The Matter of Exeter Building Corp. v. Town of Newburgh , 26 N.Y.3d 1129 ( 2016 )


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  • This memorandum is uncorrected and subject to revision before
    publication in the New York Reports.
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    No. 20
    In the Matter of Exeter Building
    Corp., et al.,
    Appellants,
    v.
    Town of Newburgh, et al.,
    Respondents.
    Richard B. Golden, for appellants.
    Michael H. Donnelly, for respondents.
    MEMORANDUM:
    The order of the Appellate Division should be affirmed,
    with costs.
    An owner of real property can acquire a common law
    vested right to develop the property in accordance with prior
    zoning regulations when, in reliance on a "legally issued
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    permit," the landowner "effect[s] substantial changes and
    incur[s] substantial expenses to further the development" and
    "[t]he landowner's actions relying on [the] valid permit [are] so
    substantial that the municipal action results in serious loss
    rendering the improvements essentially valueless" (Town of
    Orangetown v Magee, 88 NY2d 41, 47-48 [1996]; see generally 4
    Rathkopf's The Law of Zoning and Planning § 70:20 [4th ed]).
    Here, it was not reasonable for petitioners to rely on the
    December 2007 conditional Final Site Approval of the development,
    in carrying out any substantial actions furthering the
    development.    In particular, in 2005, the year before the
    rezoning of petitioners' property by means of Local Law No. 3
    (2006) of Town of Newburgh, the Town Planning Board had
    repeatedly warned petitioners of the proposed rezoning.    The
    December 2007 Approval itself did not engender expectations to
    the contrary.    It included a statement of the new zoning status
    of the property.    Additionally, while petitioners challenged the
    rezoning in court, petitioners must have been "cognizant of the
    potential for an eventual legal ruling that the Local Law was in
    fact valid" (Preble Aggregate v Town of Preble, 263 AD2d 849, 851
    [3d Dept 1999], lv denied 94 NY2d 760 [2000]).
    We need not address whether a conditional final site
    approval can be the basis for acquisition of a vested right to
    develop property.    Even if the right could vest under such a site
    approval, petitioners here do not satisfy the Magee test, because
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    the element of reasonable reliance on municipal permission was
    not satisfied.1   Nor did limited permits, authorizing petitioners
    to demolish a single-family residence, remove certain water tanks
    and their foundation, conduct clearing and grading, and erect
    signs on the subject property, amount to approval of petitioners'
    proposed development.     Consequently, the Appellate Division
    properly held that petitioners have no vested right to develop
    the subject property under the prior zoning regulations.
    *   *    *   *    *   *    *   *    *      *   *   *   *   *   *   *   *
    Order affirmed, with costs, in a memorandum. Judges Pigott,
    Rivera, Abdus-Salaam, Stein and Fahey concur. Chief Judge
    DiFiore and Judge Garcia took no part.
    Decided February 11, 2016
    1
    Given our analysis, there is no occasion for us to
    decide whether Supreme Court improperly conducted a trial/hearing
    to decide whether the remaining elements of the Magee test were
    met, rather than remanding to the Zoning Board.
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Document Info

Docket Number: 20

Citation Numbers: 26 N.Y.3d 1129, 47 N.E.3d 71, 26 N.Y.S.3d 743

Filed Date: 2/11/2016

Precedential Status: Precedential

Modified Date: 1/13/2023