Below is a letter that was sent to the Town regarding the opposition of the Sam’s Club application to install a gasoline depot at the Sam’s Club location on 9A/Saw Mill River Road:
Re: Sam's Real Estate Business Trust
333 Saw Mill River Road (Section 7.18, Block 52, Lot 32), Greenburgh, NY Verified Petition for Zoning Text Amendment to Permit Automotive Fuel Station
Dear Supervisor Feiner:
Introduction
This office represents numerous local small business owners and others in connection with the above-captioned petition by Sam's Real Estate Business Trust (“Sam’s Club”), which asks the Greenburgh Town Board to amend the Greenburgh zoning ordinance to allow exactly that which the zoning ordinance prohibits: the installation and operation of fuel pump islands and related gasoline dispensing facilities at the above-captioned retail location located in the Town's “DS” zoning district. The instant application by Sam’s Club comes after its past unsuccessful attempt to overturn the Greenburgh Building Inspector’s earlier determination that a “gasoline service station,” was not a use accessory to Sam's Club’s retail operation. The Zoning Board of Appeals agreed with the Building Inspector in that regard and denied the Sam’s Club appeal.
Undeterred by the foregoing, Sam’s Club’s latest attack on the zoning ordinance (and the land use planning concerns that inform it) comes in the form of a petition seeking a customized self-interested re-write of the zoning ordinance which, if implemented, would effectively create a new, never before contemplated, “Big Box with Gas” land use in the DS zoning district, with potentially deleterious effects on local traffic, parking, and economic development.
During the public hearing on the Sam’s Club application on February 10, 2022, which I observed, there was a brief colloquy ostensibly on the subject of prohibited “spot zoning” and how that legal principle should apply in the context of this Sam’s Club lobbying effort to change the zoning ordinance. Because certain of the parties to that colloquy seem to labor under a misunderstanding of applicable law and how it applies here, this correspondence will focus on that particular issue. In all other respects, my clients rest on the administrative record, the comments at the public hearing(s), and reserve all of their rights at law and/or in equity relative to these matters.
Background
A. Applicable Zoning Ordinance Provisions.
Sam’s Club is before the Town Board seeking certain amendments to Chapter 285-28 of the zoning ordinance, titled “DS Designed Shopping District.” For decades, allowed principal uses in the DS zoning district were limited to “[F]ully enclosed stores for the retail sale of consumer merchandise,” and “fully enclosed service establishments.”1 The uses currently permitted in the DS district by special use permit follow the same theme, allowing “[F]ully enclosed commercial recreation facilities.”2
The DS zoning district definition also includes certain prohibitions, which reflect the Town Board’s legislative determination that these enumerated land uses are inconsistent with the designated principal uses. For example, in the DS zoning district “[T]here shall not be permitted therein an automobile sales lot, motor vehicle salesroom, public garage, gasoline station . . . [or] car washing establishment.”3 As pertinent here, the zoning ordinance defines “Gasoline Service Station,” as “[A]ny area of land, including structures thereon, or any building or part thereof that is used for the sale of automotive fuel, related petroleum products and other motor vehicle accessories and which may or may not include facilities for washing, lubricating or otherwise servicing motor vehicles, but not including the painting thereof by any means.”4
Accordingly, the enumerated purposes of the DS zoning district are to provide Town residents with access to a retail-oriented shopping zone in “fully enclosed" stores or other facilities, unburdened by the presence of, among other enumerated incompatible land uses, “Gasoline Service Stations,” and/or any other use that would be offensive, obnoxious or detrimental to the surrounding area by reason of noise, gases, fumes, smoke, odor, dust or vibrations.”5
As we understand it, all these essential zoning classifications and restrictions were in place when Sam’s Club acquired the Saw Mill River Road parcel that is the ostensible (and perhaps sole) beneficiary of the zoning amendments Sam’s Club now proposes.
1 Zoning Ordinance § 285-28(A)(1)(a).
2 Zoning Ordinance § 285-28(A)(2).
3 Zoning Ordinance § 285-28(A)(1)(a)(2). 4 Zoning Ordinance, § 285-5.
5 Zoning Ordinance, § 285-28(A)(1)(a)(1).
B. Sam's Club's Unsuccessful Attempt to do as of Right that Which it Now Seeks to do by Zoning ordinance Amendment.
In or about mid-2003 and faced with the above unambiguous zoning restrictions and prohibitions, Sam's Club adopted an audacious strategy: claiming that its particular mode and method of fuel sales was not the textually prohibited “Gasoline Service Station” use in the DS zoning district, but instead was a use "accessory" – or customarily incidental and subordinate to – its permitted retail use. The Town Building Inspector, and then the Zoning Board of Appeals on a full administrative record, rejected this highly novel interpretation of the zoning ordinance in April 2004.
Given these determinations, Sam’s Club could only add gasoline service to the Saw Mill Road site if it obtained a use variance from the Zoning Board of Appeals, or, as here, sought fundamental legislative changes to the zoning ordinance text, custom-made to overcome these prohibitions and allow Sam’s Club’s preferred use either as of right or by special use permit. Given that Sam’s Club purchased the land subject to these land use restrictions, a use variance is out of the question, as a matter of law.6 The instant application for a “zoning text amendment” followed.
C. The Instant Proposal for a Zoning Text Amendment.
In July 2019, Sam’s Club deployed a new strategy of lobbying the Town Board to amend the actual text of the zoning ordinance to clear away any regulatory hurdles in the way of its planned gasoline service station use. This latest effort would require the Town Board to amend Section 285-85 of the zoning ordinance to create a brand-new land use, titled “Automotive Fuel Station,” to be authorized in the DS district by special use permit. The only difference between this newly fashioned “Automotive Fuel Station” use and the prohibited “Gasoline Service Station” use is that Sam’s Club proposes to eliminate, not the outdoor (i.e., unenclosed) sale of fuel, which is the definitions’ main focus, but the ancillary services under the definition, “which may or may not include facilities for washing, lubricating or otherwise servicing motor vehicles.”7
6 Without belaboring the point, under New York law a local zoning board of appeals may only grant a use variance if the applicant demonstrates that zoning regulations it seeks to vary have caused "unnecessary hardship." To prove unnecessary hardship, an applicant must demonstrate that for each and every permitted use under the zoning regulations for the particular district where the property is located: (i) the applicant cannot realize a reasonable economic return; (ii) that the alleged hardship is unique and does not apply to a substantial portion of the zoning district; (iii) that the requested use variance, if granted, would not alter the essential character of the neighborhood; and, as pertinent here, (iv) the alleged hardship was not "self-created," meaning in existence when the applicant purchased the property at issue. See, e.g., NY Town Law § 267-b(2); see also Clark v. Bd. of Zoning Appeals of Town of N. Hempstead, 301 NY 86, 91 (1950) ("Nothing less than a showing of hardship special and peculiar to the applicant's property will empower the board to allow a variance."). Sam's Club obviously could never satisfy this stringent standard. Hence, the instant application to rewrite the zoning ordinance instead. 7
Remarkably, Sam’s Club has provided the Town Board with the exact language it wishes to see legislated:
Automotive Fuel Station shall mean the use of any portion of a parcel of property that meets the standards set forth in Section 285-28(h) of the Zoning Ordinance, as evidenced by the grant of a special use permit by the Town Board, for the operation of up to ten (10) fuel pumps (i.e., 20 fueling positions) for the sale of automotive fuel. The portion of said tract of land utilized as an Automotive Fuel Station shall be exclusively limited to the sale of automotive fuel and specifically prohibited from selling any and all other goods or services including, without limitation, motor vehicle accessories, car washing, lubricating, painting, mechanical repair or otherwise servicing motor vehicles by any means.
In other words, Sam's Club has tailored its proposed new land use classification to the specific and unique nature of Big Box gasoline sales: because Big Box retailer gas sales are used as an enticement to its retail sales, Big Box retailers (unlike nearly every small business owner in the local gasoline market) need not offer any of these ancillary or related sales or services to sustain their business model. All they require are pump islands and a single employee to oversee them.
The disingenuousness of Sam’s Club’s position, including its attempt to use the alleged absence of ancillary sales and service at the point of dispensing as an enticement to the amendments it seeks, is revealed the minute one steps through the door of the Sam’s Club retail store. While inside, one can purchase a wide variety of the ostensibly prohibited (under the Sam’s Club proposal) “motor vehicle accessories,” including windshield wipers, lubricants, cooling fluids, and the like, and can obtain other (again ostensibly prohibited) automotive repair and/or maintenance services, including a set of new tires, mounted balanced, and installed.8 The materials Sam’s Club has before the Board, while voluminous, never disclose this key fact: regardless of any limitation in the proposed amendments or other prohibitions, Sam’s Club is selling ancillary automotive supplies and services and will continue to do so. Thus, even under the proposed amended zoning text, the addition of gasoline dispensing at Sam's Club would render it completely indistinguishable from the “Gasoline Service Stations” that are prohibited in the DS zoning district.
The above definition is thus of no benefit to any gasoline retailer other than a Sam’s Club type operation, based on the unique nature and configuration of its gasoline sales business model. On the other hand, its adoption would mean that any parcel in the DS zoning district that meets the 5-acre minimum area standard would be eligible for a special use permit authorizing the same kind of “Automotive Fuel Station” use. Therefore, in all material respects the proposed amendments create a new “Big Box with gasoline” land use. Sam’s Club tried unsuccessfully to get this in the past, and now simply have decided to try again but by using a different method.
Controlling Legal Principles
At the February 10, 2022, public hearing, certain of the comments, in particular those of a Town Board member and the applicant's representative, seemed to suggest or otherwise claim that because Sam's Club has not sought a zoning map amendment, but has instead sought to achieve the same goal by lobbying the Town to adopt fundamental changes to the underlying zoning scheme, the present application is somehow shielded against claims of improper “spot zoning.” But this contention, which elevates form over substance in the extreme, is mistaken as a matter of law.
A. Spot Zoning Law and Doctrine Applies Here and Prohibits Enactment of the Sam's Club Amendments to the Zoning Ordinance.
In New York, a bedrock principle of zoning law is that a local government's zoning must be "made in accordance with a comprehensive plan."9 Indeed, nearly a half-century ago the New York Court of Appeals explained that a comprehensive plan is the "essence of zoning," without which “there can be no rational allocation of land use.”10 By the same token, Town Law § 265 authorizes Town Boards to amend local zoning regulations, stating “[S]uch regulations, restrictions and boundaries,” i.e., those adopted under Town Law § 263 and which must therefore be “made in accordance with a comprehensive plan,” may “from time to time be amended.”11
Give the above statutory structure and language, any contention that the initial adoption of a zoning map and/or zoning regulations must be in accordance with a comprehensive plan, but amendments thereto made at the behest of a private landowner are not, misses the mark entirely. Amendments to local zoning, even those which (as here) do not include changes to the zoning map or reclassification of an entire district, are subject to claims of impermissible spot zoning.12 That logic is particularly applicable where as here, the proposed amendment adds an entirely new land use classification and is thus the functional equivalent of and therefore indistinguishable in effect from a rezoning.
And as to spot zoning, New York courts consider “whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of planning staff.”13 But, ultimately, the issue distills to “whether the change is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community.”14
9 See NY Town Law § 263 ("Such regulations shall be made in accordance with a comprehensive plan . . .").
10 See Udell v. Haas, 21 NY2d 463 (1968).
11 See NY Town Law § 265(1).
12 See, e.g., Matter of VTR FV, LLC v. Town of Guilderland, 101 AD3d 1532, 1534 (3d Dep't 2012) (applying spot zoning analysis to proposed local law amendment which expanded the definition of "nursing home" to include an assisted living facility and/or memory care facility but concluding that the amendment (unlike here) was "part of a well-considered and comprehensive plan calculated to serve the general welfare of the community") (citations omitted); Accord Kravetz v. Plenge, 84 AD2d (4th Dep't 1982) (applying spot zoning doctrine to amendment seeking to allow hotels in the existing zoning district).
13 See Save Our Forest Action Coalition v. City of Kingston, et al., 246 AD2d 217 (3d Dep't 1998) (citing 3 Rathkopf, Law of Zoning and Planning § 28.04 [4th ed.]) (held, no spot zoning where "the primary motivation for the zoning amendment was to support local economic development through retention of the City's largest employer and reap associated economic and tax benefits in connection with the development of a business park.")..
14 Id. at 221 (citations omitted).
Obviously, the current Sam’s Club zoning amendment proposal did not arise from any local comprehensive planning processes, nor does it represent a response to any changed circumstances in the relevant zoning district requiring an areawide change. Instead, it represents a proposal for legislative action by the Board to benefit one party - Sam’s Club. The proposal is specifically tailored to allow a kind of gasoline dispensary business model that is economically unsustainable except for in the big box retail context. Put another way, no local small gasoline service station owner could seek to expand into the DS zoning district under the Sam’s Club definition because they rely on ancillary sales and services to survive, not the enticement of lower retail prices in an adjacent store, and the Sam’sClub proposal prohibits such ancillary sales and services. The Board is thus being asked to customize the zoning ordinance to meet the needs of a single class of landowner. That is not zoning as that term is understood in New York; it is the very antithesis of zoning.
Notwithstanding this more recent tack, the record shows that Sam’s Club had spot zoning concerns specifically in mind when it filed the application for a zoning text amendment. For example, Sam's Club dedicated an entire section of its petition to what it describes as “Consistency with the Town Comprehensive Plan,” claiming that adoption of its customized Big Box with gasoline zoning classification will somehow “enable more consistent and efficient use of appropriate commercial property within the DS Zoning District.”
But the Sam’s Club analysis of comprehensive plan consistency, such as it is, suffers from a number of fatal flaws. First, the general thrust of the Town’s Comprehensive Plan when it comes to retail access is the preservation or enhancement of open space and establishment or maintenance of walkable shopping centers. The Sam’s Club proposal achieves neither of these goals. On the contrary, it turns the existing zoning ordinances focus on “Fully enclosed” retail services on its head by creating a single idiosyncratic land use (unenclosed gasoline pumps with no ancillary sales or services) allowed by special use permit.
Next. Sam’s Club attempts to shoehorn its proposed use into that part of the Comprehensive Plan seeking to “implement economic development strategies that take into account the changing nature of retail.”15 But the text of that section of the comprehensive plan makes plain that the “changing nature of retail” it refers to has nothing to do with permitting gasoline sales at big box stores, but instead merely refers to the shift to “ever increasing online sales,” and the need for the community to adapt to that change from traditional “brick and mortar” retail, to online sales and services. It provides no traction to Sam’s Club in this instance.
Continuing this pattern of selective citation, Sam’s Club claims that its proposal is also consistent with the Comprehensive Plan’s statements and policies encouraging “innovative and flexible regulations that facilitate identified site improvements” and/or which “support flexible parking.” But here again Sam’s Club has completely divorced those values from their context: in both cases, those statements were made in furtherance of the overall planning goal of creating new, walkable, and livable retail areas. Indeed, the first policy set forth under that broad heading is to “Support the attributes of successful suburban business districts that promote pedestrian orientation and high quality of public space.”16 In other words, to the extent flexible zoning
15 Comprehensive Plan, Policy 11.2.1.6. 16 Comprehensive Plan, Policy 11.5.1.1.
standards might further other stated comprehensive plan goals, they are to be encouraged. However, nothing in the comprehensive plan suggests that flexible zoning standards should be used to grant existing retail landowners' permission to impose fundamental changes to an existing zoning scheme that serve no other purpose than economic gain to the applicant.
On the other hand, the Comprehensive Plan has an entire chapter dedicated to “Sustainability,” including smart growth principles and other necessary responses to climate change.17 Section 3.6 of the Comprehensive Plain in particular focuses on, among other things, “Alternative Vehicle Technology.”Apart from vague promises to discuss the possibility of electric vehicle charging stations at an indeterminate point in the future, the Sam’s Club proposal offers absolutely nothing that is consistent with or otherwise furthers any of the Town's sustainability and global warming concerns. If anything, the proposal as currently fashioned only serves to exacerbate those concerns by adding a 14-pump gasoline service facility with no corresponding offsets for the greenhouse gas effects that facility will create – not even a promise of a single electric vehicle charging station.
In summary, it is indisputable that the Sam’s Club proposal neither arises out of nor is compatible with the values expressed in the Comprehensive Plan. The proposal did not come to the Town Board by the petition of a group of interested residents or businesses collectively seeking change to improve their quality of life. The proposal did not derive from any organic internal Town planning process, or to update the zoning ordinance or respond to changed circumstances. It constitutes a naked attempt by a single economic actor to enhance its own profitability at the expense of a carefully crafted zoning scheme by adding exactly that which the existing zoning ordinance prohibits. If that is not prohibited spot zoning, then nothing is.18
B. The Special Use Permit Process Affords Little Protection Here.
Along the same lines, there appeared to be some suggestion at the recent public hearing that the overwhelming public concern and outrage over the Sam’s Club proposal should somehow be attenuated by the fact that Sam’s Club must, if the Board adopts the proposed amendments, “come back” to the Town Board for a special use permit. However, “the inclusion of the [specially] 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.”19 Thus, while the “Town Board still retains some discretion to evaluate each application for a special use permit to determine whether applicable criteria have been met,” its ability to consider the broader context, including the broad socio-economic and land use compatibility issues raised on this record by local small business owners and others, will be severely constrained if not eliminated altogether if it adopts the requested zoning text amendment.20
17 Comprehensive Plan, Ch. 3.0.
18 And given the overwhelming public opposition to the Sam's Club proposal, as documented now in numerous print, online and television broadcast news stories, Sam's Club's representation of "overwhelming public support for the Project," rings hollow and should be rejected. See Applicant's Correspondence to Town Board dated July 28, 2021.
19 See Matter of North Shore Steak House, Inc. v. Bd. of Appeals of Inc. Vill. of Thomaston, 30 NY2d 238, 243 (1972).
20 See Matter of Twin County Recycling Corp. v. Yevoli, 90 NY2d 1000, 1002 (1997) ("the board may not base its decision [on a special use permit] on generalized community objections.").
Accordingly, while the special use permit process is not entirely chimerical, it offers little to no protection against the incompatibility with the Comprehensive Plan of the Sam’s Club proposed zoning amendment that is now set forth on this record. No rational person could rely on the special use permit process to cure or ameliorate the harsh, widespread, and inevitable impacts of the Sam's Club proposal on the local planning process. That process thus offers little in mitigation of the otherwise significant impacts the proposed amendment would have on the DS zoning district.
Conclusion
For all the foregoing reasons, and for those set forth on the administrative record and/or otherwise stated during the public hearing process, we respectfully submit that the Sam’s Club proposal seeking to dictate how the Town Board utilizes its zoning power should be rejected. The Greenburgh zoning ordinance is not some playground toy to be molded at the whim or behest of an affluent or powerful resident seeking to maximize profits. It is the expression of a fixed set of sound planning principles intended to ensure consistency and compatibly amongst nearby land uses and ensure the continued high quality of life that Greenburgh residents deserve and have become accustomed to under this and previous Board’s stewardship. Allowing a carefully balanced zoning scheme to be upset in order to satisfy the economic desires of a single district landowner would be an unfortunate outcome, indeed. To the extent you have been counseled that Sam’s Club’s application is not spot zoning, such counsel is wrong. We ask you to maintain and protect the integrity of the zoning law.
The Town Board should reject the Sam's Club proposal.
Respectfully submitted, YOUNG / SOMMER, LLC
William A. Hurst
cc: Members of the Greenburgh Town Board; David R. Fried, Esq., First Deputy Town Attorney; Gerald Bunting, Esq.
