Affiliated Brookhaven Civic Orgs., Inc. v. Planning Bd. of the Town of Brookhaven

• Citation: 209 A.D.3d 854,177 N.Y.S.3d 257
• Decision Date: 19 October 2022
• Docket Number: 2019–14073,Index No. 2604/17
• Parties: In the Matter of AFFILIATED BROOKHAVEN CIVIC ORGANIZATIONS, INC., et al., appellants, v. PLANNING BOARD OF the TOWN OF BROOKHAVEN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

209 A.D.3d 854

177 N.Y.S.3d 257

In the Matter of AFFILIATED BROOKHAVEN CIVIC ORGANIZATIONS, INC., et al., appellants,

v.PLANNING BOARD OF the TOWN OF BROOKHAVEN, et al., respondents.

2019–14073

Index No. 2604/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 17, 2022

October 19, 2022

Raymond G. Keenan, Shirley, NY, for appellants.

Annette Eaderesto, Town Attorney, Farmingville, NY (Leigh Rate of counsel), for respondents Planning Board of the Town of Brookhaven, Town Board of the Town of Brookhaven, and Tullio Bertoli, Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven.

Certilman Balin Adler & Hyman, LLP, Hauppauge, NY (John M. Wagner and Anne M. Molloy of counsel), for respondent Howard Rosengarten and Associates.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Brookhaven dated April 17, 2017, which, after a hearing, granted the application of the respondent Howard Rosengarten and Associates for site plan approval and a special use permit, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (H. Patrick Leis III, J.), dated September 26, 2019. The judgment denied the amended petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

Since 1986, the respondent Howard Rosengarten and Associates (hereinafter Rosengarten) has owned a parcel of real property consisting of approximately 100.33 acres located in the Town of Brookhaven. In September 2013, Rosengarten submitted an application to the Town under the provisions of the Code of the Town of Brookhaven then in effect for site plan approval and a special use permit for an electric generating facility, denominated as the "Middle Island Solar Farm" (hereinafter the project). On September 29, 2016, the Town's Division of Planning, Environment and Land Management deemed that Rosengarten's application was complete. While the application was still pending, the Town's zoning code requirements for solar energy production facilities were amended by Local Law 23 of 2016 of the Town of Brookhaven (hereinafter Local Law 23), effective November 7, 2016. Local Law 23, inter alia, permitted solar energy production facilities "only on those lands previously cleared and/or disturbed on or before January 1, 2016" (Code of the Town of Brookhaven § 85–813[B][4][a]). Local Law 23 also added a provision to chapter 85 of the Code of the Town of Brookhaven entitled "Exemptions," which provides that "[l]and use applications that have been deemed complete by the Division of Planning, Environment and Land Management prior to the effective date of §§ 85–812 through 85–816 shall be exempt from the provisions herein" (Code of the Town of Brookhaven § 85–818). On April 17, 2017, the Planning Board of the Town of Brookhaven (hereinafter the Planning Board) granted Rosengarten's application for site plan approval and a special use permit approval for the project. In its determination, the Planning Board stated that the application was considered under "the code in place before November 7, 2016."

The petitioners subsequently commenced this CPLR article 78 proceeding to review the Planning Board's determination. In a judgment dated September 26, 2019, the Supreme Court denied the amended petition and, in effect, dismissed the proceeding. The petitioners appeal.

Judicial review of a determination granting an application for a special use permit is limited to ascertaining whether the challenged action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Yorktown Smart Growth v. Town of Yorktown, 168 A.D.3d 957, 958, 92 N.Y.S.3d 344 ; Matter of Carnelian Farms, LLC v. Leventhal, 151 A.D.3d 844, 845, 56 N.Y.S.3d 552 ). Contrary to the petitioners' contention, the Planning Board's determination to grant the application for site plan approval and a special use permit using criteria in the Code of the Town of Brookhaven in place prior to the effective date of Local Law 23 was not illegal, arbitrary and capricious, or an abuse of discretion.

" ‘It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature’ " ( Matter of Shannon, 25 N.Y.3d 345, 351, 12 N.Y.S.3d 600, 34 N.E.3d 351, quoting Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 ; see Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 ). "Inasmuch ‘[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ " ( Matter of Shannon, 25 N.Y.3d at 351, 12 N.Y.S.3d 600, 34 N.E.3d 351, quoting Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d at 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 ; see Consedine v. Portville Cent. School Dist., 12 N.Y.3d 286, 290, 879 N.Y.S.2d 806, 907 N.E.2d 684 ). In determining legislative intent, "[t]he plain meaning of the language of a statute must be interpreted ‘in the light of conditions existing at the time of its passage and construed as the courts would have construed it soon after its passage’ " ( People v. Litto, 8 N.Y.3d 692, 697, 840 N.Y.S.2d 736, 872 N.E.2d 848, quoting People v. Koch, 250 A.D. 623, 624, 294 N.Y.S. 987 ; see ...