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Planning Board Should Not Have Added Conditions for Approval of Final Plat Plan

The Second Department affirmed Supreme Court’s determination that the planning board’s denial of approval of a final plat plan was arbitrary and capricious.  The Court determined that the planning board was aware of the variance upon which the denial was based (involving the transfer of sanitary flow credits) at the time it approved the preliminary plat plan:

Although the Planning Board’s approval of the preliminary plat in April 2010 did not guarantee approval of the final version (see Town Law § 276[4]), a planning board may not, in the absence of significant new information, deny final approval if a property owner implements the modifications or conditions required by a preliminary approval (…Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 276 Preliminary Review). Here, the Planning Board had long known that the SCDHS’s approval of a Suffolk County Sanitary Code variance was based on the transfer of sanitary flow credits and, indeed, the Planning Board specifically referenced that transfer in its April 2010 conditional preliminary approval. Inasmuch as no significant new information came to light after the Planning Board gave its approval to the preliminary plat, its imposition of additional requirements in the conditional final approval was, as the Supreme Court correctly held, arbitrary and capricious… . Matter of Nickart Realty Corp v Southold Town Planning Bd, 2013 NY Slip Op 05909, 2nd Dept 9-18-13

 

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