This month, in Gershow Recycling of Riverhead v Town of Riverhead, 2021 NY Slip Op 02156 [2d Dept 2021], the Appellate Division, Second Department, affirmed the motion court’s decision granting an Article 78 petition to annul the denial of a site plan amendment application. The motion court and the appeals court held the denial exceeded the scope of delegable power under the then-applicable Town Code and N.Y. Town Law Section 274-a, and remanded to the Planning Board for further consideration.

In November 20211, the petitioners-plaintiffs (“Petitioners”) purchased property upon which the prior owner operated an auto salvage facility. The auto salvage use constituted a pre-existing, non-conforming use (“PNCU”). In July 2012, Petitioners submitted a site plan to the Town of Riverhead (“Riverhead”) Planning Department and Building Department to perform regrading, drainage, paving and landscaping work, among other things. These departments jointly determined the site plan contained de minimus alterations, so the proposed work was exempt from site plan review pursuant to the Riverhead Town Code.

In November 2013, after Petitioner commenced operations at the premises. Riverhead identified certain improvements that did not appear on the original site plan, and requested Petitioners submit an amended site plan.  Petitioners submitted an amended site plan to the Riverhead Planning Department reflecting additional “as-built” improvements. The Riverhead Planning Department denied the application, and referred it to the Riverhead Planning Board for formal approval.

In early April 2014, the Riverhead Planning Board conducted a public hearing on the amended site plan. While Petitioners’ application was pending, in mid-April 2014, the Riverhead Town Board resolved to authorize the Riverhead Town Attorney to commence an action for declaratory, injunctive, and monetary relief against Petitioners on the basis that Petitioners’ use of the site violated the Riverhead Town Code. Riverhead determined the PNCU was an auto salvage yard, and Petitioners were operating a “recycling” or “scrap metal” and “other material unrelated to an auto salvage yard.” Thus, Petitioners illegally changed  the use or illegally expanded the PNCU.

In July 2014, Riverhead’s Building and Planning Administrator (“Administrator”) informed Petitioners that then-existing Riverhead Town Code Sections 26-18 and 26-20 gave him the authority to make, issue, and render determinations regarding compliance with provisions of the zoning ordinance for site plan applications. The Administrator concluded Petitioners’ proposed use of the site was “clearly not an allowed use in the zoning district,” and that Petitioners converted use of the site from the PNCU auto salvage yard into a recycling center. Based upon his conclusions, the Administrator denied the site plan amendment application, and advised Petitioners they could appeal to the Riverhead Zoning Board of Appeals (“Riverhead ZBA”), i.e. Petitioners’ administrative remedy.

Petitioners commenced this hybrid action-proceeding against Riverhead and the Administrator, et al. (collectively, Respondents”), to review and annul the Administrator’s determination. Respondents moved to dismiss. The Supreme Court, Suffolk County, denied Respondents’ motion to dismiss, granted Petitioners’ Article 78 petition, annulled the Administrator’s determination, and remitted the matter to the Riverhead Planning Board. Respondents appealed and the Second Department affirmed.

By Order dated June 12, 2017, the Suffolk County Supreme Court held the then-existing Riverhead Town Code did not authorize the Administrator to approve or deny applications; this authority is is vested in the Planning Board under the Riverhead Town Code and the N.Y. Town Law. More specifically, the Town Code at-the-time only authorized the Administrator to review, evaluate, judge, and advise on applications, and to make, issue, and render determinations regarding compliance. Nothing authorized the Administrator to deny an application submitted to the Riverhead Planning Board.

The Supreme Court also emphasized N.Y. Town Law Section 274-a, which governs site plan review, does not include “the issue of use of property” within its scope, and a use may not be disapproved “under the guise of denying site plan approval.” Accordingly, the Supreme Court annulled and vacated the Administrator’s denial, and remanded Petitioners’ application to the Planning Board.

On appeal, the Second Department agreed the Riverhead Town Code did not authorize the Administrator to act on a site plan application because it delegated this authority to the Planning Board:

“[F]ormer [Section] 108-129(A) stated . . . the Town Board hereby authorizes the Planning Board, pursuant to [Section] 274-a of the Town Law, to review and approve, approve with modifications, or disapprove site plans . . . Under the principles of statutory construction, whenever there is a general and a specific provision in the same statute, the general applies only where the particular enactment is inapplicable. Accordingly, the specific provisions of the Town Code that gave the Planning Board the authority to act on site plan applications must control here.”

The Second Department also noted the Administrator’s denial of the site plan application was an action wholly beyond his grant of power, and Petitioners were not required to exhaust administrative remedies by appealing to the Riverhead ZBA.

The Courts’ decisions remind applicants and municipalities that determinations regarding interpretations of the the zoning code, i.e. uses of a particular site, are outside the scope of site plan review. While N.Y. Town Law Section 274-a empowers the authorized board to impose reasonable conditions and restrictions directly related to or incidental to a site plan, determinations as to uses are reserved to building departments and zoning boards.