Posted by: Patricia Salkin | May 15, 2009

Town’s Policy Requiring Notification to Civic Association as Part of Application Process Found Unconstitutional

Justice Jeffrey Arlen Spinner, sitting in the New York State Supreme Court, Suffolk County, recently granted relief to Petitioners asking for court intervention to compel a Town to process a subdivision application. The application, which met all the requirements of the Code, did not require any variances and had been with the Town’s Planning Department for two years with no apparent action. The court was not swayed by the Town’s response that the action was not ripe because the application was missing items on a checklist, pointing out that the checklist was provided to applicant after this action was commenced. Additionally, the court stated that the petitioner was not required to appear before any local Civic Organization as part of the application process. The court declared the application complete and directed the Planning Department to hold a hearing within 45 days and issue a decision within 20 days after the hearing.

 The court found that the Town of Brookhaven’s (“Brookhaven”) policy requiring applicants to the Town’s Department of Planning, Environment and Development (“Planning Department”) to contact and meet with local civic organizations and supply the civic organizations with proposed project plans as a pre-condition the application process was not Constitutionally sustainable. “[T]o go before a Civic Association, a nongovernmental body, which does not keep records and makes no Findings cannot be constitutionally supported.” 

The petitioners’ in this action filed their subdivision application with the Planning Department in November, 2005. The petitioners contended that the Planning Department delayed and ignored their application. After the petitioners submitted a report from an expert refuting the Planning Department’s contention that there was a rare plant species on the property, the petitioners claimed that “[n]othing was heard from the Town of Brookhaven for another year, although constant inquiry was made[.]”

The next contact the petitioners received from the Town was a letter from the Planning Department advising them that “[the Planning Department] staff has been instructed to notify all applicants to make direct contact with the local civic organizations . . . to solicit their comments and address their concerns as early in the review process as possible. Prior to your project being scheduled for Planning Board deliberation the Division of Planning will require documentation from the applicant that the local civic association has been contacted, has received the proposed development plan for your pending project, and has made their position and/or comments known to the Town.”

Among other claims, the petitioner stated that the Civic Association contact requirement was unconstitutional. In the Attorney’s Affidavit In Support of Petition, Petitioner’s Attorney alleged that “[t]he very fact that the Town requested the applicant to go to a Civic Association[,] which is a non-elected, non-appointed, non-governmental body is something that the Town has absolutely no authority to do even though the petitioner complied with it. . . . At all public hearings, Civic Associations are notified and have the right to appear and make whatever comments they wish. Having to go to a Civic Association before and as a condition of processing and get a letter from them, before a Town will calendar a case is purely unconstitutional and illegal[.]”  The Petitioner further claimed that the Civic Association notification was a way to cause “undue delay”, and that the Town’s requirement amounted to an “unconstitutional delegation of government authority to a non-governmental group.”

 The Court granted Petitioner’s mandamus action, finding that “to go before a Civic Association, a nongovernmental body, which does not keep records and makes no Findings cannot be constitutionally supported.” The Court declared that the applicant was not required to appear before any Civic Association, that the Planning Department must consider the application complete and ordered the Planning Department to hold a final hearing and issue a decision. The Town’s policy of requiring an applicant to contact the local civic association, send them the proposed development plan and provide their comments, before the project would be scheduled for a public hearing, was an improper delegation of power to a nongovernmental body and is not supported in either the New York State Constitution or similar State statute.

Ribeiro v. Town of Brookhaven, No. 07-20844, 6 (NY Sup. Ct., Suffolk Mar. 16, 2009)

Special thanks to Brown & Altman, LLP (and Keith Brown) in Melville, NY for submitting this summary for Law of the Land.


Responses

  1. In Santa Fe, New Mexico, developers are required to meet with registered neighborhood associations as part of the ENN (Early Neighborhood Notification) process before review by the Planning Commission. This has given the Neighborhood Associations extraordinary power in the development process. The Neighborhood Law Center, a coalition of neighborhood association representatives, mainly lawyers, now brings appeals against the City for developments which the City approves and it opposes.

  2. Was the Santa Fe requirement statutory and has it been tested in court?


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