1. Whether a Town Planning Board "took action" within the meaning of the relevant statutes when it rejected petitioners' final subdivision application.
2. If so, whether such action automatically extinguished preliminary plat approval.
Yes as to both. The failure to obtain a majority vote for approval as required by statute constitutes "taking action." And the rejection of a final plat application extinguishes the preliminary plat approval.
Since 1990, petitioners have sought to develop a 45└acre property in the Town of Stony Point, located in Rockland County. Hoping to subdivide the property into 27 lots and build single└family homes, petitioners received sketch plan approval from the Town of Stony Point Planning Board, and on December 4, 1991 obtained unanimous, unconditional preliminary approval of their plan. On March 1, 1992, petitioners submitted an application for final subdivision plat approval.
Town Law § 276(6) requires a Planning Board to "act" on a final plat application in one of three ways. The Board can resolve to approve, conditionally approve or disapprove a final subdivision plan. Under certain specified circumstances, however, Town Planning Boards must refer applications for final plat approval to County Planning authorities before "taking final action." That occurred in this case and the Rockland County Planning Department recommended disapproval of the application.
Under such circumstances General Municipal Law § 239-n(5) requires that "the referring body shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof."
Petitioners concede that on July 28, 1994, the Town Planning Board did not approve their final application as there was no "majority plus one" vote required to override the County Planning Department's negative recommendation. They argue, however, that the Board failed to act because there was no majority vote in favor of disapproval of their application. As such, petitioners claim they are entitled to default approval pursuant to Town Law § 276(8).
The Court of Appeals holds that permitting default approval pursuant to Town Law § 276(8) despite failure to obtain a "majority plus one" would negate the explicit requirement of General Municipal Law § 239-n(5) and defeat the legislative purpose behind that requirement. It concluded, as did the Appellate Division, that the turning down of petitioners' final plat application for failure to gain supermajority approval constituted dispositive Board action under the law.
Petitioners' second argument └└ that their 1996 application avoids a moratorium because preliminary approval obtained in 1991 continued in effect even after rejection of their final application in 1994 └└ was also rejected.