Griffin v Town of Somers

[*1] Griffin v Town of Somers 2006 NY Slip Op 51694(U) [13 Misc 3d 1205(A)] Decided on September 5, 2006 Supreme Court, Westchester County Lippman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2006
Supreme Court, Westchester County

Michael Griffin, Maeve Griffin and Celia Seligson, Petitioner-Plaintiffs,

against

Town of Somers, New York, Town of Somers Planning Board, by its Chairperson Fedora Delucia, Town of Somers Conservation Board, by its Chairperson, Nancy Weld, Efrem Citarella, as Building Inspector and Ann Calandrucci and Thomas Calandrucci, as Applicants. Respondents-Defendants.



20397/05



Kenneth J. Finger, Esq.

Finger & Finger, A Professional Corporation

Attorneys for Petitioner-Plaintiff Seligson

158 Grand Street

White Plains, NY 10601

Michael D. Zarin, Esq.

Zarin & Steinmetz

Attorneys for Respondents-Defendants Calandruccis

81 Main Street, Suite 415

White Plains, NY 10601

Maeve Griffin

Petitioner-Plaintiff Pro-se

P.O. Box 40

Amawalk, New York 10501 Gerald D. Reilly, Esq.

Attorneys for Town Respondents-Defendants

Stephens, Baroni, Reilly & Lewis, LLP

175 Main Street, Suite 800

White Plains, NY 10601

Jonathan Lippman, J.

FACTUAL AND PROCEDURAL BACKGROUND

This matter is styled as a hybrid CPLR article 78 proceeding and action for declaratory judgment. Petitioners-plaintiffs Michael and Maeve Griffin (the "Griffins") are the owners of a vacant parcel of real property designated on the Tax Map of Respondent, Town of Somers (the "Town") as Sheet 36.12, Block 2, Lot 9 (the "Griffin parcel").[FN1] Petitioner-Plaintiff Celia Seligson ("Seligson") is the owner of two vacant parcels of real property designated on the Town Tax Map as Sheet 36.12, Block 2, Lots 4 and 5 (the "Seligson parcels").[FN2] Respondents Ann and Thomas Calandrucci (the "Calandruccis") are the owners of a vacant 2.96 acre parcel of real property designated on the Town Tax Map as Sheet 36.12, Block 2, Lot 3 (the "property"). The [*2]property is located on Amawalk Point, an area of approximately 30 acres abutting the Amawalk Reservoir. The property is located in an R-80 zoning district, an area zoned for residential uses, and permits, pursuant to Town Code §170-10, the construction of a single family dwelling.

On or about February 16, 2004, the Calandruccis filed an application with Respondent Planning Board of the Town of Somers (the "Planning Board") to construct a single family residence on the property. At the same time, the Calandruccis filed an application to improve Amawalk Point Road, a private and unimproved dirt and gravel common driveway within an existing 50-foot right-of-way (the "road").

The road is shown on the Town Tax Map, the Town Street Map and the Town Zoning Map. The road is the only means of access to the property from Route 35, the nearest public street. Seligson is the owner of one half of the right of way. Ownership of the remaining portion of the right-of-way is disputed.[FN3] The Calandruccis, Griffins, Seligson and the Marino Group, LLC each has a deeded easement over the right-of-way to use the same for access to and egress from their respective properties.[FN4] Absent use of the road, the property would be landlocked.

The February 2004 applications (collectively, the "application") sought Steep Slope Protection Permits and Tree Removal Permits for the property and the road in accordance with Chapters 148 and 156 of the Town Code. The application also included a request for a Waiver of Road Specifications to improve Amawalk Road to the end of the property in order to comply with the Town's frontage requirements and the requirements for emergency access prescribed by New York Town Law Section 280-a. As part of their application, the Calandruccis submitted road improvement plans and an Environmental Assessment Form ("EAF").[FN5]

In particular, the Steep Slope Protection Permit proposal relating to the single family residence outlined construction within slopes consisting of 14,445 square foot area ranging from 15% to 25% and with very steep slopes consisting of 1539 square foot area ranging from 25% to 35% and extremely steep slopes consisting of 117 square foot area in a range of greater than [*3]35%.[FN6] The Steep Slope Protection Permit proposal relating to the road detailed the improvement of the road within a steep slope consisting of 3672 square foot area ranging from 15% to 25% and within very steep slopes consisting of 1,395 square foot area ranging from 25% to 35% and within an extremely steep slope consisting of 576 square foot area ranging greater than 35%. The Tree Removal Permit proposal requested approval for the removal of 83 trees.

In February 2004, the application was referred to the Planning Board and the Respondent Town of Somers Conservation Board (the "Conservation Board"). Thereafter, the engineer for the Town (the "Town Engineer"), members of the Planning Board, members of the Conservation Board and members of the Town of Somers Open Space Committee (the "Open Space Committee") conducted site inspections of the property. The Town Engineer and the Town of Somers Planner (the "Town Planner") reviewed the application. On July 28, 2004, the Planning Board held its first hearing on the application.

In or about September 2004, and in response to objections made by the Town Engineer and the Conservation Board, among others, the Calandruccis submitted revised plans for the construction of the residence and road. On September 22, 2004, the Planning Board held a meeting and requested that the Calandruccis submit revised plans to address additional concerns raised by the Town Planner and the Town Engineer. On or about October 22, 2004, the Calandruccis submitted further revised plans. In or about November 2004, the Town Planner determined that the proposed single family residence and proposed road construction constituted a Type II action under SEQRA.

On January 12, 2005, a public hearing on the application, as revised, was held. The Town Engineer stated that the proposed road would not preclude access to all other properties which shared the easement. At the hearing, the Planning Board requested that the Calandruccis submit three alternative designs for the improvement of the road.

At a public hearing held on February 9, 2005, the alternative designs for the road were presented and reviewed by the Planning Board. These alternatives involved increasing the elevation of the road. The Calandruccis also submitted a "Phase II Road Extension Plan" to demonstrate that the road could be continued beyond the property for access by Seligson and the Griffins in the future. The Phase II Road Extension Plan depicts the continuation of the road through a hill of rock and ending in a cul-de-sac on the Griffins parcel. On April 7, 2005, the Town Engineer made his recommendation as to the design for the road and issued a memorandum to the Planning Board in which he stated that he had no objection to the approval of the steep slope and tree preservation permits and the waiver of the road specifications upon the fulfillment of certain additional conditions by the Calandruccis.[FN7] [*4]

On September 7, 2005, the Planning Board held a meeting to discuss the application and directed the Calandruccis to appear at the September 13, 2005 meeting of the Conservation Board. At that September 13, 2005 meeting, the four Conservation Board members present voted to grant conditional approval of the application. On September 21, 2005, the Planning Board voted to grant conditional approval of the Calandrucci's application. This approval, contingent upon compliance with twenty-six conditions, was formalized by resolution of the Planning Board dated October 20, 2005.

This proceeding/action ensued. The gravamen of the petition/complaint relates to the improvement of the road. Seligson avers, inter alia, that the improvement of the road, as proposed, would inhibit and prevent her from accessing, developing and/or otherwise using her property. Seligson objects to the design because the road would end with a hammerhead turnaround just before the boundaries of her property and in order to gain access to her property, she would have to construct a wall by blasting and using fill. Seligson also argues that the road improvement plan denies her the legal access to her property to which she is entitled and that the proposed plan exceeds applicants' rights under their easement of right of way (petition/complaint, ¶26). The Griffins contend that the resulting grading of the road would prohibit access to their property by means such as a driveway or expansion of the proposed road without extensive cutting of rock and the use of retaining walls to make access possible.

Seligson also challenges the Planning Board's approval of the improvement of the road on the grounds that the Calandruccis do not own the road and Seligson did not consent to the improvement of the road (petition/complaint, ¶34-38). Further, Seligson and the Griffins (collectively "petitioners") allege that the Planning Board improperly coerced the Conservation Board to reverse its prior denials of the application (petition/complaint, ¶84-100) and acted in violation of the State Environmental Quality Review Act ("SEQRA") (petition/complaint, ¶101-126).

The petition/complaint asserts eleven claims for relief and seeks an order pursuant to CPLR Article 78 directing that the resolution of the Planning Board be declared null and void and an order directing the Town's building inspector to refrain from issuing permits to the Calandruccis. In turn, the Calandruccis have moved to dismiss petitioners' claims to the extent that they seek declaratory judgment pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Seligson has cross-moved for an order granting a preliminary injunction.

LEGAL DISCUSSION

The court in an article 78 proceeding may not substitute its judgment for a planning board unless the determination made is arbitrary and capricious, illegal, or an abuse of discretion (Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]). A local board's decision must be upheld if it is rational and supported by substantial evidence (Matter of Ifrah v Utschig, 98 NY2d 304 [2002]). Community opposition in the form of generalized concerns is insufficient basis for denial, particularly when the application meets all zoning requirements and there has been a finding that there will be no significant environmental impact on the surrounding area (Matter of Burke v Denision, 203 AD2d 642, 644 [1994]). [*5]

Here, notwithstanding petitioners' extensive efforts to derail and delay the Calandruccis' development of the property, the record clearly evidences that following a comprehensive review of the application over a nineteen-month period, the Planning Board rendered a rational decision supported by substantial evidence.

Indeed, the record reveals that the Planning Board and Conservation Board reviewed memoranda and heard testimony at the many public hearings held on the application. The Planning Board carefully considered the various alternatives for the improvement of the road to ensure that petitioners would have reasonable access to their properties in the future. The eventual design of the road was the result of an exhaustive process which included the submission of six road improvement plans and revisions made in response to the Town Engineer's concerns relating to the grade and elevation of the road, the hammerhead design, drainage and curbing. Thus, petitioners' conclusory allegations that the Planning Board's actions were irrational and unsupported by the record are palpably insufficient to provide the basis for the relief they seek.

Nonetheless, petitioners have gone to great lengths in this matter to challenge the validity of the approval of the application. In their first through fourth claims for relief, petitioners allege that the Planning Board's actions were in violation of SEQRA (petition/complaint, ¶113-142). Petitioners assert that the Planning Board failed to take the required "hard look" at the potential environmental impacts of the application (petition/complaint, ¶113-119); failed to prepare a full Environmental Impact Statement ("EIS") and improperly classified the action as a "Type II" action (petition/complaint, ¶120-124); failed to publish and distribute and make a reasoned elaboration supporting a Negative Declaration and delegated its decision-making authority (petition/complaint, ¶125-133); and improperly segmented its environmental analysis by failing to consider the road extension plan and a proposal by the Marino Group, LLC to construct a residence on the Marino parcel (petition/complaint, ¶134-142).

Each of these claims is without merit. In particular, petitioners' contention that the Planning Board failed to take the requisite "hard look" at the application in accordance with SEQRA is belied by the record. The Planning Board conducted a thorough investigation, reasonably exercised its discretion, and made a reasoned elaboration as to the effect of the proposed application on the environment (see Akpan v Koch, 75 NY2d 561 [1990]). While petitioners argue that the Planning Board failed to "take a hard look at the very real and serious road access issue, and unwillingness to propose meaningful and substantive mitigation" (Seligson Memorandum of Law at 50), it is clear that respondents took a hard look at the potential impacts of building the residence and the road and required the Calandruccis to submit substantial evidence demonstrating that no significant adverse environmental impacts would result.[FN8] The Planning Board also sought to minimize the impact of the construction. The Planning Board and Conservation Board only granted conditional approvals, and did so after they [*6]had required that the Calandruccis revise and resubmit their plans numerous times.[FN9]

Further, pursuant to SEQRA's implementing regulations, the construction of the single-family residence is a Type II action exempt from SEQRA review (6 NYCRR §617.5(c)(9)). Contrary to petitioners' arguments, while the Calandruccis required the improvement of the road to access the proposed residence, this additional discretionary approval did not constitute a distinct basis for SEQRA review (see Kaminsky v Village of Briarcliff Manor, 23 AD3d 470 [2005]).

Moreover, there is no basis to conclude that the Planning Board improperly segmented its environmental review of the application in violation of SEQRA (6 NYCRR 617.2(a)(g)). The prospect of the development of the Marino parcel or the speculative or hypothetical development of the Seligson and Griffin parcels cannot be viewed as part of any overall plan of development or any integral project (see Village of Tarrytown v Planning Bd. of Sleepy Hollow, 292 AD2d 617 [2002]). Petitioners' remaining arguments relating to purported violations of SEQRA are similarly without merit.

In their fifth claim for relief, petitioners claim that the respondents do not have any jurisdiction or other right to grant approvals for actions to be taken with respect to property, to

wit, the right-of-way, owned or controlled by Seligson (petition/complaint, ¶143-148).[FN10]

However, the deed to the property grants the Calandruccis all right and title to the property, "together with the right of way in common with others for the purpose of ingress and egress over Amawalk Point Road to Amawalk Road, a public highway"(Calandrucci Affidavit, Exhibit A). This language establishes an express easement, which entitles the Calandruccis to improve the road for reasonable use (see Phillps v Jacobsen, 117 AD2d 785 [1986]). Moreover, petitioners' bare allegations that the improvement of the road, as designed and approved after much scrutiny, interferes with their rights in the right-of-way or otherwise obstructs access to their parcels is unsubstantiated. Rather, it appears that the intended improvement of the road is unacceptable to petitioners simply because the Calandruccis have not offered to undertake the substantial cost of improving the entire road on petitioners' behalf. Consequently, while the petitioners may be unhappy with the road improvement plan, it is a reasonable use of the easement by the Calandruccis.

In their sixth claim for relief, petitioners contend that the Conservation Board acted [*7]without a quorum, and that their approval of the application was arbitrary and capricious, a violation of lawful procedure and an abuse of process (petition/complaint, ¶149-154). However, the record reflects that at its meeting on September 13, 2005, four members of the Conservation Board, constituting a quorum, voted to recommend approval of the application. While petitioners aver that the minutes indicate that two members resigned during the meeting, the minutes fail to state the effective date or time of their resignations and evidence that all four members participated in the meeting. Thus, absent proof to the contrary, this Court finds that the Conservation Board acted with the required quorum. In light of this determination, the seventh claim of relief that the Planning Board was required to have a super-majority vote to approve the application because the Conservation Board did not have a quorum (petition/complaint, ¶155-160) is invalid and the Planning Board's vote must be sustained.[FN11]

The tenth claim for relief summarily asserts that the actions of the Planning Board imposed conditions and restrictions on the petitioners' future activity and subsequent use of the property and was arbitrary, capricious, in violation of lawful procedure and an abuse of discretion (petition/complaint, ¶169-172). This contention is unfounded, as is petitioners' eleventh and last claim for relief that alleges that the Planning Board's approval violated Town Law §280-a.

Finally, it must be noted that petitioners' assertions, not previously raised in their petition/complaint, that there was no legal subdivision of the property and therefore, the Planning Board violated General Municipal Law §239-f, Real Property Law §334 (Griffin Memorandum of Law at 23; Seligson Memorandum of Law at 11-17) and Town Law §276, §277, §279 (Seligson Memorandum of Law at 19-23) are misguided. More than sixty years ago, the then owner of the property and surrounding parcels, Ernest L. Fraccia, effectively subdivided his property into the lots now owned by the Caladruccis, Seligson, Griffins, Larsen and the Marino Group, LLC. Admittedly, no subdivision map was ever filed in the Office of the County Clerk of Westchester, but the road and the adjoining parcels were created before the Town's subdivision regulations took effect in 1972, and before the Town's zoning regulations were adopted in 1959 (Ciarcia Affidavit ¶39). As such, there is no requirement that the Calandruccis now seek subdivision approval (cf, Wasserman v Planning Bd. of Village of Dobbs Ferry, 281 AD2d 635 [2001]).

In light of the foregoing, the approval of the Calandruccis' application was not arbitrary or capricious or irrational and should be sustained. Wherefore it is

ORDERED and ADJUDGED that the petition/complaint is hereby dismissed and the cross-motion for an injunction is denied.

Dated:White Plains, New York

September 5, 2006/S/

___________________________________

HON. JONATHAN LIPPMAN, J.S.C.

To: Footnotes

Footnote 1:This parcel is 15.9 acres and was purchased in 1980.

Footnote 2:The Calandruccis assert that it is questionable whether the Seligson parcels can be developed. They aver that the larger parcel, purchased in 1986, is substandard in size and there is limited area to place a septic system. The smaller parcel is .09 acres and cannot be developed. (Ciarcia Affidavit ¶28).

Footnote 3:The Marino Group, LLC is the owner of real property designated as Sheet 36.12, Block 2, Lot 6 on the Somers Tax Map. According to a title search, a prior conveyance of Lot 6 (the "Marino parcel") included ownership of one-half of the right of way, however, a subsequent deed in the chain of title dropped reference to the fee title to the right-of-way. The Marino Group, LLC has agreed to grant a grading easement to the Calandruccis for the road improvements.

Footnote 4:Anita Larsen ("Larsen") owns a parcel along the road which is improved with a single family residence. The previous owner of this parcel improved approximately 400 feet of the road to access the house. Larsen also owns a vacant parcel located near the beginning of the road and has agreed to allow the Calandruccis to construct a storm water detention basin as part of the drainage plan for the construction.

Footnote 5:The Amawalk Reservoir is located north and west of the property. A buffer area of land between the property and the Reservoir is owned by the New York City Department of Environmental Protection ("DEP"). On May 13, 2004, the DEP and the Westchester County Department of Health ("DOH") approved a septic permit for the residence.

Footnote 6:Section 148-6(B)(2) of the Somers Town Code requires that the Planning Board seek the permanent preservation of such extremely and very steep slopes (slopes 25% and over) by such means as the use of "imaginative and innovative site design."

Footnote 7:The application, as revised, depicted a footprint of the residence that was reduced from the initial proposal of 4,230 square feet to 3,505 square feet. Further, pursuant to the Conservation Board's request, the Calandruccis agreed to encumber the portion of the property bordering the Amawalk Reservoir with a Conservation Easement.

Footnote 8:The Planning Board and Conservation Board considered the environmental report prepared by Tim Miller Associates which analyzed the visual impact of the application and concluded that the proposed residence will not seriously affect the woodland habitat.

Footnote 9:It is notable that notwithstanding the revisions made to the road improvement plan, petitioners were not satisfied. The Calandruccis's expert explains that Seligson demanded that the road be built at a higher elevation so that it would rise up the hill of rock located in front of her property in the event she ever wished to extend the road. In his view, Seligson's counterproposal "makes no engineering or planning sense" (Ciarcia Affidavit ¶7) and would leave the Griffins without reasonable access to their property (Ciarcia Affidavit ¶8).

Footnote 10:In their ninth claim for relief, petitioners similarly allege that the Planning Board action in approving the application relating to the road improvement was null and void because the Calandruccis did not have contractual rights to acquire the property or the consent of the owner (petition/complaint, ¶164-168).

Footnote 11:Although petitioners' baldly assert in their eighth claim for relief that the Conservation Board's approval was under duress by the Planning Board, there is no affidavit from any of its members or other proof in the record to corroborate this claim (petition/complaint, ¶161-163).