Opinion
April 19, 1990
Appeal from the Supreme Court, Otsego County (Mugglin, J.).
In 1986, petitioner Gilbert Di Lucia purchased approximately 290 acres of vacant land in the Town of Westford, Otsego County, and created the Cooper Hills Estates housing development. Before constructing roads within the development, Cooper Hills Estates' construction supervisor solicited and obtained from the Town Highway Superintendent the latter's opinion that as long as appropriate turning circles were provided, no problem plowing snow on the contemplated roads was anticipated. Petitioners then constructed the four roads in the development.
Pursuant to regulations promulgated by the town's Planning Board in 1987, the Planning Board considered petitioners' subdivision plat. Thereafter, Di Lucia made two formal requests of respondent Town Board to have it accept dedication of the roads, but the Town Board refused to entertain either application until the Planning Board approved the subdivision. Seven months later, in March 1988, the Town Board adopted a resolution reciting the standards to be met before it would undertake to maintain roads in future developments. On August 15, 1988, the Planning Board conditionally approved petitioners' subdivision; petitioners thereafter installed a dry hydrant and constructed a "T" turn on one of the roads as the Planning Board had requested. Though aware of the Planning Board's approval, the Town Board adopted a resolution declaring that the Town Board's policy at the present time was not to take over any new roads. The Town Board's refusal to accept petitioners' offer of dedication prompted petitioners to institute this proceeding to compel the town to do so. Supreme Court found no support for petitioners' contention that the town implicitly accepted the dedication and dismissed the petition; we affirm.
Cognizant that a town cannot be compelled to accept a private road (see generally, Matter of Hillelson v. Grover, 105 A.D.2d 484, 485; Carman v. Hewitt, 105 N.Y.S.2d 239, 243-244, mod on other grounds 280 App. Div. 866, affd 305 N.Y. 718), petitioners' primary contention on appeal is that because they expended time and money to comply with the Planning Board's recommendations and because the Town Highway Superintendent implied that the dedication would be accepted, the Town Board should be estopped from arbitrarily denying their offer. Neither a town superintendent nor a planning board may bind a municipality to accept a proffered dedication absent the town board's consent (see, Highway Law § 171; Entress v. Sours, 272 App. Div. 861; Koff v. Frank, 22 Misc.2d 551, 555). And, in any event, estoppel is generally unavailable against municipalities and their agencies (see, King v. City of Newburgh, 84 A.D.2d 388, 394-395; see also, Matter of Hamptons Hosp. Med. Center v. Moore, 52 N.Y.2d 88, 93-94; Matter of Burns v. Regan, 87 A.D.2d 944, 946, appeal dismissed 57 N.Y.2d 954).
Nor do we find the Town Board's refusal to accept petitioners' roads to be arbitrary or capricious. The uncontroverted record evidence is that the town has not accepted any roads in the last 30 years. Moreover, petitioners have failed to demonstrate that the Town Board's action lacks a sound basis in reason. Although petitioners suggest, for the first time in their brief, that the Town Board's failure to explain its decision renders it arbitrary, issues not raised in Supreme Court may not be raised for the first time on appeal (10 Carmody-Wait 2d, NY Prac § 70:300, at 564; see, e.g., Matter of Desmond v. Jones, 87 A.D.2d 902).
Judgment affirmed, without costs. Mahoney, P.J., Kane, Yesawich, Jr., and Mercure, JJ., concur.