Posted by: Patricia Salkin | October 2, 2013

NY Appellate Court Holds Board May Not Add New Conditions to Final Plat Approval When Such Issue Was Not Raised at Preliminary Approval Stage

Nickart Realty Corp. had planned to subdivide property it owned in the Town of Southold into two residential lots, each of which would house a single-family dwelling. A variance was required, since subdivision of the parcel would leave each residential lot at less than the required 20,000 square feet needed for single-family construction. Nickart obtained a variance in 1997, but had still not received approval for its plan by 2006, when it obtained a variance from the Suffolk County Department of Health to install a private on-site sewer system, which was not permitted by the Suffolk County Sanitary Code. The Department of Health granted the variance in part because Nickart had obtained a “sanitary flow credit” from a nearby property owner. The County Health Department then approved Nickart’s subdivision plan in March 2009.

Shortly after Nickart was granted the sewer variance, the Southold Town Planning Board issued a negative declaration for Nickart’s proposed subdivision, after finding that the proposed plan, even with the sewer variance, was not likely to have a significant impact on the environment. Then, after holding public hearings, in April 2010 the Planning Board granted Nickart a conditional preliminary approval of its subdivision plan, based in part on the sewer variance and sanitary flow credit obtained by Nickart. Nickart’s application for final plat approval was deemed complete in June 2010, but in July 2010, the Planning Board granted the final plat approval only conditionally, this time imposing a requirement that Nickart provide proof of compliance with Town rules on transfers of sanitary flow credits or proof that the County Health Department would have approved the plan even without the transfer of sanitary flow credits. At that time, the Planning Board felt that the Town code provisions pertaining to sanitary flow credits should only apply to affordable housing plans, and that Nickart’s obtaining of County Health Department approval did not override Town laws restricting transfer of the credits.

Nickart brought an Article 78 proceeding challenging the Planning Board’s placement of a new condition on the final plat approval, arguing that the Board acted arbitrarily and capriciously in attempting to impose a new condition on its approval which involved an issue not previously discussed during consideration of the subdivision plan. The Supreme Court agreed with Nickart, finding the Planning Board had acted arbitrarily, overturning the Board’s imposition of the condition. This appeal followed.

On appeal, the Court found that while the Planning Board was not bound to give final plat approval to the subdivision plan, it could not, without significant new information, deny a final plat approval where an applicant had complied with all of the conditions or requirements imposed in the preliminary plat approval. Since the Planning Board failed to raise its interpretation of the Town sewer code requirements earlier in the approval process, and since compliance with those codes was never made a condition during the preliminary plat approval, the Court held that the Planning Board had acted arbitrarily in imposing it as an additional condition to the final plat approval so late in the game. The Appellate Division affirmed the decision of the court below, entering judgment in favor of Nickart.

Nickart Realty Corp. v. Southold Town Planning Board, 2013 WL 5226146 (NYAD 2d Dept 9/18/13)

The opinion can be accessed at:

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