Posted by: Patricia Salkin | December 26, 2013

NY Appellate Court Upholds Town’s Renewals of Grandfathering Provisions

In January of 2002 a developer received concept approval for a proposed a 75-lot subdivision in the Town of Colonie (NY). Subsequently, the Town adopted a comprehensive plan and in 2007, the Town enacted a local law which, among other things, provided for conservation overlay districts consistent with the conservation districts identified in the comprehensive plan. The local law contained a grandfathering provision exempting any project that had already received concept approval from the Town and that “either received final site plan approval by the beginning of 2009 or filed final subdivision plans by the beginning of 2010.” A series of local laws containing extensions of the grandfathering provision were subsequently enacted over two and half years, the last of which specifically named the subdivision at issue. Following a hearing, the planning board approved the final subdivision plan which was filed with the clerk and the petitioners appealed. The trial court dismissed the action and the present appeal ensued.

Petitioners argued that the repeated renewals were unlawful as they did not comply with the comprehensive plan. The appellate court disagreed, noting that the language of the local law providing for the exemption “clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development, and particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with the previous land use laws and zoning requirements.” The Court further concluded that the “extensions were consistent with the comprehensive plan and reasonably adopted to further the purpose of the original grandfathering provision.”

Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 2013 WL 6670351 (NYAD 3 Dept. 12/19/2013).

The opinion can be accessed at:

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