Rocky Point Drive-In, L.P. v. Town of Brookhaven: The Special Facts Rule
Date: June 27th, 2014 Written by Maureen Liccione, Esq.
November of last year, the Court of Appeals decided Rocky Point Drive-In,
L.P. v. Town of Brookhaven, and affirmed the long-established rule that
where a zoning law is amended after the submission of an application for land
use approval, but before a decision is rendered on the application, the courts
are bound to apply the amended law.[i]
Court of Appeals has established two exceptions to this general rule. The first is known as the vested rights
exception, which was not asserted in Rocky Point. The vested rights exception is applicable
where an applicant has established: (1) that it possessed a valid permit prior
to the change in the zoning law; (2) substantial construction had been
completed in reliance upon the valid permit; and (3) substantial expenditures
were made in furtherance of the substantial construction.[ii]
exception, which was the centerpiece of the Rocky Point appeal, is known
as the "special facts” exception. Under this exception to the general rule, the
amended law will be found inapplicable where the amendment was proposed and
enacted after the applicant filed an application for a land use approval and
two prongs are satisfied.[iii] Specifically, to prove the special facts
exception, the applicant must prove: (1) that it was entitled to a permit as a
matter of right by virtue of its full compliance with the permit requirements
under the law in effect at the time of the application and that proper action
upon the permit by the municipal entity would have given the applicant time to
acquire a vested right; and (2) that the reviewing municipality or board unduly
and deliberately delayed the application as a result of bad faith, malice,
oppression, manipulation or corruption.[iv] This two-pronged
rule has been applied consistently statewide.[v]
whether the exception applied to the Rocky Point facts, New York’s highest court reaffirmed the principle that an applicant must have a
right to a permit under the zoning that existed prior to the amendment.[vi] The Court then declined, on the facts of this
case, to consider whether negligence could substitute for malicious or
deliberate delay to satisfy the second prong of the exception.
The property which
was the subject of the Court of Appeals’ ruling is located on Route 25A in the
hamlet of Rocky Point and consists of approximately 17.7 acres. The parcel has been used for recreational
purposes for decades, first as a drive-in theatre and then, during the
applicable time period, as a golf driving range. It has never been used for retail
On October 22,
2002, the Brookhaven Town Board voted to apply the Commercial Recreational or
CR "floating zone”[vii] designation to the
property. The floating CR zone had been
created by the Brookhaven Town Board in 1997 in furtherance of the Town’s Comprehensive Plan. The
Comprehensive Plan was adopted in 1996 in accordance with N.Y.S. Town Law § 263, which also mandates that zoning
laws be enacted in accordance with comprehensive land use plans.
The Comprehensive Plan contained a
number of proposals in an attempt to preserve and protect the dwindling supply of land
utilized for recreational purposes. To
that end, it provided:
The Town contains a number of
various private recreational facilities including golf driving ranges, indoor
sports facilities and roller rinks. These facilities provide a much needed
recreational outlet for Town residents. However, there may be pressure from the
private sector to redevelop these recreational properties with more intensive
commercial uses such as shopping centers and big box developments which may
make for greater use of the parcel and may be more profitable especially if the
existing recreational use is seasonal only. Furthermore, the existing
recreational use may not be in a zoning district which allows it to remain
commercially viable or which provides for all of its needs. Currently these
uses would require either commercial or industrial zoning that have no specific
regulations for these specific
uses. In addition, many people currently go outside the Town to visit many of these types
of recreational uses instead of the Town being a destination for visitors, especially tourists. Accordingly the Town may wish to
consider the creation of a Commercial/Recreation or Commercial Entertainment
On February 15,
2000, the Town Board first proposed to apply the CR zone to the appellant’s property. The next day, the
Brookhaven Town Clerk, on behalf of the Town Board, notified the appellant’s predecessor-in-interest that a public hearing was going to be held
on March 7, 2000, to consider the adoption of a change of zone for the subject
property from J-2 to the CR district, consistent with the then-current use of
the property as a driving range and the Comprehensive Plan.
On March 3, 2000, approximately three weeks after the zone
change notice[ix] and just prior to
the March 7, 2000 public hearing on the CR District proposal, the Appellant
submitted a site plan application to the Planning Department staff for site
plan approval to construct a Lowe’s Home Improvement
was not a permitted, "as of right,” use in the J-2 District because it was a commercial center
utilizing more than five acres. At the
time, such a commercial center was permitted as of right only in the J-3
District or in the D-1 Residential District by special exception permit. A commercial center was defined in Brookhaven
Town Code § 85-1 as:
Any building or buildings, structure or structures or
premises used by one (1) or more enterprises for a commercial purpose
specifically permitted within the particular use district in which this term is
applied, where the proposed use occupies a site of five (5) or more acres,
whether built at one (1) time as a unit or in two (2) or more construction
As a result of these provisions, in
order to construct a commercial center within J-2, Rocky Point was required to
obtain either a variance from the Board of Zoning Appeals ("BZA") or
a change of zone from the Town Board.
Additionally, the Town Code required all applicants to submit variance
applications to the BZA simultaneously with the filing of a site plan approval
application with the Planning Board. A
BZA determination approving the variance application, however, was necessary prior
to the Planning Board considering any site plan approval application.[xi] In other words, the Planning Board had no
jurisdiction to review the Lowe’s site plan application unless or until the BZA approved a
variance application or the Town Board changed the zone.
On March 22, 2000, three weeks after
delivery of the Lowe’s
site plan application to the Planning Department and two months prior to the
eventual May 18, 2000 Town Board vote to apply the CR designation, planning
department staff wrote a letter informing Rocky Point that the proposed Lowe’s was prohibited in the J-2 District
and asking how it wished to proceed. In
other words, the staff sought to learn whether the applicant preferred to seek
a variance from the BZA or a zone change from the Town Board. Rocky Point never responded to the March 22,
lack of a response, staff presumed the applicant would seek a variance such
that the BZA would become the lead agency for purposes of the mandatory SEQRA
review. The other involved agencies were
informed that the BZA was the intended lead agency. The SEQRA regulations do not require that an
applicant be copied on lead agency coordinated review letters, letters that
notify the other involved agencies of the intent of one to take lead
agency status.[xii] Staff, consistent with the SEQRA regulations
and ordinary practice, did not inform the applicant of the notice of intention.
Staff processed the site plan application in good faith as far as
possible without an actual BZA application, circulating traffic reports and
other information to SEQRA involved agencies.
Crucially, the zone
change to CR was of no consequence to the SEQRA and other reviews, since a
variance was necessary under either J-2 or CR.
In fact, the SEQRA review process would have been the same whether the
application needed a BZA variance, a zone change from the Town Board or just
site plan approval from the Planning Board.
However, until the
Lowe’s application was determined to be either an application for a BZA
variance or for a Town Board change of zone from J-2 to J-3, neither the BZA
nor that Town board had legal authority to issue a positive or negative
declaration. More specifically, the
SEQRA regulations at 6 NYCRR §
that a lead agency is only authorized to make a determination of significance
(i.e., positive or negative declaration) once it receives an application.
On May 18, 2000, five of the seven
Town Board members voted to change the parcel’s zoning and apply the CR floating
zone to the subject property. Since,
however, the property owner had filed a protest, an affirmative vote of a super
majority of the Board was required under Town Law § 265. Five had voted "yes,” one "no,” and the seventh had recused
himself. The Town interpreted Town Law § 265 as requiring a super majority of those voting, i.e., 5
out of 6, excluding the Town Board member who recused himself.
The Appellant sued on May 25, 2000,
alleging the General Construction Law § 41
required a super majority of the full Board, not merely of those voting. The Appellant was successful in the initial
effort and the CR rezoning eventually was declared invalid (for the first time)
on March 13, 2001.
On September 22, 2000, counsel for
the Town and Rocky Point entered into a court stipulation to apply for a use
variance from the CR zoning that was then in effect (the "Stipulation”).
The use variance application was not
submitted to the BZA until two and one half months after the Stipulation, on
December 1, 2000. The Town’s position was that the Appellant was
responsible for nine months of delay --- from the March 22, 2000 Planning staff
letter asking how it wished to proceed --- until the December 2000 BZA
Upon receipt of the variance
application, the matter promptly was moved up from the originally scheduled
February 7, 2001 semi-monthly meeting and placed on the BZA calendar for
January 24, 2001. At that meeting the
BZA issued a resolution assuming lead agency status, issuing a positive
declaration and resolving that a Draft Environmental Impact Statement ("DEIS”) was required.
Applicant submitted its DEIS on August 2, 2001, almost eight months from the
date of the positive declaration. Staff
completed the DEIS review, notwithstanding that the second resolution to zone
the property to CR was enacted on June 16, 2001 and another successful lawsuit
to vacate the rezoning was filed on July 2, 2001.[xiii]
Ultimately, the BZA accepted the DEIS
on March 13, 2002 and the required public hearing was held at the next
semi-monthly BZA meeting on April 24, 2002.
The DEIS hearing was held twenty days earlier than required under
the SEQRA regulations.
The FEIS was submitted by the
Appellant and had been accepted by the BZA on October 2, 2002, unaffected by
the fact the CR zoning was vacated for the second time on July 17, 2002. The Town Board rezoned the Subject Property
to CR for the third time twenty days later, on October 22, 2002. By this time the Town Board had enacted local
superseding Town Law § 265, requiring only a simple
majority vote to rezone when a protest was filed.
Lower Court Proceedings
The property owner brought a
declaratory judgment action challenging the rezoning. After extensive discovery, the Town was
awarded summary judgment by the Suffolk County Supreme Court (Emerson, J.) on
the special facts issue because, inter alia, the plaintiff had no right
to construct a commercial center under the J-2 zoning, i.e., it failed to meet
the first prong of the special facts test.[xiv]
The Second Department reversed,
finding there were questions of fact as to selective enforcement and malicious
delay, even though the unanimous panel acknowledged that the proposed Lowe’s fell within the definition of a
A non-jury trial ensued and the
Suffolk Supreme Court (Sweeney, J.) held for the property owner, finding that
the plaintiff had established bad faith by "the
repeated attempts to rezone” and delays prior to the positive
declaration and "had selectively enforced the J-2
The trial court presumably substituted selective enforcement for the
first prong of the special facts test and eliminated the need to show a permitted
use because it believed selective enforcement of the commercial center
designation had been demonstrated.
The Town appealed the trial judgment
to the Second Department and, this time, prevailed. The Second Department reversed on the law and
the facts, finding no evidence of selective enforcement.[xvii]
Rocky Point was granted leave to
appeal by way of motion to the Court of Appeals. The Court of Appeals (Rivera, J.) affirmed
the Second Department.[xviii]
The unanimous Court focused on the
fact that Rocky Point had not met "the
threshold requirement that it was entitled to the requested land use permit
under the law as it existed when it filed its application.”[xix]
As to selective enforcement obviating
the need for an "as of right” entitlement to a permit under the first prong, the Court of
Appeals found the Second Department’s ruling that there was insufficient evidence of selective
enforcement was the finding which "more
nearly comported with the weight of the evidence.”[xx]
Judge Rivera further found that "[t]he
record clearly demonstrate[d] that similarly situated applicants . . . were not
similarly situated at all; they either fell within an exception or were within
compliance with the J-2 zoning classification.”[xxi]
Appellant made its case for selective enforcement by arguing that the "commercial center prohibition had not been raised as an
impediment” to a number of other land use
applications approved by the Town, suggesting that fact proved there must have
been selective enforcement with respect to the Lowe’s
The Appellant cited fourteen examples of applications which it argued
had not been subjected to the J-2 prohibition against 5 acre plus shopping
centers.[xxiii] For each of Appellant's cited examples,
Respondents argued that Appellant had either:
(1) presented insufficient evidence to determine how the application had
been treated, because it was 25 years or more prior to the trial; (2) did not
fit the Town Code definition of a commercial center; (3) was exempt from
zoning; (4) involved a pre-existing use; or (5) was treated in a manner similar
to the Appellant’s application.
The burden to establish selective
enforcement is a heavy one.[xxiv] Selective enforcement is essentially an Equal
Protection violation claim and "forbids a public authority from applying
or enforcing an admittedly valid law ‘with
an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances.’”[xxv]
In Bower Associates v. Town of
Pleasant Valley, the Court of Appeals reiterated this high burden:
But even different treatment of persons similarly
situated, without more, does not establish a claim. What matters is
impermissible motive: proof of action with intent to injure—that is, proof that
the applicant was singled out with an "evil eye and an unequal hand, so as practically to
make unjust and illegal discriminations between persons in similar
As the Court of Appeals explained in Plattekill
v. Dutchess Sanitation:
We find [no] merit to the defendants "selective
enforcement" argument. Defendant,
at most, has alleged previous nonenforcement and this is not enough. To prevail and thus render the ordinance
unenforceable on this principle, it must be demonstrated that its provisions
were enforced against the challenger here and not enforced as to others and
that there was "arbitrary and intentionally unfair discrimination,"
"invidious discrimination." No
such discrimination has been alleged or demonstrated and the "selective
enforcement" argument must fail.[xxvii]
Point Court did not reach the question of whether negligence could
substitute for malice or deliberate delay.
Judge Rivera noted that Rocky Point’s brief had placed "significant reliance on [the] decision in Matter of Faymor
Dev. Co. v. Board of Stds. & Appeals of City of N.Y. in support of its
In rejecting the argument, the Court distinguished Faymor:
In Faymor the applicant would have had, in the
absence of municipal wrongdoing, a vested right. Here, as Rocky Point concedes, it cannot meet
the zoning requirements and did not have a vested right. Rocky Point has failed to meet the threshold
requirement of entitlement as of right, and we have no reason to upset the
Appellate Division’s factual findings
of a lack of record support for selective enforcement by the Town, because the
special facts exception is inapplicable to his case, under any standard.[xxix]
a practical matter, it is difficult for this author to fathom how mere
negligence in processing a land use application could continue for any
meaningful period of time, without the applicant demanding action. If an application were to be accidentally
lost or misplaced, a diligent applicant would bring that fact to a staff person’s attention. Then, if the municipality still
procrastinated, it would open itself to claims of "malice” or "bad faith.”[xxx]
Moreover, it is unclear whether under the reduced negligence standard,
as was advocated by the Rocky Point appellant, a municipality would be
deemed "negligent” if it failed to move every application potentially affected
by an impending change of law to the head of the line, no matter when
even if a hypothetical negligence scenario were to result in delay, in this
view, several sound public policy reasons militate against adoption of a
negligence standard. First, the special facts exception implicitly acknowledges
that zoning laws are legislative enactments which are presumptively
constitutional and that presumption "is
not rebutted if the . . . classification is even ‘fairly
debatable.’”[xxxi] Legislative enactments are not to be
overturned lightly and a negligence standard would do just that.
Second, there are "no
assurances[s] that . . . zoning regulations [will] remain unchanged. '. . . If
there is one thing that the history of zoning regulation has established it is
that as time passes and population increases (or decreases) the zoning
restrictions change.'”[xxxii] As a result, the heightened malice
standard has been established for voiding zoning laws, even if they are enacted
while an application under a prior zoning classification is pending.
Third, as acknowledged in Salkin, New
York Zoning Law and Practice, land use controls have a "profound impact”
upon the value of land if for no other reason that they are capable of shaping
the character of an entire new and extensive area of a community, dictating the
pace of development, influencing the economic and racial character of the
community and affecting the kind and amount of development within a specific
zone.[xxxiii] It is for good reason then that the New York
State Legislature has mandated that all land use regulations be established in
accordance with a comprehensive plan pursuant to Town Law § 263 and that this Court has required such regulations to be
exercised in precise compliance with the powers given to towns under the Town
A negligence standard would disrupt the comprehensive planning process by
enhancing the ability of an applicant to impede implementation of a zone change
intended to implement the comprehensive plan for an entire municipality.
Fourth, in analogous circumstances,
the Court of Appeals has refused to estop municipalities from correcting their
own mistakes or negligence even in egregious instances.[xxxv]
Allowing a negligence standard would
address a hypothetical issue that may not exist in the real world, while also
enhancing the ability of an applicant, which does not claim to have a vested
right or a legitimate expectation that the zoning designation of its property
would remain in place, to impede implementation of a zone change intended to
implement the comprehensive plan for an entire municipality. The prerequisites to the application of the special
facts exception should remain as they have for decades: in this writer’s opinion they are good law and good
Maureen T. Liccione is partner of Jaspan Schlesinger LLP, practicing in the Municipal and Litigation Practice
Groups. Prior to joining Jaspan Schlesinger LLP, Ms. Liccione served as an Assistant Corporation
Counsel for the City of New York and as an attorney at a major Long Island
firm. She is a member of the Advisory Board of Touro Law Center's Land Use
& Sustainable Development Law Institute. Ms. Liccione represented the Town
of Brookhaven as appellant in the Second Department and as respondent in the
Court of Appeals in the Rocky Point litigation.
Reprinted with permission from: Municipal Lawyer, Summer 2014, Vol. 28, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
[i] 21 N.Y.3d 729, 736, 977 N.Y.S.2d 719,
722 (2013); see also Alscot Investing Corp. v. Inc. Vill. of Rockville
Centre, 64 N.Y.2d 921, 488 N.Y.S.2d 629 (1985), aff'g, 99 A.D.2d
754, 471 N.Y.S.2d 669 (2d Dep’t 1984); Mascony Transp. & Ferry Serv. Inc., v.
Richmond, 49 N.Y.2d 969, 428 N.Y.S.2d 948 (1980), aff'g, 71 A.D.2d
826, 419 N.Y.S.2d 381 (2d Dep’t 1979); Pokoik v. Silsdorf, 40 N.Y.2d 769, 390
N.Y.S.2d 49 (1976); Demisay, Inc. v. Petito, 31 N.Y.2d 896, 340 N.Y.S.2d
[ii] Town of Orangetown v. Magee,
88 N.Y.2d 41, 643 N.Y.S.2d 21 (1996); Ellington Constr. Corp. v. Zoning Bd.
of Appeals, 77 N.Y.2d 114, 564 N.Y.S.2d 1001 (1990); Faymour Dev. Co.,
Inc. v. Bd. of Standards & Appeals of N.Y.C., 45 N.Y.2d 560, 410
N.Y.S.2d 798 (1978).
[iii] Alscot Investing Corp., 64
N.Y.2d 921, 488 N.Y.S.2d 629; Pokoik, 40 N.Y.2d 769, 390 N.Y.S.2d
[iv] Alscot Investing Corp. v. Inc.
Vill.age of Rockville Centre, supra, 64 N.Y.2d 921, 488 N.Y.S.2d 629;
Pokoik v. Silsdorf, supra, 40 N.Y.2d 769, 390 N.Y.S.2d 49.
[v] See, e.g., Jamaica Recycling Corp. v.
City of N.Y., 38 A.D.3d 398, 832 N.Y.S.2d 40 (1st Dep’t 2007), app. den’d, 9 N.Y.3d 801, 840 N.Y.S.2d 566 (2007); Hamptons LLC v. Rickenbach,
98 A.D.3d 736, 950 N.Y.S.2d 182 (2d Dep’t 2012); Alfano v. ZBA of Vill. of
Farmingdale, 74 A.D.3d 961, 902 N.Y.S.2d 662 (2d Dep’t 2010); Ronsville v. Totman, 303
A.D.2d 897, 757 N.Y.S.2d 134 (3d Dep’t 2003); Preble Aggregate v. Town of
Preble, 263 A.D.2d 849, 694 N.Y.S.2d 788 (3d Dep’t 1999); Cleary v. Bibbo, 241
A.D.2d 887, 660 N.Y.S.2d 230 (3d Dep’t 1997); Meteor Enter., LLC v.
Bylewski, 38 A.D.3d 1356, 831 N.Y.S.2d 787 (4th Dep’t 2007); Envirotech of America, Inc.
v. Dadey, 234 A.D.2d 968, 651 N.Y.S.2d 778 (4th Dep’t 1997).
[vi] Rocky Point Drive-In, L.P. v. Town
of Brookhaven, 37 A.D.3d 805, 806, 831 N.Y.S.2d 456, 457-58 (2d Dep’t 2007).
[vii] A floating zoning district is created by an
amendment to a town code, but is placed on a town’s zoning map only through
subsequent town board legislative acts placing the zoning on individual
parcel(s), in accordance with a comprehensive plan. Rodgers v. Vill. of Tarrytown, 302
N.Y. 115, 96 N.E.2d 731 (1951); Patricia Salkin, 1 N.Y. Zoning Law & Prac. §
4:18. A floating zone does not have set
boundaries but is applied on individual bases at varied times. Applying a
floating zone to a particular parcel or "landing”
it on a designated lot amends the zoning map.
Such a designation is not spot zoning.
Patricia Salkin, 1 N.Y. Zoning Law & Prac. § 4:18.
[viii] Town of Brookhaven Final Comprehensive Land Use Plan, adopted May, 1996.
The trial court incorrectly held that the zoning amendment was commenced
after the Appellant’s predecessor had filed its site plan application.
[x] Brookhaven Town Code § 85-1.
[xi] Brookhaven Town Code § 85-45H, formerly § 85-45 G.
6 NYCRR §
[xiii] Sans Agent Inc. v. Town of Brookhaven, Short Form Order, Suffolk County Supreme Court, October 4, 2001, Index No. 01-14952 (Whelan, J.).
[xiv] Rocky Point, 37 A.D.3d at 806,
831 N.Y.S.2d at 457-58.
[xvii] Rocky Point, 93 A.D.3d at 654,
939 N.Y.S.2d at 865-66.
[xviii] Rocky Point, 21 N.Y.3d at 734,
977 N.Y.S.2d at 720.
[xix] Id. at 737, 977 N.Y.S.2d at
[xxi] Id. at 738, 977 N.Y.S.2d at
[xxii] Id. at 736, 997 M/U/S/2d at 722.
[xxiii] Rocky Point, Decision After Trial, June 5, 2009, Suffolk County Supreme Court, Index No. 02-30047 (Sweeney, J.).
[xxiv] 303 West 42nd Street
Corp. v. Klein, 46 N.Y.2d 686, 693, 416 N.Y.S.2d 219, 223 (1979) (citing
Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1986)).
[xxv] Id. at 693, 416 N.Y.S.2d at
[xxvi] 2 N.Y.3d 617, 631, 781 N.Y.S.2d 240,
[xxvii] 56 A.D.2d 150, 152, 391 N.Y.S.2d 750,
753 (3d Dep’t 1977) (citation omitted), aff’d, 43 N.Y.2d 662, 400 N.Y.S.2d 816 (1977).
[xxviii] Rocky Point, 21 N.Y.3d at 738,
977 N.Y.S.2d at 723 (citing 45 N.Y.2d 560, 566, 410 N.Y.S.2d 798, 803 (1978)).
[xxix] Id. (citation omitted).
See, e.g., Our Lady of Good Counsel v. Ball, 45 A.D.2d 66, 68,
356 N.Y.S.2d 641, 643 (2d Dep't 1974), where the New York City Department of
Consumer Affairs failed to move along an application for a bingo license
despite "persistent and continuous” inquiries by the applicant.
Tilles Investment Co. v. Town of Huntington, 74 N.Y.2d 885, 888, 547
N.Y.S.2d 835, 836 (1989) (citation omitted); Town of Islip v. Caviglia,
73 N.Y.2d 544, 542 N.Y.S.2d 139 (1989); Kurzius v. Inc. Village of Upper
Brookville, 51 N.Y.2d 338, 434 N.Y.S.2d 180 (1980).
[xxxii] Sag Harbor Port Assocs. v. Village
of Sag Harbor, 21 F. Supp. 2d 179 (E.D.N.Y. 1998) (quoting Elias v. Town
of Brookhaven, 783 F. Supp. 758, 761 (E.D.N.Y. 1992)).
[xxxiii] Patricia Salkin, 1 N.Y. Zoning Law & Prac. § 1:12 (10th ed.).
[xxxiv] See, e.g., Sunrise Check Cashing
and Payroll Serv., Inc. v. Town of Hempstead, 20 N.Y.3d 481, 964 N.Y.S.2d
64 (2013), reargument denied, 21 N.Y.3d 978 (2013).
[xxxv] E.F.S. Ventures Corp. v. Foster,
71 N.Y.2d 359, 369-70, 526 N.Y.S.2d 56, 61 (1988); Parkview Assocs. v. City
of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 178-79 (1988), reargument
denied, 71 N.Y.2d 995 (1988), cert. denied, 488 U.S. 801 (1988); Rudolf
Steiner Fellowship Found. v. De Luccia, 90 N.Y.2d 453, 460, 662 N.Y.S.2d
411, 414 (1997).