| Matter of Center of Deposit, Inc. v Village of Deposit |
| 2013 NY Slip Op 05037 [108 AD3d 851] |
| July 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of Center of Deposit, Inc., Petitioner, vVillage of Deposit et al., Respondents. |
—[*1] Mackenzie Hughes, LLP, Syracuse (Michael J. Livolsi of counsel), forrespondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof the Supreme Court, entered in Delaware County) to, among other things, review twodeterminations of respondent Village of Deposit Planning Board which deniedpetitioner's application for subdivision approval.
Petitioner is the owner of a 2.974-acre parcel of real property located in the Villageof Deposit, Broome and Delaware Counties that contains two vacant buildings—athree-story building that was formerly a school and a smaller metal building. In August2009, petitioner filed an application with respondent Village of Deposit Planning Board(hereinafter the Board) to subdivide the property into two lots, with each of the new lotsto contain one of the buildings. On October 28, 2009, the Board held a public hearingand, in conjunction with its review under the State Environmental Quality Review Act(see ECL art 8 [hereinafter SEQRA]), thereafter issued a positive declaration ofenvironmental significance and required petitioner to submit a draft environmentalimpact statement.
Petitioner then commenced a proceeding pursuant to CPLR article 78 seeking tooverturn the Board's positive declaration. As pertinent here, this Court reversed theBoard's determination and remitted the matter to the Board for further proceedings (Matter of Center of Deposit, Inc. vVillage of Deposit, 90 AD3d 1450, 1454 [2011]). On remittal, the Board [*2]ultimately issued a negative declaration of environmentalsignificance on March 9, 2012. Following public meetings and a public hearing held onMarch 28, 2012, the Board issued two determinations, both of which denied petitioner'ssubdivision application.[FN1]Petitioner commenced the instant CPLR article 78 proceeding challenging thosedeterminations which, upon transfer to this Court, we now confirm.
Initially, we reject petitioner's argument that the Board's denial of the subdivisionapplication was untimely, resulting in a default approval of the application. Under theVillage Law, when a planning board determines that an environmental impact statementis not required, a public hearing must be held within 62 days of the submission of acomplete preliminary plat (Village Law § 7-728 [6] [d] [i] [1] [a]). Significantly,"[t]he time periods for review of such plat shall begin upon filing of [a] negativedeclaration" (Village Law § 7-728 [6] [c]). A decision on the final plat must thenbe rendered within 62 days of the public hearing (see Village Law § 7-728[6] [d] [i] [3] [a]), and the failure to issue a timely decision results in a default approval(see Village Law § 7-728 [8]). Here, the Board issued a negativedeclaration on March 9, 2012, held a public hearing 19 days later, and immediatelyissued a determination denying the subdivision application.
Petitioner contends that, because the Board held a public hearing on the applicationin October 2009, it lacked any authority to conduct additional hearings, and the timewithin which the Board was required to issue a determination on the subdivisionapplication began to run when this Court set aside the initial positive declaration. We donot agree. Pursuant to Village Law § 7-728 (6) (c), a public hearing on thesubdivision application must follow the filing of the negative declaration under SEQRA(accord Matter of Kittredge vPlanning Bd. of Town of Liberty, 57 AD3d 1336, 1340 [2008]; seeTown Law § 276 [6] [c]). Thus, the hearing held in October 2009—prior tothe issuance of the negative declaration—could not satisfy the hearing requirementunder the Village Law, and the Board had 62 days after the issuance of the negativedeclaration in March 2012 to hold a public hearing, and an additional 62 days after thehearing to render a decision on the application. Inasmuch as the Board met thosedeadlines, petitioner was not entitled to a default approval of its application (see Matter of Benison Corp. vDavis, 51 AD3d 1197, 1198 [2008]).
Next, while we agree with petitioner that the record impermissibly contains evidencethat was not before the Board as part of its administrative review (see Matter ofYarbough v Franco, 95 NY2d 342, 347 [2000]; Matter of Shuler v New York City Hous. Auth., 88 AD3d895, 896-897 [2011]; Matter of Fanelli v New York City Conciliation & AppealsBd., 90 AD2d 756, 757 [1982], affd 58 NY2d 952 [1983]) and we have notconsidered such evidence,[FN2]we are [*3]unpersuaded by petitioner's substantivechallenge to the Board's determinations denying the subdivision application. It is nowwell established that "[a] local planning board has broad discretion in reaching itsdetermination on applications for subdividing property, and judicial review is limited todetermining whether the action taken by the board was illegal, arbitrary, or an abuse ofdiscretion" (Matter of Fuentes vPlanning Bd. of the Vil. of Woodbury, 82 AD3d 883, 884 [2011], lvdenied 17 NY3d 707 [2011] [internal quotation marks and citations omitted]; see Matter of MLB, LLC vSchmidt, 50 AD3d 1433, 1435-1436 [2008]). The Village of Deposit Local Lawrequires that the Board set forth its reasons for denying a subdivision application(see Village of Deposit Local Law for Subdivision Review § 304 [D]). Inthis regard, under the Village Law, plats must comply with existing zoning law(see Village Law § 7-730 [3]) and the applicant is required to establish thatthe "land can be used safely for building purposes 'without danger to health or peril fromfire, flood, drainage or other menace to neighboring properties or the public health,safety and welfare' " (Matter of MLB, LLC v Schmidt, 50 AD3d at 1435, quotingVillage Law § 7-730 [1]).
Here, the Board identified a variety of reasons for its denial, including, among others,that the subject property lacked a legal means of ingress and egress and that the proposedsubdivision would endanger "the health, safety, welfare and comfort" of the Village atlarge.[FN3]Although petitioner claims that the property benefits from a right-of-way over anadjoining church property, which provides a means of ingress and egress, thatright-of-way is limited by its express terms to "use [of] the driveway and parking area. . . but only for school purposes" (emphasis added). In our view,the Board had a rational basis for its concerns regarding whether the right-of-way wouldallow for continued access to the subject property, particularly considering that it was nolonger being used for school purposes. Although petitioner also argues that the propertyhas nearly 700 feet of street frontage that can be used for access, Village of Depositzoning laws require that a driveway be at least 20 feet wide and the Board concluded thataccess directly from the street would not be practical or legal. Further, officials from theVillage's police and fire departments raised concerns regarding the lack of access to theproperty and noted the deteriorating condition of the school building and the safetyhazards enveloping the property as a whole. Inasmuch as the Board'sconclusions—that there were significant safety issues surrounding the property andthat petitioner had not established compliance with the relevant zoninglaws—provided a rational basis to support its denial of petitioner's application,such denial must be upheld (see Matter of MLB, LLC v Schmidt, 50 AD3d at1434-1435).
We have examined petitioner's remaining contentions and, to the extent they have notbeen rendered academic by our decision, find them to be lacking in merit.
Rose, J.P., Spain and Garry, JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.
Footnote 1: The Board issued thefirst determination denying the application on March 28, 2012. However, due to anunidentified "technical error," the Board also considered the proposal at an April 27,2012 meeting and again voted to disapprove the application.
Footnote 2: Although a majority ofthe complained of evidence should not have been included in the record, we disagreewith petitioner's assertion that the structural engineering report prepared by InteractiveEngineering Solutions, PC should have been excluded, as the record reflects that theBoard had before it the contents of such report.
Footnote 3: The Board also notedthat the Broome County and Delaware County Planning Departments both recommendeddisapproval of the subdivision application following their General Municipal Law§ 239 review.