Posted by: Patricia Salkin | April 18, 2018

NY Appellate Court Upholds Town’s Agricultural Protection Zone Component of the Comprehensive Plan

This post was authored by Matthew Loeser, Esq.

Petitioner submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the Town of Riverhead. The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending the Town Board adopted a Comprehensive Plan on November 3, 2003, which eliminated certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner commenced a hybrid proceeding challenging the Town Board’s adoption of zoning amendments implementing the Agricultural Protection Zone component of the Comprehensive Plan, which affected part of the property subject to the petitioner’s site plan application. The Supreme Court of New York held that the zoning resolutions at issue were legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that there were triable issues of fact with respect to the applicability of special facts.

The record reflected that following the Town Board’s referral to the Planning Commission, the Planning Commission processed the referral, held a hearing, voted, and reported its recommendations to the Town Board. There was no evidence in the record that the Planning Commission determined the Town Board’s referral was deficient in any respect. Therefore, the court found the Town Board made a “full statement” of its proposed APZ law in accordance with General Municipal Law § 239–m. Moreover, the revisions made to the APZ law after referral were “ ‘embraced within the original referral’ ” Thus, contrary to the petitioner’s contention, the court found the Town Board made a proper referral of the APZ law to the Suffolk County Planning Commission.

The court analyzed whether the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the APZ law. Here, the Town Board accepted a draft and a final generic EIS in connection with the Comprehensive Plan. The APZ law faithfully implemented the agricultural components of the Comprehensive Plan and thereby satisfied the conditions and thresholds for future actions set forth in the draft and final generic EISs. The Town Board’s reliance on the generic EISs prepared in connection with the Comprehensive Plan therefore satisfied the procedural and substantive requirements of SEQRA.

Lastly, the court noted that while the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. Here, there was evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules. Conversely, there was evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, which would have indicated that the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith. As such, the court held that the triable issues of fact existed as to the applicability of special facts.

Calverton v Town of Riverhead, 2018 WL 1833206 (NYAD 2 Dept. 4/18/18)

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