NY Appellate Court Finds Four-Year Special Permit was Timely Renewed

This post was authored by Matthew Loeser, Esq.

Respondent Hospital for Special Surgery (“HSS”) made an application for the renewal of a special permit to construct a new hospital building.  New York City Planning Commission granted this application, and the Supreme Court of New York denied the petition to annul this determination.

On appeal, the court found the Commission’s determination that “the facts upon which the special permit was granted have not substantially changed” was rationally based in the record and not contrary to the law. As such, the court gave deference to the Commission’s construction of the relevant statute to mean that the “facts” to be assessed referred to the scope and terms of the permitted project, rather than external factors, such as environmental impacts that could have resulted from area development during the years since the original grant of the special permit. The question of whether a full-scale reassessment of the project’s impact was needed was a matter for the Commission’s discretion.

The court also upheld respondents’ interpretation of ZR §§ 11–42(d) and 11–43, as providing that the initiation of litigation challenging a permit determination deferred commencement of a lapse period until entry of the final order in such litigation. Here, since the prior litigation initiated by petitioner concluded on June 27, 2013, the four-year special permit lapse period was due to end on June 27, 2017. As HSS’s permit renewal application was made on June 19, 2017, the court found it to be timely.

In re Edgewater Apartments, Inc v New York City Planning Commission, 2019 WL 6313060 (NYAD 1 Dept. 11/26/2019)