Birchwood Neighborhood Ass'n v. Planning Bd. of the Town of Colonie

• Decision Date: 19 December 2013
• Citation: 112 A.D.3d 1184,977 N.Y.S.2d 454,2013 N.Y. Slip Op. 08489
• Parties: In the Matter of BIRCHWOOD NEIGHBORHOOD ASSOCIATION et al., Appellants, v. PLANNING BOARD OF THE TOWN OF COLONIE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1184
977 N.Y.S.2d 454
2013 N.Y. Slip Op. 08489

In the Matter of BIRCHWOOD NEIGHBORHOOD ASSOCIATION et al., Appellants,
v.
PLANNING BOARD OF THE TOWN OF COLONIE et al., Respondents.

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

Dec. 19, 2013.

Allen & Desnoyers, LLP, Albany (Val Washington of counsel), for appellants.

Michael C. Magguilli, Town of Colonie, Newtonville (Rebekah Nellis Kennedy of counsel), for Planning Board of the Town of Colonie and another, respondents.

Donald Zee, P.C., Albany (Andrew Brick of counsel), for Shelco Development LLC, respondent.

Stockli Slevin & Peters, LLP, Albany (Mary Elizabeth Slevin of counsel), for North Ridge Hollow, LLC, respondent.

Philip S. Caponera, Clifton Park, for Landmark Development Group, LLC, respondent.

[977 N.Y.S.2d 455]

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

STEIN, J.P.

Appeals (1) from a judgment of the Supreme Court (Platkin, J.), entered May 30, 2012 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, partially granted certain respondents' motions to dismiss the amended petition/complaint, and (2) from a judgment of said court, entered November 30, 2012 in Albany County, which, among other things, granted certain respondents' motions for summary judgment dismissing the amended petition/complaint.

Respondent Shelco Development LLC (hereinafter the developer) proposed a 75–lot subdivision—now known as Forest Hills—in the Town of Colonie, Albany County. Respondent Planning Board of the Town of Colonie granted the developer concept approval in January 2002. The Town subsequently adopted a comprehensive plan ( seeTown Law § 272–a) and, in January 2007, passed Local Law No. 1 (2007) of the Town of Colonie, which amended the Town's Land Use Law to, among other things, provide for conservation overlay districts—including the location of the proposed Forest Hills development—that were consistent with conservation areas set forth in the comprehensive plan. Local Law No. 1 (2007) contained a grandfathering provision exempting from its zoning requirements any subdivision plan that had previously received concept approval from the Planning Board and that either received final site plan approval by the beginning of 2009 or filed final subdivision plans by the beginning of 2010. The deadlines in Local Law No. 1 (2007) of the Town of Colonie for filing final subdivision plans or receiving final site plan approval were extended by the enactment of Local Law No. 14 (2007) of the Town of Colonie and, thereafter, through a series of Local Laws adopted between 2008 and 2012, including Local Law No. 14 (2011) of the Town of Colonie. The last of such extensions, Local Law No. 2 (2012) of the Town of Colonie, applied exclusively to named subdivisions, including Forest Hills, which had “taken significant steps in advancing through the approval process during calendar year 2011” and required final subdivision plans to be filed on or before June 30, 2012.

Meanwhile, following a public hearing in December 2011, the Planning Board approved the final subdivision plan for Forest Hills and the developer filed the final subdivision plan with the Town Clerk in January 2012. One month later, petitioners commenced this combined CPLR article 78 proceeding and action for declaratory judgment challenging the Planning Board's subdivision approval. In May 2012, after pre-answer motions by the Town, the Planning Board and the developer, Supreme Court, among other things, dismissed all but...