Agenda - Planning Commission - 02/06/2014

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January 10, 2014 I Volume 8 I Issue 1 Zoning Bulletin facts exception should nevertheless apply to its case because the Town had selectively enforced the prohibition against commercial centers in a J-2 zoning district against Rocky Point. The Supreme Court agreed with Rocky Point. It held that special facts warranted the application of the previous J-2 classification to Rocky Point's site plan application. The Town then appealed. The Appellate Division reversed. It found that the Town had not, as Rocky Point had alleged, "intentionally and in bad faith delayed processing [Rocky Point's] site plan application" or "selectively enforced the prohibition against commercial centers in a J-2 zoning district against Rocky Point." Rocky Point appealed. DECISION: Judgment of Supreme Court, Appellate Division, affirmed. The Court of Appeals of New York held that Rocky Point's site plan application would not be reviewed in accordance with the J-2 zoning designation in effect on the day the application was filed. The court explained that, under the special facts exception, in order for Rocky Point to establish entitlement to the site plan as a matter of right, Rocky Point had -to be in "full compliance with the requirements at the time of [its] [site plan] application," such that "proper action upon the permit would have given [Rocky Point] time to acquire a vested right." In addition to showing entitlement to the request as a matter of right, the court said that, in order for the special facts exception to the general time of decision rule to apply, Rocky Point had to also show "extensive delay indicative of bad faith," "unjustifiable actions" by the municipal officials, or "abuse of administrative procedures." Here, the court found that Rocky Point failed 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 was out of compliance with the zoning classification in effect when it submitted the application. At that time, a substantial portion of the parcel was zoned J-2, which did not permit "conunercial centers" of the type Rocky Point sought to build. Again, J-2 zones prohibited commercial buildings that "occup[y] a site of five (5) acres or more". The proposed Lowe's Center, as planned, exceeded that spatial limit. Rocky Point had argued that the special facts exception should apply to its case even though it did not technically meet the J-2 requirements because the Town had historically ignored the zoning requirements and had selectively targeted Rocky Point for enforcement of the zoning requirements while intentionally failing to impose it on similarly situated applicants. Rocky Point argued, therefore, that it should not be held to the strict language of the zoning requirement. The court rejected that argument, finding the record clearly demon- strated that similarly situated applicants referred to by Rocky Point were 4 ©2014 Thomson Reuters