Rocky Point Drive-In, L.P. v. Town of Brookhaven

Citation2013 N.Y. Slip Op. 07513,999 N.E.2d 1164,977 N.Y.S.2d 719,21 N.Y.3d 729
PartiesROCKY POINT DRIVE–IN, L.P., Appellant, v. TOWN OF BROOKHAVEN et al., Respondents.
Decision Date14 November 2013
CourtNew York Court of Appeals Court of Appeals

?21 N.Y.3d 729
999 N.E.2d 1164
977 N.Y.S.2d 719
2013 N.Y. Slip Op. 07513

TOWN OF BROOKHAVEN et al., Respondents.

Court of Appeals of New York.

Nov. 14, 2013


Bracken Margolin Besunder LLP, Islandia (Linda U. Margolin of counsel), for appellant.

Jaspan Schlesinger LLP, Garden City (Maureen T. Liccione and Robert V. Guido of counsel), and Annette Eaderesto, Town Attorney, Farmingville, for respondents.

Davis & Prager, P.C., Patchogue (Larry Ray Davis of counsel), for Long Island Builders Institute, Inc., amicus curiae.
Sarah Brancatella, Albany, for Association of Towns of the State of New York, amicus curiae.


[999 N.E.2d 1165]

Rocky Point Drive–In, L.P. (Rocky Point), a landowner seeking to develop property located in the Town of Brookhaven (Town), appeals an order of the Appellate Division which reversed a declaratory judgment of the Supreme Court on the law and facts, and which determined that Rocky Point's site plan application should not be reviewed under a former, more favorable, zoning provision. We find no basis to overturn the Appellate Division's order and affirm.

Rocky Point owns a parcel of land approximating 17 acres (the parcel) in the Town. Over several years Rocky Point, and its predecessor in interest, Sans Argent, Inc. (Sans Argent), have tried unsuccessfully to secure approval from the Town to develop this parcel as a site for a 152,050–square–foot Lowe's Home Improvement Center (Lowe's Center).

The factual history is extensive but, as relevant here, ostensibly begins in 1997, when the Town adopted a comprehensive plan creating a new “commercial recreation” (CR) zoning classification.1 The plan cited the desire to draw visitors, and the potential to “attract new types of private recreation such as sports complexes, amusement and theme parks, movie theme parks, ice hockey and ice skating rinks.” The parcel had been zoned as “J Business 2” (J–2), which permitted retail stores as of right, but did not permit “commercial centers” which were defined by Brookhaven Town Code as “[a]ny building or buildings ... used by one (1) or more enterprises for a commercial purpose ... where the proposed use occupies a site of five (5) acres or more.” Accordingly, all of the parcel's previous uses—a drive-in movie theater and golf driving range—were nonconforming. Although the plan did not target the parcel, the parcel's previous uses would have been brought into compliance if it was rezoned to CR.

The Town had not taken any measures in pursuance of the CR classification, as per the comprehensive plan, until February

[999 N.E.2d 1166]

2000, when the Brookhaven Town Board (Board) discussed, for the first time, specifically rezoning the subject parcel to CR. The Board announced a date for a public meeting to be held on the issue. Shortly before the hearing, on March 2, 2000, Sans Argent submitted a site plan application to the Town for the Lowe's Center to be built on the parcel. The proposed Lowe's Center would not have complied with the CR zone classification. The Board thereafter held a public hearing to vote to rezone the subject property to CR. Sans Argent, aware of the impending vote, and seeking to avoid the rezoning, submitted a protest, triggering Town Law § 265 and its requirement that the zoning change pass by a supermajority vote.2 Five of the seven Board members voted to rezone, thus falling short of the supermajority requirement.3 Nevertheless, the Town declared the parcel rezoned to CR and declined to continue processing Sans Argent's application.

Sans Argent then filed suit in Supreme Court, Suffolk County, challenging the Board's rezoning as invalid. While the suit was pending, the parties entered into an agreement under which respondents would continue processing Sans Argent's application if Sans Argent submitted a new site plan with an accompanying application for a use variance to the Zoning Board of Appeals (ZBA).

Respondents issued a notice of violation and on December 1, 2000, Sans Argent submitted a new site plan and application for a use variance. A few months later, in March, Supreme Court held null and void the Town's rezoning of the parcel, for failure to secure the requisite supermajority vote.

Shortly thereafter, the Town Board adopted a second resolution that rezoned the parcel to CR—again without the requisite supermajority. Sans Argent challenged this vote, and after commencement of a second action, Supreme Court declared the second rezoning null and void. In June 2002, the Town Board amended the Brookhaven Town Code to allow for a simple majority vote of approval over protests for rezoning of property, rather than a supermajority vote. Then, in October 2002, the Town adopted a resolution, for the third time, rezoning the parcel to CR.

Rocky Point, as the successor in interest to Sans Argent, filed the instant action seeking a judgment declaring that the site plan application was subject to review under the previous J–2 zoning classification because the Town had unduly delayed the review of the application. In 2004, Supreme Court granted the Town summary judgment, and the Appellate Division, Second Department, reversed, finding that triable issues of fact existed as to whether special facts warranted application of the J–2 zoning classification, and concluding that there was proof indicating selective enforcement...

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