Posted by: Patricia Salkin | July 6, 2016

NY Appellate Court Finds Special Facts Exception Would Apply Following Moratorium and Delayed Decision and Ultimate Denial on Gravel Mine Permit

Plaintiffs–petitioners appealed from an order granting the cross motion of defendants-respondents Sue S. Stewart, Neighbors to Support West Bloomfield and Citizens to Support West Bloomfield to dismiss the 12th cause of action in this combined declaratory judgment action/CPLR article 78 proceeding. The 12th cause of action alleged that defendants-respondents Town of West Bloomfield, Town Board of Town of West Bloomfield and Town of West Bloomfield Planning Board acted in bad faith and intentionally delayed the application of plaintiff-petitioner Elam Sand & Gravel Corp. for a special use permit to operate a sand and gravel mine in order to enact a new zoning code that disallowed mining on the property Elam leased from plaintiff-petitioner Gary Evans for that purpose. Petitioners alleged that the special facts exception applies to Elam’s application for a special use permit.

Here, Elam filed its application for a special use permit on September 1, 2010, and the Town issued a moratorium on mining operations on June 8, 2011. After petitioners sought court intervention on two occasions, the Planning Board conducted a public hearing on April 26, 2012, but did not issue a determination. The Town Board adopted a new zoning law on April 10, 2013 that prohibited mining of the subject property and, on June 19, 2013, the Planning Board returned the application to Elam on the ground that mining was not a permitted use.

Accordingly, the court agreed with petitioners that the special facts exception could be applied to their application for a special use permit. The lower court’s decision was therefore reversed on the law without costs, the cross motion was denied and the 12th cause of action was reinstated.

Elam Sand & Gravel Corp v Town of Bloomingfield, 2016 WL 3201554 (NYAD 4 Dept. 6/10/2016)


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