| Matter of Benison Corp. v Davis |
| 2008 NY Slip Op 04262 [51 AD3d 1197] |
| May 8, 2008 |
| Appellate Division, Third Department |
| In the Matter of Benison Corporation, Appellant, v Katherine A.Cairo Davis, as Town Clerk of the Town of Marbletown, et al.,Respondents. |
—[*1] Rapport, Meyers, Whitbeck, Shaw & Rodenhousen, L.L.P., Poughkeepsie (Larissa C. Wafylof counsel), for respondents.
Carpinello, J. Appeal from a judgment of the Supreme Court (Lynch, J.), entered March 2,2007 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to, among other things, compel respondent Town Clerk of the Town ofMarbletown to certify that petitioner is entitled to subdivision approval upon the preliminary plat.
In the course of petitioner's pending application for a six-lot subdivision approval of a24.2-acre parcel of real property in Ulster County, respondent Town of Marbletown PlanningBoard, which was acting as lead agency for purposes of the State Environmental Quality ReviewAct (see ECL art 8), required various pieces of information on a number ofenvironmental concerns. In particular, the Board sought an updated well draw-down studybecause the initial study submitted by petitioner, according to the Board's consultinghydrogeologist, was incomplete for a variety of reasons. While the Board initially required thatall six test wells in the subdivision be used for the updated draw-down study, it later modified therequirement to two such wells. Thereafter, petitioner was further advised by the Board that itsconsulting engineer was recommending that the updated draw-down study be conducted pursuantto a Department of Environmental Conservation (hereinafter DEC) "level one protocol," asopposed [*2]to standards outlined by the Department of Health.
In addition to generally objecting to the request for an updated draw-down study, petitionerstrongly objected to the additional requirement that it be conducted pursuant to the DEC levelone protocol. Petitioner alleged that this protocol was designed for public water supplies only andnot small-scale residential projects such as the one at issue. No updated study of any kind wasconducted. Instead, after moving to withdraw its previous consent to waive all required timeframes, petitioner demanded that respondent Town Clerk enter a default approval of itsapplication pursuant to Town Law § 276 (8). The Town Clerk refused, prompting thisCPLR article 78 proceeding in the nature of a mandamus to compel. Supreme Court dismissedthe petition. Petitioner now appeals, and we are compelled to affirm.
Here, the Board never issued a negative declaration concerning the proposed action(see Town Law § 276 [5] [d] [i] [1]) or a notice of completion for a draftenvironmental impact statement (see Town Law § 276 [5] [d] [i] [2]; see also Matter of Pheasant MeadowFarms, Inc. v Town of Brookhaven, 31 AD3d 770 [2006]; Matter of Tinker St.Cinema v Town of Woodstock Planning Bd., 256 AD2d 970, 972 [1998]; Matter of SunBeach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 372 [1983], affd 62 NY2d965 [1984]). Therefore, petitioner's preliminary plat application remained incomplete(see Town Law § 276 [5] [c]; Matter of Pheasant Meadow Farms, Inc. v Townof Brookhaven, supra; Matter of Tinker St. Cinema v Town of Woodstock Planning Bd.,supra; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d at 372).This being the case, the time periods for a public hearing were never triggered (see TownLaw § 276 [8]) and petitioner was simply not entitled to default approval (see Matter ofPheasant Meadow Farms, Inc. v Town of Brookhaven, supra; Matter of Sun Beach RealEstate Dev. Corp. v Anderson, supra).
As a final matter, we endorse Supreme Court's observation that the application of the DEClevel one protocol as required by the Board's engineer may not comport with the originalrecommendation for an updated study by the consulting hydrogeologist. It may be appropriate forthe Board to reconsider this issue.
Peters, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.