Angiolillo v. GREENBURGH

• Decision Date: 03 December 2001
• Citation: 735 N.Y.S.2d 66,290 A.D.2d 1
• Parties: In the Matter of DOMINICK ANGIOLILLO, JR., et al., Respondents-Appellants,<BR>v.<BR>TOWN OF GREENBURGH et al., Respondents, and WBRC CORPORATION et al., Appellants-Respondents. (Appeal No. 1.)<BR>In the Matter of DOMINICK ANGIOLILLO, JR., et al., Appellants,<BR>v.<BR>TOWN OF GREENBURGH et al., Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

290 A.D.2d 1

735 N.Y.S.2d 66

In the Matter of DOMINICK ANGIOLILLO, JR., et al., Respondents-Appellants,

v.TOWN OF GREENBURGH et al., Respondents, and WBRC CORPORATION et al., Appellants-Respondents. (Appeal No. 1.)

In the Matter of DOMINICK ANGIOLILLO, JR., et al., Appellants,

v.TOWN OF GREENBURGH et al., Respondents. (Appeal No. 2.)

December 3, 2001.

Greene & Zinner, P. C., White Plains (Stanley S. Zinner of counsel), for appellants-respondents in Appeal No. 1 and WBRC Corporation and another, respondents in Appeal No. 2.

Thomas J. Abinanti, White Plains, for respondents-appellants in Appeal No. 1 and appellants in Appeal No. 2.

Susan A. Mancuso, Town Attorney, Elmsford (Edward M. Lieberman of counsel), for Town of Greenburgh and another, respondents in Appeal Nos. 1 and 2.

FRIEDMANN, H. MILLER and SMITH, JJ., concur.

OPINION OF THE COURT

S. MILLER, J. P.

Among the issues to be decided herein is one that is claimed to have a potentially unsettling impact upon properties developed in accordance with an accepted zoning practice. Does the combination of undeveloped, preexisting, nonconforming building lots require site-plan approval before a home may be built on the resulting conforming lot? In this case, where a developer has combined 15 such nonconforming lots into five buildable conforming lots upon which it seeks to erect, in effect, a five-home subdivision, the answer is clearly yes.

A second issue, one of apparent first impression, is perhaps of greater significance. Notwithstanding the established rule of law prohibiting the alienation of parkland, may excess land taken for the purpose of constructing a parkway be sold without specific legislative approval? Because a parkway is not the same as a park, we hold that such excess parkway property may be sold.

I

In 1929, the Town of Greenburgh (hereinafter the Town) approved a subdivision map which divided the property known as Orchard Hill into lots that measured 25 feet by 100 feet. The lots that are the subject of this controversy were originally part of that subdivision. In the 1950's, the State of New York acquired a large tract of land in the Town, including the subject lots, for the purpose of constructing the Sprain Brook Parkway. There is no evidence in the record as to how the subject lots were used before, during, or after the construction of the Sprain Brook Parkway.

On January 12, 1999, the New York State Department of Transportation auctioned "surplus property," including the subject unimproved lots on Kathwood Road. The lots were sold in two parcels, consisting respectively of .457 acres and .687 acres. On June 14, 1999, the Commissioner of Transportation conveyed the two parcels to the WBRC Corporation (hereinafter WBRC) by two quitclaim deeds.

Subsequent to the filing of the original subdivision map in 1929, the Town amended its zoning ordinance by, inter alia, increasing the minimum required lot-size for the construction of a single-family home from 2,500 to 7,500 square feet. Thus, when WBRC applied for building permits to construct five single-family homes, it planned to create five conforming lots of 7,500 square feet each by combining three contiguous substandard lots of 2,500 square feet each. In a letter dated November 10, 1999, the Town Attorney advised the Town Building Inspector, John Lucido (hereinafter the Inspector), that the subject property was not dedicated parkland and there was no impediment to issuing building permits. Lucido approved the building permits in late 1999 and early 2000. As soon as WBRC received the building permits, it began clearing trees, excavating the property, and constructing the foundations for the houses.

II

On March 16, 2000, a group of neighboring homeowners protested the issuance of the building permits by appealing to the Zoning Board of Appeals (hereinafter the ZBA). Additionally, seven homeowners commenced the instant hybrid article 78 proceeding and declaratory judgment action against the Town, the Inspector, and the property owners, WBRC and Baker Roofing (hereinafter collectively the developers, unless otherwise noted). The petitioners sought, among other items of relief, a judgment declaring that the building permits are null and void, a permanent injunction, and a judgment declaring that the property is inalienable parkland which must be restored to its natural condition.

The petitioners asserted that the Inspector issued the building permits in error since the subject property was dedicated parkland which could not be used for residential purposes, the lots were not legally subdivided, the Planning Board had not approved the site plan, and the construction project required SEQRA review. In support of their application for a preliminary injunction, the petitioners noted that they had filed an appeal with the ZBA challenging the issuance of the permits but, "due to a heavy calendar," the ZBA had not yet reached the matter. The petitioners feared that they would be irreparably harmed in the absence of prompt judicial intervention because the developers planned to construct prefabricated houses, which would be completed before the issues could be considered by the ZBA or the court.

In a verified answer dated April 28, 2000, the Town and the Inspector denied that they acted in an arbitrary and capricious manner. In an opposing affidavit, the Inspector claimed that the Town had a long-standing practice of issuing building permits to applicants who combined substandard lots into conforming lots and that the combination of lots did not require subdivision approval as long as the external lot lines coincided with the lot lines on the 1929 subdivision map.

The developers interposed an answer and moved to dismiss the proceeding pursuant to CPLR 7804, arguing, inter alia, that the petitioners lacked standing to challenge the building permits, and that the building permits were validly issued.

The Supreme Court initially denied the petitioners' request for a temporary restraining order to give the ZBA the opportunity to rule on the matter in May 2000. However, the developers asked the ZBA for an "as of right adjournment" to its June meeting. In the interim, the Planning Board, upon the ZBA's request, issued an advisory opinion which indicated that the building permits should not have been issued without its prior approval. The Supreme Court thus held a hearing on May 31, 2000, on the petitioners' renewed request for a temporary restraining order, after which the court, inter alia, temporarily enjoined the developers from commencing or continuing any work at the site, or selling any of the lots. Although the ZBA heard the appeal regarding the building permits on June 22, 2000, it adjourned the matter to July 13, 2000, without any resolution.

In an order and judgment (one paper) entered July 11, 2000, the Supreme Court denied the developers' application to vacate the temporary restraining order and also denied their motion to dismiss the article 78 proceeding. The Supreme Court determined that the petitioners had standing to challenge the building permits, a matter not contested on appeal, and rejected the exhaustion of administrative remedies arguments. Although the Supreme Court stated that it would have preferred that the ZBA dispose of the appeal before the matter was presented for judicial review, the court noted that the developers had purposely delayed the administrative remedy that the petitioners allegedly failed to exhaust.

Turning to the merits of the petition, the Supreme Court concluded that the subject property was neither acquired nor dedicated for use as a "park," but rather, for use as a "parkway," and no legislative action was required before the property could be conveyed and used for other purposes. In addition, the Supreme Court determined that the Inspector did not have the authority to issue building permits for newly-drawn lots without the prior approval of the Planning Board. Accordingly, the Supreme Court granted the petition to the extent of declaring that the permits issued by the Inspector to WBRC for the construction of single-family residences on the subject property were "annulled and vacated, ab initio." The Supreme Court denied the petitioners' request for a permanent injunction preventing the development of the property and directing that it be restored to its natural condition, with leave to reargue, subject to the developers making an application for relief from the Planning Board.

The developers now appeal from each and every part of the order and judgment, except those portions which, in effect, determined that the property was not a dedicated parkland and denied the petitioners' request for a permanent injunction. The petitioners cross-appeal from so much of the order and judgment as denied their application for a judgment declaring that the subject lots could not be used for any purpose other than a park/parkway without legislative action.

III

On August 4, 2000, the petitioners moved, in effect, for leave to renew that branch of their petition which was for a judgment declaring that the subject lots were "not available for use other than for `park and parkway' purposes." In support of the motion, the petitioners' attorney informed the Supreme Court that after its decision became public, he acquired "new evidence" when a community group concerned with the preservation of parkland sent him a copy of the statute that created the Sprain Brook Parkway and Rochambeau Park. Specifically, he noted that chapter 834 of the Laws of 1951 required that the land comprising the parkway shall "forever be reserved and maintained by the state for the use and enjoyment of the public" and that the State shall maintain the right of way "in perpetuity" for "park and parkway purposes and for no other purposes."

In opposition to the motion, the developers asserted, inter alia, that the Commissioner of Transportation had the authority to sell those portions of the land that were not...