Posted by: Patricia Salkin | February 19, 2016

NY Court of Appeals Finds No Vested Right to Develop Property in Accordance with Prior Zoning Regulations

Developers brought an Article 78 hybrid proceeding against the Town of Newburgh, town board members, planning board, zoning board of appeals, and town code enforcement officer, seeking review of a determination by board of appeals that developers had not established a vested right to develop real property in accordance with prior zoning regulations, and seeking declaratory judgment that they had a vested right to do so. The Supreme Court, Orange County, granted petition to review determination by board of appeals and granted declaratory judgment. The Defendants appealed and the Appellate Division reversed and remitted.

In 2005, the year before the rezoning of petitioners’ property the Town Planning Board had repeatedly warned petitioners of the proposed rezoning. Moreover, the December 2007 Approval included a statement of the new zoning status of the property. Because of this, the court found that the petitioners must have been “cognizant of the potential for an eventual legal ruling that the Local Law was in fact valid” while they were challenging the rezoning in court. Thus, it was not reasonable for petitioners to rely on the December 2007 conditional Final Site Approval of the development, in carrying out any substantial actions furthering the development. Accordingly, there was no reasonable reliance on municipal permission: a required element in the creation of a vested right. The Appellate court’s holding that petitioners had no vested right to develop the subject property under the prior zoning regulations was therefore affirmed.

Exeter Bdg. Corp. v. Town of Newburgh, 2016 WL 527034 (NY 2/11/2016)


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