Posted by: Patricia Salkin | January 31, 2020

NY Appellate Court Upholds Incentive Zoning Approval and Dismisses Open Meetings Law Claims, but Finds Possible Public Trust Violation

This post was authored by Amy Lavine, Esq. 

In Matter of Save Monroe Ave., Inc. v Town of Brighton, the New York Appellate Division, Fourth Department affirmed the town board’s authorization of certain zoning deviations pursuant to its incentive zoning law. These zoning deviations didn’t amount to de facto amendments to the zoning law made without prior referral to the planning board, the court held, since the incentive zoning regulations were already part of the town’s zoning laws and had been properly adopted after the required planning board review.

Matter of Save Monroe Ave., Inc. v Town of Brighton, 2020 NY Slip Op 00752 (N.Y. App. Div. 4th Dept. January 31, 2020)

 

In a related case, Matter of Brighton Grassroots, LLC v Town of Brighton, the court also dismissed several claims challenging the validity of the town’s incentive zoning law. The court found that the law complied with the town’s zoning enabling legislation and specifically rejected the petitioner’s contention that the town was required to “adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.”

The court additionally found no violations of the Open Meetings Law. The petitioner’s claim that the town board engaged in secret meetings was rejected because its allegations were merely speculative and conclusory. There was also no merit to the petitioner’s argument that the town violated the Open Meetings Law by posting too much information on its website several days before one of the public meetings concerning the project.

However, the court did agree with the petitioner on its public trust claim because there were unresolved factual issues related to the project’s potential impacts on a recreational, trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail.” The court also found that the petitioner’s cause of action regarding a permissive referendum was improperly dismissed as unripe.

Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754 (N.Y. App. Div. 4th Dept. January 31, 2020)


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