Golden Horizon Terryville Corp. v. Prusinowski
Opinion of the Court
In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the review of the petitioner-plaintiffs commercial site plan application to develop a certain
Ordered that the appeal from the order dated June 19, 2008, is dismissed; and it is further,
Ordered that the appeal from so much of the order and judgment as denied the respondents-defendants’ motion for leave to reargue is dismissed, as no appeal lies from an order denying re-argument; and it is further,
Ordered that the order and judgment is reversed insofar as reviewed, on the law and the facts, and the matter is remitted to the Supreme Court, Suffolk County, for an evidentiary hearing to be held forthwith in accordance herewith and a new determination thereafter on the petition; and it is further,
Ordered that one bill of costs is awarded to the respondents-defendants.
The appeal from the order dated June 19, 2008, must be dismissed because no appeal lies as of right from an intermediate order in a proceeding pursuant to CPLR article 78 (see CPLR 5701 [b] [1]), and we decline to grant leave in view of the fact that a final judgment has been entered.
The petitioner-plaintiff (hereinafter the petitioner), the owner of a parcel of real property located in the Town of Brookhaven, filed a commercial site plan application in September 2005 with the Department of Planning, Environment, and Land Management of the Town of Brookhaven (hereinafter the Planning Department), to develop a retail building on the property. The
On August 2, 20071 the petitioner commenced the instant hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the processing and consideration of its site plan application and action against several Town officials for a judgment declaring, inter alia, that the moratorium could not be applied to bar consideration of its application. In lieu of an answer, the respondents/defendants (hereinafter collectively the Town) moved to dismiss the petition, pursuant to CPLR 3211 (a) and 7804 (f), inter alia, as unripe for judicial review, and for failure to state a cause of action. The Supreme Court denied the motion, and the Town served and filed an answer. The Town’s subsequent motion, in effect, for leave to reargue the motion to dismiss the petition was denied. The Supreme Court then granted the petition to the extent of directing the Planning Board to place the petitioner’s site plan application on its calendar for processing and consideration, deem the application complete, and determine the application in accordance with the Town zoning laws that were in effect on October 31, 2006.
Contrary to the Town’s contention, the petition was ripe for
Furthermore, the Supreme Court properly determined that the petitioner was not required to apply for a “hardship” exception from the moratorium before it could commence this proceeding. By the plain terms of the applicable local law, the “hardship” exception did not apply to the circumstances of this case (see Town Code of Town of Brookhaven § 171-5).
Contrary to the Town’s contention, the Supreme Court did not err in denying that branch of its motion which was to dismiss the petition, pursuant to CPLR 3211 (a) and 7804 (f), for failure to state a cause of action. “[M]andamus lies to compel the performance of a purely ministerial, act where there is a clear legal right to the relief sought” (Klostermann v Cuomo, 61 NY2d 525, 539 [1984]; see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]). Moreover, municipalities can be estopped from applying zoning amendments to property owners “where some form of misconduct or extraordinary delay on the part of the municipality has prevented the acquisition of [vested] rights” in the once lawful use of a property (Matter of Lawrence School Corp. v Morris, 167 AD2d 467, 467-468 [1990]; see Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 [1976]; Cymbidium Dev. Corp. v Smith, 133 AD2d 605, 607 [1987]).
The Town asserts that the petition failed to state a cause of action because the Town was processing the petitioner’s site plan application in the normal course of administration until the moratorium came into effect. However, the petition demonstrated “the existence of a bona fide justiciable controversy” in this regard, which required the Town to answer the petition (Matter of Zaidins v Hashmall, 288 AD2d 316, 317 [2001]; see Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream,
Nonetheless, the Supreme Court erred in determining, as a matter of law, in effect, that the moratorium did not apply to the petitioner’s real property, and, thus, in granting the petition and compelling the Planning Board to process and consider the application in accordance with the zoning laws in effect on October 31, 2006. The courts are generally bound to apply the zoning laws in existence at the time the decision is rendered (see Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville Ctr., 64 NY2d 921, 922 [1985]; Matter of Home Depot U.S.A. v Village of Rockville Ctr., 295 AD2d 426, 428 [2002]; Matter of Calverton Indus. v Town of Riverhead, 278 AD2d 319, 320 [2000]), which, in the present case, would include the zoning amendment placing a moratorium on development and the processing and consideration of site plan applications. However, as previously noted, a municipality may be estopped from applying such zoning amendments upon a showing that it prevented the property owner from obtaining vested rights through “some form of misconduct or extraordinary delay” (Matter of Lawrence School Corp., 167 AD2d at 467-468; see Matter of Pokoik, 40 NY2d at 772-773; Cymbidium Dev. Corp., 133 AD2d at 607). Accordingly, in order to prevent the Town from applying the moratorium to bar processing and consideration of its site plan application, the petitioner was required to demonstrate proof of “special facts” indicating that the Town acted in “bad faith” in delaying the processing and consideration of the site plan application while the zoning law was changed (Matter of Home Depot U.S.A. v Village of Rockville Ctr., 295 AD2d at 428; see
While a reasonable factfinder could determine, based upon the evidence presented by the petitioner, that the Town intentionally delayed the processing of the petitioner’s application so that it could change the applicable zoning laws, in light of the Town’s denials of the petitioner’s contentions, its averments that the application was being processed in the normal course of administration, and its assertions that delays were caused by noncompliance on the part of the petitioner with certain of the Town’s requests, there are triable issues of fact as to whether the delay was unreasonable and the product of bad faith.
Accordingly, under the unique circumstances of this case, we remit the matter to the Supreme Court, Suffolk County, for an evidentiary hearing to be held forthwith (see CPLR 410, 7804 [h]), inter alia, on the issue of whether there are special facts demonstrating that the petitioner was prevented from using its property in a currently lawful manner through “some form of misconduct or extraordinary delay” (Matter of Lawrence School Corp., 167 AD2d at 467-468) on the part of the Town (see Rocky Point Drive-In, L.P. v Town of Brookhaven, 37 AD3d 805, 808 [2007]; Matter of Huntington Ready-Mix Concrete v Town of Southampton, 104 AD2d 499, 500 [1984]; Marsh v Town of Huntington, 39 AD2d 945 [1972]), and for a new determination on the petition thereafter.
In light of our determination, the Town’s remaining contention need not be reached. Skelos, J.R, Santucci, Belen and Chambers, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.