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Reconsidering the Special Facts Exception

By Linda Margolin

Special facts is a court-created equitable doctrine that allows a land use applicant to avoid the impact of a change of zone enacted while the application is pending, by showing significant governmental delay of the application together with proof that but for the delay, the landowner would have been able to vest in its use before the zoning was changed. In November 2013, the Court of Appeals decided Rocky Point Drive-In v. Town of Brookhaven (Rocky Point), a case that the plaintiff (represented by the author) hoped would not only allow it to prevail, but would also clarify the special facts doctrine.

The Court of Appeals decided that the plaintiff had no case, in a decision that highlights, but unfortunately does not clarify, New York's policy on when plaintiffs may take advantage of the special facts doctrine.

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