APPEAL by the Zoning Board of Appeals of the Town of Kent, in a proceeding pursuant to CPLR article 78 to review so much of its determination dated March 19, 2007, as "prohibits the Petitioner's access road," and to compel it "to find that pursuant to the Zoning Code the proposed access road or entranceway is a permitted infrastructure improvement," from a judgment of the Supreme Court (Andrew P. O'Rourke, J.), dated June 29, 2007, and entered in Putnam County, which granted the petition. Justice Miller has been substituted for former Justice Lifson (see 22 NYCRR 670.1[c]). Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (Janis M. Gomez Anderson of counsel), for appellant. Shamberg Marwell Davis & Hollis, P.C., Mount Kisco, N.Y. (John S. Marwell and Carrie E. Hilpert of counsel), for respondent.
The opinion of the court was delivered by: Chambers, J.
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.
REINALDO E. RIVERA, J.P., HOWARD MILLER, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.
OPINION & ORDER CHAMBERS, J.The principal issue presented on this appeal is whether the Zoning Board of Appeals of the Town of Kent (hereinafter the Zoning Board) properly determined that a proposed road providing access to the petitioner's proposed multi-family senior citizen housing development was not a permitted use. We find that the Zoning Board's determination was proper. I. Relevant Facts and Proceedings
The petitioner, BBJ Associates, LLC, owns an 88-acre parcel of land that straddles the municipal border between the Towns of Kent and Carmel in Putnam County. It plans to build a multi-family senior citizens' development on an 80-acre portion of the property, which is solely located in the Town of Carmel and adjacent to property it owns in the Town of Kent. As part of this plan, the petitioner sought to build an access road running through the Towns of Kent and Carmel which would connect the development with State Route 52. The proposed road would traverse eight acres located in the Town of Kent which are zoned for commercial and single-family residential use. The petitioner intends to build the road in accordance with the road standards of both towns and to offer the portion of the road in each town to the respective towns for dedication as a Town road. The proposal also includes storm basins for drainage.
By letter dated October 23, 2006, the Building Inspector of the Town of Kent issued the following interpretation to the Town of Kent Planning Board: "the entranceway is an accessory use to a principal use and we do not have a principal use." The Town of Kent Planning Board refused to continue any site plan review until "the issue raised" in the interpretation by the Building Inspector was resolved.
On November 21, 2006, the petitioner applied to the Zoning Board for an interpretation of this letter. At a public hearing held on December 15, 2006, several community residents voiced the concerns that the development's proposed access road would increase the volume of traffic on State Route 52.
The Zoning Board raised the question of whether the proposed town road was a driveway prohibited by Town of Kent Zoning Code § 77-6(D), which states: "No driveway shall provide access to a lot located in another district, which lot is used for any use prohibited in the district in which such driveway is located." In response, the petitioner argued that the "entranceway" or "access road" was not a principal use, an accessory use, or a "driveway;" rather, it was an "infrastructure improvement" pursuant to Town of Kent Zoning Code former § 77-6(F), which provides that the zoning regulations "shall not be so construed as to limit or interfere with the dedication, development or use of any land for . . . public utility purposes" such as sewers or "any highway . . . existing or hereafter authorized by the State of New York, the County of Putnam or the Town of Kent." Based upon this analysis, the petitioner asked the Zoning Board to reverse the interpretation of the Building Inspector and "permit" construction of the proposed road. At a special meeting held on March 19, 2007, the Zoning Board expressed concern that the applicable zoning ordinance "left holes in it with regards to driveways and definitions" and that it was difficult to ascertain what its drafters intended with respect to driveways and access roads. In its determination, the Zoning Board agreed that the proposed "entranceway" or access road was an infrastructure improvement. The Zoning Board further concluded that since the purpose of the proposed Town road "will be to provide access from Route 52 to the senior housing community" and "no other access anywhere to anyone," it "solely supports a single principal use" and "must be considered to be part and parcel of the principal use it supports." Further, since the proposed Town road would be constructed in areas of the Town of Kent zoned for commercial use and for single-family residential use--not multi-family housing--the Zoning Board concluded that it was not a permitted use.
In the instant proceeding pursuant to CPLR article 78, the petitioners challenged the Zoning Board's determination that the access road was not a permitted use*fn1. The Supreme Court's judgment granted the petition in its entirety, concluding that the Zoning Board acted in bad faith by raising objections at the "eleventh hour" after 2 1/2 years of participating in environmental review of the project without objection.
First, we conclude that the judgment of the Supreme Court setting aside the Zoning Board's determination as arbitrary and capricious and rendered in bad faith, on the ground that the Zoning Board participated in environmental review of the project without objection, is not supported by the record. The record reveals that the lead agency for environmental review was the Town of Carmel Planning Board, where most of the property is located,*fn2 not the Town of Kent. The State Environmental Quality Review Findings Statement noted that there were problems with providing access: "alternative access routes were considered infeasible or impractical, due to construction limitations and/or greater impacts to wetlands and other resources" in the Town of Carmel. The proposed access route also involved a disturbance of wetlands, requiring wetlands permits from the Town of Kent, the Town of Carmel, and the United States Army Corps of Engineers, but such impacts were "unavoidable." There is no evidence in the record that the Town of Kent approved of the State Environmental Quality Review Findings Statement that was certified by the Town of Carmel. Nor did the Town of Kent Planning Board grant site plan approval. Accordingly, the judgment cannot be sustained for the reasons set forth therein. II. The Effect of the Amended Zoning Ordinance
On November 24, 2008, while this appeal was pending, the Town of Kent adopted comprehensive amendments to its zoning ordinance which went into effect on December 1, 2008. These amendments repealed Town of Kent Code former § 77-6(F) dealing with infrastructure improvements and amended Town of Kent Code § 77-6(D)--formerly applicable only to driveways--by adding the following provision: "No street or road, whether private or public, which exclusively serves or supports a lot located in another district, which lot is used for any use prohibited in the district in which the street or road is located, shall be used to provide access to said lot." Such amendments would appear to directly affect the petitioner's application for an interpretation.
The petitioner contends that the special facts exception precludes this Court from applying this new provision to the instant case. Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision (see Matter of Jul-Bet Enters. v Town Bd. of Town of Riverhead, 48 AD3d 567; Matter of D'Agostino Bros, Enters. v Vecchio, 13 AD3d 369), pursuant to the special facts exception, this Court may apply the law in effect at the time the petitioner's application to the Zoning Board was made. The special facts exception may be applied if the municipality unduly delayed proceedings and acted in bad faith (see Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773; Matter of ...