Posted by: Patricia Salkin | February 4, 2020

NY Appellate Court Finds Incentive Zoning Mechanism Did Not Effectively Amend the Zoning Regulations Without the Requisite Referral to the Planning Board

This post was authored by Matthew Loeser, Esq.

Petitioners commenced a CPLR article 78 proceeding and declaratory judgment action to annul the determination of respondent Town Board of Town of Brighton, which approved an incentive zoning application submitted by developers Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., M & F, LLC, and the Daniele Family Companies. The application was made in connection with a proposed Whole Foods store in respondent-defendant Town of Brighton. In this case, the petitioners appealed from an order and judgment that granted the motions to dismiss of the developers and the Town, Town Board, and respondent-defendant Town of Brighton Planning Board.
The court found on appeal that contrary to petitioners’ contention regarding the seventh cause of action, the Town Board’s determination to authorize certain deviations from the applicable zoning regulations in exchange for incentive contributions from the developers did not effectively amend the zoning regulations without the requisite referral to the Planning Board. Here, the incentive zoning mechanism utilized was already part of the Town’s preexisting zoning regulations developed in consultation with the Planning Board. As such, the court found that the application of that mechanism to a particular property did not thereby amend those regulations. The court therefore affirmed the dismissal of the petitioners’ complaint.
Save Monroe Avenue v Town of Brighton, 2020 WL 501525 (NYAD 4 Dept. 1/31/2020)


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