Posted by: Patricia Salkin | June 5, 2010

Town’s Challenge to Central Pine Barrens Joint Planning and Policy Commission Resolution Dismissed on Ripeness Grounds

The Town of Riverhead and the Town of Riverhead Community Development Agency (CDA) commenced a joint Article 78 proceeding and declaratory judgment action challenging the assertion of jurisdiction by the Central Pine Barrens Joint Planning and Policy Commission over properties located within Enterprise Park at Calverton, which is owned by the CDA, and a related recreational facility.  The Commission, which was created in 1993, is responsible for planning, managing, and overseeing land use with the Central Pine Barrens area of the Long Island Pine Barrens Maritime Reserve.  Pursuant to the Environmental Conservation Law (ECL), the Commission has jurisdiction to review and approve all proposed development within the Central Pine Barrens area which has a significant adverse impact on the goals of a land use plan adopted by the Commission in 1995.  In 2003, the Town, in conjunction with the CDA, began planning for the construction of a public park within Enterprise Park, including the construction of a recreational facility.  The public park is within the Central Pine Barrens area.  In 2007, the Town commenced construction of the recreational facility.  After completing the first phase of the construction, the Commission adopted a resolution purporting to exercise jurisdiction over the Town’s development of the facility and requested that the Town submit suitable materials to allow the Commission to determine whether the project had a significant impact on the land use plan.  When the Town refused, the Commission served a notice of violation and the Town commenced the Article 78 proceeding, asserting that the project was exempt from the Commission’s jurisdiction because it is a “public improvement” as defined by the ECL.  This statutory section states that public improvements undertaken for the public welfare do not constitute development within the meaning of the law.  The trial court agreed and granted the petition. On appeal, the Appellate Division reversed, holding that the matter was not ripe for judicial review given that the Commission had not rendered a definitive decision with respect to the proposed development.  In addition, the court held that the Town had suffered no injury given that no fines had been imposed nor had any enforcement proceedings been initiated. 

Matter of Town of Riverhead v. Central Pine Barrens Joint Planning & Policy Commission, 71 A.D. 3d 679, 896 N.Y.S.2d 382 (2 Dept. 3/2/2010).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D26364.pdf

This abstract appeared in New York Environmental Law, vol. 21 no. 6


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