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Tuccio v. Central Pine Barrens Joint Planning and Policy Commission

November 4, 2009

IN THE MATTER OF EDWIN FISHEL TUCCIO, ET AL., APPELLANTS,
v.
CENTRAL PINE BARRENS JOINT PLANNING AND POLICY COMMISSION, ET AL., RESPONDENTS.



In a proceeding pursuant to CPLR article 78 to review a determination of the Central Pine Barrens Joint Planning and Policy Commission dated June 20, 2007, which affirmed a determination of the Pine Barrens Credit Clearinghouse that no Pine Barrens Credits may be allocated to the petitioners' real property, and in the nature of mandamus to compel the Central Pine Barrens Joint Planning and Policy Commission to allocate 50.419 Pine Barrens Credits to that property, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Pines, J.), dated January 16, 2008, as corrected January 25, 2008, which denied the petition and, in effect, dismissed the proceeding.

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.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO and LEONARD B. AUSTIN, JJ.

(Index No. 21497/07)

DECISION & ORDER

ORDERED that the judgment, as corrected, is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to annul the determination of the Central Pine Barrens Joint Planning and Policy Commission that no Pine Barrens Credits may be allocated to the petitioners' real property and substituting therefor a provision granting that branch of the petition; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Central Pine Barrens Joint Planning and Policy Commission to determine the proper number of Pine Barrens Credits that are to be allocated to the subject property.

On June 28, 1995, pursuant to the power granted to it by the Long Island Pine Barrens Protection Act (hereinafter the Act) (see ECL 57-0103 et seq.), the Central Pine Barrens Joint Planning and Policy Commission (hereinafter the Commission) adopted the Central Pine Barrens Comprehensive Land Use Plan (hereinafter the Plan) (see http://pb.state.ny.us/cpb_plan/vol1.pdf). The Plan established the Pine Barrens Credit Program, the primary purpose of which is "to maintain value in lands designated for preservation or protection under the Plan by providing for the allocation and use of Pine Barrens Credits" (Plan § 6.1).

The Pine Barrens Credits Program, inter alia, provides for the allocation of Pine Barrens Credits--transferable development rights--to owners of property located in the "core preservation area," an area of the "Central Pine Barrens" in which "development" generally is prohibited by the Act (see ECL 57-0107[10], [11], [13]; 57-0121[3][c]), in exchange for the placement of a permanent conservation easement on the property (see Plan § 6.7.2). The holder of Pine Barrens Credits may then redeem, sell, or transfer the Pine Barrens Credits, as provided for in the Plan (see Plan §§ 6.4, 6.5).

The Plan established the Pine Barrens Credit Clearinghouse (hereinafter the Clearinghouse), which is charged, among other things, with determining the number of Pine Barrens Credits to which an owner of a particular parcel of land is entitled (see Plan §§ 6.6, 6.7.1; see also Plan § 6.2). An owner seeking Pine Barrens Credits must request from the Clearinghouse a "Letter of Interpretation," after which the Clearinghouse "may conduct an analysis of the property and will allocate Pine Barrens Credits based upon the allocation formula and any unique features of a particular parcel of land" (Plan §§ 6.7.3.1, 6.7.3.2).

Thereafter, the Clearinghouse must mail the Letter of Interpretation to the property owner, who may then appeal the allocation to the Commission (see Plan §§ 6.7.3.2, 6.7.3.3). The Commission is empowered to "confirm, increase, or decrease the allocation to be received from the Clearinghouse" (Plan § 6.7.3.4).

The Plan provides that, "[f]or the purpose of computing the allocations of Pine Barrens Credits, a parcel of land is defined as a separately assessed tax lot" (Plan § 6.3). The Plan contains various provisions to be used in determining the number of Pine Barrens Credits to be allocated for a particular parcel of land (see e.g. Plan §§ 6.3.1, 6.3.1.1; §§ 6.3.2, 6.3.3, 6.7.6.6, 6.7.6.7).

As relevant to this appeal, pursuant to the power granted to it by the Plan, on August 7, 1996, the Commission adopted a non-residential property allocation formula providing, inter alia, that property zoned as "Light Industrial 200 District" is entitled to one Pine Barrens Credit per acre (see Plan § 6.3.2; see also Code of the Town of Southampton [hereinafter Town Code] § 330-37). However, the Plan itself sets forth various limitations on allocation of Pine Barrens Credits (see Plan § 6.3.3), including that "[p]artially improved parcels shall receive a decreased allocation based upon the extent of the improvement [and] there shall be a proportional decrease in allocation based upon the receipt of all discretionary permits for improvement of a parcel" (Plan § 6.3.3.4). The Plan expressly provides that "[n]o fewer than 0.10 (one tenth) Pine Barrens Credit shall be allocated by the Clearinghouse or the Commission for any parcel of land" (Plan § 6.7.6.7).

In the 1980s, the petitioners inherited from their grandparents a 403.5-acre parcel of land located in the Town of Southampton. The entire 403.5 acres of land is situated in the Central Pine Barrens and, more particularly, within the core preservation area.

In 1986 the Nature Conservancy purchased from the petitioners 275 of the 403.5 acres of land for the sum of $2,750,000. Subsequently, 75 of the remaining 128.5 acres of land were the subject of a "bar claim" action, which the parties thereto resolved by the placement of a conservation easement on 50 of those 75 acres. In exchange for the placement of the conservation easement on those 50 acres of land, the Commission allocated 50 Pine Barrens Credits to the various title holders of those acres, including 27 Pine Barrens Credits to the petitioners. Thereafter, the petitioners sold their 27 Pine Barrens ...


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