Agenda - Planning Commission - 10/15/2015

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August 10, 2015 1 Volume 9 1 Issue 15 Zoning Bulletin Acquest sued the Town in federal court. Among other things, Acquest alleged that in rescinding the sewer tap -in waiver request, the Town violated Acquest's substantive due process rights under the constitutions of the United States and the State of New York. Finding no material is- sues of fact in dispute, and deciding the matter on the law alone, the court granted in part Acquest's motion for summary judgment on its substan- tive due process claim. A jury trial was held and the jury found that the Town violated Acquest's right to substantive due process causing Acquest damages of nearly $1.5 million The Town appealed. Among other things, it argued that the trial court had erred in granting the motion with respect to Acquest's allegations of substantive due process violations. DECISION: Judgment of Supreme Court affirmed as modified, and remitted. The Supreme Court, Appellate Division, Fourth Department, New York, held that the Town violated Acquest's constitutional due process rights when the Town rescinded the sewer tap -in waiver request. In so holding, the court explained that it would find a substantive due process violation if a two-part test was met: (1) if Acquest established "a cognizable property interest, meaning a vested property interest, or 'more than a mere expectation or hope to retain the permit and continue their improvements' "; if Acquest could show that pursuant to State or local law, they had "a legitimate claim of entitlement to continue construc- tion"; and (2) if Acquest established that the Town's action was "wholly without legal justification." Looking at the first prong of the test, the court further explained that Acquest would only have a legitimate claim of entitlement to sewer tap -in waiver if there was a "certainty or a very strong likelihood" that the waiver request would have been granted. "Where an issuing authority has discretion in approving or denying a permit, a clear entitlement can exist only when that discretion 'is so narrowly circumscribed that ap- proval of a proper application is virtually assured'," said the court. The court found that Acquest had established a cognizable property interest in the February 2001 sewer tap -in waiver request made by the Town on Acquest's behalf. "As noted by the EPA and agreed to by [the Town]," the court found that "the Town Board had no further discretion to exercise after the EPA advised that [Acquest's] revised site plan would form the basis of an acceptable waiver request." Although Acquest still needed to obtain site plan approval by the Town Planning Board, and the EPA needed to grant the tap -in waiver request before the Property could be developed, the court found that Acquest had established that those ac- tions "were certainties." The court also found that the second prong of the substantive due pro- cess violation test was met. The court concluded that the. Town Board's action in rescinding the sewer tap -in waiver request and "emphatically 10 © 2015 Thomson Reuters