Posted by: Patricia Salkin | February 21, 2016

NY Appellate Court Accepts Futility Exception on Ripeness Defense on question og Whether Board Would Use Repetitive and Unfair Procedures to Avoid Making a Final Decision on Developer’s Site Plan Application for a Senior Housing Development

In 2002, the plaintiff/petitioner East End Resources, LLC, entered into a contract of sale to purchase approximately 6.75 acres of real property located in the Hamlet of Southold. Shortly after, the Southold Town Board enacted a moratorium precluding all residential site plan approvals. After the moratorium expired, East End submitted a site plan application to the Town of Southold Planning Board, seeking approval for the construction of a 24–unit senior housing development on the parcel. East End alleged that the Planning Board, Town Board, Town of Southhold Planning Department, and Town of Southhold Town Clerk (“appellants”) deliberately and systematically delayed review of its site plan application. As such, East End sought relief pursuant to CPLR article 78 in the nature of mandamus to compel the Planning Board to conduct a public hearing on its application pursuant to Town Law § 274–a(8). Appellants moved for summary judgment, and the trial court denied the motion.

The court found that appellants argued East End’s claims were not ripe for judicial review since the Planning Board had not made a final decision on East End’s application. However, East End raised a triable issue of fact as to whether the appellants would continue to use repetitive and unfair procedures so as to avoid making a final decision on the application; thus, the court found the futility exception could apply. Accordingly, the trial court properly denied this branch of the motion for summary judgment dismissing this cause of action.

The equal protection claim was found to be properly dismissed because East End failed to serve a timely notice of claim on the appellants, which was a condition precedent to the assertion of this claim. As to East End’s other claims, the court found that since the Planning Board had significant discretion in reviewing site plan applications, East End did not have a cognizable property interest in the approval of a particular site plan application. Accordingly, the state Supreme Court’s decision was affirmed as modified.

East End Resources, LLC v. Town of Southold Planning Bd, 2016 WL 313983 (NYAD 2 Dept. 1/27/2016)

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