Old Adage of “Better Late Than Never” Doesn’t Apply to Rezoning Law

In 2007, Loudon House LLC bought real property in the Town of Colonie that was zoned for single family residential use. Wishing to build a 24-unit condominium development, Loudon House sought and received a rezoning decision from the Town Board which would make the condos a permissible use, as long as the property was “developed as a multi-family complex with no more than 24 residential condominium apartment units in one building.” Permits were obtained and construction began in 2008. Then, in mid-2012, a public hearing was conducted after which the Town Board voted to restore the property’s original zoning designation. Loudon House brought a CPLR Article 78 proceeding seeking to annul the new law. The trial court dismissed the petition, and London House appealed.


On appeal, the Appellate Division noted that Town of Colonie Land Use Law §190-72 allowed the Town Board to rescind its decision and restore a property to its prior zoning under limited circumstances, however none of the required factual findings under that section were made. In addition, the Town Attorney explicitly stated that the Town was not relying on that provision. The court thus found that the Town Board’s actions were arbitrary and capricious and reversed the lower court’s decision holding the new law valid. The court did, however, dismiss the due process and equal protection claims, arguing that while arbitrary, the Board’s actions were not “so outrageously arbitrary as to constitute a gross abuse of governmental authority.”


The case is Loudon House LLC v Town of Colonie, 2014 WL 7391487. The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/518852.pdf

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