Criteria Not Met for “Special Facts” Exception to Rule that the Zoning Law in Effect at the Time a Site Plan Application is Decided Is Controlling

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the zoning law in effect at the time the applicant’s (Rocky Point’s) site plan application was decided, as opposed to the zoning law in effect when the application was first submitted, controlled. The criteria for the “special facts” exception to the general rule (general rule = applying the law at the time the application was decided) was not met. The court explained:

In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law … . Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the “special facts” exception to the general time of decision rule.Under the special facts exception, where the land owner establishes that they are entitled as a matter of right to the underlying land use application—here, a “site plan”–the application is determined under the zoning law in effect at the time the application is submitted …. In order for a land owner to establish entitlement to the request as a matter of right, the land owner must be in “full compliance with the requirements at the time of the application,” such that “proper action upon the permit would have given [the land owner] time to acquire a vested right” … . In addition to showing entitlement to the request as a matter of right, the land owner must also show “extensive delay indicative of bad faith,” …, “unjustifiable actions” by the municipal officials, …, or “abuse of administrative procedures” ….As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point Drive-In LP v Town of Brookhaven, 197, CtApp 11-14-13