Summary
hearing needed to resolve claim of bad faith
Summary of this case from McGovern v. City of ManchesterOpinion
June 10, 1985
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
Judgment reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding remitted to Special Term for a hearing on the issue of bad faith in accordance herewith.
Preliminarily, we note that Special Term's determination which, inter alia, rejected the respondent planning board's attempt to impose a greater density requirement than that which existed in the then applicable zoning ordinance, was correct at the time it was made ( see, Dean Tarry Corp. v. Friedlander, 103 Misc.2d 435, revd on other grounds 78 A.D.2d 546).
However, subsequent to the entry of judgment in the instant proceeding, the Board of Trustees of the Village of Nelsonville enacted a new zoning ordinance, effective August 8, 1984, which substantially changed, inter alia, the density requirements of the district in which petitioners seek to build garden apartments (Local Laws, 1984, No. 1 of Village of Nelsonville).
Although Special Term's determination on the density requirement was correct at the time it was made, it is a "general rule that the law as it exists at the time a decision is rendered on appeal is controlling" ( Matter of Alscot Investing Corp. v Board of Trustees, 64 N.Y.2d 921, 922; Matter of Mascony Transp. Ferry Serv. v. Richmond, 49 N.Y.2d 969, affg 71 A.D.2d 896, for reasons stated in mem at App. Div.; Matter of Demisay, Inc. v Petito, 31 N.Y.2d 896). For that reason alone, reversal of the judgment insofar as appealed from is mandated. Nevertheless, an exception to the general rule has been carved out by the courts, namely, "village officials may not, in bad faith, delay [or deny] approval of a properly submitted and conforming building plan while they alter a zoning ordinance to bar the prospective development" ( Klein Enters. v. Braatz, 51 A.D.2d 1021, 1022; Matter of Gardiner v. Lo Grande, 83 A.D.2d 614, affd 60 N.Y.2d 673; see also, Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769; Matter of Faymor Dev. Co. v. Board of Stds. Appeals, 45 N.Y.2d 560). Indeed, a finding of bad faith on the part of the village officials will preclude reliance by the latter on the new law ( Matter of Faymor Dev. Co. v. Board of Stds. Appeals, supra).
An examination of the instant record suggests the possibility of bad faith on the part of village officials. Consequently, a hearing is necessary to fully resolve this issue. Mangano, J.P., Gibbons, Niehoff and Lawrence, JJ., concur.