| Matter of Birchwood Neighborhood Assn. v Planning Bd. of theTown of Colonie |
| 2013 NY Slip Op 08489 [112 AD3d 1184] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Birchwood Neighborhood Association etal., Appellants, v Planning Board of the Town of Colonie et al.,Respondents. |
—[*1] Michael C. Magguilli, Town of Colonie, Newtonville (Rebekah Nellis Kennedy ofcounsel), for Planning Board of the Town of Colonie and another, respondents. Donald Zee, PC, Albany (Andrew Brick of counsel), for Shelco Development LLC,respondent. Stockli Slevin & Peters, LLP, Albany (Mary Elizabeth Slevin of counsel), for NorthRidge Hollow, LLC, respondent. Philip S. Caponera, Clifton Park, for Landmark Development Group, LLC,respondent.
Stein, J.P. Appeals (1) from a judgment of the Supreme Court (Platkin, J.), enteredMay 30, 2012 in Albany County, which, in a combined proceeding pursuant to CPLRarticle 78 and action for declaratory judgment, among other things, partially grantedcertain respondents' motions to dismiss the amended petition/complaint, and (2) from ajudgment of said court, entered November 30, 2012 in Albany County, which, amongother things, granted certain respondents' motions for summary judgment dismissing theamended petition/complaint.[*2]
Respondent Shelco Development LLC(hereinafter the developer) proposed a 75-lot subdivision—now known as ForestHills—in the Town of Colonie, Albany County. Respondent Planning Board of theTown of Colonie granted the developer concept approval in January 2002. The Townsubsequently adopted a comprehensive plan (see Town Law § 272-a) and,in January 2007, passed Local Law No. 1 (2007) of the Town of Colonie, whichamended the Town's Land Use Law to, among other things, provide for conservationoverlay districts—including the location of the proposed Forest Hillsdevelopment—that were consistent with conservation areas set forth in thecomprehensive plan. Local Law No. 1 (2007) contained a grandfathering provisionexempting from its zoning requirements any subdivision plan that had previouslyreceived concept approval from the Planning Board and that either received final siteplan approval by the beginning of 2009 or filed final subdivision plans by the beginningof 2010. The deadlines in Local Law No. 1 (2007) of the Town of Colonie for filing finalsubdivision plans or receiving final site plan approval were extended by the enactment ofLocal Law No. 14 (2007) of the Town of Colonie and, thereafter, through a series ofLocal Laws adopted between 2008 and 2012, including Local Law No. 14 (2011) of theTown of Colonie. The last of such extensions, Local Law No. 2 (2012) of the Town ofColonie, applied exclusively to named subdivisions, including Forest Hills, which had"taken significant steps in advancing through the approval process during calendar year2011" and required final subdivision plans to be filed on or before June 30, 2012.
Meanwhile, following a public hearing in December 2011, the Planning Boardapproved the final subdivision plan for Forest Hills and the developer filed the finalsubdivision plan with the Town Clerk in January 2012. One month later, petitionerscommenced this combined CPLR article 78 proceeding and action for declaratoryjudgment challenging the Planning Board's subdivision approval. In May 2012, afterpre-answer motions by the Town, the Planning Board and the developer, Supreme Court,among other things, dismissed all but petitioners' first cause of action challenging thegrandfathering amendments.[FN1]Following joinder of issue, the developer and other respondents moved and cross-movedfor summary judgment dismissing the petition/complaint and petitioners cross-moved forsummary judgment in their favor. In November 2012, Supreme Court denied petitioners'cross motion, granted respondents' motions and dismissed the petition/complaint.Petitioners now appeal both judgments and we affirm.
Petitioners primarily argue that the repeated renewals of the first grandfatheringprovision were unlawful because they did not comport with the Town's comprehensiveplan, rendering approval of the developer's subdivision plan invalid.[FN2]We disagree. "A town's zoning determination is entitled to a strong presumption ofvalidity; therefore, one who challenges such a determination bears a heavy burden ofdemonstrating, 'beyond a reasonable doubt, that the determination was arbitrary andunreasonable or otherwise unlawful' " (Matter of Bergami v Town Bd. of the Town of Rotterdam, 97AD3d 1018, 1019 [2012], quoting Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town ofRotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Asian Ams. for Equalityv Koch, 72 NY2d 121, 131 [1988]). While "[z]oning laws must be [*3]enacted in accordance with a comprehensive land use plan"(Rocky Point Drive-In, L.P. vTown of Brookhaven, 21 NY3d 729, 734 n 1 [2013]; see Town Law§ 263), to establish compliance, "respondents need only show that the zoningamendment was adopted for 'a legitimate governmental purpose' " and the amendmentwill not be considered arbitrary unless " 'there is no reasonable relation between the endsought to be achieved by the regulation and the means used to achieve that end' " (Matter of Rossi v Town Bd. ofTown of Ballston, 49 AD3d 1138, 1144 [2008], quoting Fred F. French Inv.Co. v City of New York, 39 NY2d 587, 596 [1976], appeal dismissed, certdenied 429 US 990 [1976]).
We reject petitioners' contention here that the amendments to the initialgrandfathering provision enacted in 2007 were improperly adopted without a carefulstudy by the Town to ensure compliance with the comprehensive plan.[FN3]As set forth in the comprehensive plan, the Town's primary concerns included "ensuringthe community remains a great place to live, work, and visit, attracting new industry andemployment opportunities, and conserving the area's natural resources and remainingopen spaces." The adoption of the initial grandfathering provision clearly evidenced andfurthered the Town's interest in balancing conservation measures with communitydevelopment and, particularly, the interests of property owners who had, at the time thecomprehensive plan was adopted, invested substantial time and money in developingtheir property in accordance with previous land use laws and zoning requirements (see Matter of Shop-RiteSupermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 AD3d 1384,1387 [2011], lv denied 17 NY3d 705 [2011]).
Petitioners have not shown that, under the circumstances here, the challengedextensions—amounting to a 2½-year period from the beginning of 2010 tothe middle of 2012—were inordinately lengthy as to render them "arbitrary andunreasonable or otherwise unlawful" (Matter of Rotterdam Ventures, Inc. v TownBd. of the Town of Rotterdam, 90 AD3d at 1362; see Boyles v Town Bd. ofTown of Bethlehem, 278 AD2d 688, 690 [2000]). In our view, such extensions wereconsistent with the comprehensive plan and were reasonably adopted to further thepurposes of the original grandfathering provision. This is particularly true consideringthat Local Law No. 2 (2012), which created the final six-month extension for filing finalsubdivision plans, was tailored to apply exclusively to development proposals in whichsignificant steps had been taken to advance through the approval process during theprevious year.
Nor do we find merit to petitioners' claim that the 2011 and 2012 extensions of thegrandfathering provisions were ineffective because they were enacted after the previousextensions had expired. The Town had the authority to enact such provisionsretroactively and its intent to do so is evident in the clear language of each local law(see Jacobus v Colgate, 217 NY 235, 240 [1916]). To the extent not specificallyaddressed herein, petitioners' remaining contentions have been reviewed and found to bewithout merit.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the judgments are affirmed,without costs.
Footnote 1: Supreme Court alsogranted a cross motion by petitioners for leave to add necessary parties.
Footnote 2: Although petitionersappealed from the May 2012 judgment, they have abandoned that appeal by failing toaddress it in their brief (seeMills v Chauvin, 103 AD3d 1041, 1044 n 2 [2013]).
Footnote 3: Petitioners concede thatLocal Law No. 1 (2007) of the Town of Colonie was lawful. While they do not concedethe lawfulness of any of the subsequent extensions, petitioners focus their challenge onthe extensions contained in Local Law No. 14 (2011) and Local Law No. 2 (2012).