Orrell v. Planning Bd., Town of Pound Ridge
| Decision Date | 17 February 1971 |
| Parties | Robert W. ORRELL et al., Petitioners, v. PLANNING BOARD, TOWN OF POUND RIDGE et al., Respondents. |
| Court | New York Supreme Court |
Kent, Hazzard, Wilson, Freeman & Greer, White Plains, for petitioners.
John F. Minicus, Katonah, for respondents.
Bleakley, Platt, Schmidt, Hart & Fritz, White Plains, for intervenors.
Upon application of the parties, the Court granted reargument of the respondents' motion for an order dismissing the petition, following the decision dated November 2, 1970.
Upon reargument, the respondents' motion for an order dismissing the petition is granted.
In this proceeding under CPLR Article 78, the petitioners attack a decision of the Planning Board of the Town of Pound Ridge, Westchester County. The decision was made by the respondents under the powers delegated to them by the Town Board under Section 281 of the Town Law. There was presented simultaneously a proceeding under CPLR Article 78 against the Town Board which petitioners attack for its participation in this matter. That proceeding is dealt with in a separate opinion.
The facts are not in dispute. The Town of Pound Ridge adopted a Zoning ordinance which became effective on November 14, 1959. Under that ordinance, the 75-acre parcel of land about which this controversy revolves was placed in two residential districts with minimum 2-acre and 3-acre bulk requirements. This parcel belongs to the intervenors Frank and Yates, who have planned to develop it. It is known in this proceeding as the Bernier parcel, because Frank and Yates selected a man named Bernier, who is a custom builder, to do the work of development and construction.
The Town Board determined to apply the principles of cluster zoning to the Bernier parcel and found legislative authority for its determination in Section 281 of the Town Law. That statute says:
' § 281. Approval of plats; conditions for changes in zoning provisions
The Town board is hereby empowered by resolution to authorize the planning board, simultaneously with the approval of a plat or plats pursuant to this article, to modify applicable provisions of the zoning ordinance, subject to the conditions hereinafter set forth and such other reasonable conditions as the town board may in its discretion add thereto. Such authorization shall specify the lands outside the limits of any incorporated village to which this procedure may be applicable. The purposes of such authorization shall be to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and preserve the natural and scenic qualities of open lands. The conditions hereinabove referred to are as follows:
(a) If the owner makes written application for the use of this procedure, it may be followed at the discretion of the planning board if, in said board's judgment, its application would benefit the town.
(b) This procedure shall be applicable only to lands zoned for residential purposes, and its application shall result in a permitted number of dwelling units which shall in no case exceed the number which could be permitted, in the planning board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning ordinance applicable to the district or districts in which such land is situated and conforming to all other applicable requirements.
(c) The dwelling units permitted may be, at the discretion of the planning board and subject to the conditions set forth by the town board, * * * in detached, semi-detached, attached or multistory structures.
(d) In the event that the application of this procedure results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes. The town board may require that such conditions shall be approved by the town board before the plat may be approved for filing.
(e) The proposed site plan, including areas within which structures may be located, the height and spacing of buildings, open spaces and their landscaping, off-street open and enclosed parking spaces, and streets, driveways and all other physical features as shown on said plan or otherwise described, accompanied by a statement setting forth the nature of such modifications, changes, or supplementations of existing zoning provisions as are not shown on said site plan, shall be subject to review and public hearing by the planning board in the same manner as set forth in sections two hundred seventy-six and two hundred seventy-seven of this article for the approval of plats.
(f) On the filing of the plat in the office of the county clerk or register, a copy shall be filed with the town clerk, who shall make appropriate notations and references thereto in the town zoning ordinance or map.'
On September 25, 1969, the Town Board adopted the following resolution:
'NOW, THEREFORE, and pursuant to the provisions of Section 281 of the Town Law of the State of New York, it is
'RESOLVED that the Town Board hereby authorizes the Planning Board to consider and approve, subject to the conditions hereinafter set forth, the open space subdivision proposed for the Bernier parcel, and authorizes the Planning Board 'to modify the applicable provisions of the Town Zoning Ordinance', such authorization to be limited and applicable solely to the aforesaid Bernier parcel, and be it further
'RESOLVED that 'the purpose of such authorization shall be to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provisions for streets and utilities and to preserve the natural and scenic qualities of open lands' within the Bernier subdivision, and be it further
'RESOLVED that the authorization hereby granted to the Planning Board shall be subject to the following conditions and limitations:
'1. This authority is limited to the Bernier Subdivision hereinabove described.
'2. The applicant shall in addition to submitting a proposed open space subdivision plan, submit a conventional subdivision plan conforming to all normally applicable requirements of the Zoning Ordinance. The planning board shall use such conventional plan to determine the maximum number of dwellings units to be permitted in the open space subdivision.
'3. All dwelling units located in the proposed open space subdivision shall be single family, detached structures on individual building lots.
'4. All such individual building lots shall contain at least one-half of the normally required minimum lot area and shall meet the requirements of the County Health Department.
'5. The minimum floor area per dwelling and the maximum building height shall be the same as specified for the district in which located.
'6. Other dimensional requirements, including lot width and depth, front, side and rear yard setbacks, shall be as required for the less restrictive district than that on which the lot is located, except that where such a lot abuts an existing residential lot which meets the normal lot area and dimensional standards for the zone, no reduction in front, side or rear yard setbacks shall be permitted.
* * *'.
On November 13, 1969, the Town Board adopted a further resolution which added the following condition:
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