Ozols v. Henley
| Decision Date | 27 April 1981 |
| Citation | 438 N.Y.S.2d 349,81 A.D.2d 670 |
| Parties | In the Matter of Roald OZOLS, Respondent, v. Earle B. HENLEY, Jr., et al., constituting the Planning Board of the Town of New Castle, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Lawrence Dittelman, Chappaqua, for appellants.
Thomas J. Singleton, Mount Kisco (Pamela V. Rubin, Mount Kisco, on brief), for respondent.
Before DAMIANI, J. P., and MANGANO, GIBBONS and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of New Castle, which, after a hearing, denied petitioner's application for approval of a subdivision plat, the appeal is from a judgment of the Supreme Court, Westchester County, dated October 22, 1980, which, inter alia, annulled the determination.
Leave to appeal is granted by Mr. Justice DAMIANI.
Judgment reversed, on the law, without costs or disbursements, the Town of New Castle is added as a party respondent, the petitioner is directed to serve a supplemental notice of petition and petition on the town and matter remitted to Special Term for further proceedings in accordance herewith.
Petitioner is the owner of approximately 13 acres of land which is situated between Sheather Road and Tripp Street in the Town of New Castle. Petitioner applied to the Planning Board of the Town of New Castle for approval of a proposed five lot subdivision plat for this parcel. The plat complies with the town's zoning ordinances. Four of the lots would front on Tripp Street, and the remaining lot would front on Sheather Road. Both streets are owned by the Town of New Castle. The Planning Board denied subdivision approval upon the ground that "the addition of four new building lots on Tripp Street without road improvements would create a clear and present safety hazard to the public and particularly to the present residents and the potential owners of the four new lots." Additionally, the Planning Board found that the proposed building lot fronting on Sheather Road would not present any danger to traffic, and approved development on said lot. Special Term annulled the Planning Board's determination and directed the Planning Board (1) to reconsider the application without regard to offsite problems; and (2) to approve the application in the event that the only reason for non-approval is the deficiency of Tripp Street.
The Planning Board has been given authority to approve subdivision plats by sections 276 and 277 of the Town Law and chapter 113 of the Code of the Town of New Castle. The board may properly consider the impact of the proposed development on adjacent territory, including the effects on traffic safety (see Matter of Pearson Kent Corp. v. Bear, 28 N.Y.2d 396, 322 N.Y.S.2d 235, 271 N.E.2d 218; Beekman Props. v. Planning Bd. of Town of East Fishkill, 75 A.D.2d 798, 427 N.Y.S.2d 509). There was substantial evidence to support the board's finding that the new development would create a safety hazard due to the inadequate condition of Tripp Street. The determination thus has a rational basis and cannot be considered arbitrary or capricious (see Matter of Cowan v. Kern, 41 N.Y.2d 591, 394...
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...board is only a necessary party if the constitutionality or validity of its zoning ordinance is questioned (see Matter of Ozols v. Henley, 81 A.D.2d 670, 438 N.Y.S.2d 349; app. dsmd. 54 N.Y.2d 1023, 446 N.Y.S.2d 263, 430 N.E.2d 1316; Matter of Nassau Children's House v. Board of Zoning Appe......
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