Clinton v. Summers
| Citation | 144 A.D.2d 145,534 N.Y.S.2d 473 |
| Parties | In the Matter of Donald J. CLINTON, et al., Respondents, v. Clifford F. SUMMERS, III, et al., Respondents, and Lake George Association, Proposed Intervenor-Appellant. |
| Decision Date | 20 October 1988 |
| Court | New York Supreme Court Appellate Division |
Nixon, Hargrave, Devans & Doyle (Thomas West, of counsel), Albany, for proposed intervenor-appellant.
Walter O. Rehm, III, Lake George, for respondents.
Before MAHONEY, P.J., and KANE, CASEY, YESAWICH and MERCURE, JJ.
MAHONE Presiding Justice.
Appeals (1) from an order of the Supreme Court (Dier, J.), entered October 29, 1987 in Warren County, which denied an application by Lake George Association for permission to intervene in a proceeding pursuant to CPLR article 78, and (2) from a judgment of said court, entered October 29, 1987 in Warren County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Town of Lake George Planning Board imposing certain conditions on the approval of petitioners' site plan.
Petitioners own real property in the Town of Lake George, Warren County, upon which they own and operate a motel. On May 7, 1987, respondent Town of Lake George Planning Board approved the subdivision of petitioners' property into two lots such that lot No. 1 would consist of 2.42 acres with approximately 178 feet of frontage on Lake George and lot No. 2 would contain 4.82 acres with no frontage on the lake. At the time of the approval of the subdivision, all rental units of the motel were to be located on lot No. 2. On lot No. 1 petitioners proposed to build a single-family residence.
Construction of the single-family residence on lot No. 1 started pursuant to a building permit issued on June 24, 1987. Meanwhile, petitioners submitted a site-plan application to the Town Planning Board seeking approval of additional motel units on lot No. 2, as well as expansion of existing units, construction of a swimming pool, creation of additional parking facilities and construction of other amenities. At a June 7, 1987 public hearing held on petitioners' application, petitioners indicated that they would prohibit all vehicular traffic by motel guests across newly designated lot No. 1 and all use of the lake shore for docking and boating purposes. However, petitioners informed the Town Planning Board that it was not their intention to prohibit pedestrian use of lot No. 1 as a means of access to the lake.
Petitioners' site-plan review application was presented to the Warren County Planning Board, which recommended approval. The Town Planning Board thereafter rendered a negative declaration under the State Environmental Quality Review Act (hereinafter SEQRA) and approved the plan subject to certain conditions, the following two of which are the subject of this appeal: (1) that all motel occupants are prohibited from using the lakeshore property, and (2) that petitioners must construct a fence between lot No. 1 and lot No. 2 and post a sign on that fence stating that no motel occupants are permitted past that point.
Petitioners commenced a CPLR article 78 proceeding challenging the legality of the Town Planning Board's imposition of those two conditions. By order to show cause, the Lake George Association (hereinafter LGA) sought leave to intervene. Supreme Court denied LGA permission to intervene. Supreme Court also granted petitioners' application on the ground that the imposed conditions were arbitrary, capricious, illegal and without a rational basis. These appeals by LGA as proposed intervenor ensued. *
Supreme Court erred in denying LGA's request for permission to intervene. LGA's submissions established that LGA is comprised of approximately 4,000 members who either own property or regularly utilize Lake George for recreational purposes, that LGA membership is open to all Lake George residents and users, and that LGA's purpose is to preserve the environmental quality of the lake. Thus, it seems clear that LGA has a real and substantial interest in the proceeding (see, McDermott v. McDermott, 119 A.D.2d 370, 507 N.Y.S.2d 390, appeal dismissed 69...
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People v. Schofield
...[a] motion for intervention" ( Auerbach v. Bennett, 47 N.Y.2d 619, 628, 419 N.Y.S.2d 920, 393 N.E.2d 994 [1979] ; see Matter of Clinton v. Summers, 144 A.D.2d 145, 147 n., 534 N.Y.S.2d 473 [1988] ), and "this permissive determination lies within the [C]ourt's discretion" ( Matter of Pace–O–......
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89JPS, LLC v. Joint Vill. of Lake Placid, 0029–11.
...which is not reasonably designed to mitigate any demonstrable defects' is arbitrary and capricious (Matter of Clinton v. Summers, 144 A.D.2d 145, 147, 534 N.Y.S.2d 473 [1988];see also Matter of Castle Props. Co. v. Ackerson, 163 A.D.2d 785, 786–787, 558 N.Y.S.2d 334 [1990];Matter of Black v......
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Stockdale v. Hughes
...it should not be allowed to intervene (see, Matter of Black v. Summers, 151 A.D.2d 863, 864, 542 N.Y.S.2d 837; Matter of Clinton v. Summers, 144 A.D.2d 145, 147, 534 N.Y.S.2d 473; see also, CPLR 1013), particularly in light of the fact that the ZBA and its members have not appealed (see, Ma......
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People v. Schofield
... ... grant [a] motion for intervention" (Auerbach v ... Bennett, 47 N.Y.2d 619, 628 [1979]; see Matter of ... Clinton v Summers, 144 A.D.2d 145, 147 n [1988]), and ... "this permissive determination lies within the ... [C]ourt's discretion" (Matter of ... ...