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<br />.( <br /> <br />~ <br />,. <br /> <br />Page 2 - November 10, 1997 <br /> <br />Z.B. <br /> <br />Subdivision - Landlord says board tried to 'thwart' her efforts for <br />subdivision approval <br />Cleary v. Bibbo, 660 N.Y.S.2d 230 (New York) 1997 <br />Cleary owned undeveloped property in the town of GuiIderland, N.~, that <br />she wanted to subdivide into two lots. In May 1994, she applied to the town <br />planning board for approval. <br />After holding hearings, the board denied its approval in November 1994, <br />finding the subdivision would have a significant environmental impact. <br />Cleary sued the board, challenging its denial of approval. The court found <br />the board's determination of environmental significance was improper and <br />annulled the determination. <br />Following the court decision, Cleary asked the board to reconsider her <br />application. Meanwhile, the town appealed the court's annulment. The court <br />allowed the town to delay making a decision on Cleary's application pending <br />the appeal. <br />While Cleary's application was on hold, the board amended its zoning law <br />and rezoned Cleary's property. The minimum lot size for Cleary's property <br />went from 15,000 square feet to 40,000 square feet, which Cleary's proposed <br />subdivision didn't satisfy. <br />The town eventually withdrew its court appeal when its attorney said it <br />probably would lose the appeal. The withdrawal meant Cleary's application <br />was again up for reconsideration - about a year-and-a-half after her initial <br />application in May 1994. The board told Cleary it could take no action on her <br />application because the proposed subdivision wouldn't comply with the new <br />zoning requirements. <br />Cleary sued the board. Under state law, if a town changed its zoning law after <br />someone submitted an application, but before the town decided on that application, <br />courts had to apply the law as amended - unless the applicant could prove the <br />town acted in bad faith by delaying its decision. Finding the board didn't act in <br />bad faith, the court applied the amended zoning law and dismissed Cleary's case. <br />Cleary appealed. She claimed the board "took active steps" to delay a decision <br />on her application until it could "thwart [her] efforts" by amending its zoning law. <br />DECISION: Affirmed. <br />The board's delay wasn't in bad faith, so the court had to apply the new <br />zoning law. Because it was undisputed the subdivision wouldn't comply with <br />the new minimum lot size requirement, Cleary had no claim. <br />The delay initially resulted from the board's finding that the proposed <br />subdivision would be environmentally significant. Although the court later <br />annulled this determination, nothing showed the determination was made in <br />bad faith. Likewise, there was no evidence the board appealed the court's <br />annulment for malicious reasons. <br />see also: Matter of Bibeau v. Village Clerk of Village of Tuxedo Park, 569 <br />N. Y.S.2d 106. <br /> <br />51 <br />