New York Appellate Division Strikes Conditions of Approval Unrelated to Site Plan Which Arose from Applicant’s Past Conduct

In its recent decision in the Matter of Kempisty v. Town of Geddes, the Appellate Division, Fourth Department, provides an important reminder to approving authorities that conditions attached to the approval of site plans must have some legitimate relationship or “nexus” to the project’s impacts or they will be stricken. Although the case breaks no new ground, it does effectively outline the considerations that should be applied when determining whether to impose conditions of approval.

The case involved two contiguous properties in the Town of Geddes. One was improved with various automotive businesses, while the other was vacant. The applicant purchased the vacant parcel to expand the automotive businesses on the developed parcel. Both properties were zoned to permit the auto-related uses in question as-of-right, subject to site plan review. Since the developed parcel was engaged in auto-related uses prior to the adoption of the current zoning regulations, those uses were legal nonconforming as to the site plan approval requirement. Therefore, the applicant filed its site plan application to encompass only the vacant parcel, although the existing auto-related uses were to be expanded and reconfigured. Under the zoning regulations, the Town Board retained site plan review authority, and the Planning Board acted in an advisory capacity.

Upon its review, the Planning Board requested that the site plan application be revised to include both parcels, and the applicant complied under protest. Ultimately, the Planning Board recommended to the Town Board that the site plan be approved, subject to four conditions. The Town Board accepted that recommendation, but imposed an additional 11 conditions, most of which were requirements from the zoning code which pertained to motor vehicle service, repair and sales facilities when such uses required a special permit, as they did in all other zoning districts in the town which allowed them at all, except this one, where they were permitted as-of-right. The applicant filed an Article 78 proceeding to annul certain of the conditions imposed by the Town Board.

The Appellate Division, Fourth Department ruled that because the applicant intended to expand the auto-related uses on the developed parcel, and because there was a history of storing vehicles relating to those uses on the undeveloped parcel (a situation which apparently had resulted in prior zoning violations), it was appropriate for the town to require that the site plan encompass both parcels. However, the Court ruled that the Town Board abused its discretion, and acted arbitrarily and capriciously, by imposing the special permit conditions since those conditions were not reasonably related to mitigation of some demonstrable problem with the site plan. In his affidavit supporting a motion to dismiss, the Town Supervisor admitted that the conditions were imposed as a result of “the long and continuing history of noncompliance with Town Code provisions” by the applicant. Thus, the Court concluded that the imposition of the special permit conditions was based on the applicant’s “alleged history of zoning violations and the acrimonious relationship between the Town and petitioners, rather than upon the need to ‘minimize[e] [any] adverse impact that might result from the grant of the [application].” The conditions were invalid because they violated the “fundamental principle” that “conditions imposed on the [approval of a site plan] must relate only to the use of the property that is the subject of the [site plan] without regard to the person who owns or occupies that property.”

Matter of Kempisty reminds approval authorities that conditions they impose will be stricken if those conditions serve an improper purpose. Applicants should take some comfort in knowing that courts will police approval authorities when they violate this principle.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.

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