Rocky Point Drive-in, L.P. v. Town of Brook-Haven

Decision Date27 February 2007
Docket Number2004-10992
Citation830 N.Y.S.2d 767,2007 NY Slip Op 01717,37 A.D.3d 805
PartiesROCKY POINT DRIVE-IN, L.P., Appellant, v. TOWN OF BROOK-HAVEN et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendants' motion for summary judgment dismissing the complaint and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with costs to the appellant.

The plaintiff owns approximately 17.78 acres of property located in the Town of Brookhaven. Before October 22, 2002, a substantial portion of the plaintiff's property was zoned "J Business 2" (hereinafter J-2), which permitted retail stores as of right, but did not permit commercial centers, which, at the time, was defined by Brookhaven Town Code § 85-1 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." In 2000 the property was being used as a golf driving range and miniature golf course, and previously, the property was used as a drive-in movie theater, all of which were nonconforming, commercial recreational uses.

In February 2000 the Town Board of the Town of Brookhaven (hereinafter the Town Board) notified the plaintiff's predecessor-in-interest, Sans Argent, Inc. (hereinafter Sans Argent), of a public hearing to be held on March 7, 2000, to consider, on the Town Board's own motion, a change of the zoning of the subject property from J-2 to "Commercial Recreation" (hereinafter CR). Shortly thereafter, in March 2000, Sans Argent submitted to the Town of Brookhaven Department of Planning, Environment and Development (hereinafter the Planning Department) a site plan application for a 152,050 square foot Lowe's Home Improvement Center (hereinafter Lowe's) on the property.

After the public hearing held on March 7, 2000, the Town Board voted to rezone the plaintiff's property to CR. By letter dated March 20, 2000, the Town Board informed Sans Argent that the proposed Lowe's could not be built in a J-2 zone as of right, and that a use variance was required. No use variance application was submitted to the Town of Brookhaven Zoning Board of Appeals (hereinafter the ZBA) until December 2000.

In April 2000 the ZBA was designated as the lead agency for purposes of review under the State Environmental Quality Review Act (hereinafter SEQRA) (see ECL art 8; 6 NYCRR 617.6 [a]). However, an environmental assessment form (see 6 NYCRR 617.6 [b] [3] [i], [ii]) was not transmitted by the Planning Department to the ZBA until November 2000. A positive declaration was not issued until January 2001, nine months after the designation of the ZBA as the lead agency.

As a result of the Town Board's adoption of the resolution to rezone the plaintiff's property, Sans Argent submitted a protest to the Town Board pursuant to Town Law § 265, which triggered a requirement for a supermajority vote to approve the rezoning, i.e., approval of six of the seven Town Board members. Upon a revote, five Town Board members voted to approve the rezoning, one voted against the rezoning, and another recused himself, citing the Town Ethics Code. The Town Board nonetheless declared the property rezoned and ceased the processing of Sans Argent's site plan application.

Consequently, Sans Argent commenced an action entitled Sans Argent, Inc. v Town of Brookhaven, under Suffolk County index No. 12204/00. During the pendency of that action the parties entered into an agreement in which the Town Board agreed to process Sans Argent's site plan application during the pendency of the action, provided that Sans Argent submitted a revised site plan application, accepted a notice of violation, and applied for a use variance with the ZBA. The parties further agreed that the Town Board would schedule the site plan application for approval at the first meeting after a final order or judgment in the action. As a result, the Town issued a notice of violation to the plaintiff for a nonpermitted use. On December 1, 2000 the plaintiff submitted its use variance application to the ZBA. The plaintiff alleged that the Town delayed the processing of its application and requested a conference with the Supreme Court. Based on a January 2001 court conference, the parties further agreed that the site plan review would be completed forthwith. The hearing before the ZBA was scheduled for February 8, 2001. However, shortly after the court conference the ZBA issued a resolution pursuant to SEQRA finding that the proposal required a further environmental assessment. In view of that circumstance, the hearing date was adjourned to March 2001. Thereafter, the Supreme Court declared that the Town Board's rezoning was null and void due to the failure to obtain a supermajority vote pursuant to...

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    ... ... further assert that, at some point in 2011, Taylor and ... Subramanyam used ... Lam , 74 A.D.3d 870, 872 [2d Dept 2010]; Rocky Point ... Drive-In, L.P. v Town of Brookhaven , ... ...
  • Rocky Point Drive-In, L.P. v. Town of Brookhaven
    • United States
    • New York Court of Appeals Court of Appeals
    • November 14, 2013
    ...of the J–2 zoning classification, and concluding that there was proof indicating selective enforcement of the Town's zoning provision (37 A.D.3d 805, 831 N.Y.S.2d 456 [2d Dept.2007] ).At a non-jury trial, Rocky Point introduced several various site plan applications submitted to the Town be......
  • Rocky Point Drive-In, L.P. v. Town of Brookhaven
    • United States
    • New York Court of Appeals Court of Appeals
    • November 14, 2013
    ...of the J–2 zoning classification, and concluding that there was proof indicating selective enforcement of the Town's zoning provision (37 A.D.3d 805, 831 N.Y.S.2d 456 [2d Dept.2007] ).At a non-jury trial, Rocky Point introduced several various site plan applications submitted to the Town be......
  • Rocky Point Drive-In, L.P. v. Town of Brookhaven
    • United States
    • New York Court of Appeals Court of Appeals
    • November 14, 2013
    ...of the J–2 zoning classification, and concluding that there was proof indicating selective enforcement of the Town's zoning provision (37 A.D.3d 805, 831 N.Y.S.2d 456 [2d Dept.2007] ). At a non-jury trial, Rocky Point introduced several various site plan applications submitted to the Town b......
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