| Town of Amherst v Rockingham Estates, LLC |
| 2012 NY Slip Op 06406 [98 AD3d 1241] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| Town of Amherst, Appellant-Respondent, v Rockingham Estates,LLC, Respondent-Appellant, et al., Defendants. |
—[*1] Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (Hugh C. Carlin of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Erie County (John F.O'Donnell, J.), entered May 10, 2011. The order denied the motion of plaintiff for summaryjudgment and the cross motion of defendant Rockingham Estates, LLC for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of plaintiff in part and granting judgment in favor of plaintiff as follows:
It is adjudged and declared that the final plat as filed in the Erie County Clerk's Office is nulland void and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, a judgment declaring thatthe final plat filed by Rockingham Estates, LLC (defendant) in the Erie County Clerk's Office isnull and void. Plaintiff contends on its appeal that Supreme Court erred in denying its motion forsummary judgment on the complaint, and defendant contends on its cross appeal that the courterred in denying its cross motion for summary judgment dismissing the complaint. We agreewith plaintiff that the court erred in denying that part of its motion seeking a declaration thatdefendant's final plat is null and void, and we therefore modify the order accordingly. Plaintiffestablished, and defendant did not dispute, that the preliminary plat submitted by defendant andapproved by the Town of Amherst Planning Board (Planning Board) included a public sanitarysewer easement. The final plat, however, described the sewer easement as private, rather thanpublic. Town Law § 276 (4) (b) and (d) define a preliminary and final plat, as do thepertinent provisions of the Town of Amherst Subdivision Regulations ([Regulations]; seeRegulations former part II, §§ 1-16.5, 1-16.6). Those definitions support plaintiff'scontention that a final plat should differ from the preliminary plat, if at all, only by anymodifications that were required by the Planning Board at the time of approval of the preliminaryplat. Indeed, " 'a [*2]planning board may not modify apreliminary plat and then disapprove of the layout of a final plat that conforms to themodifications prescribed by the board' and 'absent new information, a subsequent modification orrejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subjectto invalidation' " (Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town ofBrookhaven, 78 NY2d 608, 612 [1991], quoting Matter of Sun Beach Real Estate Dev.Corp. v Anderson, 98 AD2d 367, 373 [1983], affd 62 NY2d 965 [1984]). In addition,former part III, section 5-1 of the Regulations provides that "[t]he final plat shall conform to thelayout shown on the approved preliminary plat plus any recommendations made by the PlanningBoard." That was not the case here because the material submitted with the preliminary platdepicted a public easement, but the final plat depicted a private easement despite the absence ofany Planning Board requirement for such a modification. We therefore agree with plaintiff thatthe Planning Board may rescind its approval of the final plat, which was approved in error(see Matter of Reiss v Keator, 150 AD2d 939, 941-942 [1989]; see generally Matterof Parkview Assoc. v City of New York, 71 NY2d 274, 281-282 [1988], rearg denied71 NY2d 995 [1988], cert denied 488 US 801 [1988]). Present—Scudder, P.J.,Smith, Centra, Fahey and Peradotto, JJ.