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Extension of Grandfather Clause to Allow Development Consistent With Comprehensive Plan

The Appellate Division found multiple extensions of a grandfather clause that permitted a specific development to proceed to final approval, despite local regulations that would have otherwise prevented it, is consistent with the Town’s comprehensive plan. In Matter of Birchwood Neighborhood Association v. Planning Board of the Town of Colonie, the Court noted that legislative acts carry a presumption of validity.

“Petitioners primarily argue that the repeated renewals of the first grandfathering provision were unlawful because they did not comport with the Town’s comprehensive plan, rendering approval of the developer’s subdivision plan invalid. We disagree. “A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” (Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018, 1019 [2012], quoting Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d 1360, 1361-1362 [2011]; see Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [1988]). While “[z]oning laws must be [*3]enacted in accordance with a comprehensive land use plan” (Rocky Point Drive-In, L.P. v Town of Brookhaven, 21 NY3d 729, ___, 2013 NY Slip Op 07513, *2 n 1 [2013]; see Town Law § 263), to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” (Matter of Rossi v Town Bd. of Town of Ballston, 49 AD3d 1138, 1144 [2008], quoting Fred F. French Inv. Co. v City of New York, 39 NY2d 587, 596 [1976], appeal dismissed, cert denied 429 US 990 [1976]).”

In this case, the application at issue was initially submitted in 2002. Thereafter, the Town adopted a comprehensive plan in 2007 and provided for a conservation overlay zone. It also grandfathered any inconsistent application that had already received concept approval, so long as it met certain deadlines for final approval. The deadline was subsequently extended several times by local law allowing the development at issue to receive final approval. The Court found that allowing the particular development to proceed, despite enactment of zoning provisions that would have limited such development, was reasonable under the circumstances.

“As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.” The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements (see Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 AD3d 1384, 1387 [2011], lv denied 17 NY3d 705 [2011]).

Petitioners have not shown that, under the circumstances here, the challenged extensions – amounting to a 2½-year period from the beginning of 2010 to the middle of 2012 – were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful” (Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 AD3d at 1362; see Boyles v Town Bd. of Town of Bethlehem, 278 AD2d 688, 690 [2000]). In our view, such extensions were consistent with the comprehensive plan and were reasonably adopted to further the purposes of the original grandfathering provision. This is particularly true considering that Local Law No. 2 (2012), which created the final six-month extension for filing final subdivision plans, was tailored to apply exclusively to development proposals in which significant steps had been taken to advance through the approval process during the previous year.”

Steven Silverberg

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