You are here: / Land Use
, ,

DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, over a two-justice partial dissent, upheld the Department of Environmental Conservation’s (DEC’s) determinations regarding snowmobile trails in newly added portions of the Adirondack Park. Because approval of the trails was still subject to permits and variances, two of petitioners’ causes of action were deemed not ripe for review. The Third Department determined there was no conflict between the Rivers System Act and the Adirondack Park State Land Master Plan. The Rivers System Act was deemed to control and the act allowed the proposed snowmobile traffic as a continuation of an existing use. And the Third Department held that a 2009 “guidance” document for the siting of snowmobile trails adopted by the DEC did not commit the DEC to a definite course of future action. Concerning the “ripeness” issue, the court wrote:

… [P]ermits and variances must be obtained through further administrative action before the proposed uses may be established. Specifically, permits are required to erect a bridge over a scenic river …  or to construct a trail within a scenic river area … . Moreover, variances are required for the use of motorized vehicles within scenic river areas … , and for construction of a Class II snowmobile trail, to the extent that it may exceed the maximum trail width of four feet that is permitted by regulation … . Permit and variance applications are governed by the Uniform Procedures Act … , which imposes conditions related to the substantive relief sought and provides the opportunity for further public participation. No permit or variance may be granted unless the proposed use is consistent with the purpose of the Rivers System Act … , and conditions may be imposed as necessary to preserve and protect affected river resources or to assure compliance with the Rivers System Act … . Moreover, there is an opportunity for public comment on applications for a permit or a variance …  and the granting of a permit or variance may be challenged through a CPLR article 78 proceeding. Thus, inasmuch as the harms upon which the first and second causes of action are based may be prevented or ameliorated by further administrative action, Supreme Court correctly concluded that the first and second causes of action are not ripe for judicial review. Matter of Adirondack Wild: Friends of The Forest Preserve v New York State Adirondack Park Agency, 2018 NY Slip Op 03193. Third Dept 5-3-18

​ENVIRONMENTAL LAW (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/ADIRONDACK PARK (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/CIVIL PROCEDURE (RIPENESS, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/RIPENESS (CIVIL PROCEDURE, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/SNOWMOBILES (ADIRONDACK PARK, DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))/LAND USE (ADIRONDACK PARK, SNOWMOBILES, (DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) DETERMINATIONS ON THE USE OF SNOWMOBILES IN NEWLY ADDED PORTIONS OF THE ADIRONDACK PARK UPHELD, TWO CHALLENGES NOT RIPE FOR REVIEW (THIRD DEPT))

, , ,

TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the transfer of development rights (TDR) component of its comprehensive plan was not properly adopted under the General Municipal Law:

The instant hybrid proceeding/action challenges the Town Board’s adoption of Local Law No. 12 (2005), which amended the Town’s zoning code to implement the transfer of development rights component of the Comprehensive Plan (hereinafter the TDR law). The TDR law designated the property subject to the petitioner’s site plan application as a sending district, meaning that it was an area of land from which development rights were to be transferred to receiving districts … . …

“General Municipal Law § 239-m provides that a proposed amendment of a zoning ordinance by a town must be referred to the county planning agency if the amendment affects real property located within 500 feet of the boundary of any city, village, or town”… . That statute requires a town to refer a “full statement”…  of its proposed action, which is defined as including “the complete text of the proposed ordinance or local law,” to the relevant county planning agency … .

Here, the Town Board adopted a resolution on January 19, 2005, in which it directed the Town Clerk to publish a copy of the final draft of the TDR law and notice of a hearing to be held 10 days later regarding the proposal. Around that time, the Town Board attempted to refer the proposed TDR law to the Suffolk County Planning Commission (hereinafter the Planning Commission) in accordance with General Municipal Law § 239-m. The Planning Commission, however, responded by letter dated February 9, 2005, in which it explained that the proposed TDR law would “not be reviewed until the following information is submitted through the offices of the municipal referring agency. Complete revised text of proposed TDR amendment.” There is no evidence in the record contradicting the Planning Commission’s statement that it never received the text of the proposed TDR law. Consequently, the Town Board failed to refer a “full statement” of its proposed TDR law before enacting it as required under the statute … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02611, Second Dept 4-18-18

​ENVIRONMENTAL LAW (TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT))/MUNICIPAL LAW (TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT))/ZONING  (TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT))/LAND USE (TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT))/TRANSFER OF DEVELOPMENT RIGHTS LAW (TDR) (ZONING, TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT))

, , ,

RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT).

The Second Department determined the town properly implemented the Rural Corridor (RLC) component of its comprehensive plan under the General Municipal Law, Town Law, State Environmental Quality Review Act (SEQRA) and the implementation was a proper exercise of the town’s zoning and police powers. The court further determined there were questions of fact whether petitioner’s development project application was completed before the new comprehensive plan was adopted, entitling petitioner to consideration of the plan under the law at the time the application was completed:

Here, the stated purpose of the RLC law was “to allow a very limited range of roadside shops and services that are compatible with the agricultural and rural setting along major arterial roads, such as New York State Route 25, leading into Downtown Riverhead and areas zoned Hamlet Center (HC) or Village Center (VC).” Contrary to the petitioner’s arguments, the RLC law’s designation of property along New York State Route 25 a few miles west of the hamlet of Riverhead as a rural corridor zone bore a rational relationship to its stated objective.

Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision … , pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “extensive delay[ ] indicative of bad faith . . . unjustifiable actions by the municipal officials . . . or abuse of administrative procedures”… .

The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its site plan application in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application… . However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02610, Second Dept 4-18-18

​ENVIRONMENTAL LAW (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/MUNICIPAL LAW (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/ZONING (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/LAND USE (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/RURAL CORRIDOR LAW (RLC)  (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/SPECIAL FACTS EXCEPTION SPECIAL FACTS EXCEPTION (ZONING, LAND USE, COMPREHENSIVE PLAN, QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))

, , ,

AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT).

The Second Department determined the town properly implemented the Agricultural Protection Zone (APZ) component of its comprehensive plan under the General Municipal Law, Town Law, State Environmental Quality Review Act (SEQRA) and the implementation was a proper exercise of the town’s zoning and police powers. The court further determined there were questions of fact whether petitioner’s development project application was completed before the new comprehensive plan was adopted, entitling petitioner to consideration of the plan under the law at the time the application was completed:

Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision … , pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “extensive delay[ ] indicative of bad faith . . . unjustifiable actions by the municipal officials . . . or abuse of administrative procedures”… .

The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its site plan application in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application… . However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02609, Second Dept 4-18-18

​ENVIRONMENTAL LAW (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/MUNICIPAL LAW (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/ZONING (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/LAND USE (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/AGRICULTURAL PROTECTION ZONE (APZ)  (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/SPECIAL FACTS EXCEPTION (ZONING, LAND USE, COMPREHENSIVE PLAN, QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))

, , ,

TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT).

The Second Department determined that the town’s comprehensive plan, which was adopted while petitioner’s development project application was pending and negatively affected the project, was properly adopted under the General Municipal Law and Town Law, did not violate the State Environmental Quality Review Act (SEQRA), and was a constitutional exercise of the police and zoning powers:

Prior to adopting a comprehensive plan, a town board must “refer the proposed comprehensive plan or any amendment thereto to the county planning board or agency or regional planning council for review and recommendation as required by” General Municipal Law § 239-m (Town Law § 272-a[5][b]). General Municipal Law § 239-m, in turn, requires a town to “submit to the county planning agency a full statement of such proposed action'” … . …

We agree with the Supreme Court that the Town Board complied with the procedural and substantive requirements of SEQRA. First, ” SEQRA mandates literal compliance with its procedural requirements and substantial compliance is insufficient to discharge the responsibility of the agency under the act'” … . …

Second, ” [j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination'” … .. “The agency decision should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … . …

Here, the Comprehensive Plan’s proposed designation of a largely contiguous swath of cultivated and undeveloped land as an agricultural protected zone bore a rational relationship to numerous legitimate purposes, including, but not limited to, the preservation and promotion of agriculture … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02608, Second Dept 4-18-18

​ENVIRONMENTAL LAW (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/MUNICIPAL LAW (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/ZONING (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/LAND USE (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/COMPREHENSIVE PLAN  (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))

, , ,

TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the town’s Site Plan Review Law was a valid substitute for zoning ordinances and explained the difference. The court also explained the meaning of a “comprehensive plan” in this context. In the underlying action the petitioners contested certain conditions placed upon the storage and sale of firewood imposed by the town planning board and argued that the planning board did not have the authority, under the Site Plan Review Law, to impose the conditions:

The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s available land” … . In contrast, site plan review reflects “public interest in environmental and aesthetic considerations, the need to increase the attractiveness of commercial and industrial areas in order to invite economic investment, and the traditional impulse for controls that might preserve the character and value of neighboring residential areas” … . Site plan review furthers those ends by “permit[ting] municipalities to regulate the development and improvement of individual parcels in a manner not covered under the usual provisions of building and zoning codes which establish specific standards for construction of buildings, provide for specific limitations on use, and fix definite numerical criteria for density, building set backs and frontage and height requirements” … .

There is no statutory directive that a municipality employ both zoning and site plan review as mechanisms of land-use control. …

The trial court … relied upon the absence of zoning or other land use policies to determine that the Site Plan Review Law ran afoul of the requirement that “[a]ll town land use regulations must be in accordance with a comprehensive plan” … . A comprehensive plan “need not be contained in a single document; indeed, it need not be written at all”… . Rather, “[t]he court may satisfy itself that the municipality has a [comprehensive] plan and that authorities are acting in the public interest to further it by examining all available and relevant evidence of the municipality’s land use policies” … . Matter of Bovee v Town of Hadley Planning Bd., 2018 NY Slip Op 02387, Third Dept 4-5-18

​MUNICIPAL LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/LAND USE ( TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ENVIRONMENTAL LAW (LAND USE, OWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ZONING (TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/SITE PLAN REVIEW LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/COMPREHENSIVE PLAN (MUNICIPAL LAW, LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))

, , ,

ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the town respondents violated General Municipal Law 239-m by not referring an application for an area variance by respondent mining operation  to the planning board. The violation was a jurisdictional defect that did not trigger the 30-day statute of limitations:

“General Municipal Law § 239-m requires that a municipal agency, before taking final action on an application for [land use] approval, refer that application to a county or regional planning board for its recommendation”… . It is undisputed that the ZBA (zoning board of appeals) did not refer the initial application for an area variance to the Cayuga County Planning Board (County Planning Board) before taking final action on that application. Contrary to the contention of the Town respondents, area variances are proposed actions for which referral is required under the statute … . “The alleged failure to comply with the referral provisions of the statute is not a mere procedural irregularity but is rather a jurisdictional defect involving the validity of a legislative act” … . Thus, the ZBA’s failure to refer the initial application for an area variance to the County Planning Board renders the subsequent approval by the ZBA “null and void” … . Matter of Fichera v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 01843, Fourth Dept 3-16-18

ZONING (VARIANCES, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/VARIANCES (ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/GENERAL MUNICIPAL LAW (ZONING, VARIANCES, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, ZONING, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))

, ,

LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined that local laws governing the use of agricultural land did not violate the public trust doctrine:

The Supreme Court correctly determined that the public trust doctrine applied to the property interest at issue, namely, development rights in agricultural land, as the plaintiffs demonstrated prima facie that the County acquired these development rights for public use and not in its “corporate capacity” … . …

… [T]he County defendants demonstrated, prima facie, that the contested provisions in Local Law Nos. 52-2010 and 44-2013, namely, those concerning commercial horse boarding and equine operations, agricultural development permits for structures and alternative energy systems, maximum lot coverages and the hardship exemption thereto, agricultural tourism, special use permits to conduct a site disturbance or a special event, agricultural processing facilities, hay rides, and agricultural educational tours, did not waste public property or violate the public trust doctrine … . Long Is. Pine Barrens Socy., Inc. v Suffolk County Legislature, 2018 NY Slip Op 01598, Second Dept 3-14-18

ENVIRONMENTAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/PUBLIC TRUST DOCTRINE (LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/AGRICULTURAL LAND  (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/LAND USE (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))

, ,

PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner property owner had stated causes of action alleging the town's rezoning of the property was arbitrary and capricious and constituted reverse spot zoning. The property had been zoned for resort-type development but, after a State Environmental Quality Review Act (SEQRA) review by the town, the property was rezoned to preclude development. The regulatory taking cause of action was dismissed as not ripe because petitioner had not first sought compensation. The SEQRA review and negative declaration were deemed properly done (requisite hard look taken):

Petitioner asserts, as a result, that the Town Board's decision to rezone the subject property arbitrarily disregarded the comprehensive plan's finding that a planned resort community was appropriate for the subject property. The 2015 report proposed the rezoning in order to address changed conditions in keeping with the spirit of the comprehensive plan, and it is debatable whether petitioner can ultimately “establish[] by competent evidence that the Town Board's decision to . . . change its zoning ordinance as it affects [the subject] property was arbitrary and unreasonable” … . Nevertheless, accepting the allegations in the petition/complaint as true, and noting the absence of documentary proof conclusively establishing a defense to them …, petitioner articulated a cognizable claim.

Petitioner also alleges that the subject property was “arbitrarily singled out for different, less favorable treatment than neighboring properties in a manner that was inconsistent with a well-considered land-use plan” so as to constitute discriminatory reverse spot zoning … . In our view, the … allegations are sufficient to state a cognizable claim for reverse spot zoning … . Matter of Wir Assoc., LLC v Town of Mamakating, 2018 NY Slip Op 00059, Third Dept 1-4-18

ZONING (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT))/SPOT ZONING (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED, SEQRA REVIEW PROPERLY DONE (THIRD DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED, SEQRA REVIEW PROPERLY DONE (THIRD DEPT))

, ,

TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT).

The Third Department determined the town board did not act arbitrarily or capriciously when it denied a quarry’s (Troy Sand’s) application for a special use permit allowing the blasting and removal of rock. The court based its ruling on the local law which describes the criteria for issuance of a special use permit. The fact that the town improperly relied on information outside that gathered during the State Environmental Quality Review Act (SEQRA) process did not change the fact that the local law was properly applied and justified the denial:

​

The first special use standard provides that “[t]he location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the use and the location of the site with respect to existing or future access shall be in harmony with the orderly development of the district” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [1]). There is ample evidence in the SEQRA [State Environmental Quality Review Act] record that the proposed quarry will be a sizable operation, and the final EIS [environmental impact statement] supports the Town Board’s determination that the project would create a highly intensive industrial land use in an area where only one small commercial entity currently exists. …

​

The second special use standard requires that “the nature and intensity of intended [*5]operations shall not discourage the appropriate development and use of adjacent land and buildings nor impair the value thereof” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [2]). In finding that this standard was not satisfied, the Town Board relied on, among other things, a property value impact analysis, prepared by an expert whose qualifications have not been challenged.

​

The fourth special use standard requires that “[t]he character and appearance of the proposed use . . . shall be in harmony with the character and appearance of the surrounding neighborhood” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [4]). The Town Board rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land valued by residents and tourists alike for the tranquility and recreational opportunities that the rural landscape affords. …

“In sum, it was in no way irrational, on this record, to find that petitioners failed to carry their burden of showing that their contemplated use of the subject property conforms with the standards imposed”… . … We recognize that the Town Board relied on environmental information that was outside of the SEQRA record and made factual findings with no basis in the final EIS in evaluating most of the standards it applied…  However, inasmuch as the failure to meet even one applicable standard is a sufficient basis upon which to deny a special use permit application … , we cannot say that the Town Board’s determination was irrational … . Matter of Troy Sand & Gravel Co., Inc. v Fleming, 2017 NY Slip Op 09222, Third Dept 12-28-17

 

ZONING (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/ENVIRONMENTAL LAW (SPECIAL USE PERMIT, BLASTING OPERATION, TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/ENVIRONMENTAL IMPACT STATEMENT (EIS)  (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/SPECIAL USE PERMIT (ZONING, (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy