NEW - Will completing the SEQRA review for the FBC on the entire study area undermine the Town Board’s ability to limit the FBC to only a small area (the North Greeley corridor)...

or make it easier for other property owners to change their zoning to FBC or obtain zoning variances? 

A:         No.  


The Town Board’s legislative discretion with respect to zoning is extraordinarily broad.  As a matter of well-established law, a property owner who challenges their existing zoning classification must overcome a very strong presumption that their existing zoning is valid.  Examples of successful zoning challenges are extremely rare. Moreover, SEQRA and its implementing regulations expressly state that SEQRA does not change the jurisdiction of local boards.  This limitation has been held to include zoning, which is a matter of legislative discretion.  

Likewise, the creation of a new, separate FBC district would not help property owners in other parts of the study area obtain variance relief. The applicable standards for obtaining variance relief are rigorous and property specific; the zoning classification of other properties is not a relevant consideration.  

In sum, rezoning the North Greeley corridor would not make it easier for other property owners within the study area to obtain zoning changes or variances.  In fact, it would provide no foundation or "leg up" whatsoever. The creation of a new zoning district with FBC regulations in a distinct area of the hamlet would have no impact upon the legal analyses applicable to zoning challenges or variance requests outside the new district’s boundaries.

Legislative Discretion: Zoning

A municipality’s zoning is required to bear a substantial relationship to the “public health, safety, and general welfare” of a community.  See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 383, 47 S.Ct. 114, 117 (1926).  These are extremely broad and elastic concepts under which the Town Board is free to subjectively assess and establish the parameters of any form-based zoning district in the Chappaqua hamlet.  

New York’s highest court has instructed that zoning decisions should be treated as “conclusive, [and] beyond interference from the courts unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon he who asserts it.” Robert E. Kurzius, Inc. v. Incorporated Village of Upper Brookville, 51 N.Y.2d 338, 344, 434 N.Y.S.2d 180 (1980) (quotation marks and citation omitted). 

A property owner outside the North Greeley zoning district who wished to have their zoning designation changed to the North Greeley district regulations would face the virtually impossible task of demonstrating that the Town Board’s legislative decision with respect to mapping the North Greeley District was arbitrary and wholly unrelated to any legitimate objective.  Fundamentally, zoning is established through the drawing of districts with geographic boundary lines and the establishment of regulations within those districts.  The Town Board has the legislative authority to draw these lines, and the task necessarily leaves some land within and other land outside a particular district.  This line drawing is a legislative function subject to all the discretionary considerations and deference discussed above. 

While zoning amendments typically require SEQRA review, the SEQRA review process and requirements do “not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies.”  6 NYCRR § 617.3[b].  See also ECL § 8–0103(6).    In other words, “SEQRA neither preempts nor interferes with local zoning ordinances.”  WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 165 A.D.2d 578, 568 N.Y.S.2d 974, 975 (3d Dep’t 1991), aff’d, 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992).  See also Town of Poughkeepsie v. Flacke, 84 A.D.2d 1, 445 N.Y.S.2d 233 (2d Dep’t 1981).


In addition to requesting a zoning change, a property owner may also seek a modification of existing zoning requirements by applying for a variance.  A “use” variance allows the use of land for a purpose that is otherwise prohibited under existing zoning.  An “area” variance authorizes the use of land in a manner that is otherwise prohibited by the dimensional or physical requirements (known as “bulk” requirements) of the applicable zoning regulations.  Variances must generally be sought from a zoning board of appeals.

Use variances are difficult to obtain and rarely granted because they require a property owner to demonstrate: 

(1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created.

When reviewing an area variance, a zoning board of appeals must consider: 

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Both of these standards focus upon the physical features and characteristics of the subject property and the immediately surrounding neighborhood.  The zoning classification of other properties is not a relevant consideration, let alone one that would weigh in favor of granting variance relief.  In fact, the adoption of a FBC for only a portion of the study area would unmistakably indicate a legislative intent to preserve the existing zoning in those portions of the study area not rezoned.  

Furthermore, courts regard a hardship as self-created if the variance applicant acquired their property with knowledge of its existing zoning restrictions.  In the case of use variances, such knowledge ordinarily forecloses a property owner from obtaining relief.

We also note that the procedural changes that would be implemented under the FBC are not land “uses” or “bulk” requirements that could be modified through the issuance of variance relief.  Thus, an applicant in the study area who received a variance from the Zoning Board of Appeals would still be required to obtain all applicable site development approvals under the Town’s existing (non-FBC) code requirements.


In sum, the adoption of a SEQRA Findings Statement with respect to the 72-acre study area will not increase the likelihood that property owners outside a newly established FBC district could successfully challenge their existing zoning classification or cause the FBC regulations to be applied to their properties through variance applications.

Show All Answers

1. NEW - Will completing the SEQRA review for the FBC on the entire study area undermine the Town Board’s ability to limit the FBC to only a small area (the North Greeley corridor)...
2. NEW - Why is the Town Board considering revisions to the FBC legislation before receiving draft responses to the comments from the public and interested agencies on the Town's DGEIS? ...
3. What is a form-based code?
4. What is the purpose of Chappaqua’s comprehensive plan?
5. What is the goal of rezoning the Chappaqua Hamlet?
6. Will the rezoning change the history of Chappaqua?
7. Is the Chappaqua form-based code a construction project?
8. What is GEIS?
9. Didn’t the members of the Downtown Working Group who own commercial properties in the Chappaqua hamlet have conflicts of interest that precluded their participation?
10. Does the Form Based Code allow the entire Chappaqua Hamlet to be 5 stories in height?
11. Why does the DGEIS study a "full build out" or "buildout scenario" of the Chappaqua Hamlet under the Form Based Code?
12. Does the FBC mean development on Town-owned land?
13. If the Town Board determines in the future to sell or lease Town-owned land for a development project, will I have and opportunity to vote on whether that should occur? Will there be a referendum?
14. Has the Town been in contact with other public entities on this proposal (e.g. the school board)?
15. Once the Form Based Code is in place, what are the next steps for the Town to attract interest in potential opportunities for development?
16. Does the Town plan to use eminent domain to buy and consolidate privately owned, small contiguous parcels?
17. How does the public notification of a proposed development project change with the Form Based Code?
18. Why is this the appropriate time to adopt a Form Based Code for Chappaqua?
19. Does Chappaqua have the water and sewer infrastructure to handle future development?
20. What assumptions were the foundation of the Form Based Code?
21. Can the public vote on the Form Based Code?
22. Can the Town conduct a "public opinion poll" or an advisory (non-binding) referendum of the electorate with respect to the proposed Form-Based Code?
23. Do any members of the Town Board have a conflict of interest with respect to the Form Based Code because they own property in the Chappaqua business hamlet?
24. Did the members of the Town’s “Downtown Working Group” write the Form Based Code?
25. What is the “New Direction” announced by the Town Board for the Form Based Code? What does that mean and what happens next?
26. If the Town Board is limiting the Form Based district to North Greeley, why will the FGEIS and SEQRA Findings Statement be completed for the entire study area?
27. Can the Town lawfully regulate the number of bedrooms that would be permitted within new apartment units?
28. The Chappaqua Board of Education has asserted that the Town cannot control whether future developments in the Chappaqua hamlet will be subsidized through PILOT agreements. Is this accurate?