Ctr. of Deposit, Inc. v. Vill. of Deposit

• Decision Date: 03 July 2013
• Citation: 2013 N.Y. Slip Op. 05037,108 A.D.3d 851,968 N.Y.S.2d 731
• Parties: In the Matter of CENTER OF DEPOSIT, INC., Petitioner, v. VILLAGE OF DEPOSIT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 851

968 N.Y.S.2d 731

2013 N.Y. Slip Op. 05037

In the Matter of CENTER OF DEPOSIT, INC., Petitioner,

v.VILLAGE OF DEPOSIT et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 3, 2013.

Jonathan M. Landsman, New York City, for petitioner.

Mackenzie Hughes, LLP, Syracuse (Michael J. Livolsi of counsel), for respondents.

Before: ROSE, J.P., STEIN, SPAIN and GARRY, JJ.

STEIN, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Delaware County) to, among other things, review two determinations of respondent Village of Deposit Planning Board which denied petitioner's application for subdivision approval.

Petitioner is the owner of a 2.974–acre parcel of real property located in the Village of Deposit, Broome and Delaware Counties that contains two vacant buildings—a three-story building that was formerly a school and a smaller metal building. In August 2009, petitioner filed an application with respondent Village of Deposit Planning Board (hereinafter the Board) to subdivide the property into two lots, with each of the new lots to contain one of the buildings. On October 28, 2009, the Board held a public hearing and, in conjunction with its review under the State Environmental Quality Review Act ( see ECL art 8 [hereinafter SEQRA] ), thereafter issued a positive declaration of environmental significance and required petitioner to submit a draft environmental impact statement.

Petitioner then commenced a proceeding pursuant to CPLR article 78 seeking to overturn the Board's positive declaration. As pertinent here, this Court reversed the Board's determination and remitted the matter to the Board for further proceedings (Matter of Center of Deposit, Inc. v. Village of Deposit, 90 A.D.3d 1450, 1454, 936 N.Y.S.2d 709 [2011] ). On remittal, the Board ultimately issued a negative declaration of environmental significance on March 9, 2012. Following public meetings and a public hearing held on March 28, 2012, the Board issued two determinations, both of which denied petitioner's subdivision application.¹ Petitioner commenced the instant CPLR article 78 proceeding challenging those determinations which, upon transfer to this Court, we now confirm.

Initially, we reject petitioner's argument that the Board's denial of the subdivision application was untimely, resulting in a default approval of the application. Under the Village Law, when a planning board determines that an environmental impact statement is not required, a public hearing must be held within 62 days of the submission of a complete preliminary plat (Village Law § 7–728[6][d][i][1][a] ). Significantly, “[t]he time periods for review of such plat shall begin upon filing of [a] negative declaration” (Village Law § 7–728[6][c] ). A decision on the final plat must then be rendered within 62 days of the public hearing ( seeVillage Law § 7–728[6] [d] [i][3][a] ), and the failure to issue a timely decision results in a default approval ( seeVillage Law § 7–728[8] ). Here, the Board issued a negative declaration on March 9, 2012, held a public hearing 19 days later, and immediately issued a determination denying the subdivision application.

Petitioner contends that, because the Board held a public hearing on the application in October 2009, it lacked any authority to conduct additional hearings, and the time within which the Board was required to issue a determination on the subdivision application began to run when this Court set aside the initial positive declaration. We do not agree. Pursuant to Village Law § 7–728(6)(c), a public hearing on the subdivision application must follow the filing of the negative declaration under SEQRA ( accord Matter of Kittredge v. Planning Bd. of Town of Liberty, 57 A.D.3d 1336, 1340, 870 N.Y.S.2d 582 [2008];seeTown Law § 276[6][c] ). Thus, the hearing held in October 2009—prior to the issuanceof the negative declaration—could not satisfy the hearing requirement under the Village Law, and the Board had 62 days after the issuance of the negative declaration in March 2012 to hold a public hearing, and an additional 62 days after the hearing to render a decision on the application. Inasmuch as the Board met those deadlines, petitioner was not entitled to a default approval of its application ( see Matter of Benison Corp. v. Davis, 51 A.D.3d 1197, 1198, 857 N.Y.S.2d 798 [2008] ).

Next, while we agree with petitioner that the record impermissibly contains evidence that was not before the Board as part of its administrative review ( see Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 717 N.Y.S.2d 79, 740 N.E.2d 224 [2000];Matter of Shuler v. New York City Hous. Auth., 88 A.D.3d 895, 896–897, 931 N.Y.S.2d 329 [2011];Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 757, 455 N.Y.S.2d 814 [1982],affd.58 N.Y.2d 952, 460 N.Y.S.2d 534, 447 N.E.2d 82 [1983] ) and we have not considered such evidence,² we are unpersuaded by petitioner's substantive challenge to the Board's determinations denying the subdivision application. It is now well established that “[a] local planning board has broad discretion in reaching its determination on applications for subdividing property, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion” ( Matter of Fuentes v. Planning Bd. of the Vil. of Woodbury, 82 A.D.3d 883, 884, 918 N.Y.S.2d 213 [2011],lv. denied17 N.Y.3d 707, 2011 WL 3925134 [2011] [internal quotation marks and citations omitted]; see Matter of MLB, LLC v. Schmidt, 50 A.D.3d 1433, 1435–1436, 856 N.Y.S.2d 296 [2008] ). The Village of Deposit Local Law requires that the Board set forth its reasons for denying a subdivision application ( see Village of Deposit Local Law for Subdivision Review § 304[D] ). In this regard, under the Village Law, plats must comply with existing zoning law ( seeVillage Law § 7–730[3] ) and the applicant is required to establish that the “land can be used...