Petitioners commenced this proceeding pursuant to CPLR Article 78 for a judgment reversing the May 1, 2006 decision of the respondent Planning Board of the Town of Brookhaven (the "Planning Board") which denied petitioners' application to subdivide a 39.15-acre parcel of property in Manorville, New York, as part of petitioners' "Manorville Meadows" planned development project. The subject parcel is located within the Compatible Growth Area of the Central Pine Barrens and is part of an approximately 500-acre tract of contiguous agricultural property located in an area of the Town of Brookhaven known informally as the "Manorville Farmland Protection Area." The parcel, which is improved with a farmhouse and several dilapidated outbuildings built in the 1800s, had been active farmland for more than a century until shortly before petitioners purchased it and accordingly is virtually completely cleared. The property is located within the "A-Residence-2" zoning district, which permits development of two-acre lots as of right. On November 7, 2002, petitioners, as contract vendees, submitted an application to subdivide the subject parcel and construct 19 single-family residences on two-acre plots. The Department

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of Planning, Environment and Land Management (the "Planning Department") of the Town of Brookhaven refused to accept petitioners' application for processing, allegedly without explanation. [Amended Pet. ¶19]

In December 2003 petitioners commenced an Article 78 proceeding in the nature of mandamus to compel the Planning Department to accept and process its application.^[FN1] That proceeding, which was assigned to the undersigned Justice, was ultimately settled on February 11, 2004, when the parties entered into a stipulation, "so-ordered" by the undersigned on February 23, 2004, wherein and whereby the Town agreed to accept petitioners' subdivision application for processing "in the normal course of business." [Amended Pet. Ex. 4] Petitioners took title to the property on March 9, 2004. On January 10, 2005, petitioners moved by order to show cause (OLIVER, J.) to hold respondents in contempt of the Court's February 23, 2004 order, as petitioners' subdivision application still had not been submitted to the Planning Board for a decision. After numerous informal conferences in which the parties and the Court attempted to resolve the issue, the Court issued a short-form order dated September 8, 2005 as a result of which a hearing on the contempt application was scheduled. The contempt hearing was thereafter adjourned several times at the request of the parties. On January 30, 2006, a public hearing on petitioners' subdivision application was held before the Planning Board. At the conclusion of the hearing, the Planning Board held the hearing open, and another public hearing was held on February 14, 2006. The hearing was again held open, and another public hearing was held on April 3, 2006, without a decision having been rendered. On April 25, 2006, the undersigned issued an order from the Bench directing the Planning Board to proceed with a hearing and render a decision on petitioners' subdivision application at its next scheduled [*2]meeting on May 1, 2006, failing which a determination on the contempt application would issue.

On May 1, 2006, a public hearing was held, and the Planning Board issued a decision denying petitioners' application, finding that petitioners' application was "not complete." Petitioners thereupon commenced the instant Article 78 proceeding for a judgment reversing the Board's determination and ordering the Board to approve the subdivision as submitted.

Condemnation Proceedings

Of critical significance to this proceeding and to the Court's determination herein is the fact that contemporaneously with petitioners' efforts to purchase and obtain subdivision approval for the development of the property, the Town of Brookhaven was attempting to acquire the property along with other neighboring parcels within the Manorville Farmland Protection Area for the purpose of farmland preservation within the Town. On January 14, 2003, the Town's Environmental Bond Act Open Space Advisory Committee approved acquisition of the property by the Town, and three months later it approved acquisition of all of the properties comprising the Manorville Farmland Protection Area. [Pet. Reply Aff., Ex. B] The record reflects that the Town failed to match petitioners' bid of $1.4 million to purchase the property from the prior owners (while the property was still being actively farmed) and that the Town thereafter negotiated to purchase the development rights to the property from petitioners. The Town initially offered the sum of $3.52 million in May 2005, which offer was rejected by petitioners as too low. Efforts to purchase the property and its development rights having failed, a resolution authorizing the acquisition of the

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property by condemnation was introduced before the Town Board in August 2005 but failed to obtain the necessary number of votes. In January 2006 the Town increased its offer to $4.004 million, which petitioners also rejected as inadequate. Thereafter, on March 21, 2006, after a public hearing (and while petitioners' application for subdivision approval remained in apparent limbo before the Planning Board), the Town Board passed a resolution to acquire the property and its development rights through condemnation:

"to preserve open space and agricultural resources; to preserve prime agricultural soils; to help protect and promote continuation of agriculture in the Town which is an important component of the local economy; to ensure the retention of scenic vistas; to protect the bucolic and rural character of the subject property, adjoining properties, and the Manorville Farm Protection Area; to ensure the continued sale of fresh, locally-grown produce; to prevent conflicts between residential homeowners and adjacent farmers; and to help ensure the preservation of the Manorville Farm Protection Area, a high priority preservation target which contains the largest contiguous belt of working farmland left in Brookhaven Town." [Pet. Reply Aff., Ex. B]

Petitioners thereafter commenced a proceeding pursuant to Eminent Domain Procedure Law §207 in which the Appellate Division, Second Department, recently issued a decision confirming [*3]the Town's determination to acquire the property by condemnation. Matter of Aspen Creek Estates Ltd. v. Town of Brookhaven, 47 AD3d 267, 848 NYS2d 214 (2d Dept. 2007). (A strong dissent by Justice Lifson concluded that the proposed taking was pretextual and that the determination should have been annulled.)

The Town of Brookhaven's desire to acquire petitioners' property for the purpose of farmland preservation had thus been a subtext of petitioners' subdivision application from its inception. The record reflects that the issue was discussed as early as December 2002 at petitioners' first pre-application conference with Planning Department staff. Dennis Cole, a staff member of the Planning Department's Division of Environmental Protection, queried Anthony Kaywood, principal of petitioner Aspen Creek Estates, Ltd., about petitioners' willingness to consider voluntary preservation, noting, "it is a large agricultural block that [the Town] would hate to see lost to residential development." [Return, Ex. A, p. 6.]

The record reflects that petitioners originally sought to divide the property into two-acre lots as permitted by the applicable zoning. In response to comments and suggestions from Planning Department staff, petitioners thereafter agreed to revise their plans and "cluster" their development, ultimately resulting in a plan that scaled the lots down to 40,000 square feet and preserves nearly two-thirds of the property as dedicated open space. Petitioners allege that they revised and resubmitted their proposed subdivision maps 48 times in response to Planning Department requests. [Amended Pet. ¶25] The record reflects that notwithstanding petitioner's good-faith efforts to satisfy Planning Department demands, the Planning Department only accepted petitioners' application after petitioners commenced litigation. Even after the prior litigation was "settled," the Planning Department still procrastinated in submitting the application to the Planning Board, doing so only after petitioners brought on a contempt motion nearly a year later. Once submitted to the Planning Board, petitioners' application stalled again in the face of numerous adjournments for "further information" [Return, Ex. MMM, p. 1 (hereinafter "Decision"], and, as set forth in Finding

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"Nineteenth," the Planning Board finally rendered a decision only under threat of contempt:

"The applicant brought a contempt action to compel the review of this Application. The Board heard the application as to avoid being held in contempt of the order of Judge Baisley. It is not the policy of this Board to hold public hearings until the application is complete, however, the Board was forced to do so based upon the litigation brought upon by the applicant. The Board finds that this application is not complete and, in order to comply with an order of the court, the Board must render a decision by May 1, 2006." [Decision, Finding "Nineteenth"]

The Board's determination enumerated 19 other "findings of fact" that resulted in the conclusions that, inter alia, the proposed cluster subdivision does not adhere to Town Law §278(2)(b); there has been an illegal land division of the property; the proposed cluster [*4]subdivision does not adequately preserve scenic vistas; the proposal would substantially alter the character of the community; there is a potentially large impact to the endangered tiger salamander; there is a potentially large impact to the growth and character of the community; and the applicant failed to submit an application to the Central Pine Barrens Commission for hardship relief. The Board found that "it is apparent to the Board that the division and ultimate development of the lot as proposed is not in conformity with the Town Code and Central Pine Barrens standards in derogation of the clear intent of the Town Board and Town Code."[Decision, Finding "Twentieth"]

In the instant Article 78 proceeding, petitioners allege that the respondents purposely delayed accepting, processing, and determining their subdivision application, and ultimately denied it, for the purpose of preventing petitioners' right to develop the property from fully vesting and to enable the Town to complete condemnation proceedings against the property. Upon a careful review of the voluminous record herein, and for the reasons set forth in this decision, the Court is constrained to agree with petitioners' characterization of the respondents' motives and actions. Although the respondents deny that their processing of petitioners' subdivision application was influenced by the concomitant efforts of the Town to acquire the property, that denial seems implausible in light of the conflicting agendas of the petitioners and the Town with respect to the future development of the property, the protracted four-year history of petitioners' application before the respondents, and the determination that was ultimately rendered.

Cluster Subdivision

The Planning Board determined that petitioners' proposed cluster subdivision "does not adhere to Section 278(2)(b) of Town Law." That provision authorizes "cluster" zoning as a means of enabling and encouraging "flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands." The Board found that "this is not achieved by the plan as submitted," but did not specify in what respect petitioners' plan was deficient. It appears that respondents' determination was based in substantial part on a Suffolk County Planning Commission report which "disapproved" the project and recommended that a cluster design be adopted. [Decision, Finding "Seventh"]. The record reflects that the Planning Commission's "disapproval" was dated May 5, 2004 and was based on an earlier map which did not include a cluster design. [Return, Ex. I] On subsequent, apparently cursory, reviews of later maps that reflected the cluster design and the dedication of the northern portion of the property to the Town, the Planning Commission inexplicably found "no substantial differences" from the prior map.

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[Return, Exs. NN and III] A January 25, 2006 Planning Commission letter, again based on a map that was then a year old, suggested a "reduction in on-site yield in order to provide for a tighter cluster." [Return, Ex. NN] Respondents' reliance on Planning Commission recommendations that were based on outdated maps is unreasonable, arbitrary and capricious. [*5]

Moreover, petitioners' final cluster design, which reduced the lot size from 2 acres down to approximately 40,000 square feet, provides for 14.85 contiguous acres at the northern portion of the property to be preserved as "open space," and for a further 10.85 acres to be preserved in buffer areas around the lots, protected by conservation easements. Thus, petitioners' plan provides for 65.6% of the property to be set aside as "open space," while maintaining building lots of sufficient minimum size to enable homeowners to keep horses on their property as permitted by the zoning code an amenity insisted upon by petitioners in order to enhance the marketability of the properties. In light of the substantial reductions from the as-of-right lot size that were implemented by petitioners over numerous revisions, the Planning Board's suggestion that petitioners "consider a reduction in on-site yield in order to provide for an amorphous "tighter cluster" is unreasonable, arbitrary and capricious.

Prior Land Division

The record reflects that the 39.15-acre parcel to which petitioners took title in 2004 had originally been part of a larger, 46.15-acre parcel, and that approximately 30 years previously, a 7-acre parcel to the north was deeded out from the original parcel (an apparently common practice among the farmers of the time, notwithstanding the then-recent Code enactments prohibiting such land divisions [Amended Pet. ¶21]). It is undisputed that the prior land division resulted in two conforming parcels. The 7-acre conforming lot is unimproved, and petitioners' subdivision application provides for a 20-foot easement on the east side of the property that affords access to the otherwise land-locked parcel. The record reflects that petitioners' efforts to contact the current owner of the 7-acre parcel and to enlist his cooperation in the subdivision process were unavailing. [Kaywood Aff., pp. 16-17] The Town admits that the Planning Department had originally refused to accept petitioners' subdivision application because it did not include the 7-acre parcel. [Answer to Amended Pet. ¶23]

Pursuant to Town of Brookhaven Code §85-399, in effect at the time of petitioners' application,^[FN2] and as conceded by respondents, the Commissioner of the Planning Department and the Planning Board both have the discretion to exempt a prior land division from the subdivision requirements of the Code. [Resp. Memo. of Law, p. 8] The record reflects that from the outset, petitioners had consistently invoked respondents' discretion to relieve them of the necessity of making a formal application to approve the prior land division. The Town would not be prejudiced by the exemption because any future development of the 7-acre lot would be subject to the requirements of the Town's Pine Barrens District zoning and the Pine Barrens Comprehensive Land Use Plan. In light of the foregoing, the Board's insistence that petitioners nevertheless include the parcel in their application and its refusal to accede to petitioners' reasonable request that the prior land division be exempted from the requirements of a subdivision application is unreasonable, arbitrary and capricious.

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Moreover, the Court is constrained to agree with petitioners that the prior subdivision issue was resolved in the prior Article 78 proceeding, when the Town agreed to accept petitioners' application and to process it "in the normal course of business." Although there is no record of any of the proceedings before the Court, and the parties' stipulation expressly provides that it is "without prejudice to the rights, obligation [sic] and legal positions of all parties to this litigation," it is unreasonable to suppose that the parties contemplated that after the settlement, the "normal course of business" would permit the respondents to continue to "deep-six" petitioners' application because it did not include the 7-acre parcel. Accordingly, the Court deems the so-ordered stipulation to necessarily imply that the Town would accept and process petitioners' application as complete without the inclusion of the 7-acre parcel, consistent with respondents' discretion under former Code §85-399.

That the respondents' position with respect to the 7-acre parcel is unreasonable is further evidenced by the fact that in undertaking the condemnation of the property, the Town Board did not include the 7-acre parcel to the north, and its resolution adopting a negative SEQRA declaration for the property noted that it is a 39.1 acre farm property.^[FN3] [Reply Aff., Ex. B] There is no rational basis for treating the property differently for condemnation purposes than for subdivision purposes.

The Pine Barrens Commission

The Planning Board's determination that the petitioners must apply to the Pine Barrens Commission for a "hardship exemption" because the property does not comply with the land use standards of the Town zoning code and the Central Pine Barrens Comprehensive Land Use Plan for the compatible growth area is not supported by the record and is arbitrary and capricious. Contrary to respondents' findings, petitioners' proposed development does not exceed the vegetation clearance limits of the Town Code and the Central Pine Barrens Comprehensive Land Use Plan. Code §85-448(E)(1) defines "clearing" as "the removal of any portion of the natural vegetation found on a site, exclusive of any vegetation associated with active agricultural or horticultural activity"[emphasis added]. Pursuant to Code §85-448(E)(1)(b), no more than 35% of the property may be "cleared." It is undisputed that until two years before petitioners took title, the property was in active agricultural use, and that no "clearing" of petitioners' property is contemplated or required as the property is nearly 100% cleared and has been for nearly a century long before the Pine Barrens Act or the Town Code was enacted. It is manifest that the purpose of the vegetation clearance limits is to preserve existing vegetation. Where, as here, there is no vegetation to preserve, the ordinance is facially inapplicable. Respondents have cited no authority for applying the clearing limits to preexisting agricultural property.

In any event, even if the vegetation clearing limits are applicable, the Pine Barrens [*7]Commission determined that, in order to bring the property into compliance, "at least 65% of the entire site must be set aside as protected open space." [Return, Ex. P] The record reflects that petitioners have agreed to dedicate 14.85 acres of the northern portion of the property to the Town, together with 10.85 acres in buffer areas protected by conservation easements, as dedicated open

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space, to be allowed to revert to native Pine Barrens vegetation.^[FN4] That satisfies the 65% open space requirement and complies with the applicable standards so no hardship exemption is required and the project can be reviewed at the municipal level.

Respondents' determination that petitioners' application fails to satisfy the unfragmented-open-space requirements of Code §85-448(E)(2) is similarly unreasonable. That ordinance provides that "[s]ubdivision and site plan design shall support the preservation of natural vegetation in large unbroken blocks that allow contiguous open spaces to be established when adjacent parcels are developed" and should "prioritize the preservation of native Pine Barrens vegetation to the maximum extent practicable." Again, there is no "natural vegetation" to preserve. Notwithstanding the foregoing, petitioners' plan provides for the preservation of 25.44 acres as dedicated open space and provides large buffer areas that will align within the property as well as with existing open space in the surrounding area. These measures are sufficient to satisfy the Code and there is no factual or legal basis for invoking the Pine Barrens Commission's "hardship" jurisdiction.

Finally, petitioners' expert established, without contradiction by any other evidence, that the proposed project complies with the 15% limit on fertilizer-dependent vegetation of Code §85-448(E)(3). [Return, Ex. SS, pp. 229-230] Contrary to respondents' assertion, it is not "unclear" whether the project can meet the standard.^[FN5]

"Historic" Property

The record reflects that the Town, invoking the "historic" value of the existing farmhouse [*8]and outbuildings on the property (which have never been granted landmark status), had previously sought to prevent petitioners from demolishing the structures. [Kaywood Aff., p. 9-10] In response to the Town's concerns, petitioners have agreed to dedicate the structures, together with the underlying property, to the Town for preservation and restoration. Finding that the current dedication scheme "requires further study," and that "[i]t has not yet been determined whether or not the Town would want to take ownership of this property," the Planning Board finds that "it may be preferable" for the developer to retain and restore the farmhouse as one of the 19 lots in the subdivision. In a classic "Catch-22" twist, the Board concluded that petitioners' offer to dedicate the farmhouse to the Town would cause petitioners to exceed the yield on the parcel, as the dedicated parcel "appears to be a 20th lot on a parcel...which only has a nineteen-lot yield." [Decision, Finding "Sixth"] Respondents' using petitioners' offer to dedicate the property to the Town as a basis for denying the application is arbitrary and capricious.

Endangered Tiger Salamander

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Petitioners' environmental expert, Charles Voorhis, testified, and his affidavits reiterate, that the proposed subdivision would not impact on the endangered tiger salamander, which uses the freshwater wetland to the northeast of petitioners' property as a breeding pond. Petitioners' evidence established that no development is proposed within 1,000 feet of the pond, and that all of the land within 1,000 feet of the pond is proposed to be preserved as open space. [Voorhis Aff. dated June 2, 2006, pp 3-5] There is no evidence of any negative impact to the tiger salamanders as a result of petitioners' proposed development, which, indeed, appears to be less onerous to the tiger salamanders than was its prior use as active farmland, which rendered the land unsuitable as a habitat for the tiger salamander. [Reply, Voorhis Aff., ¶13] The Planning Board's invocation of the "potential that a portion of a critical or significant wildlife habitat would be removed" is unsupported by evidence in the record and is arbitrary and capricious.

In addition, there is no evidence that the location of the 20-foot easement on the east side of the property will have a negative impact on the tiger salamander or that relocation of the easement to the west side of the property would minimize any such impact. Petitioners' engineering expert, William Jaeger, testified at the April 3, 2006 public hearing that petitioners are unable to relocate the easement to the west side because its location on the east side of the property, at a width of 20 feet, was expressly provided for by deed and cannot be modified. [Return, Ex. DDD, pp. 81-82]

Scenic Vistas and Character of the Community

Although the parcels immediately surrounding the subject property consist of undeveloped agricultural property, the record reflects that the surrounding area also includes numerous residences, a school, and an existing residential subdivision east of the site. Moreover, the record reflects that the proposed development conforms with the applicable zoning and land [*9]use regulations for the area. Accordingly, there is no basis for the Board's conclusion that the proposal would "substantially alter the character of the Manorville community by placing residential structures in areas...which currently provide scenic vistas [and] farmland production.

Similarly, there is no evidence in the record that the proposal fails to adequately preserve scenic vistas. The cluster design, which dedicates the northern portion of the property as open space and concentrates all of the houses on the southern portion of the property, is designed to minimize the impact of the development on viewscapes. [Voorhis Aff. dated June 20, 2006, p. 8]

Soil Management Plan

The record reflects that petitioners did not submit a soil management plan as requested by respondents, assertedly because until the subdivision is approved, petitioners do not know what areas of the property will be developed and potentially require soil remediation. The Planning Board could have conditioned approval of the subdivision on petitioners' completion of the soil management plan, and its determination to deny the application instead is arbitrary and unreasonable.

Analysis and Conclusion

The decision of the Planning Board to deny petitioners' application in the face of what it characterizes as petitioners' "refusal" to, inter alia, include the 7-acre parcel in the application, apply to the Pine Barrens Commission for a hardship exemption, and submit a soil management plan, appears superficially reasonable and well documented. However, the unique circumstances of this

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case require that the Court look more closely at not only the documents and events depicted in the record, but their context, both chronological and political. In the context of the ongoing condemnation proceedings and the Town's clear intent to acquire petitioners' property for its own purposes, petitioners' allegations that respondents deliberately delayed processing and determining the application in order to allow the Town to complete condemnation proceedings are colorable, and suggest a different meaning to otherwise clear events. Even the length and complexity of respondents' determination with its ten pages of 20 detailed "Findings" supporting seven "Conclusions," may be evidence of respondents' determination to "throw in everything but the kitchen sink" in order to thwart petitioners' efforts to develop their property.

The Court finds that there is no "smoking gun" in the record that unequivocally establishes petitioners' allegations. The record does reflect, however, the unrebutted statement of petitioner Anthony Kaywood that the Environmental Commissioner of the Town, John Turner, told him in August 2005 that "there was no way [petitioners'] subdivision was going to be approved, it was not going to be done, the Town's not going to allow any building on that piece of property" [Aff. of Anthony Kaywood dated June 2, 2006, p. 9]. The highly irregular and potentially collusive exchange of e-mail between the Planning Department and the Pine Barrens Commission outlining an apparent strategy for defeating petitioners' application is troubling. Equally troubling is the chronology of the record of the proceedings before respondents. That record reflects long periods of apparent inactivity, followed by spurts of "busyness," the dates of which roughly correspond to events in the prior litigation commenced by petitioners to compel action by respondents. Thus the record lends indirect support to petitioners' claims that respondents essentially ignored petitioners' application until they were forced to address it by the Court, and then imposed roadblock after roadblock to keep petitioners from succeeding in their efforts to obtain subdivision approval. It is the cumulative effect of these subtle indicators that tilts the balance in favor of petitioners, and counteracts the superficial reasonableness of respondents' determination. [*10]

As the Court's foregoing detailed analysis of respondents' determination reflects, there is no substantive reasonableness to respondents' determination. Upon consideration of all of the foregoing, the Court is constrained to conclude that, as alleged by petitioners, respondents have deliberately delayed petitioners' processing application and concocted reasons to deny it as a pretext in order to enable the Town to complete its condemnation proceeding and acquire the property at a bargain price. It is well established that the determination of a Planning Board may be annulled where it is arbitrary and capricious, which the Court finds respondents' determination to be in this instance. Matter of Richter v. Delmond, 33 AD3d 1008, 824 NYS2d 327 (2d Dept. 2006). In light of the foregoing, the petition is granted, and the matter is remitted to the Planning Board, which is directed to approve petitioners' site plan application for the construction of 19 single-family residences, subject to the completion of the SEQRA process and such reasonable conditions as the respondents may impose. Viscio v. Guilderland Planning Bd., 138 AD2d 795, 525 NYS2d 439 (3d Dept. 1988).

Settle judgment.

Dated:April 10, 2008

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J.S.C.