In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the review of the petitioner/plaintiff's commercial site plan application to develop a certain parcel of real property, and action, inter alia, for a judgment declaring, inter alia, that any moratorium on the review of commercial site plan applications imposed by the Town of Brookhaven does not apply to the subject real property owned by the petitioner/plaintiff, the appeal is from (1) an order of the Supreme Court, Suffolk County (Costello, J.), dated June 19, 2008, which denied the respondents/defendants' motion to dismiss the petition pursuant to CPLR 3211(a) and 7804(f), among other things, for failure to state a cause of action, and (2) an order and judgment (one paper) of the same court dated August 11, 2008, which denied the respondents/defendants' motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue their motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, and granted the petition to the extent of directing the Planning Board of the Town of Brookhaven to place the petitioner/plaintiff's site plan application on its calendar for processing and consideration, to deem the application complete, and to determine the application in accordance with the zoning laws of the Town of Brookhaven that were in effect on October 31, 2006.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., FRED T. SANTUCCI, ARIEL E. BELEN & CHERYL E. CHAMBERS, JJ.
ORDERED that the appeal from the order dated June 19, 2008, is dismissed; and it is further,
ORDERED that the appeal from so much of the order and judgment as denied the respondents/defendants' motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order and judgment is reversed insofar as reviewed, on the law and the facts, and the matter is remitted to the Supreme Court, Suffolk County, for an evidentiary hearing to be held forthwith in accordance herewith and a new determination thereafter on the petition; and it is further,
ORDERED that one bill of costs is awarded to the respondents/defendants.
The appeal from the order dated June 19, 2008, must be dismissed because no appeal lies as of right from an intermediate order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b]), and we decline to grant leave in view of the fact that a final judgment has been entered.
The petitioner/plaintiff (hereinafter the petitioner), the owner of a parcel of real property located in the Town of Brookhaven, filed a commercial site plan application in September 2005 with the Department of Planning, Environment, and Land Management of the Town of Brookhaven (hereinafter the Planning Department), to develop a retail building on the property. The proposed use was permitted under the applicable zoning ordinance then in effect. The Planning Department responded, six months later, with a number of conditions with which the petitioner was required to comply before its application would be submitted to the Planning Board of the Town of Brookhaven (hereinafter the Planning Board). The petitioner submitted a revised site plan application on October 31, 2006, which, according to the petitioner, met all of the Planning Department's conditions except for the request that the petitioner meet with a local civic association. However, in the interim between the Planning Department's response and the petitioner's submission of the revised site plan application, the area in which the petitioner's property was located had been designated as a historic district, such that the petitioner was required to obtain approval of its project from the Historic District Advisory Committee (hereinafter the Committee). A hearing was held, but not completed, by the Committee, and the Committee never rescheduled the matter for the completion of the hearing. Furthermore, according to the petitioner, no formal meeting as to its proposal was ever scheduled by the local civic association, despite repeated requests. Finally, on July 3, 2007, the petitioner made a written demand that its application be placed on the Planning Board calendar, and was informed, in response, that the Town was contemplating a moratorium on the processing and consideration of any site plan applications for the area in which the petitioner's property was located. The moratorium was subsequently enacted in the latter half of August 2007.
On August 2, 2007, the petitioner commenced the instant hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the processing and consideration of its site plan application and action against several Town officials for a judgment declaring, inter alia, that the moratorium could not be applied to bar consideration of its application. In lieu of an answer, the respondents/defendants (hereinafter collectively the Town) moved to dismiss the petition, pursuant to CPLR 3211(a) and 7804(f), inter alia, as unripe for judicial review, and for failure to state a cause of action. The Supreme Court denied the motion, and the Town served and filed an answer. The Town's subsequent motion, in effect, for leave to reargue the motion to dismiss the petition was denied. The Supreme Court then granted the petition to the extent of directing the Planning Board to place the petitioner's site plan application on its calendar for processing and consideration, deem the application complete, and determine the application in accordance with the Town zoning laws that were in effect on October 31, 2006.
Contrary to the Town's contention, the petition was ripe for judicial review, despite the enactment of a moratorium on the processing and consideration of all site plan applications. The petition alleged that the Planning Department's and Planning Board's ministerial duty to docket the application on the calendar arose before the moratorium's effective date, and that the Planning Board acted wrongfully by delaying its processing and consideration of the application so that the Town could enact the moratorium to prevent such review. Accordingly, were it to be determined that the petitioner's allegations are without merit, such that the moratorium was properly applied to bar consideration of its site plan application, then the petition would be subject to denial on the merits because the petitioner would not have a clear legal right to mandamus relief (see Matter of Laurel Realty, LLC, v Planning Bd. of Town of Kent, 40 AD3d 857, 861).
Furthermore, the Supreme Court properly determined that the petitioner was not required to apply for a "hardship" exception from the moratorium before it could commence this proceeding. By the plain terms of the applicable local law, the "hardship" exception did not apply to the ...