| Matter of Exeter Bldg. Corp. v Town of Newburgh |
| 2008 NY Slip Op 02586 [49 AD3d 731] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Exeter Building Corp.,Appellant-Respondent, v Town of Newburgh et al., Respondents-Appellants, and Townof Newburgh Planning Board, Respondent. |
—[*1] Rider, Weiner & Frankel, P.C., New Windsor, N.Y. (Jeffrey S. E. Scully of counsel), forrespondents-appellants. Dickover, Donnelly, Donovan & Biagi, LLP, Goshen, N.Y. (Michael H. Donnelly ofcounsel), for respondent.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the TownBoard of the Town of Newburgh dated March 6, 2006, enacting Local Law No. 3 (2006) ofTown of Newburgh, which rezoned certain real property, and action for a judgment declaring thatExeter Building Corp. has a vested right to develop the real property in accordance with the priorzoning regulations and that Local Law No. 3 (2006) of Town of Newburgh is null and void,Exeter Building Corp. appeals, as limited by its brief, from (1) so much of an order of theSupreme Court, Orange County (Slobod, J.), dated November 6, 2006, as denied its motion forsummary judgment declaring that it has a vested right to develop the real property in accordancewith the prior zoning regulations, and, upon searching the record, in effect, awarded summaryjudgment to the Town of Newburgh, Town of Newburgh Building Inspector, and Town ofNewburgh Planning Board, declaring that it did not have a vested right to develop the realproperty in accordance with the prior zoning regulations and (2) so much of a judgment of thesame court dated January 18, 2007, as, upon the order, declared that it did not have a vested rightto develop the real property in accordance with the [*2]priorzoning regulations, and the Town of Newburgh and the Town of Newburgh Building Inspectorcross-appeal from (1) so much of the order as, in effect, awarded summary judgment to ExeterBuilding Corp. on the third cause of action alleging a violation of the State EnvironmentalQuality Review Act (ECL art 8) and (2) so much of the judgment as granted that branch of thepetition which was to annul Local Law No. 3 (2006) of Town of Newburgh for failure to complywith the State Environmental Quality Review Act.
Ordered that the appeal and cross appeal from the order are dismissed; and it is further,
Ordered that the judgment is reversed, on the law, without costs or disbursements, the orderis vacated, that branch of the petition which was to annul Local Law No. 3 (2006) of Town ofNewburgh for failure to comply with the State Environmental Quality Review Act is denied, thatbranch of the petition is dismissed on the merits, the determination is confirmed, the motion ofExeter Building Corp. for summary judgment declaring that it has a vested right to develop thereal property in accordance with the prior zoning regulations is granted, and it is declared thatExeter Building Corp. has a vested right to develop the real property in accordance with the priorzoning regulations and that Local Law No. 3 (2006) of Town of Newburgh is valid.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal therefrom terminated with the entry of judgment in the proceeding and action(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and crossappeal from the order are brought up for review and have been considered on the appeal andcross appeal from the judgment (see CPLR 5501 [a] [1]).
On March 6, 2006 the Town of Newburgh adopted a resolution enacting Local Law No. 3(2006) of Town of Newburgh (hereinafter Local Law 3), which rezoned residential R-2 and R-3areas to residential R-1. Exeter Building Corp. (hereinafter the petitioner) owns real property inthe rezoned area and, under the new zoning law, the petitioner's intended development of its realproperty would no longer be possible as anticipated.
The petitioner commenced this hybrid proceeding to annul Local Law 3 for the Town'salleged failure to take the requisite hard look at areas of environmental concern and action for ajudgment declaring that it has both a statutory and common-law vested right to develop the realproperty under the prior zoning regulations. The Supreme Court found that the petitioner failed toestablish a vested right, but agreed that the Town failed to take a hard look at traffic impacts ofthe rezoning, and it therefore annulled Local Law 3. We reverse.
Contrary to the Supreme Court's finding, the record demonstrates that, prior to enactingLocal Law 3, the Town took the requisite hard look at areas of environmental concern, includingtraffic issues, in the proposed rezoning areas (see Environmental Conservation Law§ 8-0109 [2]; 6 NYCRR 617.7 [b] [3]; Matter of WEOK Broadcasting Corp. vPlanning Bd. of Town of Lloyd, 79 NY2d 373, 382 [1992]; Matter of Jackson v NewYork State Urban Dev. Corp., 67 NY2d 400, 417 [1986]). Thus, the Town's determination toadopt Local Law 3 should have been confirmed (see Matter of Sasso v Osgood, 86 NY2d374, 384 [1995]; Akpan v Koch, 75 NY2d 561, 570 [1990]; Aldrich v Pattison,107 AD2d 258, 267 [1985]).
The Supreme Court, however, incorrectly determined that the petitioner did not acquire avested right to pursue development of the subject real property under the prior zoning regulations(see Town Law § 265-a; Matter of Ellington Constr. Corp. v Zoning Bd. ofAppeals of Inc. Vil. of New Hempstead, 77 NY2d 114 [1990]).
Although the Supreme Court was correct in determining that the petitioner failed to establish"substantial improvements and expenditures" to support a claim of common-law vested rights(Matter of Ellington Constr. Corp. v Zoning Board of Appeals of Inc. Vil. of NewHempstead, 77 NY2d at 125), the Supreme Court should have found that the petitionerestablished statutory vested rights pursuant to Town Law § 265-a. The lot-line changeapproved for the subject property by the Town of Newburgh Planning Board in November 2005constitutes a "subdivision" within the meaning of Town Law § 276 (4) (a) and Town ofNewburgh Code § 163-2, which consequently exempts the real property from the rezoningeffected by Local Law 3 for a three-year period following that approval, notwithstanding the factthat though no additional lots were actually created (see Freundlich v Town Bd. ofSouthampton, 73 AD2d 684 [1979], affd 52 NY2d 921 [1981]).
Motion by the respondents-appellants on appeals and cross appeals from an order of theSupreme Court, Orange County, dated November 6, 2006, and a judgment of the same courtdated January 18, 2007, to resettle a decision and order on motion of this Court dated December24, 2007, granting their motion to stay the appellant-respondent and its agents, licensees, officers,employees, and lessors from requesting or obtaining approval from the Town of NewburghPlanning Board for the "Madison Green Project" to develop a high-density condominiumcomplex on the subject real property and to stay the Town of Newburgh Planning Board fromgranting further approvals of the appellant-respondent's application for the "Madison GreenProject" to develop a high-density condominium complex on the subject real property, pendinghearing and determination of the appeals and the cross appeals.
Motion by the appellant-respondent on the appeals and cross appeals to preliminarily enjointhe Town of Newburgh and its agents, officers, employees, and persons acting in concert with it,from taking any further action, inter alia, to rezone certain real property, pending hearing anddetermination of the appeals and cross appeals.
Upon the papers filed in support of the motions, the papers filed in opposition thereto, [*3]and upon argument of the appeals and cross appeals, it is
Ordered that the motions are denied as academic in light of our determination on the appealsand cross appeals. Spolzino, J.P., Florio, Angiolillo and Dickerson, JJ., concur.