

Appeals, in Dexter v. Town of Gates,138 addressed the likelihood of this happening during

a land use application:

          While it is a fundamental principle of zoning that a zoning board is
          charged with the regulation of land use and not with the person who owns
          or occupies it . . . , we recognize that customarily, as is here illustrated,
          when a change of zone, a variance or a special permit is sought, there is a
          specific project sponsored by a particular developer which is the subject of
          the application. As a practical matter, the application is usually predicated
          on a particular type structure, often accompanied by architectural
          renderings, for a particular use by a specific intended user. In the usual
          case, the application and accompanying graphic material come to
          constitute a series of representations frequently bolstered at the hearing by
          additional promises or assurances made to meet objections there raised.
          Throughout, attention focuses on the reputation of the applicant and his
          relationship to the community and the particular intended use. And all too
          often the administrative or legislative determination seems to turn on the
          identity of the applicant or intended user, rather than upon neutral planning
          and zoning principles.139

In Dexter, the court invalidated a condition which essentially made the rezoning only

available to the owners at that time with the previous classification applying to anyone

      Id. at 257, 168 N.E.2d at 867, 203 N.Y.S.2d at 681.
      36 N.Y.2d 102, 324 N.E.2d 870, 365 N.Y.S.2d 506 (1975).
      Id. at 105, 324 N.E.2d at 871, 365 N.Y.S.2d at 507-08.


           From a developer‟s perspective, what appears to be a reasonable condition at the

time of the rezoning may turn out to be harsh when the time comes to implement the

condition. Collard v. Village of Flower Hill,141 is an excellent example of this potential

pitfall. In Collard, the Village Board of Trustees rezoned the property of certain owners

from a General Municipal and Public Purposes District to a Business District with certain

conditions attached.142 Included in those conditions was a requirement that the owners

get the Board of Trustees consent before any of the buildings on the rezoned property

were “altered, extended, rebuilt, renovated or enlarged.”143 Subsequent owners applied to

the Board of Trustees to enlarge and extend an existing building, however, without giving

any reason, the Board turned down the application. In response, the new owners brought

an action to have the decision overturned.

           The Court of Appeals noted that the conditions attached to a rezoning must be


           Just as the scope of all zoning regulation is limited by the police power,
           and thus local legislative bodies must act reasonably and in the best
           interests of public safety, welfare and convenience . . . , the scope of
           permissible conditions must of necessity be similarly limited. If, upon
           proper proof, the conditions imposed are found unreasonable, the rezoning
           amendment as well as the required conditions would have to be nullified,
           with the affected property reverting to the preamendment zoning

The owners asserted that the consent of the Board could not be unreasonably withheld.

However, the court refused to read that language into the condition where the language of

     “[T]he rezoning „cannot be used by any other individual or Corporation.” Id. at 105, 324
N.E.2d at 871, 365 N.Y.S.2d at 508.
    52 N.Y.2d 594, 421 N.E.2d 818, 439 N.Y.S.2d 326 (1981).
    Id. at 819, 421 N.E.2d at 597, 439 N.Y.S.2d at 327.
    Id. at 819, 421 N.E.2d at 598, 439 N.Y.S.2d at 328-29.

the condition was “explicit”.145 The court determined that had the parties intended such

language they had it readily available to them when the condition was first drafted146

Thus, while all conditions must be reasonable with respect to the proposed project, a

condition may not require reasonability in its application.

          Theoretically, one would expect the local legislature to have broader discretion to

impose conditions on the rezoning of a single property. However, rezoning a single

property always has the air of illegal spot zoning or contract zoning so, practically

speaking, the conditions imposed in a rezoning are generally similar in extent to those

imposed in other land use contexts.


          Local governments should recognize that they have every right to impose

conditions on new development to minimize the impact on the surrounding community.

However, there are some general limits or guidelines that should be followed in imposing

those conditions.

1. The impacts sought to be addressed should have a rational basis supported by some

      factual evidence. Certainly, the local board is not required to pinpoint with absolute

      certainty the extent of the adverse impact. In other words, a local agency cannot

      impose conditions based on the generalized complaints of perceived impacts by local

      citizens. A challenge to such conditions with no factual basis will almost certainly be


2. All conditions imposed must be reasonable. In addition, conditions must reasonably

      Id. at 822, 421 N.E.2d at 602-03, 439 N.Y.S.2d at 330.
      Collard, 52 N.Y.2d at 823, 421 N.E.2d at 603, 439 N.Y.S.2d at 331.
      Id. at N.Y.2d at 823, 421 N.E.2d at 603, 439 N.Y.S.2d at 331.

   related to the impact identified. These are two distinct ideas. The first goes to the

   extent of the burden that can be fairly placed on the developer. The second goes to

   the relevance of the condition being imposed to the impact identified.           These

   restrictions preclude the imposition of conditions addressing impacts not attendant to

   the project being proposed. If these two requirements are met the conditions imposed

   will easily satisfy the constitutional requirements of “essential nexus” and “rough


3. A closely related issue is the land use context of the government decision.

   “[C]onditions shall be consistent with the spirit and intent of the zoning ordinance or

   local law.”147 For example, for a variance application a board of appeals is directed to

   give the minimum variance necessary to relieve the burden on the applicant.

   Additionally, it must be understood that a variance allows a use that is presumptively

   not compatible with surrounding permitted uses. Thus, it is easy to see where a board

   would need to impose extensive conditions in some instances. On the other hand,

   even though the municipality may have some concerns, a special use is considered a

   compatible use. Therefore, conditions imposed should relate to those concerns.

4. Another important issue is the authority of the board making the decision. While

   certain conditions may be reasonable,. The board making the decision may not have

   the authority to impose such a condition. This may happen where the local legislature

   (town board) has delegated authority to the planning board, special permit approval

   for example. Such a delegation is usually accompanied by guidelines or standards to

   limit the discretion of the planning board. Therefore, the planning board may not

   properly impose conditions outside the scope of those guidelines. At the other end of

      the spectrum, a town board retains tremendous discretion with its zoning authority.

      Thus, when a town board is considering a rezone of a single property, it may impose a

      wide range of conditions. Additionally, this power is legislative and, for that reason,

      subject to political pressure and charges of spot zoning which may bare on the town

      board‟s determination.

5. In the case of any condition imposed, the board should clearly specify the condition so

      as not to leave the developer or the surrounding community in any doubt as to what is

      required to meet the condition. This will also benefit the local board making the

      decision as it is a clear indication that the board has carefully considered the matter

      before it.

6. All matters that support the board‟s decision to impose a condition should appear in

      the record. The justification for a condition as well as the condition itself must appear

      in the record if it is to survive a judicial challenge.

7. One of the most important restriction on imposing conditions is that the condition

      relate to the use of the land and not the user or the details of the operation of the

      business. There is not a clear definition here. It mostly depends on the particular

      matter before the board. However, in all of the land use mechanisms discussed above

      there is a lot of interaction between the applicant and the local board. Invariably, the

      board members are aware of the reputation of the applicant which may influence the

      board to impose improper conditions in some situations. To avoid this pitfall, the

      board must relate the condition a potential impact of the proposed use on neighboring


8. Finally, municipalities should not overlook the possibility of using its supersession

      N.Y. Village Law § 7-712-b(4) (Mckinney 1996).
      authority. Many of the state‟s enabling laws for these mechanisms place restrictions

      which preclude the imposition of otherwise reasonable conditions. The Kamhi case

      discussed above is an example. There, the local legislature delegated authority to the

      planning board to condition approval of a site plan on setting aside a portion of the

      property for parkland or money in lieu thereof. However, the state enabling law did

      not authorize such a condition. The supersession law provides the means for local

      governments to address these gaps in their arsenal for protecting their communities.


         Introduction and the SEQRA Process

         The imposition of conditions by municipalities is further complicated by the

requirements of the State Environmental Quality Review Act (SEQRA) which has

become an integral part of land use decisions made by government entities in New York

State. SEQRA “attempt[s] to strike a balance between social and economic goals and

concerns about the environment."148       And SEQRA insures that agency decisions on

projects are informed as to their environmental impacts.

         SEQRA makes environmental protection a concern of every agency . . . .
         In proposing action, an agency must give consideration not only to social
         and economic factors, but also to protection and enhancement of the
         environment . . . . SEQRA insures that agency decision-makers
         --enlightened by public comment where appropriate --will identify and
         focus attention on any environmental impact of proposed action, that they
         will balance those consequences against other relevant social and
         economic considerations, minimize adverse environmental effects to the
         maximum extent practicable, and then articulate the bases for their

   Jackson v. New York State Urb. Dev. Corp., 67 N.Y.2d 400, 494 N.E.2d 429, 503 N.Y.S.2d
298 (1986).


        The critical decision during SEQRA review is whether an environmental impact

statement (EIS) should be prepared. The EIS will look at all aspects of the proposal

included alternatives to the proposal and mitigation measures.150             An EIS must be

prepared by an agency for any action "which may have a significant impact on the

environment."151 The determination as to whether there is a potentially significant impact

necessarily involves some preliminary environmental review on the part of the agency.

The agency directs a developer to prepare an Environmental Assessment Form for this

purpose.152 Additionally, the definition of environment under SEQRA is broad enough to

reach almost any negative impact of a project proposal:

        "Environment" means the physical conditions that will be affected by a
        proposed action, including land, air, water, minerals, flora, fauna, noise,
        resources of agricultural, archeological, historic or aesthetic significance,
        existing patterns of population concentration, distribution or growth,
        existing community or neighborhood character, and human health.153

        All of the local land use decisions discussed in the previous section fall within the

definition of an “action” under SEQRA.154 And all local government entities fall within

the definition of agency under SEQRA.155 Thus, for example, any project proposal

requiring subdivision approval by a local planning board is subject to SEQRA.156

    Jackson, 67 N.Y.2d at 414-15, 494 N.E.2d at 434, 503 N.Y.S.2d at 303.
    N.Y. ENVTL CONSERV. L. ' 8-0109(2) (McKinney 1984).
    West Branch v. Town of Clarkstown, 207 A.D.2d 837, 837, 616 N.Y.S.2d 550, 552 (2nd
Dept. 1994)
    6 N.Y.C.R.R. 617.2.
    Id. § 8-0105(4); 6 N.Y.C.R.R. 617.2(b).
    N.Y. ENVTL. CONSERV. L. ' 8-0105(2), (3); 6 N.Y.C.R.R. 617.2 (c), (v).
    In many situations, the local board will act as the lead agency for the environmental review.
However, in some instances, project proposal may approval by several agencies at the local and
state level. For example, a developer seeking local subdivision approval on property with a state
designated wetland will also require a wetlands permits issued by the DEC before the project can
proceed. In this scenario, the DEC may be the appropriate lead agency. The developer may face

        When an agency finds that significant environmental impacts may result from the

project, the agency must issue a positive declaration (PD) requiring the preparation of an

EIS.157 Where no significant impacts can be identified, the agency issues a negative

declaration (ND) which halts the SEQRA review process.158 A third option also exists.

In some instances, an agency can issue a conditioned negative declaration (CND). A

CND may be issued when the preliminary environmental review reveals potentially

significant environmental impacts which can be addressed through identified mitigation


        SEQRA has both procedural and substantive impacts on land use decisions made

and the conditions imposed by local governments. Procedurally, the EIS process requires

the agency to review and prepare a Draft EIS (DEIS) and Final EIS (FEIS) and provide

for public participation throughout.159 The EIS must include “alternatives to the proposed

action” and “mitigation measures proposed to minimize the environmental impact.”160

“[B]efore approving an action that has been the subject of a FEIS, an agency must

consider the FEIS, make written findings that the requirements of SEQRA have been met,

and prepare a written statement that the requirements of SEQRA have been met, and

prepare a written statement of the facts and conclusions relied on in the FEIS or

two layers of conditions here; the DEC may attached conditions on the issuance of the wetlands
permit and the local planning board may attach further conditions to the subdivision approval.
For more on how a lead agency is chosen see 6 N.Y.C.R.R. 617.6. See also Town of Henrietta v.
Department of Envtl. Conservation, 76 A.D.2d 215, 219, 430 N.Y.S.2d 440, 444 (4th Dept. 1980)
(The lead agency‟s “obligation under SEQRA as an approving agency [is] to insure that all of the
project‟s adverse environmental effects revealed in the EIS are minimized or avoided”).
    6 N.Y.C.R.R. 617.2(ac). See also 6 N.Y.C.R.R. 617.7 which lays out the criteria for
determining significance.
    6 N.Y.C.R.R. 617.2(y).
    N.Y. ENVTL. CONSERV. L. ' 8-0109(2).
    Id. § 8-01092(d), (f).

comments.”161 Thus, SEQRA prohibits an agency from approving an action unless it has

made “an explicit finding that . . . adverse environmental effects revealed in the

environmental impact statement process will be minimized.”162

        Substantively, agencies are required to take a "hard look" at the potential adverse

environmental impacts and consider those impacts when making its decision.163 SEQRA

directs all agencies including local government entities to use:

        all practicable means to realize the policies and goals set forth in
        [SEQRA], and [to] choose alternatives which, consistent with social,
        economic and other essential considerations, to the maximum extent
        practicable, minimize or avoid adverse environmental effects, including
        effects revealed in the environmental impact statement process.164

SEQRA regulations further provide: “SEQRA provides all involved agencies with the

authority, following [environmental review], to impose substantive conditions upon an

action to ensure that the requirements of SEQRA have been satisfied.” 165 Thus, once an

adverse environmental impact has been identified the agency must identify mitigating

measures and use all practicable means to minimize the environmental impact by

requiring an alternative that will have less of an impact or by imposing conditions that

mitigate the impact. However, "[n]othing in the law requires an agency to reach a

particular result on any issue, or permits the courts to second-guess the agency's choice,

which can be annulled only if arbitrary, capricious or unsupported by substantial

    Jackson, 67 N.Y.2d at 415-16, 494 N.E.2d at 435, 503 N.Y.S.2d at 304.
    N.Y. ENVTL. CONSERV. L. § 8-0109(8).
    Jackson, 67 N.Y.2d at 417, 494 N.E.2d at 436, 503 N.Y.S.2d at 305.
“[A]n agency‟s compliance with its substantive SEQRA obligations is governed by a rule of
reason and the extent to which the particular environmental factors are to be considered varies in
accordance with the circumstances and nature of the particular proposals.” Weok Broadcasting
Corp. v. Town of Lloyd, 79 N.Y.2d 373, 382, 592 N.E.2d 778, 782, 583 N.Y.S.2d 170, 174
    N.Y. ENVTL. CONSERV. L. ' 8-0109(1) (McKinney 1984) (emphasis added).
    6 N.Y.C.R.R. 617.3(b).


          Mitigation is a key component of both the procedural and substantive

requirements of SEQRA. SEQRA regulations now define mitigation as “a way to avoid

or minimize adverse environmental impacts."167 From this less than expansive definition,

we can see how mitigation measures identified during the environmental review can

become conditions imposed as part of a local land use decision.

          The Court of Appeals has described an agency‟s obligation regarding mitigation:

          SEQRA requires an agency "to list ways in which any adverse effects . . .
          might be minimized" . . . , but it does not require an agency to impose
          every conceivable mitigation measure, or any particular one. Rather, in
          accordance with its balancing philosophy, SEQRA requires the imposition
          of mitigation measures only "to the maximum extent practicable"
          "consistent with social, economic and other essential considerations" . . . .
          Moreover, nothing in the act bars an agency from relying upon mitigation
          measures it cannot itself guarantee in the future. Just as an agency must
          take a hard look at alternatives and consider a reasonable range of
          alternatives . . . so, too, must an agency, employing a rule of reason, take a
          hard look at and consider potential mitigation measures.168

Thus, an agency may rely on mitigation measures which can be implemented by other

agency‟s in making its final decision on a proposal.             Furthermore, attempting to

categorize types of mitigation measures appropriate for certain situations is a futile

exercise; as anyone who deals with SEQRA on a regular basis will verify, they depend on

the particular circumstances surrounding the project proposal.

          There are, of course, limits to mitigation measures that can be imposed.

Mitigation measures must be "practicable and reasonably related to the impacts

identified."169 And, the mitigation measure imposed must be "roughly proportional" to

      Id. at 417, 494 N.E.2d at 436, 503 N.Y.S.2d at 305.
      6 N.Y.C.R.R. 617.2(x).
      Jackson, 67 N.Y.2d at 421-22, 494 N.E.2d at 439, 503 N.Y.S.2d 308 (citations omitted).
      Holmes v. Town of New Castle, 78 A.D.2d 1, 14-5, 433 N.Y.S.2d 587, 596 (2nd Dept. 1980)

the environmental impact.170 SEQRA does not allow an agency to exercise authority in

an area under the jurisdiction of another agency.171 Furthermore, an agency cannot deny

or condition an application based on generalized community objections with no factual

evidence to support those objections.172

        Thus, for example, a planning board could, pursuant to SEQRA, condition

approval of a large subdivision “on several mitigation measures, including large lot sizes,

restrictions on house colors, a mandatory planting program, the filing of covenants and

restrictions, and imposition of a conservation easement” as long the measures were

address potential impacts identified during the environmental review process and

supported by evidence.173

        The implication of local board authority to impose conditions under SEQRA is

significant. As mentioned above, the definition of environment is broad enough that local

boards can impose a wide range of conditions pursuant to SEQRA depending on the

circumstances presented. This is most significant where the agency is a planning board.

Of the land use mechanisms discussed above, planning boards typically review site plan

approval, subdivision approval, and the issuance of special permits.

        That authority is delegated by the local legislature. Generally, a delegation of

(citations omitted). See also Ginsburg Dev. Co. v. Town of Cortland, 150 Misc.2d 24, 565
N.Y.S.2d 371 (Sup. Ct., Westchester County 1990) (holding that a mitigation measure imposed
as a condition must have "a sufficient nexus to and [be] reasonably expected to alleviate the
identified adverse environmentasl impact").
    Dolan v. City of Tigard, 114 U.S. 2903 (1994).
    See Macchio v. Town of East Hampton, 152 Misc.2d 622, 578 N.Y.S..2d 355 (Sup. Ct.,
Suffolk County 1991).
    See WEOK Broadcasting Corp. v. Town of Lloyd, 79 N.Y.2d 373, 592 N.E.2d 778, 583
N.Y.S.2d 170 (1992). In WEOK, the Court of Appeals held that the planning board‟s denial of
site plan approval was improper where the developer had taken significant steps to address the
visual impacts of the original proposal and the board‟s decision was based only on objections
raised by community members but unsupported by any factual evidence. Id.
    Morse v. Town of Gardiner, 164 A.D.2d 336, 340, 563 N.Y.S.2d 922, 925 (3d Dept. 1990).

authority to a planning board is accompanied by guidelines or standards to reign in the

planning board‟s discretion and to direct the focus of its review.174 Thus, for example, a

planning board reviewing a subdivision approval may be allowed to impose conditions

which address infrastructure needs relating to transportation. When SEQRA authority is

superimposed on the that limitation, the planning board may be able to consider a wider

range of conditions. However, the planning board may not impose conditions concerned

with areas under the jurisdiction of another governmental agency.175

        Two of the SEQRA procedural paths or options described above, once chosen,

can to lead to the imposition of mitigation measures as conditions on the local

government‟s final decision; one is mandatory if chosen, the other is discretionary. The

first occurs when an agency prepares an EIS after issuing a PD. The imposition of

mitigation measures on the final decision is at the agencies discretion, however, from a

practical standpoint, such measures are usually imposed when an agency decides to

approve the project. The second situation occurs when an agency issues a CND. The

CND triggers the mandate that mitigation measures be imposed. Here, the agency has

identified potentially significant environmental impacts during its preliminary

environmental review which triggers the requirement for the preparation of an EIS. The

only way to avoid this requirement is to issue a CND and impose mitigation measures to

address those impacts. It is important to note that for both PD and CND, the agency must

initially find potentially significant environmental impacts.

        There is no explicit authority to issue a conditioned negative declaration (CND)

under SEQRA. Nevertheless, the Department of Environmental Conservation (DEC) has

   On a practical level, the standards accompanying a delegation of authority tend to be rather

interpreted SEQRA to allow CNDs under certain circumstances. A CND is defined as:

         a negative declaration issued by a lead agency for an Unlisted action,
         involving an applicant, in which the action as initially proposed may result
         in one or more significant adverse environmental impacts; however,
         mitigation measures identified and required by the lead agency, pursuant
         to the procedures in 617.7(d) of this Part, will modify the proposed action
         so that no significant impacts will result.176

         As the definition suggests, an agency cannot issue a CND for a Type I action.

This is so despite the fact that Type 1 actions do not necessarily require an EIS to be

prepared.177    In Shawangnunk Mountain Environmental Association                  v. Town of

Gardiner,178 the Appellate Division for the Third Department, while holding that a CND

was inappropriate for a proposal that was clearly a Type 1 action, noted that a CND may

be appropriate under some circumstances: "we do not necessarily imply that in any Type

1 action mitigating measures incorporated in the proposal may never justify a negative

declaration."179 Despite this language, other cases have clearly held that a CND may be

issued only for Unlisted actions.180 This holding is supported by the definition stated

above.    Additionally, when the DEC recently proposed amendments to the SEQRA

    N.Y. ENVTL. CONSERV. L. ' 8-0109(6).
    6 N.Y.C.R.R. 617.2. One can understand why CNDs are controversial. Where a CND is
being considered, by definition, there may be significant environmetnal impacts from the original
proposal. The imposition of mitigation measures allows the agency to issue a negative
declaration. However, these mitigation measures are formulated, again by definition, without
full environmental review because an EIS will not be prepared. Clearly then, the possibility that
the use of CNDs may be abused by some agencies exists.
         Practically, the potentially significant adverse impacts of many projects are readily
identifiable such that requiring the preparation of an EIS would be a waste of resources.
Potential abuse can be offset by a vigilant judiciary and public effort.
    6 N.Y.C.R.R. 617.4(a) Type 1 actions are “those actions and projects that are more likely to
require the preparation of an EIS than Unlisted actions.” Id.
    157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dept. 1990).
    Id. at 277, 557 N.Y.S.2d at 497.
    See Ferrari v. Town of Penfield, 181 A.D.2d 149, 585 N.Y.S.2d 925 (4th Dept. 1992);
Merson v. McNally, 1996 WL 280597 (N.Y., App. Div., 2nd Dept. 1996); Weok Broadcasting
Corp. v. Town of Lloyd, 79 N.Y.2d 373, 592 N.E.2d 778, 583 N.Y.S.2d 170 (1992); Miller v.
City of Lockport, 210 A.D.2d 955, 620 N.Y.S.2d 680 (4th Dept. 1994).

regulations, it considered amending the definition of CND to authorize a CND for Type 1

actions as well as unlisted actions, however, the final amendments did not include that

change. Thus, it seems clear that actions identified as Type 1 are inappropriate for a CND


          However, a CND may not always be appropriate for every Unlisted action either.

In West Branch Conservation Association, Inc. v. Town of Clarkstown,181 the court held

that the Planning Board for the Town of Clarkstown improperly issued an ND based on

the assumption that potentially significant impacts could ultimately be mitigated at some

point in the future. The developer‟s proposal involved a residential development on a 52

acre tract of land. In reviewing the Environmental Assessment Form submitted by the

developer, the Planning Board identified several potentially significant impacts.182 Some

of the impacts included the removal of over 21 acres of vegetation, construction on 15%

steep slopes in places, an increase in local residential traffic, and a substantial increase in

the surface water runoff from the developed area.183 In making its determination the

Planning Board outlined several possible mitigation measures that could be used to

address the concerns raised, however, none of those measures were imposed at that

time.184 The court did not characterize the project as a Type 1 action which would have

presumptively required the preparation of an EIS. Nevertheless, the court determined that

the Planning Board should have issued a PD given its inherent acknowledgment of these

potential impacts during its discussion of its environmental impacts.

          Although not directly on point, this case has two valuable lessons for local boards.

      207 A.D.2d 837, 616 N.Y.S.2d 550 (2nd Dept. 1994).
      Id. at 839, 616 N.Y.S.2d at 552.
      Id. at 839-40, 616 N.Y.S.2d at 552.
      Id. at 840-41, 616 N.Y.S. 2d at 553.

An issuance of an ND with the possibility of imposing future mitigation measures does

not satisfy the criteria for a CND. A CND requires the lead agency to certify that the

mitigation measures identified will be used to address environmental impacts.185

Furthermore, certain Unlisted actions simply may not be appropriate for a CND. It is

important to remember that the issuance of a CND or ND necessarily means that there

will not be a full environmental review and lessens public participation in the process.

Where the project will likely result in pervasive environmental impacts, the public should

have a full opportunity to be involved in the approval process.           This can only be

accomplished by the EIS process.

       The DEC has made it clear that the issuance of a ND instead of a CND by the

local agency does not preclude the imposition of conditions on its final land use

decision.186 Thus, in some instances, it may be appropriate for an agency to issue an ND

as there are no potentially significant environmental impacts and impose conditions on its

land use decision. The DEC has listed typical examples of conditions within an agency‟s

authority to impose which would not require a CND:

9. Imposing a modification to a building location for a site plan approval;

10. Requiring conformance to a municipality‟s standards for setback from lot lines;

11. Meeting emission or discharge standards as required by law;

12. Locating septic tanks above seasonal groundwater levels;

13. Requiring erosion and runoff controls during construction; and

14. Requiring a detention or retention basin for stormwater control.187

    See 6 N.Y.C.R.R. 617.3(b)
SEQR HANDBOOK 47-8 (1992).
    Id. at 48.

          An important limitation of the SEQRA process is that it does not allow agencies

to interfere with another agency properly exercising its authority under its jurisdiction.

Thus, a municipality must accept reasonable conditions imposed by state agencies on

development proposals even where the municipality has already approved the

development. In Town of Henrietta v. Department of Environmental Conservation,188 the

court held that the Department of Environmental Conservation, as lead agency, was

entitled to impose conditions on a permit approval for a shopping mall development. The

Town of Henrietta had previously issued site plan approval for the development. The

developer also sought several permits approvals under the jurisdiction of the DEC

including water supply and water quality certification and an air quality permit. The DEC

approved the proposal subject to a number of conditions. In response, the Town and the

developer petitioned the court to vacate the following conditions:

          4. Detailed construction plans shall be submitted to the Department for
          review and approval prior to beginning construction on each of the
          following aspects of work: (c) all landscaping, particularly with respect to
          the outer boundaries of the Site;
          8. To insure maximum wildlife utilization of detention/retention basins,
          dense vegetative screens of low-lying conifers and shrub species, such as
          autumn olive and dogwood, shall be planted along the basin perimeters.
          10. The area identified on Appendix 'A' as 'Future Development Area A'
          Between Ponds 'A' and 'B,' at the southeasterly boundary of the Site, shall
          be maintained in an undeveloped condition for the life of the mall project.
          11. The water line that would extend from the looped system of
          distribution mains that is proposed as part of the overall water supply
          system for The Marketplace to the 'Future Development Area' in the
          southeast portion of the Site for the purpose of serving that area in the
          future shall be eliminated from the water supply plans, and shall not be
          installed as part of the development of the 125-acre Site.
          12. Parking areas for the completed project shall not exceed a total of
          5,515 spaces.
          17. An energy conservation plan pursuant to Energy Law shall be
          submitted to the Town and the Department concurrently upon the
          completion of preliminary design plans for the project or the submission of
      76 A.D.2d 215, 430 N.Y.S.2d 440 (4th Dept. 1980).

          applications for building permits, whichever is earlier.
          18. Prior to operation of the mall, the Applicant shall submit to the
          Department for approval a plan to monitor carbon monoxide at the Site
          and a proposal for remedial action in the event of violation of applicable
          air standards.189

The DEC asserted that it imposed some of the conditions to meet the specific

requirements of respective permits and the remaining conditions were imposed “to fulfill

[its] obligation under SEQRA as an approving agency to insure that all of the project's

adverse environmental effects revealed in the EIS are minimized or avoided.”190 The

court determined that the DEC had authority to impose conditions pursuant to SEQRA to

minimize the environmental impacts revealed in the EIS. The court went on to uphold all

of the conditions imposed by the DEC as being within its SEQRA authority. The court

did, however, strike condition 18 listed above as was arbitrary and unreasonable because

too many unquantifiable variables existed to determine traffic amount.191

          Frequently during the history of a development project a developer will return to

the planning board to seek a modification to a site plan approval of a site. A planning

board may require conditions before approving a modified site plan. However, this is not

an opportunity for the planning board to use SEQRA to address problems with the

original plan where the developer has already made significant improvements. In E.F.S.

Ventures Corp. v. Foster,192 the Court of Appeals overturned a planning board‟s

imposition of additional conditions on a modified site plan where the conditions related

to impacts not fairly relating to any of the modifications. In 1982, the developer had

obtained site plan approval to construct two motels on a portion of the property owned by

      Id. at 219 n.2, 430 N.Y.S.2d at 445.
      Id. at 219, 430 N.Y.S.2d at 444.
      Id. at 225, 430 N.Y.S.2d at 448-49.
      71 N.Y.2d 359, 520 N.E.2d 1345, 526 N.Y.S.2d 56 (1988).

the developer.193 The original approval which did not involve SEQRA included several

conditions including a requirement that the developer grant an 50 foot scenic easement to

the Town around a pond, a requirement that one of the proposed buildings be relocated,

and setbacks on all septic systems from the pond.194 In 1983, the developer submitted a

modified site plan to reflect changes including the construction of another motel, a

swimming pool, and tennis courts.195

          Eventually after the preparation of a final EIS for the modified plan in 1984, the

planning board approved the site plan subject to further conditions. By this time most of

the construction under the original site plan had taken place. These conditions included

the destruction of the relocated building mentioned above to provide a turn around for

emergency vehicles, the destruction of four units of one of the motels built under the

original site plan to permit widening of a roadway, and the removal and relocation of a

newly constructed access road which was also part of the original plan.196 The developer

offered alternative proposals to address the planning board‟s concerns, however, they

were rejected.

          Addressing an estoppel argument by the developer, the court determined that the

planning board was entitled to review the entire project even though substantial

construction under the first phase had already been completed; the court held that

“estoppel may not be invoked against a governmental agency to prevent it from

discharging its statutory duties.”197       The court also note that agencies generally may

review an entire project when a modification is proposed. However the court held that

      Id. at 364, 520 N.E.2d at 1347, 526 N.Y.S.2d at 58.
      Id. at 364, 520 N.E.2d at 1347, 526 N.Y.S.2d at 58.
      Id. at 364, 520 N.E.2d at 1347, 526 N.Y.S.2d at 58.
      E.F.S., 71 N.Y.2d at 366, 520 N.E.2d at 1348, 526 N.Y.S.2d at 59.

the planning boards power to impose conditions under SEQRA is limited where the

developer has already made significant improvements:

          when a Planning Board is considering whether to approve a modification
          to a site plan where the developer has taken prior action, impervious to
          attack on SEQRA grounds because of the Statute of Limitations, it is
          arbitrary and capricious for a Board to condition approval of the
          modification on the developer‟s compliance with remedial measures
          unless those remedial measures have some demonstrable connection with
          the environmental impact of the proposed modification. Otherwise stated,
          the Board cannot use its powers to review the environmental impact of the
          entire project as a pretext for the correction of perceived problems which
          existed and should have been addressed earlier in the environmental
          review process.198

          Finally, one cannot ignore the impact that the procedural requirements of SEQRA

can have on the imposition of mitigating conditions. Developers are generally eager to

avoid any of these requirements. For example, a developer may be quite willing to accept

mitigating measures imposed as part of a CND issued by a local board. The CND allows

the developer to avoid the time and expense associated with the preparation of an EIS.

Even where an EIS is prepared the impact on developer proposals may be considerable.

Generally, as long as those conditions are reasonable they will withstand an attack,

assuming the EIS has been properly prepared, the local board has compiled factual

evidence and a record to support the conditions its intends to impose.


          Both the procedural and substantive aspects of SEQRA can provide local

governments with an opportunity to impose, as conditions, measures to mitigate any

adverse environmental impacts identified during the environmental review process.

      Id. at 369, 520 N.E.2d at 1350, 526 N.Y.S.2d at 61.
      Id. at 373, 520 N.E.2d at 1352-53, 526 N.Y.S.2d at 63-4.

SEQRA defines the environment so broadly that local boards acting as lead agencies can

consider a wide range of impacts and possible condition to address those impacts. Thus

SEQRA has expanded the scope of review for some local boards in some instances, most

notably planning boards.

       Procedurally, the environmental review process, even before the decision to

require a developer to prepare an EIS, can be used to require mitigating measures if the

local agency or board decides to issue a CND. This indicates the importance of the

Environmental Assessment Form (EAF) which must be completed before that

determination. The board must take the time to ensure that the EAF is complete and

accurate to ensure that the proper decision is made.199 Often, the developer is willing to

accept all conditions imposed on the CND to avoid the time and expense associated with

the preparation of an EIS.

       Even where the developer is required to prepare an EIS, the local board is

empowered, pursuant to SEQRA, to require the developer to mitigate environmental

impacts identified in the EIS. Remember, SEQRA instructs all agencies, to the maximum

extent practicable, to minimize or avoid adverse environmental effects.

       Of course, conditions or mitigating measures imposed pursuant to SEQRA must

be reasonable and justified by the evidence before the board. Additionally, development

proposals may involve several “action” on the part of a number of agencies. All of these

actions are subject to SEQRA. Where that is the case, local boards must be careful not to

interfere with other state and local agencies properly exercising their authority under


    SEQRA provides for a short form EAF and a full EAF. The applicant must complete a fill
out a full EAF before a CND can be issued anyway. See 6 N.Y.C.R.R. 617.7(d)(1)(I). See also 6

N.Y.C.R.R. 617(2)(m).


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