| Matter of Paulsen Dev. Co. of Albany, LLC v County of SchenectadyDept. of Eng'g & Pub. Works |
| 2008 NY Slip Op 00137 [47 AD3d 1031] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of Paulsen Development Company of Albany, LLC, etal., Respondents, v County of Schenectady Department of Engineering and Public Works et al.,Appellants, and Town of Niskayuna Planning Board et al.,Respondents. |
—[*1] Harvey & Mumford, L.L.P., Albany (Jonathan P. Harvey of counsel), for PaulsenDevelopment Company of Albany, L.L.C. and another, respondents. Eric J. Dickson, Town Attorney, Niskayuna (Paul Briggs of counsel), for Town of NiskayunaPlanning Board and others, respondents.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Kramer, J.), entered November1, 2006 in Schenectady County, which, among other things, partially granted petitioners'application, in a proceeding pursuant to CPLR article 78, to direct respondents to issue a certainhighway work permit.[*2]
Petitioners seek to develop 52 acres in the Town ofNiskayuna, Schenectady County, by building in excess of 70 single family residences. Theproperty abuts Lori Drive (a cul-de-sac town road which connects to State Route 7) and LishakillRoad (a county road which intersects State Route 7 at a traffic light). Respondent Town ofNiskayuna Planning Board granted preliminary approval subject to certain conditions, includingthat the proposed subdivision roads connect to Lori Drive. This condition was consistent with theTown's policy of eliminating dead-end streets branching from major arterials in order tointerconnect neighborhoods and make access by emergency vehicles easier. Petitioners were alsorequired to obtain a permit from respondent County of Schenectady Department of Engineeringand Public Works since the proposed subdivision roads connected to a county road. In a letterrequesting various additions and amendments to petitioners' plans prior to issuing a permit, theDepartment took the position that the proposed subdivision roads should not connect to LoriDrive because of traffic safety concerns. The Department was concerned that motorists woulduse the combination of Lori Drive and the new roads in the subdivision as a cut-through betweenState Route 7 and Lishakill Road, resulting in increased left-hand turns.
Efforts to resolve the issue resulted in a meeting of petitioners, the Town and theDepartment, with petitioners and the Town proposing a circuitous route of the roads within thesubdivision to discourage cut-through traffic. In February 2006, the Department rejected theproposed circuitous route plan. In May 2006, petitioners commenced this proceeding seeking ajudgment directing the Department to issue the permit with no condition regarding Lori Drive or,alternatively, the Planning Board to eliminate the requirement that the subdivision roads connectto Lori Drive. Supreme Court granted the relief requested against the Department and its Directorof Public Works (hereinafter collectively referred to as the Department), and the court dismissedthe petition as to the Planning Board and its members. The Department appeals.
We consider first the Department's argument that petitioners failed to commence thisproceeding within the applicable four-month statute of limitations (see CPLR 217). Anagency's determination is final and binding, and the statute of limitations commences running,"when the decisionmaker arrives at a 'definitive position on the issue that inflicts an actual,concrete injury' " (Stop-The-Barge vCahill, 1 NY3d 218, 223 [2003], quoting Matter of Essex County v Zagata, 91NY2d 447, 453 [1998]). This entails a pragmatic evaluation of the agency's actions (seeChurch of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519 [1986], cert denied479 US 985 [1986]) and finality will not be found "[i]f further agency proceedings might renderthe disputed issue moot or academic" (Matter of Essex County v Zagata, 91 NY2d at454). Here, the Department's September 2005 letter, which raised several concerns regarding theproposed subdivision, did not constitute a definitive position on all issues mentioned therein,including the Lori Drive dispute. Indeed, its subsequent December 2005 letter reflected somemovement of its position on that issue (apparently allowing a gated connection available tobicyclists, pedestrians and emergency vehicles) and, thereafter, the Department participated indiscussions with the Town and petitioners in efforts to resolve the dilemma. The compromise ofa circuitous route connection was explored, but rejected by the Department in a letter datedFebruary 10, 2006. Petitioner commenced this proceeding within four months of suchdetermination. Accordingly, the proceeding was commenced in a timely fashion.
The Department further asserts that Supreme Court erred in directing it to issue a permitwithout any condition regarding the connection to Lori Drive. A county superintendent ordirector of public works is accorded considerable discretion in imposing upon permits terms andconditions designed to "preserve the integrity and safety of the [c]ounty road system" (Matterof [*3]New York State Elec. & Gas Corp. v Commissioner ofDutchess County Dept. of Pub. Works, 205 AD2d 1033, 1035 [1994], lv denied 84NY2d 809 [1994]; see Token Carpentry v Hornik, 92 AD2d 868, 869-870 [1983]).Judicial review of such a determination is limited to whether it was "arbitrary and capricious oraffected by an error of law" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ.Servs., 77 NY2d 753, 758 [1991]; see Matter of New York State Elec. & Gas Corp. vCommissioner of Dutchess County Dept. of Pub. Works, 205 AD2d at 1035-1036).
The record contains a traffic report which concludes that the subdivision would "not have asignificant impact on the existing roadway systems level of service," that "[t]he existing highwaysystem [could] adequately accommodate the traffic [it] generated," and that it would "have nosignificant adverse traffic impacts on the adjacent transportation system in the vicinity." Inaddition, an affidavit by petitioners' expert explains that "the proposed connections of thesubdivisions to Lishakill Road and Lori Drive meet recognized traffic safety standardsestablished by the Town of Niskayuna, New York State Department of Transportation. . . and the American Association of State Highway and Transportation Officials."The Department did not contest these statements regarding recognized safety standards. TheDepartment did not conduct any studies of its own and it relied, in part, on a critique by engineersretained by the Town of a traffic report that had been subsequently revised. Indeed, after therevision, those engineers notified the Town that they had reviewed the revised traffic report andthat petitioners "satisfactorily resolved all issues from the previous comments." While it was notnecessarily incumbent upon the Department to conduct its own studies to support itsdetermination, it cannot reasonably rely upon a critique by others that was revised after furtherconsideration. Upon review of the record, we are unpersuaded that Supreme Court erred infinding that the Department acted arbitrarily.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment isaffirmed, without costs.