Posted by: Patricia Salkin | January 6, 2017

NY Appellate Court Holds that Time Period within which Planning Board was Required to Act on Final Subdivision Application Never Began to Run

Petitioner, owner of vacant property in the Town of Ithaca, submitted an application to the Town Planning Board seeking approval to subdivide the property into 50 parcels consisting of 47 residential lots, two parcels to be donated to Cornell University as wildlife open space and a parcel to be dedicated to the Town and added to an existing park. In July 2006, the Planning Board issued a negative declaration of environmental significance pursuant to the State Environmental Quality Review Act (SEQRA), and granted preliminary subdivision approval with various conditions. On September 10, 2007, petitioner applied for final subdivision approval, submitting a proposed final plat that made several changes in the proposed project, particularly with reference to drainage and stormwater management. However, on the day the final application was submitted, the Town Board adopted a 270–day moratorium that prohibited the Planning Board from issuing “acceptance, consideration, preliminary approval or final approval … of any plan or application for subdivision of” petitioner’s property. With petitioner’s consent, the Town Board then extended the moratorium for two additional 270–day periods. No further action was taken on petitioner’s application until September 2014, when petitioner demanded that respondent issue a certificate establishing default approval of his application based upon the Planning Board’s failure to take action on his 2007 final application within the statutory time limit. Respondent denied petitioner’s request on the ground that additional SEQRA review, which was required due to the modifications in the final application, had never been completed.

The court found that even if Petitioner’s contention was correct that it was the Planning Board’s burden to initiate additional SEQRA review of his final application rather than his responsibility to request it, the narrow language of Town Law § 276(8) limited the remedy of default approval to failures to comply with statutory time limits that occur “after completion of all requirements under SEQRA”.  Here, as all SEQRA requirements were never completed, the court determined that the time period within which the Planning Board was required to act on the final subdivision application had never begun. Accordingly, the court held that the Supreme Court properly found that Petitioner was not entitled to default approval.

Lucente v. Terwilliger, 144 A.D.3d 1223 (2016)


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