Posted by: Patricia Salkin | July 1, 2009

Court Remands to Determine Whether Special Facts Exist to Show Moratoria and Delay Were Unreasonable and in Bad Faith

Six months following the filing of a commercial site plan application with the Town Department of Planning, Environment and Land Management to develop a retail building which was a permitted use under the applicable zoning ordinance then in effect, the Department responded with a number of conditions that had to be met before the application would be submitted to the planning board. A year later, the Petitioner submitted a revised site plan to the Town which met all of the conditions except the requirement that the Petitioner meet with a local civic organization (because the group refused to schedule the meeting). During the year prior to the second submission, the Town had designated the area where the Petitioner’s property was located as a historic district, now requiring project approval from the Historic District Advisory Committee. The Committee held a hearing on the application which was never completed, and ten months after the second application was submitted the Petitioner made a written demand to have his application placed on the planning board’s agenda. In response, the Petitioner was notified that the Town was contemplating a moratorium on site plan applications in the area where his property was located, and the following month a moratorium was enacted. A month later, the Petitioner brought a mandamus action to compel the processing and consideration of his site plan application. Among other things, the petition alleged that the Planning Board acted wrongfully by delaying its processing and consideration of the application so that the Town could enact the moratorium to prevent the review. The trial court directed the planning board to place the site plan application on the calendar for processing and to consider it in accordance with the zoning laws in effect at the time of submission of the second application.

The appeals court determined that while the allegations in the petition stated a valid cause of action for mandamus relief, the trial court erred in determining as a matter of law that the moratorium did not apply to the petitioner’s real property and in directing the Planning Board to apply the zoning in effect prior to the moratorium. Since the applicable zoning laws are those that existed at the time the decision was rendered, the Petitioner would have to show that the Town prevented him from obtaining vested rights through “some misconduct or extraordinary delay.” Meaning, the Petitioner had to demonstrate proof of “special facts” indicating that the Town acted in “bad faith” in delaying the processing and consideration of his site plan. Therefore, the appeals court remanded the matter to the trial court for a hearing on this issue.

Golden Horizon Terryville Corp. v. Prusinowski, 2009 WL 1695725 (N.Y.A.D. 2 Dept. 6/16/2009)

The opinion can be accessed at:

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