NY Appellate Court Affirms Lower Court’s Ruling that the Local Planning Board’s Justifications for Denial of Site Plan Approval Were Unsupported

This post was authored by Rachel Lenberger, Touro University Jacob D. Fuchsberg Law Center

Southern Realty Development (“SRD”) sued the Town of Hurley (the “Town”) after denying a site plan approval for the construction of a drive-thru Dunkin Donuts. In August 2020, SRD applied for site plan approval to the Town Planning Board (“the Board”). The Board held a series of public as well as nonpublic hearings to discuss the potential issues surrounding the project, including (i) concerns over the shoulder widening planned for northbound Route 375; (ii) that ingress and egress would be blocked by southbound queues on Route 375 to the project site; (iii) the sufficiency of the stacking capacity within the project site during peak hours; and (iv) the on-site maneuverability of fire, delivery and garbage trucks with other vehicles. Local residents also appeared in opposition to the development because they would prefer a “mom and pop” restaurant to a Dunkin Donuts.

After a year of discussions with SRD, the Board voted to reject SRD’s site plan approval due to the potential negative impacts the project would have on the traffic at the intersection it was located at. As a result, SRD commenced an Article 78 proceeding against the Board seeking to annul the Board’s denial of SRD’s application as arbitrary and capricious and an order directing the Board to approve its application. The court found that the Board improperly conducted meetings out of the public view and failed to adequately provide its reasoning for rejecting the application on the record.

On appeal, the court disagreed with the lower court’s finding that judicial review was precluded based upon the Board’s procedurally deficient review process and a fundamentally flawed record, finding that had petitioners pleaded and established an Open Meetings Law violation, they failed to demonstrate good cause requiring nullification. Instead, they effectively rely on statements of Board members at the public hearing(s) as well as discussions that occurred outside at other meetings in support of their contention that the Board’s denial was arbitrary and capricious. The court further explained that although the Board failed to set forth its decision and reasoning in a written resolution, the meeting minutes memorializing the Board’s vote provided adequate indications of its reasoning for denying the application and the record contains sufficient evidence to allow the court to review the reasoning behind the Board’s determination. Therefore, the court’s review was limited to only the concerns that were discussed and memorialized in the meeting minutes.

With respect to the traffic concerns expressed by the Board, the court found that the planning consultant’s concerns regarding shoulder widening were not supported. The planning consultant stated that the shoulder widening was “not an acceptable practice” without further elaboration and despite the unrebutted suggestion that the practice had the support of the Department of Transportation and was compliant with the Vehicle and Traffic Law. Furthermore, the court found that the Board’s concerns pertaining to the stacking capacity of the parking lot were unsupported due to the Board’s own study and methodology that showed the stacking capacity to be 21 vehicles, compared to SRD’s engineering’s consultant analysis, which showed the capacity to be 14 vehicles. Moreover, the court similarly concluded that the Board’s concerns pertaining to the maneuverability of large vehicles in the project lot were also unsupported as the Board gave no reasoning why SDR’s engineering consultant’s maneuverability studies did not alleviate their concerns.

The court also concluded that the Board’s decision was in response to local public opposition as a “mom and pop” restaurant would be more desirable. These concerns are not proper grounds upon which the Board may base the denial of an otherwise permitted use. Therefore, the reasons relied upon by the Board in denying SRD’s application were conclusory and unsupported as the traffic-related concerns were adequately addressed by SRD. Thus, the appellate court upheld the lower court’s determination, and concluded, that on remand, the Board must engage in further proceedings not inconsistent with the appellate court’s decision.

Southern Realty and Development, LLC v. Town of Hurley, 2023 WL 4353674 (NYAD 3 Dept. 7/6/2023)