Posted by: Patricia Salkin | August 21, 2018

NY Appellate Court Denies Declaratory Relief in Case Arising from Rezoning Application

This post was authored by Matthew Loeser, Esq.

Petitioner, owner of a 197–acre tract of land in the Town of Cornwall, originally sought to develop the subject property into a mixed residential and commercial facility completely restricted to residents aged 55 years old and older. At the petitioner’s request, the Town enacted section 158–21(x) of the Town’s Zoning Code, which created a “PRD” district to permit the development of the property with 100% of the residential units age restricted. After market conditions changed, the petitioner applied to rezone the PRD district to permit 65% of the residential units to be non-age restricted. The petitioner subsequently commenced this article 78 proceeding and action for declaratory relief. The Supreme Court granted the respondents’ motion for summary judgment, and petitioner appealed.

The record reflected that respondents submitted evidence establishing that the Town Board was processing the petitioner’s rezoning application diligently, in good faith, and without delay. However, in opposition, the court found petitioner failed to raise a triable issue of fact. Additionally, the petitioner failed to proffer evidence that any of the steps taken by the Town Board in considering the rezoning application did not serve a legitimate purpose. Finally, respondents established that the Town Board had valid reasons for deciding that the Town’s Planning Board was best-suited to act as lead agency to review the rezoning application. Here, the Planning Board was an involved agency because it was responsible for granting a special use permit, subdivision approval, and site plan approval for the proposed development.

The court next upheld the Supreme Court’s determination to grant the respondents’ motion for summary judgment dismissing the third cause of action, which sought to recover damages for an unconstitutional taking of the petitioner’s property. The court found respondents established that the issue raised in the third cause of action was not ripe for judicial review, as no final determination had been rendered on the petitioner’s rezoning application. Moreover, petitioner failed to raise an issue of fact as to the applicability of the futility exception. Accordingly, the judgement of the Superior Court was affirmed.

Cornwall Commons, LLC v Town of Cornwall, 2018 WL 3449184 (NYAD 2 Dept. 7/18/2018)


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