Upon the following papers read on this e-filed Article 78 hybrid petition: Notice of Motion/Order to Show Cause and supporting papers (NYSCEF Doc. Nos.: 1-22); Answering Affidavits and supporting papers (NYSCEF Doc. Nos.: None); and Replying Affidavits and supporting papers (NYSCEF Doc. No.: None); it is

ORDERED that the unopposed petition (motion sequence no. 001) is decided as follows:

Crescent Beach LLC (hereafter the "Petitioner") brings this hybrid Declaratory Judgment/Article 78 proceeding seeking relief in the form of an order directing the respondent Town of Shelter Island (hereafter the "Town") to issue a Special Use Permit allowing for the construction of a residential dwelling greater than 5,999 square feet. The Town has not filed [*2]opposition papers although the Town Attorney did appear before the Court in opposition for an informal conference on July 10, 2023. Petitioner also requests that the Court void the Town's Local Law No.5 declaring a building moratorium.

There appears to be no dispute as to the relevant following facts: Petitioner is the owner of a residential-zoned parcel of real property (hereafter the "Property") located at 11 Serpentine Drive in Shelter Island, New York. This 8.8 acre property is capable of yielding 4 lots under the Town's present zoning code.

In 2019, Petitioner began developing plans to construct a single-family residence with associated improvements on the Property. After multiple meetings with the Town's Building Department, an application for a Building Permit was filed with the Town on or about February 24, 2020. The Town issued a determination stating that an area variance, associated with the height of the principal residence, would be required. In addition, the Town advised that only after Zoning Board of Appeals (hereafter the "ZBA") approval was obtained, would Petitioner be able to seek a Special Use Permit from the Town Board to permit construction of a residence in excess of 5,999 square feet in size.

Petitioner filed an application for a height variance with the ZBA on or about June 29, 2020. After a lengthy public hearing process, by decision dated February 24, 2021, the height relief requested was granted. As expressly considered and found by the ZBA, the construction of the proposed residence will not have any undesirable change on the character of the neighborhood. Further, the ZBA requested and conditioned the approval on Petitioner's consent to reduce its lot yield from 4 to 3 with 2 of said lots being limited to structures less than 6,000 square feet (NYSCEF Doc. No. 6).

To comply with the filing requirements for submission of an application with the Town Board for the Special Use Permit, Petitioner also obtained approval from the Suffolk County Department of Health Services and the New York State Department of Environmental Conservation. Despite Petitioner's repeated requests for scheduling of a public hearing, a public hearing was not scheduled until September 27, 2022 (i.e. more than 6 months after submission of the application). On September 22, 2022, Petitioner was contacted by the Town requesting that Petitioner consent to adjourn the public hearing. Working with the Town, Petitioner consented to adjourn the meeting until October 18, 2022.

The first and only public hearing session regarding Petitioner's application before the Town Board was held on October 18, 2022. By that time, the Town Planning Board had issued a report supporting and approving the project. At the public hearing, Petitioner presented the architectural plans, landscape plan and construction methodology. In addition, Petitioner formally consented to the ZBA's condition to reduce the density of the Property from a total of a 4 lot yield to a 3 lot yield.

After the conclusion of the public hearing, the Town did not vote to close said hearing and move to approve/disapprove the requested permit but instead adjourned the public hearing "without a date" and without a Board vote. This adjournment was over Petitioner's objections.

On February 15, 2023 and April 3, 2023, Petitioner formally requested the Town again reschedule its Special Use Permit public hearing. On April 4, 2023, the Town Attorney advised that Petitioner's public hearing would be scheduled for May 16, 2023. On May 8, 2023 the Town [*3]Attorney advised Petitioner that he was administratively removing its May 16, 2023 public hearing from the Town's agenda.

At the May 16, 2023 meeting, the Town Board conducted a public hearing on a six-month "building moratorium," closed said hearing and approved the proposed local law moratorium. Immediately prior to adopting the moratorium, the Town approved a separate application for a Special Use Permit to construct a residence larger than 5,999 square feet, for a different applicant. The moratorium prohibits further consideration of Petitioner's Special Use Permit application.

The Town has entertained and approved 38 out of 38 applications seeking to exceed the 5,999 square foot limitation, except Petitioner's application.

The issue presented to the Court is whether the Town's refusal to entertain Petitioner's permit application, via administrative delay inherent in the utilization of a contested "adjournment without a date," is illegal or arbitrary and capricious or an abuse of discretion.

When New York State and its municipal board and officers act, they must do so in conformance with New York CPLR § 7803 as well as the State and Federal Constitutions. CPLR § 7803 provides as follows:

"The only questions that may be raised in a proceeding under this article are: (1) Whether the body or officer failed to perform a duty enjoined upon it by law; or . . . (3) whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion . . .or (4) whether a determination . . . is supported by substantial evidence." Emphasis added.

As stated, municipal agents may not be arbitrary and capricious in their decision-making process and determinations. Proceeding in "bad faith" is considered arbitrary and capricious if the agency is not adhering to its prior precedent. See, Astoria Landings Inc. v. DelVale, 188 AD3d 1189 (2d Dept. 2020). Said Court opined that (putting aside § 7803's direction that agencies "must" perform their approval/denial duty) the Federal and State Constitutions' requirement for "due process" requires the agency to afford applicants an "opportunity" to be heard in a meaningful manner at a meaningful time."

It is Petitioner's contention that the Town's refusal to undertake to grant or deny its building permit application for approximately 39 months (plus an additional 6-month moratorium) violates the New York State and Federal Constitutional requirements of "due process;" and it is, therefore, illegal, arbitrary and capricious. The Court agrees. Town and villages may not de facto deny applicants for permits, under ordinances they adopted, by making unjustifiable acts/demands which constitute an "abuse of administrative procedures." See Pokoik v. Silsdorf, 40 NY2d 769 (NY 1976). The act of administratively preventing the Town permit issuing body (the Town Board) from voting to either approve/disapprove via the use of an adjournment of a public hearing sine die is inherently arbitrary and capricious, violates constitutional guarantees of "due process" and violates CPLR § 7803's requirement for municipal officers to perform their duty.

Normally, the Court would limit its intervention in the subject permit application to [*4]directing the closing of the public hearing and an affirmative vote to approve/disapprove. However, the Town has previously granted 38 out of 38 special use size permit requests, including one on the same date as enactment of its building moratorium. This moratorium will purportedly change the standards for said applications going forward and ban consideration of Petitioner's application based upon pre-moratorium standards. Under these facts, the Court concludes that Petitioner is entitled to the issuance of its requested permit. Therefore, it is

ORDERED, ADJUDGED AND DECREED that the Town issue the permit as requested by the applicant on or before October 1, 2023. The issuance of said permit is conditioned upon Petitioner filing the appropriate restrictive covenants as demanded by the ZBA when authorizing the project's height variance (NYSCEF Doc. No. 6).

The Court also authorizes the Town to include such usual and customary permit conditions as have previously been required and stated in 33 percent of its previously issued 38 size special use permits.

Petitioner's request to annul and vacate the Town's Local Law #5-2023 is therefore denied as moot.