Opinion
04-03059.
Decided August 12, 2004.
This proceeding is brought by Petitioner pursuant CPLR § 7803(3), and seeks a judgment granting the following relief:
1. Annulling the resolution of the Planning Board of the Town of Huntington, filed in the office of the Town Clerk on January 12, 2004, to the extent that it purported to deny Petitioner's application for final approval of the proposed subdivision of its 1.19 acre parcel in the Town of Huntington;
2. Directing the Planning Board to grant such final approval; and
3. Granting to Petitioner such other and further relief as the Court may deem proper, together with the costs and disbursements of this proceeding.
Respondent opposes the Petition.
Petitioner is the owner of a 1.19 acre parcel of land located on the south side of West Shore Road in the Town of Huntington. On or about August 26, 2002, Petitioner submitted its application to the Respondent Planning Board for preliminary approval of the subdivision of that property into two residential lots, each conforming in all respects with the requirements of the Town's Zoning Code and subdivision regulations (See Exhibit "41" of the record). On or about November 6, 2002 the Planning Board held a public hearing on Petitioner's application. On or about April 16, 2003 the Town's Department of Maritime Services determined that the proposed subdivision was consistent with the policies and purposes of the Huntington Harbor Local Waterfront Revitalization Program (See Exhibit "63" of the record). On or about May 14, 2003, the Planning Board, as lead agency pursuant to the State Environmental Quality Review Act ("SEQRA"), determined that "the requirements of SEQRA have been met and there will be no significant environmental impacts by virtue of this application" and issued a "NEGATIVE DECLARATION pursuant to SEQRA". (See Exhibit "52" of the record).
On or about July 11, 2003 the Respondent Planning Board, by resolution, approved Petitioner's Preliminary Plat for the proposed subdivision (See Exhibit "41" of the record). Thereafter the Petitioner submitted its application for final approval, together with the final subdivision plat, in proper form (See Exhibit "17" of the record).
At a further public hearing held on October 22, 2003, area residents raised environmental and drainage issues and concerns regarding the potential effect of the application on the character of the neighborhood. Also raised were certain deed restrictions and organizational by-laws of the Anoatak Community Association, of which the subject property is a part. (See Exhibit "22" of the record).
Thereafter, on January 7, 2004, Petitioner's application for final subdivision approval came before the Planning Board for a vote. At that time six members of the Board were present. Three board members voted in favor of approval of the final plat and three voted against (See Exhibits "7" and "8" of the record). Thus it was deemed that the resolution failed. Petitioner then commenced this proceeding.
Two preliminary issues raised by the Respondent's papers must be addressed. First, the claim that the Respondent's three to three vote resulted in a non-action on the Petitioner's application and not a denial is incorrect as a matter of law. The Court of Appeals has held that "if after participation and voting by a majority of the Board, no concurring vote of the majority exists to grant an application, the application must be, a fortiori, denied" ( Tall Trees Construction Corp. V. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86, 91, 735 NYS2d 873, 877; See, also Aloya v. Planning Board of the Town of Stony Point, 241 AD2d 73, 671 NYS2d 124 [2nd Dept 1998], aff'd, 93 NY2d 334, 690 NYS2d 475).
The second issue involves the Respondent's claims that the Petitioner lacks standing to bring this proceeding and has failed to join a necessary party, the Anoatak Community Association, in the action. Both of these claims arise from alleged covenants and restrictions placed upon the lands of Association members, including the subject property. The alleged covenants and restrictions purportedly limit ownership to individuals and contain potential limitations on the Petitioner's development of the property. Neither of these claims are relevant to the matter now before the Court.
Uses that may be made of land under a zoning ordinance and the uses of the same land under an easement or restrictive covenant are, generally, separate and distinct matters, the ordinance being a legislative enactment and the easement or covenant a matter of private agreement ( Friends of Shawangunks, Inc. v. Knowlton, 64 NY2d 387, 487 NYS2d 543. The Court of Appeals in went on to state that ". . . the issuance of a permit for a use allowed by a zoning ordinance may not be denied because the proposed use would be in violation of a restrictive covenant (citations omitted)" ( Friends of Shawangunks, Inc. v. Knowlton, supra, at p. 545 of 487 NYS2d; See, also, Vandoros v. Hatzmichalis, 131 AD2d 752, 517 NYS2d 51 [2nd Dept. 1987]).
Thus, while the Anoatak Community Association and neighboring property owners may have a cause of action against the Petitioner based upon the alleged covenants and restrictions, those matters are not within the purview of this proceeding and may not stand as a basis for Respondent's claims of lack of standing and failure to join a necessary party. Therefore, the Petitioner has standing and the Anoatak Community Association is not a necessary party in this proceeding.
The Court turns now to the Petitioner's challenge to the Respondent's decision which denied final approval to the subdivision plat which is the subject of this proceeding. A zoning determination of responsible officials will be sustained if it has a rational basis and is supported by substantial evidence in the record ( Buckley v. Amityville Village Clerk, 264 AD2d 732, 694 NYS2d 739 [2nd Dept. 1999]). A reviewing court in an Article 78 proceeding may not substitute its judgment for that of the planning board unless the board's determination is arbitrary and capricious, illegal, or an abuse of discretion ( Pagnozzi v. Planning Board of the Village of Piermont, 292 AD2d 613, 739 NYS2d 742 [2nd Dept. 2002]). The Second Department has stated: "Preliminary plat approval has greater weight than mere informal reaction to a preliminary plat . . . It has even been held that, absent new information, a subsequent modification or rejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subject to invalidation (citations omitted). Preliminary plat procedures and default provisions would lack significance if they were subject to nullification as a result of a mere change of heart by the planning body" ( Sun Beach Real Estate Development Corp. v. Anderson, 98 AD2d 367, 469 NYS2d 964 92nd Dept. 1983], aff'd 62 NY 965, 479 NYS2d 341; See, also, Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 78 NY2d 608, 578 NYS2d 466).
As previously set forth, following the approval of the preliminary plat, residents raised environmental and drainage issues as well as concerns regarding the potential effect of the application on the character of the neighborhood at a public hearing held on October 22, 2003. Also raised were certain deed restrictions and organizational by-laws of the Anoatak Community Association which it is claimed affect the subject property. None of these issues were new to the Board. None of the information provided, consisting mostly of generalized drainage and environmental data, reflected areas of concern that had not already been dealt with during the preliminary plat approval process.
Issues of drainage were dealt with prior to the preliminary approval (See, e.g., Exhibits "91" (Engineering Review-October 10, 2002), "75" (Interoffice memorandum), "72" (Engineering Review-February 2, 2003), "65" (Planning Department letter dated April 10, 2003), "63" (LWRP finding of consistency), "52" (Negative Declaration and attached forms), "41 (Resolution approving preliminary plat" "33" (the approved preliminary plat) of the record.
Furthermore, at the public hearing held on October 22, 2003, the Petitioner's expert, Victor Bert, P.E., testified that as a result of the Petitioner's plat's drainage plan "there will be a substantial improvement to the drainage in the area . . . Consequently the proposed subdivision will result in the mitigation of some of the storm water problems in the area" (See Exhibit "22" of the record, pp. 15-16). Thus this purported new evidence was neither new nor sufficient to serve as basis for denying the application since there was an approved drainage plan for the proposed subdivision.
The Respondent Board was also well aware of both the existence of the alleged covenants and restrictions and of the fact that the Planning Board had no power to enforce them (See Exhibits "21 (" the neighbors should have filed suit at the preliminary approval"), "42" ("the Board has no power to enforce"), "49" ("Board has no jurisdiction"), "88" ("the Board is not bound by any C and R's"). Therefore, the alleged covenants and restrictions cannot serve as grounds for the Respondent Board's denial of the application ( Friends of Shawangunks, Inc. v. Knowlton, supra).
Nor can the conclusory allegations by the Anoatak Community Association and other neighboring property owners that the subdivision would not be in keeping with the character of the neighborhood serve as a basis for denial of this application where, as here, the proposed subdivision meets all of the applicable zoning requirements and there has been a finding that there will be no significant environmental impact on the surrounding area (See, Brucia v. Planning Board of the Town of Huntington, 157 AD2d 657, 549 NYS2d 757 [2nd Dept. 1990]; See, also, Bongiorno v. Planning Board of the Incorporated Village of Bellport, 143 AD2d 967, 533 NYS2d 631 [2nd Dept. 1988]).
Under these circumstances, the Respondent's failure to approve the proposed subdivision was arbitrary and capricious and unsupported by substantial evidence in the record.
Finally, it is noted that the Respondent's failure to provide specific reasons for its failure to approve the subdivision is in contravention of Town Law ( Town Law § 276(6)(d)(I)(4); See, also, under the equivalent Village Law statute, Knollwood Real Estate Company v. Planning Board of the Village of Elmsford, 122 AD2d 779, 505 NYS2d 450 [2nd Dept. 1986]).
Based upon the facts and law set forth above, the Court grants the Petitioner's application for a judgment annulling the resolution of the Planning Board of the Town of Huntington, voted on January 7, 2004 and filed in the office of the Town Clerk on January 12, 2004, to the extent that it purported to deny Petitioner's application for final approval of the proposed subdivision of its 1.19 acre parcel in the Town of Huntington and the Respondent is directed to take all steps necessary to grant final approval of the Petitioner's proposed subdivision. The Petitioner is awarded its costs and disbursements in this proceeding.
Counsel for the Petitioner is directed to serve a copy of this decision, within ten (10) days of the date hereof, by overnight mail, upon the counsel for the Respondent.
The foregoing shall constitute the Decision of the Court.
Settle judgement.