Agenda - Planning Commission - 05/01/2014

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April 10, 2014 1 Volume 8 1 Issue 7 Zoning Bulletin the Board determined that the three -year exemption from the zoning change had expired, and that the Developer's Property was now subject to the R -1 zoning requirements. Therefore, the Board disapproved the amended site plan. The Developers appealed to the Town's Zoning Board of Appeals ( "ZBA "). They contended that they had established a vested right under the common law to develop the Madison Green project. The ZBA rejected that argument. The ZBA upheld the Planning Board's determination that the Developers had not established a vested right under the common law to develop the Madison Green project under the R -3 zoning regulations. In so determining, the ZBA concluded that, inasmuch as the Developers had not satisfied all the conditions in the final site plan approval, they were not entitled to have the chairperson sign the site plan and, thus, were not entitled to the issuance of a building permit under the site plan. The ZBA also rejected the Developers' contention that, under common law vesting, the permits already issued with respect to demolition, erection of a sign, and clearing and grading of the Property could, in the absence of a building permit authorize construction of the Madison Green project under the site plan. The Developers appealed to court. Among other things, they sought a judgment declaring that they had a vested right under the common law to develop the Madison Green project under the R -3 zoning regulations. The supreme court agreed with the Developers and issued a judgment in their favor. The Town appealed. DECISION: Judgment of supreme court reversed, and matter remitted. Agreeing with the Town, the Supreme Court, Appellate Division, Second Department, New York, held that the Developers did not acquire vested rights to develop the Property under the R -3 zoning regulations. In so holding, the court explained that "[i]n New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to fur- ther the development." The court further noted that "[n]either the issuance of a permit . . . nor the landowner's substantial improvements and expenditures, standing alone, will establish the right. The landowner's ac- tions relying on a valid permit must be so substantial that the municipal ac- tion results in serious loss rendering the improvements essentially value- less" Here, the Developers were claiming a vested right in reliance on the final site plan approval. However, the court noted that "[e]ven if a property owner may claim vested rights in reliance on an unconditional final approval of a site plan," here it was "undisputed" that the Board never granted uncondi- tional approval of the Developers' site plan. Indeed, since the Developers failed to fulfill the conditions precedent that were delineated in the final site 6 © 2014 Thomson Reuters