Court reverses order compelling Commission vote

Staten Island landowners claimed delay prejudiced their development application. The three Putter brothers owned a six-acre tract of land in the West Brighton/New Brighton section of Staten Island. Their property was located within the Special Hillsides Preservation District, which requires landowners to obtain Planning Department permission to develop their property. In 1999, the brothers submitted an application to the Planning Department to develop their site with 60 affordable townhouses.

Over the next several years the brothers prepared an environmental assessment and continued discussions with Planning over their proposed plan. In early 2004, the brothers learned that the Planning Department was preparing zoning text amendments to establish the Lower Density Growth Management Area for Staten Island, which would conflict with their development plan. In March 2004, the brothers filed a revised application, but the Planning Department would not certify it until specific impediments were removed. At that point the application, if approved, would have avoided compliance with the new proposed LDGMA.

In early July 2004, City Planning informed the brothers that the Planning Commission had scheduled a public hearing and vote on the LDGMA within the month, and that it was unlikely that their application would be completed prior to adoption. Planning suggested that the brothers appear at the public hearing to request an amendment to the proposed text allowing for the grandfathering of applications filed and referred to the Community Board, but not yet acted on.

The brothers did not appear at the hearing, but instead submitted a revised, non-compliant application to the Planning Department, insisting that they were entitled to grandfathering because of delays in the processing of their application. After Community Board 1 recommended disapproval of the application, the brothers requested that the Commission vote on the application before the City Council could approve the LDGMA. The Commission denied the request, informing the brothers that it would not waive its usual processes.

On August 5, 2004, the brothers sought a court order requiring the Commission to vote on their application at its August 9 public hearing. Justice Faviola Soto granted the brothers’ motion and ordered the Commission to vote on their application. The City immediately appealed and Justice Soto’s order was automatically stayed. On August 12, 2004, the City Council adopted the LDMGA text amendments.

The First Department ruled that the lower court erred when it ordered the Commission to consider and vote on the brothers’ application. The court should not have taken away the Commission’s review powers or its power to manage its own calendar. The court found no reason to justify a preliminary injunction since the brothers could not have been irreparably harmed. Any delay they suffered was compensable through money damages. Even if the Commission wrongfully refused to grant the application, the brothers could have sought court permission to build their development.

Putter v. City of New York, 2006 NY Slip Op 1704, March 9, 2006 (1st Dep’t) (Attorneys: Jeffrey E. Glen, for Putter; Michael A. Cardozo, Tahirih M. Sadrieh, for NYC).

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