Matter of Western Sullivan O.R.E. LLC v Town of Thompson Planning Bd.

[*1] Matter of Western Sullivan O.R.E. LLC v Town of Thompson Planning Bd. 2016 NY Slip Op 51329(U) Decided on September 21, 2016 Supreme Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2016
Supreme Court, Sullivan County

In the Matter of Western Sullivan O.R.E., LLC, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York,

against

Town of Thompson Planning Board, Judd Wishnow, ABTB LLC and G & C Lentini Corp., Respondents.



0460-16



Kenneth C. Klein, Esq., 4880 State Route 52, Post Office Box 600, Jeffersonville, NY 12748, Attorneys for Petitioner

Michael B. Mednick, Esq., 544 Broadway—Suite 4, Monticello, New York 12701, Attorney for Respondent Town of Thompson Planning Board

Marvin Newberg, Esq., 33 North Street, Monticello, NY 12701, Attorney for Respondents Judd Wishnow and ABTB LLC

Michael, D. Altman, Esq., Post Office Box 835, South Fallsburg, NY 12779, Attorney for Respondent G & C Lentini Corp.
Frank J. LaBuda, J.

Petitioner commenced this CPLR Article 78 proceeding challenging determinations by the Respondent Town of Thompson Planning Board (hereinafter, "Planning Board"), which issued a negative declaration and granted site plan approval to Respondents Judd Wishnow (hereinafter, "Wishnow") and ABTB LLC (hereinafter, "ABTB") for development of a Taco Bell fast food facility on property owned by Respondent G & C Lentini Corp. (hereinafter, "Lentini"), located at 4379 State Route 42, Town of Thompson, Sullivan County, New York, Tax Map Parcel 13-2-2.1 (hereinafter, "subject property"). All of the respondents oppose the application and allege the site plan approval by the Town was reasonable, did not violate any state, county or local laws, and was not arbitrary and capricious.

Factual and Administrative Procedural Background

On or about November 25, 2015, ABTB and Wishnow applied to the Planning Board for site plan approval to develop the subject property as a Taco Bell fast food facility. That [*2]application included an engineer approved drawing, entitled "Site Plan." By letter dated January 26, 2016, Petitioner informed the Planning Board that the Site Plan, as proposed for the subject property, was objectionable because in its current configuration the proposed development of the subject property would "unlawfully prevent use" by Petitioner of a 15 foot wide right of way (hereinafter, "right of way") as a means of ingress and egress from an adjacent parcel of property that is contiguous to the subject property.

The parties do not dispute that Petitioner owns property located at 59 Lanahan Road, Town of Thompson, Sullivan County, New York, Tax Map 13-2-2.3 (hereinafter "Lanahan Property"). The Lanahan Property has access to Lanahan Road. The parties further agree that the current, recorded deed for the subject property, recorded by Lentini when it purchased the subject property, indicates the Lanahan Property has the benefit of a 15 foot wide right of way and a 10 foot wide sewer easement over, across, and through the subject property for access to and from State Route 42. State Route 42 is a major commercial roadway. The development along State Route 42 in the vicinity of the subject property consists of a large strip mall with Home Depot, Staples, and ShopRite as anchor stores. There are banks, auto-related businesses, a diner, a commercial bakery, and numerous gas stations and other small businesses on State Route 42 in the immediate vicinity of the subject property.[FN1]

Upon receipt of the Taco Bell application, the Town of Thompson engineer, Richard McGoey (hereinafter, "McGoey") commenced review of the proposed project. McGoey and an engineer for Taco Bell met on or about December 9, 2015, to review the application and prepare for the initial meeting with the Planning Board. That same date, December 9, 2015, the applicants appeared before the Planning Board. They provided the Planning Board with an updated Site Plan and addressed concerns expressed by the Town of Thompson engineer. The Planning Board reviewed the necessary environmental factors with which the applicants had to comply, obligations pursuant to the State Environmental Quality Review Act (hereinafter, "SEQRA"), and discussed, at length, the existing 15 foot wide easement and how it would affect ingress to and egress from the subject property and heavily trafficked State Route 42. A public hearing was scheduled for January 13, 2016.

Subsequent to the December 9, 2015, meeting, the record indicates that Taco Bell's engineer submitted the application, all plan sheets, location maps, Short EAF, and all other necessary information to the Sullivan County Division of Planning for GML-239 review, as is required for the type of project proposed. The submission was also sent to the New York State Department of Transportation (hereinafter, "DOT") for its review of the proposed project and any potential effects it might have on State Route 42. The Town of Thompson engineer conducted a second review of the proposed project and made additional comments to the applicant concerning numerous issues, including DOT comments and requirements, landscaping, curbing, and other related matters.

At the January 13, 2016, public hearing at which anyone could comment on the proposed project, the Planning Board received a letter, dated January 13, 2016, from George W. Kinne, Jr. (hereinafter, "Kinne"), President and CEO of Jeff Bank, on behalf of Petitioner (Petitioner is a wholly owned subsidiary of Jeff Bank). The letter addressed Petitioner's right of way over the subject property. Kinne spoke at the January 13, 2016, meeting, at which he indicated that "the bank has no objection to the construction of the restaurant, but would hate to see the right-of-way restricted." Kinne's letter was made part of the public hearing record. After the hearing, the Town of Thompson engineer and Taco Bell's engineer exchanged updated technical materials and addressed outstanding environmental issues.

On or about January 26, 2016, Petitioner's attorney sent correspondence to the Planning Board indicating Petitioner objected to the proposed Site Plan, taking the position that the Site Plan effectively restricted their deeded right of way to and from State Route 42. The letter further indicated that if the Site Plan was approved, Petitioner "shall have no choice but to take the appropriate action to enforce its valuable property rights." On January 27, 2016, the Planning board met, again, to review the matter. The parties agree that the main focus of the review was Petitioner's 15 foot wide right of way to and from State Route 42. The record from the January 27, 2016, meeting indicates the Town's engineer expressed concern over the proposed Site Plan, specifically with respect to safety issues involving traffic movement within the subject property. The Planning Board discussed adding the two rights of way together, to create a 25 foot wide right of way to allow for two-way traffic. It was clear at the meeting, however, that Taco Bell objected to any expansion of the right of way. The planning Board ultimately indicated it needed more time to consider the proposed site Plan and related issues regarding the right of way. The Planning Board adjourned the matter to February 10, 2016, for further review. In the interim, the Planning Board received a memo from Glenn Smith on behalf of the applicant, addressing Petitioner's issues regarding the right of way. The Planning Board also received letters from Lentini's attorney on January 26, 2016, and February 10, 2016, which objected to the Planning Board even considering the privately deeded 15 for wide right of way when reviewing and considering the proposed project. The Lentini letters unequivocally indicated Lentini would institute legal action if the Planning Board failed to act on the proposed Taco Bell project.

At the February 10, 2016, meeting, a member of the Planning Board made a motion to go into Executive Session, which was seconded by another board member. The Planning Board took the position on February 10, 2016, and maintains the position now, that it was caught in the middle of a private dispute between adjoining landowners and was being threatened with litigation by the various parties if a decision was not made accordingly. The record indicates that the Planning Board met in Executive Session, with its attorney, Paula Elaine Kay, Esq., and that no action was taken during the Executive Session.

When the Planing Board returned to the regular February 10, 2016, meeting, Taco Bell presented a revised Site Plan (hereinafter, "Revised Site Plan"). It is the Respondents' position that the Revised Site Plan addressed the safety issues with regard to Petitioner's 15 foot wide right of way. The Revised Site Plan shifted the Taco Bell ingress/egress traffic lanes approximately five to six feet, placing Petitioner's 15 foot wide right of way in the center of the subject property's traffic lanes, thereby changing the amount of space available for traffic flow. The Revised Site Plan also included moving a dumpster away from the right of way and [*3]installing a sewer line stub under the parking lot to protect Petitioner's sewer line easement. It is the Respondents' position that the proposed Revised Site Plan addressed all of the safety issues previously raised, and left Petitioner's 15 foot wide right of way "untouched, unrestricted and in the same condition it has existed in over the past 30 years without any interference whatsoever." After review, the Planning Board issued a negative declaration on the environmental impacts of the proposed project and approved the Revised Site Plan.

Petitioner now argues that the Planning Board's determination was in violation of numerous laws, to wit: (1) the Planning Board failed to conduct a Sketch Plan Conference as required by Section 250-50(D)(1) of the Town of Thompson Zoning Law (hereinafter, "Zoning Law"); (2) the Planning Board failed to comply with SEQRA requirements; (3) the February 10, 2016, Executive Session was unlawful; (4) approval of the proposed project violated the Zoning Law; (5) the Planning Board failed to render findings of fact as required by law; and (6) the Planning Board's determination was arbitrary, capricious, unsupported by substantial evidence and an abuse of discretion regarding issues of public health, safety and welfare. Petitioner requests that this Court (1) annul the Planning Board's February 10, 2016, decision, (b) direct the Planning Board to cancel any permits or grants made to Lentini, ABTB and/or Wishnow for approval of the proposed project, and (3) grant judgment in favor of Petitioner and against Lentini, ABTB and Wishnow, declaring that Petitioner, its guests, tenant, business invitees, successors and assigns are entitled to use and enjoyment of the right of way or any purpose to which it may naturally and reasonably be devoted, including but not limited to use as a means of ingress and egress between the Lanahan Property and State Route 42, and enjoining Lentini, ABTB and/or Wishnow from developing the subject property in accordance with the Site Plan and/or the revised Site Plan.

For the reasons stated below, Petitioner's Article 78 petition and additional request for injunctive relief are denied in their entirety.

Discussion and Analysis

Judicial Review of Administrative Determination

It is well established that the very limited standard which governs judicial review of administrative determinations pursuant to Article 78 is whether the determination was arbitrary and capricious, and that a reviewing court is therefore restricted to an assessment of whether the action in question was taken "without sound basis in reason and...without regard to the facts." Matter of Pell v. Board of Education, 34 NY2d 222, [1974]; Kenton Associates, Ltd. v. Division of Housing and Community Renewal, 225 AD2d 349 [1st Dept. 1996]. Moreover, in order to maintain the limited nature of this review, it is incumbent upon a court to defer to the agency's construction of the statutes and regulations that it administers as long as that construction is not irrational or unreasonable. Albano v. Kirby, 36 NY2d 526 [1975]; see also Salvati v. Eimicke, 72 NY2d 784 [1988]. The reviewing court in a proceeding pursuant to CPLR Article 78 will not substitute its judgment for that of a local board or agency unless it clearly appears that the board's or agency's decision was arbitrary, capricious, or contrary to the law. Massa v. City of Kingston, 235 AD2d 947 [3rd Dept. 1999]; see also Hauser v. Town of Webb, 34 AD3d 1353 [4th Dept. 2006].

Local town boards have broad discretion in considering land use or other applications; judicial review is limited to determining whether the action taken by the board was illegal, [*4]arbitrary or an abuse of discretion. Ifrah v. Utschig, 98 NY2d 304 [2002]; Matter of Sasso v. Osgood, 86 NY2d 374 [1995]. A board's determination may not be set aside in absence of illegality, arbitrariness or abuse of discretion, and such determination will be sustained if it has a rational basis and is supported by substantial evidence. SoHo Alliance v. New York City Board of Standard and Appeals, 95 NY2d 437 [2000]. Also, the court must give deference to factual evaluations within an agency's area of expertise. Violet Realty Inc. v. City of Buffalo Planning Board, 20 AD3d 901 [4th Dept. 2005]); Matter of City of Rensselaer v. Duncan, 266 AD2d 657 [3rd Dept. 1999].

In the context of environmental review, agencies and boards have considerable latitude in the exercise of discretion and a court may not substitute its judgment for that of the agency or board. Apkan v. Koch, 75 NY2d 561 [1990]; see also Eadie v. Town Board of the town of North Greenbush, 7 NY3d 306 [2006]. If a planning board's findings pursuant to SEQRA review are supported by the record, a court will not disturb such findings. See Orchards Associates v. Planning Bd. of the Town of North Salem, 114 AD2d 850 [2nd Dept. 1985]. It is not a court's role or function to second guess a lead agency's SEQRA determination by weighing the desirability of proposed actions. Riverkeeper, Inc. v. Planning Board of the Town of Southeast, 9 NY3d 219 [2007]. It is established case law that reasonable doubts regarding a lead agency's environmental decision must be resolved in favor of the lead agency. See Town of Henrietta v. Department of Environmental Conservation of the State of New York, 76 AD2d 215 [4th Dept. 1980]. The Court of Appeals has held that judicial review in this context is limited to determining whether an administrative board's action was illegal, arbitrary, or an abuse of discretion. Toys-R-Us v. Silva, 89 NY2d 411 [1996].

The issuance of findings of fact are unnecessary when a Court is able to ascertain the factual findings and basis for a board's decision when a review of the record, return, a petitioner's claims, submissions by the parties, and other considerations indicate a board's determination has a rational basis. See Dietrich v. Planning Board of Town of West Seneca, 118 AD3d 1419 [4th Dept. 2014]. Similarly, an agency determination will not be held invalid, even when specific findings of fact to support that decision are not set forth in the determination if it can be ascertained from a review of the entire record that the decision had a rational basis. Matter of Fischer v. Markowitz, 166 AD2d 444 [2nd Dept. 1990].

It is also well established law that a local board may meet in Executive Session, closed to the public, to discuss threatened or proposed litigation. POL §§10(a); 105(1)(d). If no action is taking during the Executive Session, there is no basis for enforcement. POL §107(1). Even if a court determines there was a violation of the Open Meetings Law, any action taken by a board is "not void but, rather, voidable." See Matter of Ireland v. Town of Queensby Zoning Bd. of Appeals, 169 AD2d 73 [3rd Dept. 1991].

Judicial Determination of Easement

When the language granting an easement " contains no restrictions or qualifications and the purpose of the easement is to provide ingress and egress, any lawful use within the contemplation of the grant is permissible' [citations omitted]." Albright v. Davey, 68 AD3d 1490, 1492 [3rd Dept. 2009]; see also Arnold v. Fee, 148 NY 214 [1896]. When an easement is created by an express grant to provide undefined ingress and egress, "the rule of construction is that the reservation refers to such right of way as is necessary and convenient for the purpose for [*5]which is was created." Village of Larchmont v. City of New Rochelle, 100 Misc 2d 463, 466 [Sup. Ct. Westchester Co. 1979].

In determining an easement, a court will ascertain, amongst other things, if the claimed use of the easement is lawful. Phillips v. Jacobson, 117 Ad2d 785 [2nd Dept. 1986]. Unrestricted or unbounded grants are enforceable provided the use of the easement is "lawful and is one contemplated by the grant." Id., at 786. For an easement granting use by motor vehicles, the width of a the vehicles contemplated to use the easement must allow such vehicles "to fit within the...limit of the easement." Dalton v. Levy, 258 NY 161, 167 [1932]. "[I]n the absence of a demonstrated intent to provide otherwise, [however,] a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired." Lewis v. Young, 92 NY2d 443, 449 [1998]. "As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder." Id., citing Bakeman v. Talbot, 31 NY 366, 371 [1865]. Similarly, in Grafton v. Moir, 130 NY 465 [1892], the Court of Appeals held,

When the right of way is not bounded in the grant, the law bounds it by the line of reasonable enjoyment. The defendant, as owner of the land, has the right to use it in any way that he sees fit, provided he does not unreasonably interfere with the rights of the plaintiff. All that is required of him is that he shall not so contract the [easement], either vertically or laterally, as to deprive the plaintiff of a reasonable and convenient use of the right of passing to and fro. Thus the grant of a right of way "through and over" a space twenty feet wide, was held to be "the grant of a convenient way within those limits." Id., at 471, citations omitted....[A] right of way reserved, but not specifically defined[,]..be only such as is reasonably necessary and convenient for the purpose for which it was created. Id.***If the [easement] in question had been protected by a restriction..., the [easement] would have shown on its face that it was the purpose of the parties to create something more than a mere right of passage. Id., at 474.

Furthermore, a court will consider whether a current easement " is reasonably necessary and convenient for the purpose for which it was created.'" Serbalik v. Gray, 268 AD2d 926, 928 [3rd Dept. 2000], citing Dalton, supra.

Analysis

Article 78 Petition/Review

At the outset, this Court has considered Petitioner's argument regarding the lack of findings of fact by the Planning Board, and rejects said argument. The Court finds that the record before the Court, including the submissions by the parties and the entire return/record from the Planning Board in regard to this matter, contain sufficient facts and details from which this Court can ascertain whether the Planning Board's decision was arbitrary and capricious. See Dietrich, supra. Therefore, this Court finds no reason to invalidate the decision of the Planning Board. Matter of Fischer v. Markowitz, supra.

In addition, before turning to the merits of Petitioner's arguments, this Court finds that the Town of Thompson Planning Board did not violate the Open Meetings Law when it went into [*6]Executive Session during the February 10, 2016, public meeting. Contrary to Petitioner's arguments, the record shows that the Planning Board correctly exercised its discretion to go into Executive Session; the record before this Court unequivocally demonstrates that letters from various parties indicated said parties would take legal action (proposed litigation), should the Planning Board not issue a decision on the pending application and Revised Site Plan. POL §§10(a); 105(1)(d). Furthermore, the record demonstrates that the Planning Board took no action during the Executive Session. Therefore, there is nothing for this Court to review, uphold, or vacate. POL §107(1).

Turning, now, to Petitioner's claim that the Planning Board's decision was arbitrary and capricious, and not supported by substantial evidence, a review of the record and all submissions indicates that the Town of Thompson Planning Board's negative finding under SEQRA and decision to grant a building permit were not arbitrary and capricious, and were wholly supported by substantial evidence and the record.

The record shows that throughout the process, the Planning Board considered the subject easement. During the initial meetings between the engineers and after the initial appearance by Taco Bell on December 9, 2015, the Planning Board was well aware of the easement, traffic pattern and safety concerns, and considered the Site Plan and Revised Site Plan with consideration of the easement. While the Planning Board and town engineer had safety concerns over the traffic flow in the Taco Bell parking lot in conjunction with the easement, the record also shows that Taco Bell revised the Site Plan to address the concerns specific to the easement and safety issues, and the town engineer was satisfied with said revisions; the Planning Board, also satisfied with the Revised Site Plan, approved the project, subject to approval by DOT and the town engineer. It is not for this Court to substitute its judgment for that of the Planning Board concerning the safety of the parking lot configuration, building placement, and traffic lane/parking space locations. Massa v. City of Kingston, supra; Violet Realty Inc. v. City of Buffalo Planning Board, supra. It is presumed that the Planning Board has the expertise to evaluate the safety and feasibility of a proposed project, particularly one located on a very busy commercial roadway. Matter of City of Rensselaer v. Duncan, supra.

In addition, this Court finds no merit to Petitioner's argument that the Planning Board approved this project without first conducting a "sketch plan conference" as required by Town Code §250-50(D)(1), which states,

Sketch plan conference. Prior to the formal submission of a site development plan, the applicant shall meet with the Planning Board. The purpose of such a conference shall be to discuss the proposed uses and/or development in order to determine which of the elements listed in Subsection E shall be submitted to the Planning Board so that the Board may act upon the proposal.

The Planning Board argues, and this Court agrees, that the initial December 9, 2015, meeting between Taco Bell and the Planning Board constituted a sketch plan conference as contemplated by the Town Code. Taco Bell's presentation to the Planning Board consisted of a map with numerous, handwritten, or sketched, plans. It was on this presentation that Taco Bell and the Planning Board met to discuss the specific criteria the Planning Board would need to review upon submission of the Site Plan and how to move the matter forward. At that meeting, the Planning Board reviewed the proposed development, and discussed preliminary issues that [*7]needed to be addressed by a formal site plan. The record indicates that Taco Bell did not formally submit the Site Plan at the December 9, 2015, meeting. To the contrary, the record indicates that Taco Bell and the Planning Board met to do exactly what is contemplated in Town Code §250-50(D)(1). Petitioner has presented no evidence that the Planning Board violated Town Code §250-50(D)(1) or other procedure when it conducted the open meeting with Taco Bell on December 9, 2015, and the matter was then recalendared for submission of a Site Plan for review at a later open meeting date.

Likewise, the record contains ample evidence to support the Planning Board's argument that it properly reviewed the environmental impact of the proposed project. The Planning Board approved the SEQRA Short environmental Assessment Form, which shows no substantial impacts regarding this action. The record indicates that the town engineer made technical reviews of the proposed project on November 30, 2015, January 7, 2016, January 19, 2016, and February 2, 2016. The Taco Bell engineer addressed all comments made by the town engineer and the engineers addressed any environmental impacts until they were resolved. Comments by DOT were also received and reviewed, especially considering the easement and traffic flow on Route 42. The Sullivan County Division of Planning and Environmental management conducted a GML-239 County review, as well, and the Planning Board reviewed and considered those findings.

Petitioner has presented no evidence or arguments to overcome the fact that the record demonstrates the Planning Board, as the Lead Agency pursuant to SEQRA, completed the Short Form Environmental Assessment Form, answered every question in Part II, and verified that all 11 impact categories had no, or a small level of, impact. The record shows that the Planning Board analyzed criteria such as community character, emergency services, storm water management, water supply, sanitary sewer service. Traffic, hazardous materials, and construction impacts. The Planning Board, having found that the area is zoned properly, has commercial traffic, is exclusively commercial in nature, has a municipal water supply and sewer, and that the proposed project would have minimal construction impacts and did not involve the use of hazardous materials, issued a negative declaration, confirming the proposed project would not result in any significant environmental impact. There is nothing in the record to support Petitioner's claim that the Planning Board's negative declaration was unlawful or unsupported by the record. Therefore, this Court cannot, and may not, disturb the Planning Board's determination. Orchards Associates v. Planning Bd. of the Town of North Salem, supra; see also City of Rye v. Korff, 249 Ad2d 470 [2nd Dept. 1998], lv denied 92 NY2d 808 [1998]. The Planning Board met its burden and responsibility of taking a "hard look" at the relevant areas of environmental concern prior to making its determination and issuing a negative declaration. See Environmental Defense Fund v. Flacke, 96 AD2d 862 [2nd Dept. 1983]. It is not for this Court to second guess whether the Planning Board, in this case also the Lead Agency under SEQRA, got it right; it is only for this Court to determine whether the record supports the determination and decision by the Planning Board, which this Court finds the record does. Riverkeeper, Inc. v. [*8]Planning Board of the Town of Southeast, supra.[FN2]

The Planning Board was under no obligation or duty to enhance or increase the private easement. Nor did, or does, the Planning Board have the right or legal ability to enforce or expand the easement, or to direct the parties to increase the privately deeded rights and obligations between them. The record demonstrates that the Planning Board reviewed the Site Plan, Revised Site Plan, and considered environmental impacts as was required by the law. Petitioner has presented no evidence to support his arguments that the Planning Board violated any rules, codes, ordinances or laws with regard to its consideration of the Taco Bell project. What the record does who, is that the Planning Board went to great lengths to consider the private easement throughout its review of this project; that it considered the easement for ingress and egress at every step of the process when reviewing the plans for traffic flow and safety.

Declaratory Relief

Before turning to the arguments presented, this Court finds, as a matter of law, that Petitioner has a valid, recorded easement, as described in the deed for the subject property conveyed to Lentini, said subject property located at 4379 State Route 42, Town of Thompson, Sullivan County, New York, Tax Map Parcel 13-2-2.1, and recorded in the Sullivan County Clerk's office on December 27, 2011 as Instrument No. 2011-8549.

The crux of Petitioner's argument for declaratory relief is that the configuration of the original Site Plan proposed for the subject property would have unlawfully prevented Petitioner from using the easement as egress to State Route 42 because the configuration of the Site Plan placed the easement "almost entirely" within the ingress traffic lane of the proposed project. After the town engineer expressed concerns regarding "conflicting movement of cars" in connection with traffic flow in and out of the Taco Bell lot from Route 42, as well as traffic patterns through the easement, Taco Bell revised the Site Plan. In the Revised Site Plan, as described in more detail, supra, Taco Bell shifted the interior ingress and egress lanes of traffic by five to six feet, thereby centering Petitioner's easement in the middle of the site's traffic lanes. Petitioner's argument with respect to the Revised Site Plan is that the new configuration of the traffic flow into and out of the proposed Taco Bell site creates a more hazardous condition than the original Site Plan because it allows for two-way traffic. Petitioner argues that the Revised Site Plan forces egress from the Lanahan Property into oncoming traffic from Route 42 into the subject property, and channels ingress within the easement head-on into traffic exiting the subject property onto Route 42.

Aside from the fact that there are no commercial, residential or other structures on the Lanahan Property at this time, and it is currently up for sale, this Court finds the record does not support Petitioner's arguments and contentions regarding the scope of the easement and the degree to which Lentini is restricted with respect to development of the subject property.

The subject property, now vacant, has had numerous eating establishments operating on the site for many decades, including the landmark restaurant known as "Lefty's." The Lanahan [*9]Property, for decades, was home to LeWinter Bungalow Colony, a seasonal vacation property.[FN3] Petitioner acquired the Lanahan Property through a foreclosure sale, held by Jeff Bank. As indicated, supra, Petitioner is a wholly owned subsidiary of Jeff Bank. The easement was created decades ago. The record and submissions before this Court indicate it was created for the purpose of vehicular ingress from and egress to State Route 42. Village of Larchmont v. City of New Rochelle, supra. Although the 15 foot easement, itself, is specified by location as described in the deed to Lentini, there are no indications in the record that use or development of the subject property is restricted due to the existence of the easement.

While the 15 foot wide easement may be lawful and safe for vehicular travel on, through and over the subject property, the record and maps indicate it cannot be lawfully used as a 15 foot entrance from State Route 42 for vehicular travel to a commercial, residential or other development on the Lanahan Property. See New York State DOT Policy and Standards for the Design of Entrances to State Highways, Section 5A, et seq. Petitioner's argument that the easement is exempt from the current 24 foot wide requirement for a driveway from State Route 42, plus the curb angles of 22.5 feet, because it existed prior to May 7, 2015, is incorrect. As pointed out by Wishnow and ABTB, the exemption only applies to entrances and exits from existing businesses. There are no existing businesses on the Lanahan Property or the subject property, and therefore the DOT requirements must be met when either property is developed, if either property wishes to have a driveway connected to State Route 42. The DOT regulations additionally require that when there is an expansion or change to an existing business or land use, which is expected to increase the traffic flow on a state highway through an existing driveway, it may be necessary that the property owner improve the driveway or highway, including widening for safe and efficient flow of traffic. Therefore, in its present state, while the Court finds the easement may be safely used within the property line boundary of the subject property, this Court finds that the 15 foot easement cannot be used safely or lawfully for ingress from or egress to State Route 42 on its own. See Phillips v. Jacobson, supra. Because the easement is limited to 15 feet, it cannot be widened or modified to conform to the existing DOT requirements, and therefore cannot, as a matter of law, provide a driveway entrance from State Route 42, through, on or above the subject property, to any development on the Lanahan Property. Id.

Furthermore, while the Court recognizes Petitioner's right to use the easement for any lawful use as contemplated by the grant, see Albright v. Davey, supra, at 1492, the record before this Court, including the deed to Lentini, fails to demonstrate that the easement confers anything more than a right to ingress and egress over, through, or on the subject property. Lewis v. Young, supra; see also Village of Larchmont v. City of New Rochelle, supra, at 466. Because Petitioner has failed to demonstrate any intent with respect to this easement, other than a right-of-way for ingress and egress, Lentini, Wishnow, and ABTB, may develop the subject property in any manner they wish, as long as the use is lawful, safe, and does not impair Petitioner's right of passage over, through, or on the easement. Lewis v. Young, supra, at 449. That includes paving over the easement with asphalt or other material to create a parking lot and/or driveway for the Taco Bell project. Id.

The Court has considered Petitioner's other arguments and finds them to be without merit.

Based upon the above, it is therefore

ORDERED, that the motion to annul and vacate the determination of Respondent Planning Board, pursuant to CPLR Article 78 is hereby denied in its entirety; and it is further

ORDERED, that Petitioner's request for declaratory relief is granted to the extent that the Court finds Petitioner has a lawful easement for ingress and egress over, on, and through the subject property; and it is further

ORDERED, that Petitioner's request for an order from this Court declaring that the easement may be used for any purpose to which it is devoted is denied, as such use of the easement is hereby limited to ingress from and egress to State Route 42; and it is further

ORDERED, that Petitioner's request for an order from this Court enjoining Respondents Lentini, Wishnow, and ABTB from developing the subject property in accordance with the approved Revised Site Plan is hereby denied.

This shall constitute the Decision and Order of this Court.

DATED: September 21, 2016

Monticello, New York

HON. FRANK J. LaBUDA, AJSC

Papers Considered:

1. Notice of Petition/Summons, by Kenneth C. Klein, Esq., dated March 24, 2016

2. Verified Petition/Complaint with Exhibits, by Kenneth C. Klein, Esq., and George W. Kinne, Jr., dated March 24, 2016

3. Affirmation and Answer with Exhibit, by Marvin Newberg, Esq., dated June 17, 2016

4. Affidavit with Exhibit, by John Lentini, dated July 20, 2016

5. Affirmation, by Michael B. Mednick, Esq., dated June 16, 2016

6. Affidavit of Paula Elaine Kay, Esq., dated June 17, 2016

7. Memorandum of Law, by Michael B. Mednick, Esq., dated June 16, 2016

8. Verified Answer, by William Rieber, dated June 17, 2016

9. Verified Answer, by Michael D. Altman, Esq., dated June 17, 2016

10. Reply Affirmation with memorandum of Law and Exhibits, by Kenneth C. Klein, Esq., dated July 10, 2016

11. Sur-Reply Affirmation with Exhibits, by Marvin Newberg, Esq., dated July 21, 2016

12. Affirmation with Exhibit, by Kenneth C. Klein, Esq., dated August 4, 2016

13. Record of Town of Thompson dated May 31, 2016 Footnotes

Footnote 1:It should also be noted that Exit 105B from State Route 17, a four to six lane highway, empties onto State Route 42 north, which takes traffic into the heavily commercial area as described above. In addition, although Exit 106 from State Route 17 is anticipated to be the major exit from which vehicles will find their way to the new gambling casino (expected to open in 2017 or early 2018), Exit 105B will be an alternate Route for those heading east on State Route 17. Local traffic may likely use State Route 42 out of Monticello, toward Kiamesha Lake, to get to the casino, as well.

Footnote 2:Petitioner's argument that the Planning Board's negative declaration must be vacated because the Planning Board classified the Taco Bell project as a Type I action that required a full EAF (6 NYCRR §617(a)(2)), and a full EAF was not had, has been considered and is rejected. The record clearly establishes that the reference to the proposed project as a Type I action was in error by the town engineer, and other than that erroneous reference, the entire matter was treated as a Type II or Unlisted action that did not require a full EAF.

Footnote 3:All of the structures from the former LeWinter Bungalow Colony were demolished in 2014 and the Lanahan Property has been cleared. It currently sits as a vacant property.