Plaintiff BT Holdings, LLC, a Delaware corporation that owns approximately 68.4 acres of property in the Village of Chester, wanted to develop its property, which involved the consultation with municipal leaders from the Town and the Village. The Village requested that Plaintiff petition to annex into the Village the portions of the Property that were in the Town. However, Plaintiff noted that if the annexation were completed, then the project could not be constructed pursuant to the Village’s multi-residential zoning district, or “RM zoning,” without variances or zoning text amendments. The Village therefore asked Plaintiff to draft a new zoning provision, called “Residential Multifamily-Neighborhood,” or “RM-N,” zoning, which would be specific to this project. The Plaintiff then petitioned for annexation of the Town part of the Property into the Village, which required an environmental review of the proposed petition under the State Environmental Quality Review Act (“SEQRA”), the Village Board voted to approve the annexation, planned development, and RM-N zoning proposal, but the Town Board issued its own SEQRA findings and voted to deny the petition.
BT Holdings and the Village Board commenced, as co-petitioners, an Article 78 proceeding in the New York Supreme Court against the Town, seeking to annul the Town’s SEQRA findings. The parts reached a settlement, which, among other provisions, stated that development of the project site would move forward upon Plaintiff’s “receipt of final, unconditional and unappealable approvals for its proposed project.” The Village Board began processing the RM-N zoning designation and provided the proposal to the Village of Chester Planning Board for review and comment; however, the Planning Board issued a report opposing RM-N zoning and suggested that the project “could be built as planned under the existing RM multi-residential zoning.” According to the Plaintiff “none of the zoning amendments proposed by the Planning Board” would have allowed the project to proceed in accordance with the FEIS and the SEQRA findings, as required by the settlement. Thus, because the Village Board did not affirmatively enact any zoning, the Plaintiff argued the Property was left with “no zoning at all.”
Here, Plaintiff asserted that without any zoning for the newly annexed portion of the Property, it could not demonstrate that its proposal conforms to the applicable zoning regulations, and it thereby was “precluded from submitting applications for any use or occupancy.” The court found, however, that the Plaintiff could have “elicited from the Planning Board the applicable requirements of site plan approval.” The court also rejected the contention that the Plaintiff’s annexation petition constituted a land use application for purposes of the Williamson County analysis. Even if the Plaintiff submitted a development plan that the Planning Board subsequently rejected, or even if the annexation petition was understood to be a viable substitute, there was no evidence that Plaintiff requested any variance or land use approvals from the Zoning Board of Appeals. Lastly, because there was no indication that the Defendants used “repetitive and unfair procedures” or “engaged in a war of attrition” against Plaintiff to avoid issuing a final decision, the Court declined to invoke the futility exception required for Plaintiff’s claim to be deemed ripe for adjudication.
BT Holdings, Plaintiff, v. Village of Chester, 2016 WL 796866 (SDNY 2/23/2016)