January 30, 2019

In a somewhat unusual decision on January 23, 2019, the Appellate Division, Second Department in the matter of Save Harrison, Inc. v. Town/Village of Harrison, awarded Summary Judgment to Save Harrison, Inc. with respect to a proposed senior living facility on an old quarry site on grounds that the municipality failed to comply with General Municipal Law Section 239-m.

Specifically, the Court held as follows:

“However, we conclude that the Supreme Court should not have declared that Local Law No. 2-2016 was enacted in compliance with General Municipal Law § 239-m. General Municipal Law § 239-m(1)(c) required the Town Board to refer a “full statement” of the proposed action to the county planning agency, including “all . . . materials required by such referring body in order to make its determination of significance” pursuant to SEQRA and “the complete text of [the] proposed local rezoning law” (see General Municipal Law § 239-m[4][b]). The failure to refer such matters to the county agency is a procedural defect rendering any subsequent approval by the municipal agency null and void …The documents submitted in support of the subject motions establish that the Town Board referred the initial rezoning application and supporting documents to the county planning agency. Contrary to the petitioners’ contention, it was not necessary that the final zoning amendment text be referred to the county agency, since that text did not differ substantially from the draft version which was referred to the county agency. However, following the initial submissions to the county planning agency, the applicant submitted numerous environmental studies to the Town, which were required by the Planning Board in order to issue its negative declaration.

Pursuant to General Municipal Law § 239-m, the Town was required to refer these documents to the county planning agency for its review … In moving for summary judgment with respect to the ninth cause of action, in effect, declaring that Local Law No. 2-2016 was enacted in compliance with General Municipal Law § 239-m, the respondents failed to establish that these environmental studies were submitted to the county planning agency as required. Accordingly, the Supreme Court should not have awarded summary judgment in the respondents’ favor with respect to the ninth cause of action. Since the record also fails to establish that these documents were not submitted to the county planning agency, we decline the petitioners’ request, in effect, to search the record and award summary judgment in their favor on the ninth cause of action.”

A copy of the decision can be obtained online: http://www.courts.state.ny.us/courts/ad2/Handdowns/2019/Decisions/D58033.pdf

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