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APPELLATE COURT RULES ON COMMON-LAW VESTED RIGHTS

By Anthony S. Guardino

The Appellate Division, Second Department, recently held that developers who incurred substantial expenses in furtherance of a particular development do not acquire a common-law vested right to proceed under prior zoning laws, where they failed to comply with the conditions of a prior approval before new zoning regulations were adopted. It also held that a claim of common-law vesting to complete a project may not be grounded upon a developer’s expenditures and actions taken in reliance upon the issuance of limited permits authorizing work that was not necessarily related to the proposed development.

In Matter of Exeter Building Corp. v. Town of Newburgh, 2014 NY Slip Op. 00996 (February 13, 2014), the Appellate Court reversed a decision of the Orange County Supreme Court which annulled the Town of Newburgh Zoning Board of Appeals’ determination that the developers did not have a vested right to develop their property in accordance with prior zoning regulations, notwithstanding their expenditure of several hundred thousand dollars in engineering and review costs in furtherance of their plan to construct a 136 townhouse units.

After purchasing the property, the developers applied to the Newburgh Zoning Board for site plan approval to construct the townhouse development and subdivision …read more