SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF SARATOGA $$ nas 0 ~ FD PREG orsrs0 ue In the Matter of INDEX NUMBERS Saraoga Couty Clee ABELE LIMITED PARTNERSHIP, ‘VERIFIED PETITION Petitioner-Plaintiff, AND COMPLAINT Index No.: For a Judgment Pursuant to CPLR Article 78 RIINo.: and a Declaratory Judgment Pursuant to Section Date filed: 3001 of the CPLR. -against- ‘TOWN OF CLIFTON PARK PLANNING BOARD, and TOWN OF CLIFTON PARK TOWN BOARD, Respondents-Defendants. Petitioner-Plaintiff Abele Limited Partnership (“Petitioner” or “Abele”), by and through its attomeys, Whiteman Osterman & Hanna LLP as and for its Verified Petition and Complaint herein alleges as follows: PRELIMINARY STATEMENT 1. This is a hybrid CPLR Article 78 and declaratory judgment action in which Petitioner challenges the denial by Respondent Town of Clifton Park Planning Board (the “Planning Board”) of a special use permit for the construction of a 14-lot cluster subdivision (the “Project”), and the enactment of an amendment to the Town of Clifton Park Zoning Code (the “Zoning Code”), known as Local Law No. 6 of 2018 (“Local Law 6”) by the Town of Clifton Park Town Board (“Town Board”). A copy of Resolution 290 of 2018, adopting Local Law 6, is attached as Exhibit A and incorporated by reference herein.2. In April 2017, Abele applied to the Planning Board for a special use permit and subdivision approval for the Project. Under the Town’s Zoning Code, the Project is an allowable use within the R-1 district where itis located, and requires a special use permit from the Planning Board. 3. In the twenty months that followed, Abele partook in numerous meetings and discussions with Town staff and Town representatives to ensure that the Project met and satisfied the Planning Board’s expectations and requirements, Ultimately, with the clear intent to defeat Abele’s entitlement to a special use permit, the Planning Board urged the Town Board to adopt a local law to relieve the Planning Board of its mandatory obligation to grant a special use permit where, as here, the applicable criteria in the Zoning Code are satisfied. 4, Abele diligently and in good faith expended significant time and resources to improve the engineering for the Project and address any of the Planning Board’s outstanding concerns, with the overall goal of submitting revised and final applications to the Board for approval of its special use permit. 5. Despite Abele’s continuous efforts to revise its application to meet the Planning Board’s expectations, the Planning Board purposefully delayed its decision to act on Abele’s application, 6. Immediately prior to the Planning Board’s scheduled meetings to act on Abele's application for a special permit and subdivision approval, the Planning Board and Town officials frequently inundated Abele with new comments and questions regarding the Project, forcing a postponement of meetings to approve or deny Abele’s application until a later date. 7. Notwithstanding its continuous and repeated delays, the Planning Board never gave Abele any indication that its application would be denied. Instead, the Planning Boardapproved the Project’s layout, gave Abele every reason to believe that the Project could move forward upon modification of its application, and noted that it was ready to proceed with final review of Abele’s engineering details by June 2018, 8. However, unbeknownst to Abele, while Abele’s application was still pending, the Planning Board set in motion a plan that would allow it to eliminate projects like Abele’s residential subdivision with duplexes, without considering whether the Project met the criteria in the Town’s Zoning Code for the grant of a special use permit. 9. In April 2018, one year after Abele’s application was submitted, the Planning Board began urging the Town Board to amend the Town's zoning regulations governing duplex and/or two-family dwellings to address the “disconnect between the rather high bar that exists for the denial of a special use permit and public perception regarding these ‘duplex’ projects” by updating the Zoning Code to “better ascertain where duplexes should be permitted by right, by special use permit, or not at all.” A copy of the Planning Board’s April 2018 memorandum to the Town Board is attached as Exhibit B and incorporated by reference herein, 10, The Planning Board made clear that its desire for an amendment was based on the public’s negative perception regarding “duplex projects,” and the Planning Board’s hope that the high standard for denying a special use permit for such projects could be circumvented via an amendment to the Zoning Code. 11, Abele was completely unaware of the Planning Board’s desire for an amendment to the Zoning Code, or its plan to avoid any meaningful consideration of Abele’s application for a special use permit. Instead, in the absence of any direction from the Planning Board to the contrary, Abele fully designed the Project for final approval, and submitted detailed project maps and site plans evincing full compliance with all pertinent conditions in the Town’s Zoning Code