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

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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