M & M Partnership v. Sweenor

• Decision Date: 01 December 1994
• Citation: 210 A.D.2d 575,619 N.Y.S.2d 802
• Parties: In the Matter of M & M PARTNERSHIP et al., Respondents, v. Alfred J. SWEENOR, as Town Engineer of the Town of Plattsburgh, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 802

619 N.Y.S.2d 802

210 A.D.2d 575

In the Matter of M & M PARTNERSHIP et al., Respondents, v. Alfred J. SWEENOR, as Town Engineer of the Town of Plattsburgh, et al., Appellants.

Supreme Court, Appellate Division Third Department.

Dec. 1, 1994.

Madonna, Saxer, Anderson & Wolinsky (Edward W. Wayland, of counsel), Plattsburgh, for appellants.

Lawliss & Lawliss (Timothy J. Lawliss, of counsel), Plattsburgh, for respondents.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Ryan Jr., J.), entered June 2, 1993 in Clinton County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Planning Board of the Town of Plattsburgh denying petitioners' application for subdivision plat approval.

Petitioners filed an application for a commercial subdivision with respondent Planning Board of the Town of Plattsburgh (hereinafter the Board). On May 9, 1989, the Board approved the preliminary subdivision plan subject to certain conditions, including the requirement that the revised paper plan be in compliance with a lengthy list of changes, additions and modifications to be approved by respondent Town Engineer. One requirement was that hydraulic tabulations were to be provided to insure that the existing drainage patterns would receive no more water after the improvements as existed in the drainage pattern prior to development.

After considerable delay petitioners claimed to have satisfied all the conditions imposed, although the Town Engineer disagreed, and petitioners requested authorization from the Board to commence development. The Board found that requirements on drainage, in particular the hydraulic calculations showing that the amount of water leaving the site after construction would be the same as already existed and would not impact adjacent landowners, had not been established by petitioners' engineers and thus the conditions set by the Board had not been met. This proceeding to annul the Board's determination was commenced, and Supreme Court granted the petition and directed the Board to approve petitioners' maps and plans and to authorize construction. It is from this judgment that respondents appeal.

Petitioners argue that this court does not have jurisdiction over this appeal. We find this argument to be without merit, and although the decision of Supreme Court was improperly designated an order (see, CPLR 7806), where the entire proceeding has been resolved, the relief sought has been granted and a judgment is final, an appeal to this court lies as of right (see, Matter of Pelaez v. Waterfront Comm. of N.Y. Harbor, 48 N.Y.2d 1021, 425 N.Y.S.2d 781, 402 N.E.2d 120; Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v. Dashnaw, 83 A.D.2d 980, 443 N.Y.S.2d 713; see also, CPLR 5701[a][1].

Town Law § 276 authorizes a town planning board to approve subdivision plats, and a planning board may condition its approval of a preliminary plat upon modifications it deems necessary for the submission of the plat in final form (Town Law § 276[3]. ¹ In addition, Town Law § 277 provides that in approving plats a planning board shall review such conditions as sewers and drains to insure that the land can be used safely without danger of flooding or similar problems.

A review of the record indicates that petitioners' engineer acknowledged that due to an increase of surfaces impervious to water such as roads, parking lots and roofs, existing drainage patterns would be burdened beyond present amounts, at least during times of storm runoffs, which could create...