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In an extensive nine-page decision criticizing the Planning Board of the Town of Brookhaven for unreasonable delays and a deliberate attempt to block land development for its own improper purposes, the Suffolk County Supreme Court has ruled in favor of Aspen Creek Estates, client of MSI member, New York law firm Ruskin Moscou Faltischek , reversing the Planning Board’s May 1, 2006 denial of Aspen’s subdivision application. Since November 2002, Aspen has been seeking approval for its application to build 19 residential homes on its 39.1 acres of property in Manorville, New York, as permitted by applicable zoning laws. Only under threat of contempt did the Planning Board finally render a decision.
The Planning Board denied Aspen’s application despite the fact that Aspen submitted 48 separate subdivision maps and offered to dedicate two-thirds of its property as open space. In his decision, Justice Paul Baisley characterized the Planning Board decision as “unreasonable, arbitrary and capricious” and wrote, “…respondents essentially ignored petitioners’ application until they were forced to address it by the Court, and then imposed roadblock after roadblock to keep petitioners from succeeding in their efforts to obtain subdivision approval.” He further noted the “collusive, agenda-driven nature of respondents’ approach to petitioners’ subdivision application, supports petitioners’ assertion that the respondents were going out of their way to find reasons to deny petitioners’ application.”
Of critical significance is the fact that while Aspen was seeking subdivision approval, the Town of Brookhaven was attempting to acquire Aspen’s property through condemnation proceedings. Judge Baisley determined that the Planning Board deliberately denied processing Aspen’s application “and concocted reasons to deny it as a pretext in order to enable the town to complete its condemnation proceeding and acquire the property at a bargain price.”
In commenting on the victory, Ruskin Moscou Faltischek Co-Managing Partner Mark S. Mulholland said, “This decision is an extraordinary one, and is an example of the Court’s refusal to condone improper motives and tactics when dealing with land use issues. We believe this decision will have far-reaching, positive implications for land owners across the State.”
In a related matter, Aspen has challenged the Town of Brookhaven’s condemnation efforts in the Appellate Division, Second Department. Aspen claims that the Town’s condemnation proceedings, which will ultimately cost the Town millions of dollars, failed to adhere to the strict mandates of the landmark case Kelo v. City of New London. The Appellate Division, Second Department recently referred Aspen’s challenge to the Court of Appeals because it raises questions of law “which ought to be reviewed by the Court of Appeals.”
For more information
Please contact Barbara Cerrone at Ruskin Moscou Faltischek
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