Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd.

• Decision Date: 19 March 1999
• Citation: 688 N.Y.S.2d 848,253 A.D.2d 342
• Parties: 1999 N.Y. Slip Op. 2455 Matter of PENFIELD PANORAMA AREA COMMUNITY, INC., Respondent-Appellant, v. TOWN OF PENFIELD PLANNING BOARD, Respondent, and Chrisanntha, Inc., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 848

688 N.Y.S.2d 848

1999 N.Y. Slip Op. 2455

Matter of PENFIELD PANORAMA AREA COMMUNITY, INC., Respondent-Appellant, v. TOWN OF PENFIELD PLANNING BOARD, Respondent and Chrisanntha, Inc., Appellant-Respondent.

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

March 19, 1999.

Kevin McAuliffe, for appellant-respondent.

Alan Knauf, for respondent-appellant.

Joseph Platania, for respondent.

PRESENT: DENMAN, P.J., PINE, PIGOTT, JR., CALLAHAN and BALIO, JJ.

DENMAN, P.J.:

Respondent Chrisanntha, Inc. (Chrisanntha) appeals and petitioner cross-appeals from a judgment (denominated order and judgment) of Supreme Court that annulled a determination by respondent Town of Penfield Planning Board (Planning Board) approving a cluster subdivision. The court held that the cluster subdivision violated height requirements of the Town of Penfield Zoning Ordinance (Zoning Ordinance); the court, however, dismissed the remaining causes of action. We conclude that the court properly annulled the Planning Board's determination approving the cluster subdivision, but for reasons different from those stated by the court in its decision.

In 1996 Chrisanntha submitted to the Planning Board a sketch plan for two seven-story 100-unit apartment buildings and eight townhouse units in a Multiple Residence (MR) district. After numerous meetings with members of the Planning Board and other municipal officials, Chrisanntha applied for cluster subdivision approval of two eight-story apartment buildings with 212 units, 24 townhouses, and two lots with existing residences. In conjunction with that application, Chrisanntha submitted a "Conventional Zoning Plan", dated August 28, 1997, showing what could be built on the parcel as zoned, subject to legal and physical requirements.

Because the Planning Board concluded that the project might have a significant adverse impact on the environment, a Draft Environmental Impact Statement (DEIS) was prepared, a public hearing Petitioner/plaintiff (hereinafter petitioner), a nonprofit organization made up of citizens residing in the vicinity of the project, filed a CPLR article 78 petition/complaint (hereinafter petition) for a declaratory judgment challenging the approval on the following grounds: the density calculations violated Town Law § 278 and the Zoning Ordinance; Town Law § 278 did not authorize the Planning Board to grant height variances; the application of Town Law § 278 was not appropriate because there was no "subdivision" of land; the Zoning Ordinance required greater parking than was provided in the application; the project did not "benefit the town" as required by Town Law § 278(3)(a); the project violated the provisions of the Town's Environmental Protection Overlay District (EPOD); and the environmental impact review process pursuant to the State Environmental Quality Review Act (SEQRA) ( ECL art 8; 6 NYCRR part 617) was flawed. In response to the petition, Chrisanntha and the Planning Board argued that petitioner did not have standing because it was formed after the Planning Board approved the project. Initially, we agree with the court's conclusion that petitioner has standing because its members satisfied their burden of establishing that they were aggrieved by the project (see generally, Matter of Dental Socy. of State of N.Y. v. Carey, 61 N.Y.2d 330, 474 N.Y.S.2d 262, 462 N.E.2d 362; Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317). We note that petitioner has limited the arguments in its brief to the issues of height variance, density calculation, subdivision, EPOD and SEQRA violations, and alteration of nonconforming uses. Thus, petitioner has abandoned any contentions with regard to dismissal of the remaining causes of action (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

was held, and comments on the DEIS were submitted by members of the public. Following issuance of the Final Environmental Impact Statement (FEIS), the Planning Board approved the project subject to various conditions, including a requirement that Chrisanntha "perform specific site characterization that will result in an acceptable remedial action plan" for the cleanup of hazardous waste on the site. That condition further required Chrisanntha to seek approval of its remedial action plan from the Monroe County Department of Health (MCDOH) and the New York State Department of Environmental Conservation (NYSDEC).

HEIGHT VARIANCE

The court concluded that Town Law § 278 did not authorize the Planning Board to vary height restrictions set forth in the Zoning Ordinance and thus granted the petition, annulled the determination and remanded the issue of a height variance to the Zoning Board of Appeals. That was error.

"Cluster development * * * is a form of subdivision development which enables units to be located on a site in a manner that does not comply with the bulk requirements of the applicable zoning law * * * Cluster development enables dwellings or other structures to be constructed on the most suitable portion of the property, thereby resulting in the preservation of tracts of land in their natural state.

"In order to accomplish the clustering of development, a town board may authorize the planning board to approve an alternate development which deviates from minimum area, side and rear yard, depth, frontage, and similar requirements"

(Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 278, 1999 Pocket Part, at 303). The Court of Appeals has held that, pursuant We conclude that, pursuant to Town Law § 278, planning boards have the authority to allow deviation from applicable height requirements. There is no significant distinction between the authority to vary "outward" restrictions, such as setbacks, and the authority to vary "upward" restrictions. In both cases, the use of the property is not changed (see, Matter of Boyadjian v. Board of Appeals, 136 A.D.2d 548, 523 N.Y.S.2d 548 [fences are permitted uses, thus request for a higher fence requires an area variance, not a use variance] ). The statute itself suggests that a planning board has the authority to vary height restrictions by the requirement therein that the applicant provide the planning board with a plat showing the cluster development, 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, streets, driveways and any other features required by the planning board" (Town Law § 278[d] [emphasis added] ). The purpose of the cluster subdivision statute is "to enable and encourage flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands" (Town Law § 278[b] ). Allowing a planning board to consider deviations from height restrictions is no different from allowing it to consider deviations from other size restrictions and will not "authorize a change in the permissible use of such lands as provided in the zoning ordinance or local law applicable to such lands" (Town Law § 278 ). Thus, the court erred in granting the relief sought in the petition with respect to the second cause of action and remanding the matter to the Zoning Board of Appeals.

                to Town Law § 278, a planning board has the discretion to "permit deviation from applicable minimum area, side and rear yard, depth, and frontage requirements" (Matter of Bayswater Realty & Capital Corp. v. Planning Bd., 76 N.Y.2d 460, 467, 560 N.Y.S.2d 623, 560 N.E.2d 1300).   The issue raised on this appeal, which appears to be one of first impression in New York, is whether, pursuant to Town Law § 278, the Planning Board may permit deviation from applicable height requirements as part of cluster subdivision approval, or whether that determination must be made by the Zoning Board of Appeals, which otherwise is empowered to grant area variances
                

DENSITY CALCULATION

Petitioner further contends that the Planning Board's density calculation violated Town Law § 278 and the Zoning Ordinance because the Planning Board failed to subtract certain acreage in making its density calculation. The Planning Board responds that it properly considered each of the issues raised by petitioner and subtracted all appropriate acreage. We conclude that the Planning Board erred in failing to subtract acreage for roads and streets and for storm water detention areas in making its density calculation.

"The determination of the permissible density of development is a key stage in the processing of a cluster application.

"A conventional subdivision layout is required in order to determine the density for a cluster development [citations omitted]. The proposed plat must result in a standard layout that, consistent with applicable zoning regulations and practical considerations, could be approved by a planning board. Therefore, the conventional plat must depict lots which comply with all requirements of the zoning law and must consider environmental constraints on development as well as roads, parks and other attributes which would reduce the development yield of the property"

(Rice, op. cit., at 306).

The statute provides that a "cluster development shall result in a permitted number of building lots or 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 or local law applicable to the district or districts in which such land is situated and conforming to all other applicable requirements" (Town Law § 278[b] ). Thus, an applicant must first provide the municipality with a plan showing maximum usage of the property in accordance with applicable zoning and other lawful restrictions (see, Done Holding Co. v. State of New York, 144 A.D.2d 528, 534...