Posted by: Patricia Salkin | November 3, 2012

NY Appellate Court Finds Law Intended to Thwart Application Null and Void as to Applicant

Hampton, LLC, in this sister action to Hampton v. Zoning Board of Appeals of East Hampton, challenged a resolution passed by the Board of Trustees of the Village of East Hampton.  The Supreme Court determined that the resolution should not be applied to Hampton, but rather, when the Zoning Board of Appeals and the Design Review Board (collectively hereinafter “the Boards) make their determination as to the special use permit, the Boards should use the regulations in effect at the time of Hampton’s application.  The Supreme Court, Appellate Division, Second Department affirmed.

In this matter, Hampton sought to operate a restaurant with an outdoor dining area.  As required, Hampton filed an application for a special use permit, which would allow such operation.  A similarly situated establishment in the same use district was granted such a permit.  After the application was filed, the Board of Trustees amended the zoning code to prohibit outdoor dining in the pertinent land use district.

The Second Department provided that courts should follow the zoning provisions in effect at the time it renders its opinion.  However, the special fact exception allows the court to use the law in effect at the time of the application where the “municipality unduly delayed proceedings and acted in bad faith.”

In this action, the Supreme Court and the Second Department agreed that the special facts exception applied, and, thus, that the older law in effect at the time of the application should be applied.  The courts found the Board of Trustees “hastily” enacted the more restrictive law with the specific intent to thwart Hampton’s application.  East Hampton argued that the special facts exception should not apply because the petitioners where not entitled to a special use permit as a matter of right at the time of the application.  The Second Department explained that a special use permit is not the same as a variance, and that unlike a variance, where the applicant has satisfied the requirements to obtain a special use permit, the permit must be granted.  The court not only found that Hampton established the requisite facts needed to obtain the special use permit, but also that a nearly identical application was approved by the Boards.  Thus, if the application was denied by the Boards, the court provided the denial would have been arbitrary and capricious.

In addition, the Second Department affirmed the other orders of the Supreme Court – holding the resolution null and void as applied to Hampton, and requiring the Boards to issue a special use permit on the reasonable conditions imposed upon the similarly situated establishment.

Hampton, LLC v. Rickenbach, 98 A.D.3d 736 (2nd Dep’t, Aug. 29, 2012)

The opinion can be accessed here.

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