Stackhouse v Planning Bd. of Town of Cortlandt

[*1] Stackhouse v Planning Bd. of Town of Cortlandt 2005 NY Slip Op 50548(U) Decided on February 3, 2005 Supreme Court, Westchester County Adler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2005
Supreme Court, Westchester County

JESSE STACKHOUSE and JOHN DEIULIO, Petitioners,

against

PLANNING BOARD OF THE TOWN OF CORTLANDT, Respondents.



04-9989



BOLGER, HINZ & ZUTT, P.C.

Attorneys for Petitioners

11 Oscawana Lake Road

P.O. Box 8

Putnam Valley, New York 10579

By: William A. Zutt, Esq.

SIVE, PAGET & RIESEL, P.C.

Attorneys for Respondent

460 Park Avenue

New York, New York 12602-0509

By: Daniel Riesel, Esq.

Lester B. Adler, J.

Petitioners move for relief pursuant to Article 78 of the Civil Practice Law and Rules for a judgment annulling, reversing and setting aside the determination of the Planning Board of the Town of Cortlandt (the "Board") made on June 3, 2004 which adopted a resolution denying petitioners' application for preliminary subdivision approval for a 6.5-acre parcel of land owned by the petitioners and situated on the north side of Locust Avenue in the Town of Cortlandt, New York (the "Property").

Petitioners allege that the Board's denial of their application was arbitrary and capricious, an abuse of discretion, illegal and without support in the record. Petitioners further seek an order of this Court on their second cause of action for a judgment in the amount of $100,000. In response, the respondent has served a notice of motion for an order pursuant to CPLR §3211(a)(7) dismissing petitioners' second cause of action and a memorandum of law in opposition to the petition and in support of the motion to dismiss.

FACTUAL BACKGROUND

The Property is located in the R-20 zoning district of the Town of Cortlandt, which permits the construction of single family residences on building lots with a minimum lot area of 20,000 square feet with a 100 foot average lot width. On December 16, 1999, petitioners filed an application with the Board seeking preliminary approval for the subdivision of the Property into ten lots, with the proposed lots ranging in size from 21,470 square feet to 33,644 square feet. In connection with the development of the subdivision, the application proposed the construction of [*2]a new roadway which would intersect with Locust Avenue on a downhill slope located approximately 280 feet west of a crest on Locust Avenue.

As early as July of 2000, the members of the Board expressed their concern regarding the numerous traffic safety issues involved in the development of the Property and the creation of a new intersection on Locust Avenue. These issues included, inter alia, intersection and stopping sight distances,[FN1] the large volume of vehicles that traverse the roadway,[FN2] the high incidence of vehicles traveling in excess of the posted speed limit, the history of accidents on Locust Avenue, and the safety of motorists and pedestrians alike. During the ensuing four years, petitioners, respondent, their respective engineers, and the staff of the Cortlandt Department of Technical Services ("DOTS") worked diligently in an effort to resolve the traffic safety issues associated with the development of the property. A traffic count study and a speed survey were performed by the Town of Cortlandt's (the "Town") consultant.[FN3] In addition, the Board considered numerous mitigation measures (i.e., "driveway ahead" warning sign, responsive speed sign, widening of the shoulder; a lefthand turn prohibition, installation of a permanent overhead-mounted yellow light and regrading), and several alternate road access plans that were submitted by the petitioners.

These same concerns that had been expressed by the Board since the inception of the application process were echoed by the residents of Locust Avenue at the public hearing that was commenced on March 4, 2003. Among the concerns were the large volume of traffic which already traversed Locust Avenue on a daily basis, the high incidence of speeding, and the impact that lefthand turns from Locust Avenue onto the proposed subdivision roadway would have on motorists' safety.

After years of consideration and based upon the information provided by the Town's engineer, the petitioners' engineer, the town's consultant and the staff of the DOTS, the Board adopted Resolution 24-04 denying the application for preliminary subdivision approval "due to [the] potential unsafe conditions for traffic and pedestrians alike created by the intersection of the proposed Hillside Estates road on Locust Avenue."

LEGAL ANALYSIS

FIRST CAUSE OF ACTION

It is well settled that "[a] court may substitute its judgment for that of a planning board only when the planning board has abused its discretion or has acted arbitrarily or illegally" (Matter of Terra Homes v. Smallwood, 247 AD2d 394, 395, 667 N.Y.S.2d 920, citing Matter of Koncelik v. Planning Bd. of Town of E. Hampton, 188 AD2d 469, 590 [*3]N.Y.S.2d 900; see also Matter of Brucia v. Planning Bd. of Town of Huntington, 157 AD2d 657, 549 N.Y.S.2d 757; Matter of Hudson Canyon Constr. v. Town of Cortlandt, 262 AD2d 484, 692 N.Y.S.2d 158; Matter of McKennett v. Hines, 289 AD2d 246, 734 N.Y.S.2d 200, citing Matter of Sasso v. Osgood, 86 NY2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254; Matter of Ronsvalle v. Blumenthal, 144 AD2d 766, 767, 535 N.Y.S.2d 171; Matter of Graham v. Town of Tully Planning Bd., 237 AD2d 923, 654 N.Y.S.2d 542). As a result, a planning board's determination should be upheld if it has a rational basis and is supported by substantial evidence (see Matter of Ifrah v. Utschig, 98 NY2d 304, 746 N.Y.S.2d 667, 774 N.E.2d 732).

The reasons for denial of the preliminary subdivision approval are set forth in extensive detail in the Board's resolution (see Pearson Kent Corp. v. Bear, 28 NY2d 396, 398, 322 N.Y.S.2d 235, 271 N.E.2d 218). Contrary to petitioners' contention, the Board's determination is supported by more than the generalized objections of local residents (see Matter of Ifrah v. Utschig, 98 NY2d 304, 746 N.Y.S.2d 667, 774 N.E.2d 732), and is supported by objective and factual documentary evidence supplied to the Board by the engineers, the Town consultant and the DOTS, as well as the oral and written testimony by neighbors with actual knowledge of the conditions along Locust Avenue (see Id.).

In denying the petitioner's application, the Board properly considered the impact of the proposed development on the adjacent area, including the effects on traffic safety. Since substantial evidence exists to support the Board's finding that the new development would create a safety hazard, the determination has a rational basis and can not be considered arbitrary or capricious (Matter of Ozols v. Henley, 81 AD2d 670, 670, 438 N.Y.S.2d 349, appeal dismissed 54 NY2d 1023, 446 N.Y.S.2d 263, 430 N.E.2d 1316).

SECOND CAUSE OF ACTION

Upon consideration of respondent's motion to dismiss the second cause of action based upon petitioners' alleged failure to state a cause of action, only the petition is to be considered and all of its allegations are deemed to be true (Matter of Zaidins v. Hashmall, 288 AD2d 316, 316-317, 732 N.Y.S.2d 870, see also Matter of DePaoli v. Bd. of Educ., Somers Cent. School Dist., 92 AD2d 894, 459 N.Y.S.2d 883).

In a special proceeding brought pursuant to CPLR Article 78 "[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought" (CPLR §7806). Whether a claim for reimbursement is "incidental" or the "primary" relief depends upon the facts of a particular case (Matter of Gross v. Perales, 72 NY2d 231, 532 N.Y.S.2d 68, 527 N.E.2d 1205, rearg. denied 72 NY2d 1042, 534 N.Y.S.2d 940, 531 N.E.2d 660).

In the present case, the primary focus of the petition is the annulment of the Board's resolution denying petitioner's preliminary subdivision approval. Even assuming that the Court had granted the relief requested in petitioner's first cause of action, the nullification of the resolution would not have triggered a statutory duty on the part of the Board to reimburse petitioners for the sums expended for the "cumulative impact studies" or the alleged devaluation in the petitioners' property occasioned by the execution of the agreement which granted a right-of-way to the adjacent property (see Gross v. Perales, 72 NY2d at 236; Matter of White v. Regan, 171 AD2d 197, 199, 575 N.Y.S.2d 375, appeal denied 79 NY2d 754, 581 N.Y.S.2d 281, 589 N.E..2d 1263; La Duke v. Lyons, 250 AD2d 969, 971, 673 N.Y.S.2d [*4]240[compensatory damages for torts are recoverable without respect to the rationality of an administrative determination and are therefore not available in an Article 78 proceeding as incidental damages]).

Consequently, the allegations asserted in the petition fail to demonstrate the existence of a bona fide justiciable controversy and the respondent's motion to dismiss the second cause of action pursuant to CPLR §§3211(a)(7) and 7804(f) is granted (see Zaidins v. Hashmall, 288 AD2d at 317).

This constitutes the decision, order and judgment of this Court.

Dated: White Plains, New York

February 3, 2005

HON. LESTER B. ADLER

Supreme Court Justice Footnotes

Footnote 1:Section 265-17(E) of the Town Subdivision Regulations require that "[i]ntersections shall be designed to provide maximum visibility and safety."

Footnote 2:The results of a traffic study conducted by the Town of Cortlandt's consultant revealed "that an average of 6,500 vehicles traveled this section of Locust Avenue on the surveyed weekdays, with a slightly higher volume on Saturday (6,925) and a slightly lower volume on Sunday (5,650)." (A copy of the consultants' June 3, 2003 report to the Board is contained in the certified record at Exhibit NN).

Footnote 3:While the Court and the Town's consulting firm share the same surname, no familial relationship exists between the two parties.