In the Matter of Troy Sand & Gravel Co. Inc. v. Town of Nassau

• Decision Date: 03 November 2011
• Citation: 89 A.D.3d 1178,2011 N.Y. Slip Op. 07767,932 N.Y.S.2d 564
• Parties: In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Appellants–Respondents,v.TOWN OF NASSAU et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1178

932 N.Y.S.2d 564

2011 N.Y. Slip Op. 07767

In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Appellants–Respondents,

v.TOWN OF NASSAU et al., Respondents–Appellants.

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

Nov. 3, 2011.

Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), for appellants-respondents.Donohue, Sabo, Varley & Huttner, L.L.P., Albany (Bruce S. Huttner of counsel), for respondents-appellants.Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.MALONE JR., J.

Cross appeals from a judgment of the Supreme Court (Lynch, J.), entered September 13, 2010 in Rensselaer County, which, among other things, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, denied respondents' motion for reconsideration and petitioners' cross motion for partial summary judgment.

As detailed in our prior decisions in this matter (82 A.D.3d 1377, 918 N.Y.S.2d 667 [2011], 80 A.D.3d 199, 912 N.Y.S.2d 798 [2010] ), in 2004, petitioner Troy Sand & Gravel Company, Inc. submitted applications to respondent Town of Nassau for a special use permit and site plan approval for a quarry it proposed to establish on a parcel of land in the Town of Nassau, Rensselaer County. After passing successive moratoria on new mining applications, in 2008, respondent Town Board of the Town of Nassau passed an extensive zoning law that, among other things, permanently banned commercial excavation. The Town also adopted a comprehensive plan pursuant to Town Law § 272–a, establishing the Town's long-term land use goals and policies.

Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment asserting, among other things, that respondents' actions were taken in bad faith to prevent the operation of the proposed quarry. Following the submission of the article 78 claims for judgment, discovery commenced on the remaining claims. As recounted in this Court's prior decision, Supreme Court determined, among other things, that the comprehensive plan had been adopted in violation of Town Law § 272–a due to both the Town Board's failure to make the plan available for public review for 10 days and because the “special board” failed to adopt a majority resolution recommending the plan to the Town Board. The court also determined that both the comprehensive plan and the zoning law had been approved in violation of the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ). Respondents then appealed from that judgment to this Court, and we affirmed (82 A.D.3d 1377, 918 N.Y.S.2d 667 [2011], supra ).

During the pendency of that appeal, respondents moved to renew and/or reargue and submitted various documents related to the adoption of the zoning law and the comprehensive plan that they allege had been inadvertently omitted from the record. Petitioners cross-moved for partial summary judgment, claiming that respondents' failure to act on the applications for special use permits constituted a default approval of such.¹ Supreme Court denied the motion and cross motion. Petitioners now appeal and respondents cross-appeal.

Initially, a motion to renew must be based upon evidence that was previously in existence, but was then unknown to the movant, along with a reasonable justification as to why the information was not previously submitted ( see CPLR 2221[e]; Town of Kirkwood v. Ritter, 80 A.D.3d 944, 948, 915 N.Y.S.2d 683 [2011] ). Here, assuming, arguendo, that the documents submitted by respondents constitute new evidence, it was within Supreme Court's discretion to reject respondents' proffered justifications—including the alleged inexperience of their former attorney with the “procedural or substantive requirements of SEQRA”—as unreasonable ( see Tibbits v. Verizon N.Y., Inc., 40 A.D.3d 1300, 1302–1303, 836 N.Y.S.2d 727 [2007]; Wahl v. Grippen, 305 A.D.2d 707, 707, 757 N.Y.S.2d 807 [2003] ), particularly considering the evidence in the record that petitioners made some efforts to identify to respondents certain deficiencies in their filings. Accordingly, we find no basis upon which to disturb that part of the court's judgment.

Next, we are not persuaded that petitioners satisfied their burden of establishing that they are entitled to judgment as a matter of law on their claim that respondents' alleged failure to act on the special use permit application in a reasonable period of time renders the application approved by default. Although both the Town Law and the applicable local laws for the Town of Nassau provide specific time periods in which the Town is required to hold a hearing and decide on an application for a special use permit, neither the Town Law nor the Town's local laws provide for a default approval of a special use permit application in the event that the Town does not comply with those time periods ( see Town Law § 274–b[6]; Local Law No. 2 [1986] of Town of Nassau, art. 6; Matter of Kabinoff v. Village of Harriman Planning Bd., 147 A.D.2d 563, 563–564, 537 N.Y.S.2d 856 [1989]; compare Town Law § 276 [providing for default approvals of subdivision plat applications]; Local Law No. 2 [1986] of Town of Nassau, art. 7 [same] ). The appropriate remedy for the Town Board's alleged failure to act is a special proceeding to compel the Town Board to issue a decision on petitioners' application ( see Matter of Tinker St. Cinema v. Town of Woodstock Planning Bd., 256 A.D.2d 970, 971, 681 N.Y.S.2d 907 [1998]; AHEPA 91 v. Town of Lancaster, 237 A.D.2d 978, 979, 654 N.Y.S.2d 884 [1997]; Nyack Hosp. v. Village of Nyack Planning Bd., 167 Misc.2d 490, 491, 641 N.Y.S.2d 215 [1996], affd. 231 A.D.2d 617, 647 N.Y.S.2d 799 [1996] ).

Next, petitioners contend that respondents have relinquished their right to review the special use permit...