Now known as “Amendment 4,” the Florida Hometown Democracy initiative cleared major hurdles on the way to the fall ballot.   In June 2006, the Florida Supreme Court held that the initiative does not violate the rule that all proposed amendments must stick to a “single subject;” and the court found that the ballot language is clear and not misleading.  This week, in and advisory opinion to the Florida Attorney General, the Supreme Court found that the revised financial impact statement as to how much a proposed growth management amendment could cost voters, now complies with State law.

The proposal, if passed, will allow Florida voters to decide on changes to comprehensive land use plans, instead of local elected leaders. Specifically, the petition language provides:

BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:

Article II, Section 7. Natural resources and scenic beauty of the Florida Constitution is amended to add the following subsection:

Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida’s natural resources and scenic beauty, and the long-term quality of life of Floridians. Therefore, before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation. Notice and referendum will be as provided by general law. This amendment shall become effective immediately upon approval by the electors of Florida.

For purposes of this subsection:

1. “Local government” means a county or municipality.

2. “Local government comprehensive land use plan” means a plan to guide and control future land development in an area under the jurisdiction of a local government.

3. “Local planning agency” means the agency of a local government that is responsible for the preparation of a comprehensive land use plan and plan amendments after public notice and hearings and for making recommendations to the governing body of the local government regarding the adoption or amendment of a comprehensive land use plan.

4. “Governing body” means the board of county commissioners of a county, the commission or council of a municipality, or the chief elected governing body of a county or municipality, however designated.

The effort, which has been in the works for more than five years, has been led by a Palm Beach lawyer who has invested more than $1 million of her own money in pursuit of the ballot initiative. The Florida Chamber of Commerce is opposed to the measure, claiming that, among other things, it will increase costs and add uncertainty to the land use approval process, and that it will negatively impact the development of new jobs. Floridians for Smarter Growth have also launched an opposition campaign with more than fifty organizations listed as supporting the opposition.

In an effort to slow the conversion of rural, farm and forest land, effective July 26, 2009, the State of Washington will implement a new regional transfer of developments rights (TDR) law focused on four counties and 71 cities within the Puget Sound region. Developed as a result of 2007 legislation that required the Department of Community, Trade and Economic Development to conduct a process that would lead to a regional TDR program consistent with existing TDR authorization in state law, the new law is a voluntary, incentive-based program. Modeled from a December 2008 report, the law sets forth criteria that cities and counties are required to follow and it directs the state to develop quantitative and qualitative performance measures for monitoring the program. The goal of the law is to foster county, city and town participation in the program so that interjurisdictional transfers occur between counties, cities and towns, including transfers for counties to cities and towns in other counties.

Chapter 474 of the Laws of 2009 (HB 1172) can be accessed at:

http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bills/Session%20Law%202009/1172-S2.SL.pdf

The Smart and Sustainable Growth Act of 2009 which took effect on July 1, 2009, was designed to strengthen the connection between land use actions and the comprehensive plan as a result of the 2008 Supreme Court ruling in Trail v. Terrapin Run, LLC, 403 Md. 523 (2008), specifically stating its intention to overturn that decision.  The new law provides, among other things, that actions that are “consistent with” or have “consistency with” a comprehensive plan are actions that further, and are not contrary to, the following items in the plan: policies; timing of implementation of the plan; timing of development; timing of rezoning; development patterns; land uses; and densities or intensities. The law also requires members of planning commissions and boards of appeal to complete an education course before July 1, 2010 and the Maryland Department of Planning (MDP) is required to develop an online planning education course for local jurisdictions and make it available by that date (although local jurisdictions are authorized to develop their own educational course). 

The Smart Growth Goals, Measures and Indicators law took effect on June 1, 2009, and it requires local planning commissions or boards to submit annual reports to local legislative bodies beginning July 1, 2011 that include specified smart growth measures and indicators and information on a local land use goal as part of the report. Charter counties are now required to submit an annual report beginning July 1, 2009. New for the reports, they must state which ordinances or regulations were adopted or changed to implement the State’s planning visions. The measure and indicators that must be reported on are the: amount and share of growth that is being located inside and outside the Priority Funding Area (PFA); net density of growth that is being located inside and outside the PFA; creation of new lots and the issuance of residential and commercial building permits inside and outside the PFA;  development capacity analysis, updated once every 3 years or when there is a significant zoning or land use change; and number of acres preserved using local agricultural land preservation funding. 

The bill establishes a statewide land use goal of increasing the current percentage of growth within the PFA and decreasing the percentage of growth outside the PFA. Local jurisdictions are also required to develop a percentage goal towards achieving the statewide goal. The annual report filed by local jurisdictions must also include: local goal; time frame for achieving the local goal; resources necessary for infrastructure inside the PFA and land preservation outside the PFA; and any incremental progress made towards achieving that local goal.

The Maryland Department of Planning will be developing measures and indicators as well as adopting regulations. Further, the Task Force on the Future for Growth and Development must recommend additional measures and indicator information that should be collected.

Effective October 1, 2009, the Planning Visions law has replaced Maryland’s 8 planning visions with 12 that now address: quality of life and sustainability, public participation, growth areas, community design, infrastructure, transportation, housing, economic development, environmental protection, resource conservation, stewardship, and implementation approaches. Certain reporting is now required for priority funding areas and adequate public facility ordinances.  The new law also authorizes local jurisdictions to establish Transfer of Development Rights (TDR) programs within priority funding areas.

See, http://www.mdp.state.md.us/green.htm

The Town who sought to enjoin the defendants from using the two parcels they owned for purposes aircraft takeoffs and landings without a special permit.  The Town Code defines “airport” as “[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraft being used for personal or training purposes.”  The defendants argued that since they used a helicopter for personal transportation purposes and they didn’t take off and land on a “regular” basis, the definition did not apply to them.

Although the Court agreed that the definition of “airport” in the Code was ambiguous, and that ambiguity is to be resolved in favor of the property owners, the Court found that here the defendant acknowledged that he purchased one of the two parcels specifically to facilitate takeoffs and landings, and for no other purpose.  Further, he stated that his use of the helicopter was “tantamount to a homeowner driving his vehicle to and from his property.”  As a result, the Court concluded that there was an indicia of “regularity” of use, and this, combined with the town’s concerns about safety hazards and noise, demonstrated a likelihood of success on the merits for purposes of a preliminary injunction.

 Town of Riverhead v. Gezari, 2009 WL 1794798 (N.Y. A.D. 2 Dept. 6/23/09).

Since 1991, Edward Rose has displayed a 16.75-foot tall, 409.75-square-foot on-premises pole sign to advertise its apartment units as well as to provide the company’s contact information (phone number, website, etc.). In March 2007, Edward Rose received a notice that the sign was in violation of several zoning ordinances, specifically provisions limiting the sign to a height of four feet above grade and the total display area to forty feet. In an attempt to comply with these ordinances, Edward Rose filed a petition for a variance. At a hearing, however, the BZA denied the petition. Edward Rose filed a petition for writ of certiorari with the trial court. The trial court conducted a hearing, at which a professional land use planner and three employees of Edward Rose testified on behalf of the company regarding the hardship it would suffer in the event the variance was not granted. Based on this evidence, as well as the evidence admitted during the BZA proceeding, the trial court entered an order affirming the BZA’s denial of the petition on the ground that the evidence did not prove Edward Rose was entitled to a variance as a matter of law.

While the Court of Appeals affirmed, finding that the BZA properly denied the variance, they also addressed the trial court’s action in admitting testimony and evidence that had not been submitted to the BZA. The Court said that the trial court erred in hearing new evidence, as this was “tantamount to conducting a trial de novo” — in essence relitigating the merits of the variance petition from scratch.  Such an approach would directly violate Indiana Code section 36-7-4-1009’s proscription that the trial court’s review of BZA decisions “may not be a trial de novo.” In dicta, the Court listed circumstances when it may be appropriate for a trial court reviewing a BZA decision to consider new evidence.  For example, 1) when the record before the BZA is incomplete because the aggrieved party was refused an opportunity to be fully heard or the BZA excluded relevant evidence;  2) when good and sufficient cause is shown for the failure to have offered the evidence to the BZA; 3) when the record presented to the trial court does not contain all the evidence actually presented to the BZA;  4) when the BZA’s record fails to present the hearing in sufficient scope to determine the merits of the appeal; and  5) when new evidence is discovered after the BZA’s proceedings.

Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Indianapolis-Marion County, 2009 WL 1658157 (Ind. Ct. App. 6/15/2009)

 The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/06150905mgr.pdf

Respondents James and Penny Wohrle and Respondent Jerry Judd (collectively Respondents) constructed decks on their respective properties on Coeur d’Alene Lake without having first obtained either a variance or building permit from Appellant Kootenai County. On September 16, 2005, Respondents applied to the Kootenai County Board of Commissioners (Board) for variances from the twenty-five foot front setback requirement outlined in section 8.09 of the Kootenai County Zoning Ordinance. The requested variances would have allowed for a front setback of zero at the property line for the existing decks. Judd also requested a variance of seven feet from the ten foot side setback requirement for one of his decks. 

The variance requests were heard by a Kootenai County hearing examiner on March 16, 2006. On March 21, the hearing examiner issued a recommendation that the requests be denied. Respondents then requested a public hearing before the Board and on June 1, 2006, the Board held a public hearing on the variance applications, where Respondents testified and responded to questions from the Board. At the conclusion of the public hearing, the Board voted to deny Respondents’ variance requests. The district court concluded that the decision of the Board was arbitrary and capricious and an abuse of discretion and  awarded attorney fees and costs to Respondents. 

The Idaho Supreme Court reversed, finding that substantial evidence supported the Board’s denial of the variance request because the parties could not show that the variance would not be in conflict with the public interest; and that the Board’s denial of the variance requests did not prejudice the parties’ rights. The Court specifically noted  that the Board had “acted well within its authority and discretion” in focusing on its concern “that granting variances for structures built in violation of existing zoning ordinances was not in the public interest.”  The Court also found that the Board’s denial of the variance requests did not deprive the property owners of substantial rights since they “were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit;” and even with the denial of the variances, they were still able to use their property (for a dock on the lake) as permitted under the laws and ordinances that were in effect when they purchased their properties.

Wohrle v. Kootenai County, 2009 WL 987410 (Idaho 4/14/2009)

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/wohrle%20final%20opn.pdf

The Annual ALI-ABA Land Use Institute is the most comprehensive national planning and land use law course offered regularly across the country.  This year, the course site is the Westin Gaslamp Quarter in San Diego, CA.  Planning co-chairs Frank Schnidman, Esq. and Gideon Kanner, Esq. have assembled a group of leading practitioners that include legal, developer, municipal, judicial and academic perspectives on cutting edge land use issues.

My favorite part of the program is the opening session which can only be described as a “rapid fire” caselaw update on dozens of topics and reported decisions.  The second day opens in a similar format with comprehensive “rapid fire” updates on federal laws, regulations, and programs affecting local land use decision making.  New panel topics this year include: nonconforming uses; financing of affordable housing; negotiation as opposed to litigation; discovery, demonstrative evidence, creating a record and blogging; renewable energy and land use; and dealing with foreclosed properties and land use.  Other panel topics include: reflections on growth management, smart growth and sustainable development; land use and transportation; the basics of eminent domain; green requirements; wetlands practice pointers; update on impacts fees, vested rights and development agreements; federal facilities and land use compatibility; update on transfer of development rights; public-private partnerships; and ethics.

Another great aspect of the program is the amount of time built in for networking.  There are separate luncheons for women in land use law and for young practitioners, and there is a networking reception at the conclusion of the first day. Faculty is always accessible to attendees at these times, during program breaks, and during the morning continental breakfast.  The voluminous materials prepared for the program are a great year-round resource. 

For people who cannot make it in person to the program, parts of the program are being offered as live webcasts.  For more information, see the Institute brochure available at:

http://www.ali-aba.org/index.cfm?fuseaction=courses.course&course_code=CR004

Following denial of its request for primary plat approval for a subdivision, The Lake County Trust Company (“LCTC”) appealed and the trial court ordered mediation. Eventually the Commission and LCTC reached a written settlement agreement (the “Agreement”) providing that LCTC submit a revised primary and sketch plan in accordance with the Agreement, and then the Commission would , at its next regular meeting, approve the Agreement and its engineering. LCTC made the agreed upon submission, and the Commission met as scheduled, but voted to defer a decision on the subdivision for thirty days.  LCTC then filed a motion to enforce the Agreement, and the Commission voted to reject the Agreement.  The trial court ordered the Agreement be enforced, and it directed the Commission to approve the plat and issue any necessary permits.  Although the Commission complied, the trial court found that the Commission acted in bad faith in failing to approve the subdivision after having granted its attorneys (who had agreed to the Agreement) full settlement authority.  However, the trial court said that the Commission could not be sanctioned therefore since governmental entities are not subject to sanctions under the Indiana Alternative Dispute Resolution Rules.  Following appeals, the Court of Appeals handled the matters as a consolidated appeal and agreed that the Commission was immune from sanctions, and found that held that the Commission did not act in bad faith.

The Indiana Supreme Court reversed in part, finding that government entities are not exempt from sanctions under the State ADR Rules, further noting that when governmental entities enter into mediation agreements in court, they are on the same basis as any other litigant and subject themselves to the Court’s authority to control actions, including the imposition of sanction for noncompliance.  The Court agreed, however that the Commission did not act in bad faith for failing to approve the subdivision because such action remained subject to the Commission’s final approval at a public meeting. Specifically, the Court agreed with the Commission that it is precluded from delegating authority to its attorneys to approve subdivision plans pursuant to a mediation agreement. 

Lake County Trust Co. v. Advisory Plan Commission of Lake County, 2009 WL 1153997 (Ind. 4/28/2009)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/04280902bd.pdf

In 1999, Texas enacted the Religious Freedom Restoration Act (TRFRA) which provides that, “a government agency may not substantially burden a person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest [and] is the least restrictive means of furthering that interest.” 

Barr, a City resident (an ex-convict), as part of a religious ministry, offered men who were low level offenders and recently released from prison free housing, religious instruction and counseling in two homes he owned.  The organization run by the resident had the stated purpose of “[c]reating bridges to enable the Christian inmate to go from prison to the local church through Biblical discipleship.”  Applicants for the program were required, among other things, to sign a “statement of faith” in basic Christian beliefs and agree to a long list of behavioral guidelines which stressed that the program as a “biblical ministry, NOT a social services agency.” At the time the ministry began, the City had no zoning or other restrictions on the use of the homes.  In January 1999, following a discussion with the mayor, the city manager and the police chief, Barr presented his ministry before the City Council.

Following a public meeting where people showed up expressing both support and opposition to the use, the City of Sinton enacted an ordinance prohibiting parolees from living within 1,000 feet of churches and schools and certain other areas.  In essence, this prohibited the religious ministry from operating out of the two homes, and it effectively banned the ministry from the City.  Barr continued to operate the ministry, but after the City notified the State Board of Pardons and Paroles that Barr was operating in violation of a City Ordinance, they refused to allow additional placements there.

Barr sued the City alleging that the ordinance violated the TRFRA. The Texas Supreme Court held that TRFRA’s strict scrutiny does apply to zoning ordinances (overturning the Court below on this point).  The Court then noted its analysis would proceed with the following four questions raised by this case, with each succeeding question contingent upon an affirmative answer to the one preceding: 1) Does the City’s Ordinance burden Barr’s free exercise of religion as defined by TRFRA?; 2) Is the burden substantial?; 3) Does the ordinance further a compelling governmental interest?; and 4) Is the ordinance the least restrictive means of furthering that interest? Noting that the fact that a halfway house can be secular, the Court said that this does not mean that it cannot be religious. The Court found that “the record easily establishes that Barr’s ministry was ‘substantially motivated by sincere religious belief’ for purposes of TRFRA.” Next, noting that the phrase “substantially burden” the right to free exercise is not defined in the statute (nor is it defined in RLUIPA), turning to the ordinance meaning of the phrase the Court found that the phrase has two basic components: “real vs. merely perceived” and “significant vs. trivial.” Like the Fifth Circuit, in refusing to define a bright line test for what constitutes “substantial burden” on the exercise of religion, the Court said that such determination requires a case-by-case fact specific inquiry. Here, the Court found no hesitation in concluding that the ordinance substantially burdened Barr’s ministry since it effectively prevented him from operating anywhere in the City.  The Court did note, that “A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely restricted.” Turning to the City’s argument that the ordinance furthered compelling governmental interests in advancing safety, preventing nuisance and protecting children, the Court found no evidence to support this.  In fact, the Court noted evidence to the contrary.  Therefore, the Court determined that the City ordinance, as applied to Barr’s ministry, violates TRFRA.  

Barr v. The City of Sinton, 2009 WL 1712798 (Tex. 6/19/2009).

The opinion can be accessed at: http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.pdf

The oral argument can be watched here

Special thanks to Daniel Dalton of Tomkiw Dalton, PLC in Royal Oaks, Michigan for sending along word of this case.

After more than eleven years of legal wrangling, the New York Court of Appeals denied cert, finally closing the chapter and letting stand a holding that the Town’s request for a Supplemental Environmental Impact Statement (“SEIS”) in response to a developer’s submission of a mitigated development plan was not arbitrary and capricious.  The Second Department held that “[t]he Town Board, as the lead agency, ‘may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the [original] EIS that arise from:  (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project.’” Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 58 A.D.3d 855, 859, 874 N.Y.S.2d 492, 496 (2d Dep’t 2009) (citing, 6 NYCRR 617.9[a][7][i]).

The original Application was submitted on January 21, 1998 by developer Oyster Bay Associates Limited Partnership (“Developer”) to the Town Board, by which the Developer sought to construct a 960,000 square foot shopping mall on the 39 acre Property located in a Light Industry Zoning District.  The property was formerly owned by the Cerro Wire and Cable Company, which conducted certain industrial manufacturing at the property.  While no zoning variances were required for the project, a special use permit was required by the Town Code to develop the proposed shopping mall.  The size of the mall was subsequently reduced to 860,000 square feet, prior to the issuance of the Final Environmental Impact Statement (“FEIS”).

The Town Board designated itself as the lead agency as authorized by the New York State Environmental Quality Review Act (SEQRA) in light of the fact that the proposed project may have a significant environmental impact.  The Town’s Environmental Quality Review Commission (“TEQR Commission”) held a public hearing on the Application and issued its initial SEQRA findings in June, 2000.  The initial SEQRA findings were favorable to the Developer in that they supported the project on virtually every consideration raised during the SEQRA process and identified in its Draft Environmental Impact Statement (“DEIS”) and FEIS.  Subsequent to the issuance of the TEQR Commission’s SEQRA findings the Town Board held a public hearing and kept the record open for thirty days for additional comment and rebuttal.  Local civic organizations and other groups voiced strong opposition to the proposed development.  Thereafter, Town Board asked the TEQR Commission to consider the information received during and subsequent to the Town Board hearing.  On January 1, 2001, The TEQR Commission rescinded its initial findings and issued revised SEQRA findings that found the project would cause adverse effects on traffic, crime, quality of life and density. (see, Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 2002 WL 343582927 (NY Sup. Ct., Suffolk Co. 2002).  As a result of the revised SEQRA findings, the Developer offered to reduce the size of the proposed mall to 750,000 square feet.  On May 8, 2001 the Town Board issued its own findings, adopting substantially all of the TEQR Commission’s revised SEQRA findings, and rejected the Developer’s offer to reduce the size of the mall as untimely and insufficient and denied the Application.

 The First Round

In July 2001, the Developer commenced an Article 78 proceeding in New York State Supreme Court to review the Town’s denial of the Application.  By Order dated July 8, 2002, the Supreme Court held that the Town “failed to identify what evidence it relied upon in deviating from the TEQR Commission’s initial SEQRA recommendation” and vacated the Town Board’s denial.  The Supreme Court remanded the matter to the Town Board to consider the Developer’s offer to reduce the size of the mall to 750,000 square feet.  The Town Board appealed and on March 3, 2003, the Second Department affirmed the Supreme Court decision and agreed that the Town’s decision to reject the Developer’s Application was arbitrary and capricious and that the Town did not present sufficient evidence for the SEQRA deviation.(see, Oyster Bay Assocs., 58 A.D.3d at 857, 874 N.Y.S.2d at 494-95).

The Second Round

By Order dated November 25, 2003, the Supreme Court granted the Developer’s motion for judgment pursuant to CPLR 7806 and ordered the Town to issue a building permit for the construction of the 860,000 square foot mall.  The Town appealed.  By order dated September 12, 2005, the Second Department reversed the November 25, 2003 decision, stating that its prior March 3, 2003 decision only affirmed the lower court ruling in so far as it remitted the matter back to the Town Board, and did not order the issuance of a special use permit and a building permit for the 860,000 square foot mall.(see,Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 21 A.D.3d 964, 801 N.Y.S.2d 612 (2d Dep’t 2005)).  The lower court erred in its 2003 ruling directing the town to issue a special use permit and building permit in the absence of a request for this relief (see, Oyster Bay Assocs. Ltd. P’ship, 58 A.D.3d at 858, 874 N.Y.S.2d at 497).

The Third Round

For the third time, the Developer sought relief from the Supreme Court to have the Town Board issue a special use permit and site plan approval for the 860,000 square foot mall.  By Order dated June 11, 2007, the Supreme Court denied the petition. (see, Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 15 Misc.3d 1147(A), 841 N.Y.S.2d 821 (NY Sup.  Ct. Suffolk 2007) In its decision, however, the Supreme Court ordered the Town to “follow through on the [Developer’s] offer to mitigate impacts by reducing the Application to a 750,000 square foot shopping mall as noted in the prior Court Orders.” (see, Oyster Bay Assocs. Ltd. P’ship, 58 A.D.3d at 858, 874 N.Y.S.2d at 497.) 

On September 25, 2007, the Town Board issued a decision denying the Developer’s Application for the 860,000 square foot mall and stated that it would consider the mitigated plan for the 750,000 square foot mall, provided that the Developer submit the SEIS in connection therewith to address environmental issues that had not been resolved to date.  The Town Board’s request for the SEIS caused yet more litigation when the Developer petitioned the Supreme Court (for a fourth time) to have the Town accept the TEQR Commission’s initial SEQRA findings issued in 2000.  By Decision dated June 9, 2008, the Supreme Court ordered the Town to accept the TEQR’s initial findings, issue the special use permit for the proposed 750,000 square foot mall and review the Developer’s site plan without delay.  Once again, the Town appealed. 

The Fourth Round

In January 2009, the Appellate Division reversed the Supreme Court ruling, finding that the Town Board’s decision to require the SEIS in response to the Developer’s mitigation of the original development plans was not arbitrary and capricious.(see, 58 A.D.3d 855, 874 N.Y.S.2d 492 (2d Dep’t 2009)).  The Court said that “The primary purpose of SEQRA is “to inject environmental considerations directly into governmental decision making.”  Further, the Court noted that under SEQRA, the Courts are limited to “whether the agency identified the relevant areas of environmental concern, took a hard look at them and made a ‘reasoned elaboration’ of the basis for its determination.”   

The Town Board, while it was “authorized to seek the advice and assistance of other agencies such as TEQR Commission,” it was, as the lead agency, responsible for the ultimate approval of the project and it held the principal responsibility for the final determination in connection with SEQRA. The Town Board took a “hard look” at the relevant environmental areas of concern, properly identified post-FEIS submissions, which “supported its deviation from the TEQR Commission’s SEQRA findings” and, as such, its request for SEIS was proper.  A SEIS, “limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; and (c) a change in circumstances related to the project” may be required by the lead agency (citing, 6 NYCRR 617.9(a)(7)(i)).  Due to the changes to the Developer’s plan, specifically, the reduction in the square footage of the proposed project, the lower Court’s order directing the Town to issue a special use permit without the affording the Town the opportunity to review the SEIS “deprived the Town Board of the right to meaningfully consider a revised site plan . . . .”  The Second Department’s January 2009 decision was reaffirmed by the same court in April 2009, and on June 30, 2009, the Court of Appeals denied the Developer’s motion for leave to appeal.  

 Conclusion

More than a decade after the Application was submitted and a host of procedural twists and turns initiated by both the Developer and the Town, this project has been sent back by the Courts for the Developer to continue the zoning approval process.  In a Newsday article dated April 8, 2009 a spokesperson for the Developer stated that the “attorneys were reviewing the decision and trying to determine the next course of action.” (see, Court: Syosset mall project must restart permit process,  http://www.newsday.com/news/local/nassau/ny-1ima110912633857apr08,0,607756,print.story).   The Town Supervisor, on the other hand, “applauded [the Appellate Court] ruling.”  The Developer’s options have seemingly run out with the recent Court of Appeals decision and it must submit the SEIS to the Town for review.  To be sure, we can expect more legal challenges as the Developer continues through the zoning process, eleven and one-half years after it started.

Oyster Bay Assocs. Ltd. P’ship v. Town Board of Town of Oyster Bay, 2009 WL 1852089 (NY, 6/30/2009).

Special thanks to Keith P. Brown, Esq. of Brown & Altman, LLP in Melville, NY for this posting.