| Matter of MLB, LLC v Schmidt |
| 2008 NY Slip Op 03556 [50 AD3d 1433] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of MLB, LLC, Appellant, v Gary Schmidt, as Chair ofthe Planning Board of the Village of Monticello, et al., Respondents. |
—[*1] Schick & Havas, Monticello (Tim L. Havas of counsel), for respondents.
Peters, J. Appeal from a judgment of the Supreme Court (Sackett, J.), entered January 9,2007 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Planning Board of the Village ofMonticello denying petitioner's application for approval of a proposed subdivision plat.
Petitioner, the owner of an undeveloped parcel of land located in the Village of Monticello,Sullivan County, sought approval from respondent Planning Board of the Village of Monticello(hereinafter the Board) to subdivide the parcel into three lots in order to build a dwelling on each.At a public hearing, numerous neighboring property owners opposed the proposed subdivision,both verbally and through the presentation of a signed petition, expressing concerns thatdevelopment of the parcel would exacerbate the area's recurrent drainage problems. At asubsequent hearing, the Board assumed lead agency status for the review of the project, issued anegative declaration pursuant to the State Environmental Quality Review Act (see ECLart 8 [hereinafter SEQRA]) and thereafter unanimously voted to deny petitioner's application forfinal approval of the subdivision, finding that the area's current drainage conditions would beaggravated by the proposed development. Petitioner commenced this CPLR article 78 proceedingseeking to annul the Board's determination. Supreme Court dismissed the petition [*2]and this appeal ensued.
"In reviewing the decision of a planning board, this Court will not substitute its judgment forthat of the planning board unless it acted in an arbitrary, capricious or illegal manner" (Matterof Sheer Pleasure Lingerie v Town of Colonie Planning Bd., 251 AD2d 859, 862 [1998][citations omitted]; see Matter of Razzano v Planning Bd. of Town of N. Elba, 223 AD2d815, 816 [1996]). Here, petitioner argues that the "harmonious opinions" from both his engineerand the Village Engineer, coupled with the Board's issuance of a negative declaration underSEQRA, supports the conclusion that his application to subdivide the subject parcel should havebeen approved, and that the Board's determination impermissibly rested solely upon generalizedcommunity opposition. Initially, we note that the Board's issuance of a negative declaration is notwholly inconsistent with its denial of petitioner's application. In its SEQRA determination, theBoard acknowledged the potential adverse effects associated with drainage and floodingproblems, yet simply did not find them to be so significant in their impact as to require a positivedeclaration. Thus, since the Board's SEQRA determination was that no significantadverse impacts would result from the proposed subdivision, but that there could be adverseeffects associated with the drainage and flooding problems, we do not find the Board's SEQRAdetermination to be incompatible with its subsequent denial of petitioner's application forapproval of the subdivision.
Village Law § 7-730 (1) provides that in approving plats, a planning board shallrequire a showing that the land can be used safely for building purposes "without danger to healthor peril from fire, flood, drainage or other menace to neighboring properties or the public health,safety and welfare." While petitioner asserts that the concerns about the recurring drainage andflooding problems in the locale voiced by owners of adjacent and neighboring downgrade parcelsat the public hearing constituted " 'generalized community objections' " which cannot, standingalone, justify denial of his application (Matter of Metro Enviro Transfer, LLC v Village of Croton-on-Hudson,5 NY3d 236, 240 [2005], quoting Matter of Twin County Recycling Corp. v Yevoli,90 NY2d 1000, 1002 [1997]; see Matter of Market Sq. Props. v Town of Guilderland ZoningBd. of Appeals, 66 NY2d 893, 895 [1985]; Matter of Burke v Denison, 203 AD2d642, 644 [1994]), we find their concerns to be specific and based upon personal experience andobservations (see Matter of Samek v Zoning Bd. of Appeals of Town of Ballston, 162AD2d 926, 927 [1990]; see also Matter of Michelson v Warshavsky, 236 AD2d 406, 407[1997]). In particular, the downhill property owners imparted to the Board their personalknowledge and detailed observations regarding the recurring drainage problems in the locale as aresult of heavy rain and runoff from the steep hill upon which petitioner's property lies, whichincluded the flooding of streets and basements.
Moreover, in rendering its determination, the Board considered not only the concerns ofadjacent property owners, but also the opinion of the Village Engineer, Glenn Smith. Smithadvised the Board that the grade and slope of the parcel presented drainage issues and expressedhis concerns that as a result of the clearing of vegetation and construction of surfaces imperviousto water (such as roofs and driveways), there would be an increase in storm water runoff from theproposed homes to the adjacent downgrade properties. In response, petitioner's engineer, MichaelRielly, indicated that drywells would be added to each proposed lot to sufficiently accommodateany such runoff. Smith, acknowledging that the proposed development should have little effecton the existing drainage conditions, also opined that any drywell could be overstressed and floodin certain circumstances.[*3]
"The evidence in this case presented a close, fact-specificchoice of the kind that local boards are uniquely suited to make" (Matter of Retail Prop. Trustv Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196 [2002]), and where,as here, conflicting inferences may be drawn, it was the responsibility of the Board, not thisCourt, to weigh the evidence and exercise its discretion in approving or denying approval to thesubdivision plat (see Matter of Razzano v Planning Bd. of Town of N. Elba, 223 AD2d at816; Matter of M & M Partnership v Sweenor, 210 AD2d 575, 576-577 [1994];Matter of Currier v Planning Bd. of Town of Huntington, 74 AD2d 872, 872 [1980],affd 52 NY2d 722 [1980]). As there was a rational basis to support the Board's denial ofpetitioner's application, it must be upheld even though a contrary determination could besupported by the record (see Matter of Retail Prop. Trust v Board of Zoning Appeals of Townof Hempstead, 98 NY2d at 196; Matter of North Country Citizens for Responsible Growth, Inc. v Town ofPotsdam Planning Bd., 39 AD3d 1098, 1101 [2007]).
Mercure, J.P., Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.