Cook v. Southport: “Substantially Different” Revisions Trigger a Second GML § 239-m Referral; Agency Precedent Requires “Essentially the Same Facts”

Case: Matter of Cook v Town Bd. of the Town of Southport, 2026 NY Slip Op 03040 (3d Dept May 14, 2026)
Court: Appellate Division, Third Department
Subject: Site plan approval; zoning use classification; General Municipal Law § 239-m county referral; administrative precedent; Article 78 review

1. Introduction

This Article 78 proceeding arose from the Town of Southport Planning Board’s approval of a site plan for a Byrne Dairy convenience market and fueling facility on a roughly 0.85-acre parcel in a commercial regional zoning district. Neighbors (petitioners) challenged the approval on multiple grounds, focusing on two core issues on appeal:

• Zoning classification and “administrative precedent”: Petitioners argued the Town Planning Board irrationally classified Byrne Dairy as a “convenience food mart,” rather than as a “motor vehicle filling station,” allegedly contrary to how a prior applicant (Aces & Eights) had been handled and contrary to “agency precedent.”
• General Municipal Law § 239-m compliance: Petitioners argued the Town Planning Board had to make a second referral to the Chemung County Planning Board after Byrne Dairy supplemented and revised its submission.

Supreme Court dismissed the petition. The Third Department affirmed, emphasizing the deferential rational-basis standard for site plan review, the limited reach of administrative precedent absent “essentially the same facts,” and the “substantially different” threshold for requiring a second county referral.

2. Summary of the Opinion

The Third Department affirmed the judgment dismissing the petition and upheld the Planning Board’s site plan approval. It held:

• The Planning Board had a rational basis to classify the project as a “convenience food mart” under the Town Code and was not compelled by the Aces & Eights matter to treat the project as a “motor vehicle filling station.”
• The initial referral to the County Planning Board satisfied the “full statement” requirement of General Municipal Law § 239-m, and the later revisions did not require a second referral because they were responsive to county recommendations and not “so substantially different” from the original proposal.
• Additional claimed zoning ordinance violations did not render the approval irrational; the cited provisions were inapplicable, waived, or satisfied.

(SEQRA issues were not pursued on appeal; Supreme Court’s SEQRA ruling stood unchallenged.)

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Deferential review of site plan determinations

• Matter of Southern Realty & Dev., LLC v Town of Hurley, 218 AD3d 900 (3d Dept 2023): The court reiterated the baseline principle that local planning boards possess “broad discretion” on site plan approvals and that Article 78 review asks only whether the action was illegal, arbitrary/capricious, or an abuse of discretion. This frames the entire opinion: petitioners needed to show irrationality, not merely that another classification or procedure might have been preferable.
• Matter of Bigelow v Town of Willsboro Planning Bd., 243 AD3d 979 (3d Dept 2025): Cited for the same deferential standard, reinforcing that site plan disputes are not re-tried in court; the question is whether the board’s determination falls within the range of reasoned outcomes.
• Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 235 AD3d 1124 (3d Dept 2025): Supplies the definition of arbitrary and capricious action as decision-making “without sound basis in reason or regard to the facts.” The court uses this as the measuring stick for petitioners’ classification and referral arguments.
• Matter of Biggs v Eden Renewables LLC, 188 AD3d 1544 (3d Dept 2020) and Matter of 2-4 Kieffer Lane LLC v County of Ulster, 172 AD3d 1597 (3d Dept 2019): These cases underscore the “rational basis” rule: even if another outcome would have been reasonable, the court sustains the agency if the chosen outcome is rational.

B. Administrative precedent: when agencies must follow or explain prior outcomes

• Matter of Monaghan v Schroeder, — NY3d —, 2025 NY Slip Op 06959: The opinion adopts Monaghan’s statement that an agency acts arbitrarily and capriciously if it “neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts.” Critically, Monaghan is also used for burden allocation: the challenger must demonstrate “sufficient factual similarities” to invoke precedent.
• Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 NY3d 446 (2012): Serves as foundational Court of Appeals support for the administrative-law principle that like cases should be treated alike or differences explained—again, only where the facts are essentially the same.
• Matter of Atlanticare Mgt., LLC v Ives, 212 AD3d 132 (3d Dept 2022), lv denied 40 NY3d 902 (2023), and Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 129 AD3d 137 (3d Dept 2015): Both bolster the Third Department’s consistent approach: agencies must provide reasoned consistency, but challengers must first show comparability sufficient to make the prior decision meaningfully precedential.
• Matter of Iskalo 5000 Main LLC v Town of Amherst Indus. Dev. Agency, 147 AD3d 1414 (4th Dept 2017), lv denied 29 NY3d 919 (2017), quoting Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86 (2001): Tall Trees’ “essentially the same facts” qualifier is decisive. By invoking this line, the court gives itself a doctrinal path to reject petitioners’ “Aces & Eights precedent” argument once it identifies meaningful distinctions between the two proposals.
• Matter of Davydov v Mammina, 97 AD3d 678 (2d Dept 2012): Used to reinforce that absent “essentially the same facts,” an agency need not address a prior matter when reaching a different result.

C. General Municipal Law § 239-m: when a second county referral is required

• Matter of Coalition for Cobbs Hill v City of Rochester, 194 AD3d 1428 (4th Dept 2021), lv denied 198 AD3d 1338 (2021): Provides the controlling “second referral” test: revisions trigger a new referral only if they are “so substantially different from the original proposal” that the county should weigh in.
• Matter of Favre v Planning Bd. of the Town of Highlands, 185 AD3d 681 (2d Dept 2020): Reinforces that a new referral is not automatic upon supplementation; the materiality/substantial-difference assessment governs.
• Matter of Town of Mamakating v Village of Bloomingburg, 174 AD3d 1175 (3d Dept 2019): Supplies the “embraced within the original referral” formulation, central to the Third Department’s conclusion that revisions made to respond to county feedback generally do not demand re-referral.
• Matter of Fruehauf & Chateau Homeowners for a Clean Envt., Inc. v Town of Amherst, 240 AD3d 1420 (4th Dept 2025) and Matter of Calverton Manor, LLC v Town of Riverhead, 160 AD3d 829 (2d Dept 2018), lv denied 35 NY3d 901 (2020): These authorities support the proposition that modifications following a county recommendation and not materially transforming the project typically do not necessitate a second referral.

3.2 Legal Reasoning

A. Zoning classification and the limits of “agency precedent”

The Town Code defined “convenience food mart” as a combined retail use on a single parcel involving both fuel sales and grocery sales, while “motor vehicle filling station” focuses on structures and pumps used primarily for gasoline storage/sale and accessory uses. The court emphasized two doctrinal points:

• Textual fit matters: Petitioners “do not dispute” that Byrne Dairy’s combined grocery and fuel facility “falls squarely within the definition of a convenience food mart.” That admission is powerful under rational-basis review: if the proposal matches the ordinance definition, the board’s classification is presumptively rational.
• Precedent is not triggered by superficial similarity: Even though petitioners argued Aces & Eights was treated as a “motor vehicle filling station,” the court required “sufficient factual similarities” and rejected the claim because the projects differed in “purpose and geographic sizes” (Byrne Dairy: sub-one-acre convenience store + fueling; Aces & Eights: a “much larger multi-use complex including a restaurant and drive-thru on a four-parcel lot”) and because “different use classifications” were chosen by the applicants under different circumstances.

The court’s reasoning effectively cabins “agency precedent” challenges in zoning/site-plan contexts: unless a prior project is closely comparable in scale, mix of uses, and regulatory posture, the planning board is not required to explain disparate treatment—especially where the ordinance text plainly supports the current classification.

B. The “full statement” referral obligation and when revisions require re-referral

Petitioners also argued the Town Planning Board failed to comply with General Municipal Law § 239-m by not making a second referral after Byrne Dairy revised its plan. The court applied the statute’s defined terms and the decisional “substantially different” standard:

• Initial compliance: The Town Planning Board’s initial referral included what it deemed a “full statement” (application materials + SEQRA forms), aligning with the statutory definition: “all materials required by and submitted to the referring body” including EAF materials needed for SEQRA significance.
• No automatic second referral: The court rejected any rule that supplementation itself triggers a new referral. The decisive question is whether changes are “so substantially different” that the county “ought to have the opportunity” to review.
• Revisions responsive to county recommendations are usually covered: The court stressed that the changes were made “in response to the County Planning Board’s recommendations” and thus were “embraced within the original referral,” making a second referral unnecessary.
• Contextual materiality: Even apart from responsiveness to county comments, the court found the revisions not substantial when “viewed in context of the project as a whole.”

Functionally, the opinion signals a pragmatic approach: § 239-m aims to ensure county-level review of potentially county-significant impacts, not to force iterative re-referrals every time an applicant refines a plan during ordinary local review—particularly when refinements track county feedback.

C. Remaining zoning-violation assertions

The court disposed of additional ordinance-based arguments succinctly: the cited provisions were “inapplicable,” “waived,” or “otherwise satisfied.” This portion reflects the overarching posture of Article 78 review: courts will not micromanage local site plan administration absent a demonstrated legal defect or irrationality.

3.3 Impact

• Administrative-precedent challenges face a higher practical bar: Opponents of development frequently invoke “you approved/denied X before” arguments. This decision reinforces that such arguments will fail unless the opponent can prove close comparability—“essentially the same facts”—not merely the same general category of land use.
• Stability for iterative site plan review under § 239-m: Planning boards and applicants commonly revise plans after county or consultant comments. The opinion supports the view that iterative refinement does not itself trigger a second county referral, reducing procedural vulnerability where changes do not materially transform the project.
• Greater reliance on ordinance text and applicant-selected classification (within reason): Where the local code provides a specific, on-point use definition (here, “convenience food mart”), courts are likely to defer to boards that apply the plain definition—especially when challengers concede the definitional fit.

4. Complex Concepts Simplified

• Article 78 review (CPLR article 78): A special proceeding to challenge government action. In this setting, the court does not decide what it would do; it asks whether the board acted illegally or irrationally.
• “Arbitrary and capricious” / “rational basis”: A decision is arbitrary if it lacks a sound factual/reasoned foundation. If there is a rational basis—even if another result could also be rational—the decision stands.
• Administrative precedent: Agencies should treat like cases alike. But the duty to follow or explain a prior decision arises only when the earlier case involved “essentially the same facts.” The burden is on the challenger to show that similarity.
• General Municipal Law § 239-m county referral and “full statement”: For certain zoning/site plan actions, a municipality must send the county planning board a complete set of required application materials (including SEQRA assessment materials) for county comment.
• Second referral after revisions: Not required automatically. Only required when revisions are so major that the county board should review the changed project, not merely the original.
• SEQRA negative declaration (context only): A determination that the action will not have significant adverse environmental impacts requiring an environmental impact statement. (Here, the SEQRA ruling was not appealed.)

5. Conclusion

Matter of Cook v Town Bd. of the Town of Southport solidifies two practical guardrails in New York land-use litigation: (1) “agency precedent” arguments require a demanding showing of “essentially the same facts,” and (2) under General Municipal Law § 239-m, municipalities need not repeatedly re-refer a site plan to the county planning board unless later changes are “so substantially different” from the original proposal. By anchoring its holding in ordinance text, deferential Article 78 standards, and the limited triggers for re-referral, the Third Department’s opinion favors procedural stability in routine site plan iterations while preserving re-referral for truly transformed projects.