Greene v. Brach

• Decision Date: 29 July 1970
• Citation: 63 Misc.2d 699,313 N.Y.S.2d 230
• Parties: Application of Mott GREENE, Anna B. Taylor, Harold A. Wood and Douglas F. McBride, Petitioners, v. Ralph BRACH, Victor McCord, Richard Parker, David Rosenbaum and Otto Gantner, Constituting the Planning Board of the Town of Shawangunk, in the County of Ulster, New York, Respondents.
• Court: New York Supreme Court

Page 230

313 N.Y.S.2d 230

63 Misc.2d 699

Application of Mott GREENE, Anna B. Taylor, Harold A. Wood

and Douglas F. McBride, Petitioners, v. Ralph BRACH, Victor McCord, Richard Parker, David Rosenbaum and Otto Gantner, Constituting the Planning Board

of the Town of Shawangunk, in the County

of Ulster, New York, Respondents.

Supreme Court, Albany County, Special Term.

July 29, 1970.

Gerald N. Jacobowitz, Walden, for petitioners.

St. John Ronder & Bell, Kingston, for respondents.

A. FRANKLIN MAHONEY, Justice.

In July of 1969 petitioners and others purchased acreage in the Town of Shawangunk, Ulster County, and had professional engineers and surveyors subdivide the property into a proposed development to be known as 'People's City', which development was to be funded by the Office of Economic Opportunity, United States Department of Housing and Urban Development.

The Town of Shawangunk has no zoning law. It has a town planning board, created pursuant to Article 16 of the Town Law, and said board was given the authority to approve plats for the subdivision of lands within the Town by resolution adopted by the town board on September 15, 1965. This authority was implemented by the adoption of 'Subdivision Regulations of the Town of Shawangunk Planning Board' on February 16, 1966.

The petitioners filed a preliminary plat with the planning board and, after a public hearing on January 6, 1970, the board disapproved the plat in a written memorandum dated Febrary 2, 1970. The board also forwarded to petitioners a three page statement entitled 'Comments on reasons for Disapproval of Preliminary Layout of People's City Subdivision' together with a two page statement entitled 'Requirements for Approval of Subdivision Plat of People's City Subdivision'. The prelimiary plat was revised and resubmitted after complying with all the board's requirements except (a) lot size (b) a community system of sanitary sewers (c) provision for burying cables and wires for electrical, telephone and cablevision services and (d) sidewalks and curbs. The resubmission was dated May 5, 1970. The board, by letter dated May 11, 1970, informed petitioners that the requirements as outlined in its memorandum of disapproval dated February 2, 1970 had not been met.

On June 5, 1970 this Article 78 proceeding was commenced seeking an Order voiding on grounds of illegality so much of the Subdivision Regulations of respondent Town that require preliminary plat approval and the procedures to obtain the same. Petitioners allege that no such requirements are mandated by section 276 of the Town Law. They are mistaken in this position. Section 276 of the Town Law, as amended by the laws of 1966, effective June 28, 1966, specifically requires the preliminary procedures that petitioners find arbitrarily offensive. Subdivision 1 of section 276 was amended so as to provide for conditional approval of preliminary plats. Two new subdivisions, numbered two and three, were added defining and distinguishing between a 'preliminary plat' and a 'plat' in final form and, further, authorizing legally constituted planning boards to require the submission of preliminary plats. Respondent Town's Subdivision Regulations contain such a requirement and, next, particularize in great detail the required content of a preliminary plat and the mechanics of presenting it for approval. The petitioners have...